source: Caselaw Access Project

author: FISHER, Circuit Judge.

license: Public Domain

text:
    UNITED STEEL PAPER AND FORESTRY RUBBER MANUFACTURING ALLIED INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION AFL-CIO-CLC, Appellant v. GOVERNMENT OF the VIRGIN ISLANDS; Governor of the Virgin Islands; Angel Dawson, Finance Commissioner; Debra Gottlieb, Director of Management and Budget St. Croix Federation AFT Local 1826; Rosa Soto-Thomas, Appellants v. Governor of the Virgin Islands; VI Comm. of Finance Angel Dawson, Jr.; Dir. of Viomb Debra Gottlieb; 29th Legislature of the Virgin Islands; Virgin Islands Department of Education; Government of the Virgin Islands
    No. 14-4357, No. 14-4358
    United States Court of Appeals, Third Circuit.
    Argued: December 8, 2015
    (Filed: November 15, 2016)

      Nathan L. Kilbert, Esq., [Argued], Daniel M. Kovalik, Esq., United Steelworkers of America, Five Gateway Center, 60 Boulevard of Allies, Room 807, Pittsburgh, PA 15222, Counsel for Appellant United Steel Paper and Forestry Rubber Manufacturing Allied Industrial and Service Workers International Union AFL-CIO-CLC
    Amos W. Carty, Jr., Esq., Law Offices of Richard P. Bourne-Vanneck, 9800 Buccaneer Mall, Suite 9, St. Thomas, VI 00802, Counsel for Appellant St. Croix Federation AFT Local 1826 and Rosa Soto-Thomas
    Joss N. Springette, Esq., Office of Collective Bargaining, 3438 Kronprindsens Gade, Second Floor, St. Thomas, VI 00802, Samuel A. Walker, Esq., [Argued], Office of Attorney General of Virgin Islands, 6040 Castle Coakley, Christiansted, VI 00820, Counsel for Appellees
    Before: FISHER, KRAUSE and ROTH, Circuit Judges.
   OPINION OF THE COURT

FISHER, Circuit Judge.

In 2011, the Virgin Islands faced a severe budget crisis as a result of the economic recession. In response to this crisis, the Government of the Virgin Islands enacted the Virgin Islands Economic Stability Act of 2011 (“VIESA”), 2011 V.I. Sess. Laws 84, which reduced most Government employees’ salaries by 8%. Many of the Government employees, however, were covered by collective bargaining agreements negotiated on their behalf by their representative unions. The collective bargaining agreements, agreed to and signed by the Governor on behalf of. the Government, set forth detailed salary and benefit schedules to be paid to covered Government employees.

The unions brought suit alleging that the salary reductions in VIESA constituted an impermissible impairment of the collective bargaining agreements, in violation of the Contract Clause of the United States Constitution. The District Court, after a bench trial, held that VIESA did not violate the Contract Clause. We will reverse.

I.

A.

Beginning in 2009, the Virgin Islands experienced a fiscal crisis: for the fiscal year 2009, the Government projected a budget deficit in excess of $300 million; in 2010, the deficit was $275 million; in 2011, after initially predicting a small surplus, a revised report projected a $75.1 million deficit for 2011 and a $131.5 million deficit for 2012. On February 22, 2010, Debra Gottlieb, from the Government’s Office of Management and Budget, testified before the Virgin Islands Legislature. She warned the Legislature of the financial crisis, stating that “the territory’s cash balances are precariously low,” App. 321, 328, and that the operating deficit for fiscal year 2009 was estimated to be $159 million. She predicted that the operating deficit would continue throughout fiscal year 2011.

As an initial response to the crisis, on June 5, 2009, the Virgin Islands Legislature authorized the Governor to borrow up to $500 million. Despite borrowing, the situation continued to worsen, and so from December 30, 2010, to June 21, 2011, the Government undertook additional measures to combat the deficit. It imposed a marine terminal user’s tax of $1 per cruise ship passenger; reduced appropriations to the executive branch by 3%, or $17.7 million; reduced appropriations to the judicial branch by 3%, or $1.1 million; increased the tax on all gross receipts from 4% to 4.5%; increased the hotel tax from 8% to 10%; increased marriage licensing fees, liquor-licensing fees, court filing fees, fines for traffic violations, and the motor-vehicle rental surcharge; and reduced its expenditures related to its employment functions, including limiting energy consumption, freezing all hires, and cutting back on training and travel.

Notwithstanding these measures, the Government projected a deficit of $17.4 million for 2011, $90.1 million for 2012, and $49.9 million for 2013. In response, the Government considered implementing several additional cost-cutting measures, including laying off 600 Government employees, eliminating some or all of the eighteen paid Government holidays, instituting furloughs and workweek reductions for Government employees, and increasing the gross-receipts tax. By June 21, 2011, the Governor had exhausted his $500 million statutory borrowing authorization, and the Government had made only interest payments on its debt.

B.

The Government ultimately rejected these cost-cutting measures, and instead adopted VIESA. Under VIESA, all employees of the executive and legislative branches of the Government whose annual salary exceeded $26,000 would receive an 8% reduction in pay, but no employee’s salary would be reduced below $26,000. The legislation also allowed any employee who had attained thirty years or more of service to retire and receive a one-time payment. As a result of VIESA, the Government projected savings of approximately $28 million annually. VIESA passed the Legislature on June 22, 2011, and was signed into law by the Governor on July 5, 2011. The salary reductions contained in VIESA expired on July 3, 2013.

C.

. Many of the affected union employees were subject to collective bargaining agreements. Relevant for our purposes, the Appellants—United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (“USW”), the American Federation of Teachers Local 1826 (“AFT”), and one of AFT’s vice presidents (collectively, the “Unions”)—had negotiated collective bargaining agreements on their members’ behalf.

USW is party to four collective bargaining agreements: a Master agreement, which covers all 1,000 employees and became effective on October 1, 2009; a Supervisors agreement, effective on October 1, 2005 and set to expire on September 30, 2008, but later extended on a day-to-day basis; a Non-Supervisors agreement, effective on. October 1, 2008; and an Enforcement Officers agreement, effective on October 1, 2009. The Master and Non-Supervisors agreements were concluded in October 2010.

. The USW collective bargaining agreements set forth detailed payment schedules that specify the wages or salaries and benefits for all of the employees covered in the agreements. The Master agreement called for a 2.5% pay increase from the previous year. The USW Supervisors, Non-Supervisors, and Enforcement Officers collective bargaining agreements provide that the Government may. reduce the workforce through layoffs; they also provide that the member employees will not strike during the duration of the agreement. Those three agreements further set forth grievance and arbitration procedures that allow for adjudication of any dispute. The Non-Supervisors and Enforcement Officer agreements provide that no modification to the agreement is effective unless agreed to in writing by both USW and the Government; the Supervisors agreement states that the parties are bound by the agreement and will comply with all terms and conditions in the agreement.

. AFT is party to three collective bargaining agreements—one for each type of employee it represents: professionals, paraprofessionals, and support staff. All three collective bargaining agreements were effective September 1, 2007, and set to expire on August 31, 2011, but have been extended on a day-to-day basis. These collective bargaining agreements were concluded in May 2009, but they were made retroactively effective from September 1, 2007.

Like the USW agreements, the AFT collective bargaining agreements set forth detailed payment plans for wages or.salaries and benefits of its members. They provide that the employees will not strike for the duration of the agreement, and they set forth arbitration procedures for any dispute involving the collective bargaining agreements. All of the AFT agreements require that any modification be in writing and agreed to by all parties.

D.

Shortly after VIESA’s enactment, USW, AFT, and other collective bargaining representatives filed suit in the District Court of the Virgin Islands, and their cases were consolidated. The Union-plaintiffs alleged that VIESA violates the Contract Clause, the Fifth Amendment’s -Takings Clause, due process, - equal protection, the separation-of-powers doctrine,- and 42 U.S.C. § 1983. They also alleged that VIESA constitutes a breach of contract and a breach of the duty, of good faith and fair dealing.

On December 5, 2011, the District Court held a one-day bench trial. It rendered its judgment on March 29, 2012. In its opinion, the District Court first addressed the Union-plaintiffs’ Contract Clause claim and found that, although VIESA substantially impaired the collective bargaining agreements, such impairment was justified and did not violate the Contract Clause. It also held that VIESA did not violate the Takings Clause, procedural due process, and substantive due process. Accordingly, the District Court dismissed those federal constitutional claims.

USW brought an appeal to this Court, which we dismissed for lack of jurisdiction because the other Union-plaintiffs’ territorial claims were still pending before the District Court. On September 30, 2014, following our dismissal of the initial appeal, the District-Court dismissed all of the territorial claims. The court also dismissed the separation-of-powers claim because, since no injunctive or declaratory relief could be granted as a result of VIESA’s expiration, the claim was moot. On all the other claims, jurisdiction was proper, but they were nonetheless dismissed. AFT and USW timely appealed.

II.

We review the District Court’s findings of fact for clear error and exercise plenary review over the District Court’s conclusions of law. Post v. St Paul Travelers Ins. Co., 691 F.3d 500, 514-15 (3d Cir. 2012). The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291.

The Government argues that this case is moot, thus depriving this Court of subject-matter jurisdiction. Because Article III of the Constitution limits the jurisdiction of federal courts to certain “Cases” or “Controversies,” U.S. Const, art. Ill, § 2; see also Rendell v. Rumsfeld, 484 F.3d 236, 240 (3d Cir. 2007), we must determine, before reaching the merits, whether this appeal presents a justiciable case or controversy.

The constitutional requirement that the exercise of judicial power depends upon the existence of a case or controversy has three elements: “(1) a legal controversy that is real and not hypothetical, (2) a legal controversy that affects an individual in a concrete manner so as to provide the factual predicate for reasoned adjudication, and (3) a legal controversy with sufficiently adverse parties so as to sharpen the issues for judicial resolution.” Int’l Bhd. of Boilermakers v. Kelly, 815 F.2d 912, 915 (3d Cir. 1987) (quoting Dow Chem. Co. v. EPA, 605 F.2d 673, 678 (3d Cir. 1979)). A case is moot when “the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.” County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) (internal quotation marks omitted). “The central question of all mootness problems is whether changes in circumstances that prevailed at the beginning of the litigation have forestalled any occasion for meaningful relief.” Rendell, 484 F.3d at 240 (internal quotation marks omitted). “[I]f a case becomes moot after the District Court enters judgment, an appellate court no longer has jurisdiction to review the matter on appeal.” Id. at 241.

The Government argues that this case is moot because, since the District Court rendered its judgment, VIESA has expired. The Unions present two bases on which, despite VIESA’s expiration, we may reach the merits: (A) the “capable of repetition, yet evading review” exception to mootness applies; and (B) the case is not moot because our decision here will affect collateral arbitration proceedings between the same parties.

A.

A case is not necessarily moot simply because the challenged law has expired; “if the underlying dispute between the parties is one ‘capable [of] repetition, yet evading review,’ it remains a justiciable controversy within the meaning of Article III.” N.J. Turnpike Auth. v. Jersey Cent. Power & Light, 772 F.2d 25, 31 (3d Cir. 1985) (quoting Neb. Press Ass’n v. Stuart, 427 U.S. 539, 546, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976)). The “capable of repetition, yet evading review” exception to the mootness doctrine applies “only in exceptional situations, where (1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.” Kingdomware Techs., Inc. v. United States, — U.S. —, 136 S.Ct. 1969, 1976, 195 L.Ed.2d 334 (2016) (brackets and internal quotation marks omitted); see Rendell, 484 F.3d at 241.

The Unions argue that this case triggers the “capable of repetition, yet evading review” exception because the short duration of VIESA means that it, or similar legislation, could never be reviewed. The continued financial problems facing the Virgin Islands make it plausible that the Virgin Islands will enact new wage-reduction legislation despite being party to collective bargaining agreements.

We agree that the duration of VIESA— two years—is too short to be fully litigated prior its expiration. That much is clear from the procedural history of this case. The Unions filed suit immediately after VIESA was enacted in July 2011, and the District Court resolved the federal claims, including the Contract Clause claim, on March 29, 2012, and the remaining territorial claims on September 30, 2014. The Unions timely appealed, but VIESA had expired over a year prior to the notice of appeal.

The more difficult question is whether this case meets the second prong of the two-part test: is there a reasonable expectation that the Unions will be subject to the same action? For the alleged harm to occur again, the Government would have to pass another law calling for another round of wage reductions that affects the same Union employees. But the mere power to reenact a challenged law is not enough. “Rather, there must be evidence indicating that the challenged law likely will be reenacted.” Nat’l Black Police Ass’n v. District of Columbia, 108 F.3d 346, 349 (D.C. Cir. 1997). The Unions claim that new “wage-reduction legislation is entirely plausible in view of the fiscal crisis facing the Virgin Islands.” Unions’ Supp. Letter Br. 4. For example, the Unions point to statements made by the Governor in his State of the Territory Address that “our government is teetering on the brink of financial collapse,” and “our territory has never been in such a state in its history.” Id. (brackets omitted). But these statements show only that the Virgin Islands’ economy remains in a perilous- state; they do not show that this new wage-reduction legislation is likely to be enacted. Similarly, the Governor’s statement that “even meeting the government’s payroll will continue to be a challenge,” id. is simply an observation of the financial situation facing the Virgin Islands, not evidence thát the Legislature might pass new legislation similar to VIESA. The Unions provide no basis on which we can determine that they could reasonably expect to be subject to VIESA-like legislation again. Without such evidence, we are left to speculate. That is not enough to trigger the “capable of repetition, yet evading review” exception to the mootness doctrine.

B.

Even if this case is not “capable of repetition, yet evading review,” the Unions argue that it is not moot because • this Court’s decision will have collateral legal consequences, namely, that it will affect the Unions’ rights in a pending arbitration before the Virgin Islands Public Employee Relations Board in which the Unions are challenging VIESA’s wage cuts.

An action is not moot if it will have collateral legal consequences. Nat’l Iranian Oil Co. v. Mapco Int’l, Inc., 983 F.2d 485, 490 (3d Cir. 1992). In National Iranian Oil, we held that the case was not moot because, inter alia, the district court’s order below would have possible collateral legal consequences in the form of collateral estoppel in future actions. Id. National Iranian Oil had petitioned the district court to compel arbitration of a contract dispute with Mapeo. The district court dismissed National Iranian Oil’s petition as untimely based on its holding that the three-year Delaware statute of limitations applied to the action, rather than the ten-year Iranian statute of limitations urged by National Iranian Oil, who had filed its petition six years after the relevant events. In response to this decision, National Iranian Oil filed two additional lawsuits in other federal district courts for the same breach of contract claim for which it sought arbitration. Because the “district court’s holding that the Iranian statute of limitations does not apply would have a collateral estoppel effect in those actions and could result in their dismissal,” we held that the action was not moot. Id.

Likewise, in our case, the District Court’s holding that VIESA does not violate the Contract Clause will have collateral legal consequences on the binding arbitration between the Unions and the Government, which is set to take place before the Public Employee Relations Board. In the arbitration, the Unions allege that the Government failed to pay the covered employees their full wages and salaries due to them. The arbitrator’s decision will likely depend on the validity of VIESA. But the Public Employee Relations Board may not adjudicate the constitutionality of VIESA because it lacks the authority to do so. As a result, a decision here is necessary to provide a preclusive effect in the binding arbitration. Therefore, the case is not moot, and we may proceed to the merits.

III.

The Contract Clause provides that no State shall pass any law “impairing the Obligation of Contracts.” U.S. Const, art. I, § 10. Although the Clause speaks in absolute terms, it is not “the Draconian provision that its words might seem to imply.” Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 240, 98 S.Ct. 2716, 57 L.Ed.2d 727 (1978). The Contract Clause “does not prevent the State from exercising such powers as are vested in it for the promotion of the common weal, or are necessary for the general good of the public,” even though contracts previously entered into may be affected. Id. at 241, 98 S.Ct. 2716 (internal quotation marks omitted). Thus, the Contract Clause “does not trump the police power of a state to protect the general welfare of its citizens.” Buffalo Teachers Fed’n v. Tobe, 464 F.3d 362, 367 (2d Cir. 2006).

The Supreme Court has developed a three-part analysis “for harmonizing the command of the Clause with the necessarily reserved sovereign power of the states to provide for the welfare of their citizens.” Balt. Teachers Union v. Mayor & City Council of Balt., 6 F.3d 1012, 1015 (4th Cir. 1993) (internal quotation marks omitted). To determine whether legislation violates the Contract Clause, this Court must analyze whether the law has operated as a substantial impairment of a contractual relationship; whether the government entity, in justification, had a significant and legitimate public purpose behind the regulation; and whether the impairment is reasonable and necessary to serve this important public purpose. See Energy Reserves Grp., Inc. v. Kan. Power & Light Co., 459 U.S. 400, 411-13, 103 S.Ct. 697, 74 L.Ed.2d 569 (1983); Nieves v. Hess Oil V.I. Corp., 819 F.2d 1237, 1243 (3d Cir. 1987).

A.

The Government conceded before the District Court that the collective bargaining agreements entered into with the Unions constitute contractual relationships and that, if any impairment of the contractual relationship existed, such impairment was substantial. App. 32. Therefore, for our purposes, we must decide only whether VIESA impaired the collective bargaining agreements. We have no trouble concluding that it did.

To assess whether there has been an impairment of a contractual relationship, we ask whether legitimate expectations have been thwarted. See Transp. Workers Union of Am., Local 290 ex rel. Fabio v. Se. Pa. Transp. Auth., 145 F.3d 619, 622 (3d Cir. 1998). The collective bargaining agreements set forth detailed payment and.benefits schedules at which the Union employees were to be compensated. The Government agreed to the collective bargaining agreements and had already approved the appropriations to pay those salaries. In exchange for the agreed-upon salaries, the Union employees made various concessions, including their right to striked In return for those concessions, the Union employees expected that they would receive the salary provided for in the collective bargaining agreements. See Buffalo Teachers Fed’n, 464 F.3d at 368 (“The promise to pay a sum certain constitutes not only the primary inducement for employees to enter into a labor contract, but also the central provision upon which it can be said they reasonably rely.”).

Moreover, the collective bargaining agreements provided that they could not be modified without mutual assent. As a result, the Government lacked .the unilateral power to alter the employees’ salaries. The Union employees’ expectation that they would receive the benefit of their bargain without unilateral modification by the Government was therefore a reasonable expectation. Compare Transp. Workers, 145 F.3d at 622 (holding that, because the government retained the power to modify the contracts without the plaintiffs’ agreement, the plaintiffs had no reasonable expectations that could be thwarted), with Balt. Teachers Union, 6 F.3d at 1015 (“Only if the employees’ salaries were subject to unilateral adjustment by the City under the terms of the contract could it possibly be concluded [that there was no impairment of the contracts at issue].”).

We therefore find that VIESA impaired the collective bargaining agreements. Because the Government - stipulated that, should we find the collective bargaining agreements were impaired, such impairment was substantial, the first prong of the three-part test is met.

B.

Because we find that VIESA substantially impaired the collective bargaining agreements, we must next determine whether the Government had a significant and legitimate public purpose in enacting VIESA. A legitimate public purpose is one aimed at remedying a broad and general social or economic problem; it need not be addressed to an emergency or temporary situation. See Energy Reserves Grp., 459 U.S. at 411-12, 103 S.Ct. 697. The record in this cas.e is replete with evidence that the Virgin Islands faced an immediate fiscal problem that needed to be addressed, and the Unions do not dispute that VIESA was enacted to address this significant and legitimate public purpose.

G.

That VIESA was aimed at a significant and legitimate public purpose does hot end our inquiry. Once a legitimate public purpose has been identified, we must' then decide whether the impairment is both necessary and reasonable to meet the purpose advanced by the Government in justification. See U.S. Trust Co. v. New Jersey, 431 U.S. 1, 22, 97 S.Ct. 1505, 52 L.Ed.2d 92 (1977) (“Legislation adjusting the rights and responsibilities of contracting parties must be upon reasonable conditions and of a character appropriate to the public purpose justifying its adoption.”); N.J. Retail Merchs. Ass’n v. Sidamon-Eristoff, 669 F.3d 374, 386 (3d Cir. 2012) (“[T]he court must ascertain ‘whether the adjustment of the rights of the parties to the contractual relationship was reasonable and appropriate in light of that purpose.’” (quoting Tramp. Workers, 145 F.3d at 621)).

When determining whether legislation is necessary and reasonable, the State is ordinarily entitled to deference in its legislative judgment. However, when the State itself is a contracting party, “complete deference to a legislative assessment of reasonableness and necessity is not appropriate because the State’s self-interest is at stake.” U.S. Trust, 431 U.S. at 26, 97 S.Ct. 1505. If we afforded complete deference to the State in such a case, “a State could reduce its financial obligations whenever it wanted to spend the money for what it regarded as an important public purpose, [and] the Contract Clause would provide no protection at all.” Id. For this reason, when a State is a contracting party, its “legislative judgment is subject to stricter scrutiny than when the legislation affects only private contracts.” Nieves, 819 F.2d at 1249. Despite our more exacting scrutiny, some deference is appropriate, and the inquiry becomes “whether a less drastic modification would be sufficient and whether the legislation was reasonable in light of changed circumstances.” Keystone Bituminous Coal Ass’n v. Duncan, 771 F.2d 707, 717 (3d Cir. 1985).

1.

We first consider whether VIESA was necessary. To determine whether the impairment was necessary, our task is twofold. First, we must ensure that the Government did not “consider impairing the obligations of [its] contracts on a par with other policy alternatives.” Balt. Teachers Union, 6 F.3d at 1020 (quoting U.S. Trust, 431 U.S. at 30-31, 97 S.Ct. 1505). Second, we must consider whether the Government imposed a drastic impairment when an “evident and more moderate course would serve its purposes equally well.” Id. (quoting U.S. Trust, 431 U.S. at 31, 97 S.Ct. 1505).

We have reason here to be concerned that the Government considered impairing the collective bargaining agreements on a par with other policy alternatives. While the Government clearly implemented the various measures described above in an attempt to raise revenue and alleviate the effects of the fiscal crisis before it implemented VIESA and the record reflects it considered some additional measures as alternatives to VIESA, the record also indicates that Government officials did not place impairment of the agreements in a category separate from other policy options, For example, Debra Gottlieb testified that the Governor’s economic policy team gave no “special consideration” to policy options that would not alter the agreements, but rather “considered all options available to the Government.” App. 869; see also App. 938 (Member of Governor’s economic team indicating the Government never even considered eliminating tax breaks before pursuing VIESA, thereby placing contractual impairment above other policy options.).

There is also reason for concern here that, as the Unions claim, the Government imposed a more drastic impairment than was necessary. The Unions argue, for example, that the Government could have laid off 600 Government employees, resulting in $30 million of savings; furloughed some employees using the layoff provisions in the collective bargaining agreement; and reduced the number of paid Government holidays. Tax increases and renegotiation of the collective bargaining agreements present other alternatives the Government could have explored and, perhaps, discarded after thoughtful review. See, e.g., U.S. Trust, 431 U.S. at 30 n.29, 32, 97 S.Ct. 1505 (raising the possibility that tax increases could have been used to avoid impairing- a contract); Sidamon-Eristoff, 669 F.3d at 388 (considering policies used in other States as potential alternatives). ■ In dismissing the Unions’ policy alternatives, the District Court observed that proposals such as additional taxing, borrowing, furloughs, and layoffs could have resulted in a greater net reduction in pay for Government employees, while at the same time reducing the Government’s ability to provide basic services. App. 49-51. The absence of any feasibility studies, which it appears were not commissioned by the Government, not only deprives us of any meaningful way to corroborate the District Court’s assessment, but also reinforces our concern that the Legislature indeed may have imposed a more drastic impairment than necessary and may not have adequately considered alternatives before impairing its contractual obligations.

That said, these are close and difficult decisions for any legislature to make in the face of a financial crisis, and VIESA provides a close case as to the necessity inquiry. The courts are tasked with assessing the necessity of a given impairment and do not accord legislatures “complete deference,” U.S. Trust, 431 U.S. at 26, 97 S.Ct. 1505—particularly where, as here, a State or territory is itself a party to the contract it seeks to abrogate. But the Contract Clause also “does not require the' courts ... to sit as superlegislatures,” choosing among various options proposed by plaintiffs, as “we [are] ill-equipped even to consider the evidence that would be relevant to such conflicting policy alternatives.” Balt. Teachers Union, 6 F.3d at 1021-22.

Fortunately, we need not decide today whether—despite our concerns—VIESA was necessary because, as explained below, we conclude it was unreasonable, which is alone sufficient to render it improper under the Contract Clause. Thus, for purposes of this analysis, we assume without deciding that VIESA was necessary and move on to consider its reasonableness.

2.

Even assuming VIESA was necessary, the Government is not entitled to impair its contracts at will. The Contract Clause is not toothless. In addition to being a necessary impairment, any impairment must also be reasonable, and it “is not a reasonable one if the problem sought to be resolved by an 'impairment of the contract existed at the time the contractual obligation was incurred.” Univ. of Haw. Prof'l Assembly v. Cayetano, 183 F.3d 1096, 1107 (9th Cir. 1999) (internal quotation marks omitted); see also U.S. Trust, 431 U.S. at 31, 97 S.Ct. 1505.

In United States Trust, the Supréme Court held that New Jersey’s impairment of its covenant was unreasonable because, inter alia, the problem the impairment was meant to remedy was well known when New Jersey agreed to the covenant it impaired. 431 U.S. at 31-32, 97 S.Ct. 1505. New Jersey enacted the law at issue to repeal a covenant betweén itself and New York that limited the ability of the two states to subsidize transportation. Id. at 3, 13-14, 97 S.Ct. 1505. New Jersey claimed that doing so served an important public purpose—the need for mass transportation in the New York metropolitan area. Id. at 29-30, 97 S.Ct. 1505. The Court, however, found that, because the need for mass transportation had been well known for many years, including when New Jersey entered into the covenant with New York, changed circumstances could not justify impairing its covenant. Id. at 31-32, 97 S.Ct. 1505. Thus, the law at issue was not reasonable, and it violated the Contract Clause.

In this case, the Government claims that VIESA was necessary because of the economic crisis and severe budget deficits. But to pass muster under our Contract .Clause analysis, the impairment must be reasonable, in addition to being necessary. Even assuming VIESA was necessary to address the economic crisis and severe budget deficits, the Government knew of the economic crisis facing the Virgin Islands at the time it was negotiating with the Unions and when it concluded the collective bargaining agreements with USW and AFT.

As to USW, there is extensive evidence demonstrating the Government's- knowledge of the budget crisis at the time the Government agreed to provide a 2.5% salary increase to USW employees—as indicated by the USW Master agreement—on October 23, 2010. Prior to those agreements and as early as 2009, the Government had already projected significant budget deficits. Revenue had fallen by 30%—more than $250 million. And on February 22, 2010, Debra Gottlieb testified before the Legislature regarding the Virgin Islands’ difficult financial situation. Gottlieb warned that the Government’s “cash balances are precariously low.” App. 321. She further cautioned that “the operating deficit is expected to continue throughout fiscal year 2011.” App. 322. Gottlieb’s testimony expressly indicated that one possibility for addressing the crisis was to implement “an across the board payroll reduction that equated to a 10% salary reduction,” which “would yield approximately $51.7 million in expenditure reductions.” App. 325. At this point, as shown by Gottlieb’s testimony, both' the Governor—who signed the agreements— and the Legislature—which later voted to impair them—were fully aware from the outset that tax revenues continued to decline, and that in order to maintain a balanced budget, the Virgin Islands would have to significantly increase revenue or substantially reduce expenditures. And apart from Gottlieb’s presentation, the Governor had already been authorized to borrow $500 million to alleviate some of the Government’s budget shortfalls, which were predicted for the upcoming years.

With respect to the AFT collective bargaining agreements, although these agreements were concluded earlier, in May 2009, the timing is nearly as suspect. In May 2009, the economic recession was in full swing. The Legislature initially authorized the Governor to borrow $500 million in early June 2009, only a few weeks after the Governor signed the AFT agreements. It was obvious then that the Virgin Islands’ budget crisis would require legislative action. And the Government already knew that revenue had dropped sharply. Despite its knowledge of the financial difficulties, the Government nevertheless entered into the collective bargaining agreements.

Even if the crisis worsened after the collective bargaining agreements were approved, we would not alter our conclusion. The Government knew it was facing severe budget deficits and that the financial condition of the Virgin Islands was precarious. That the budget deficit projections grew and the financial condition became increasingly dire is not a change in the kind of problem that VIESA sought to solve. It is a change in degree. Under United States Trust, this change in degree is not enough to render the impairment “reasonable in light of changed circumstances.” 431 U.S. at 32, 97 S.Ct. 1505.

We are also troubled by the assurances made to Union representatives during the negotiations. USW representatives, concerned that funding would not be available for the salary increases as a result of the financial crisis, asked the Government’s chief negotiator if the Government would be able to fund the agreements. He responded yes. Rather than negotiating lower salaries with the Union employees, the Government promised the Union employees certain wages—even a pay increase for USW employees—in return for their making several concessions. Instead of honoring that promise or never making it in the first place, the Government chose the politically expedient, route of reducing wages after it had received its benefit of the bargain. The Contract Clause is not a dead letter, and if it is to continue to have any force, it must prohibit such self-serving, post hoc changes in contractual obligations.

We do not fault the Virgin Islands Government for its attempt to alleviate the severe budget' crisis it was facing. The financial crisis required a solution. While we afford considerable deference to the Legislature’s decision as to what the solution should be—even when the State (or, as in this case, the territorial government) is a party to an impaired contract—that deference is not absolute, nor can a Legislature’s decision to impair a contract stand if it was unreasonable. Here, we are asked to decide whether the Virgin Islands’ impairment of its contracts with Union employees was reasonable in light of the fact that it knew of the precarious financial condition when it agreed to the contracts. United, States Trust requires that we hold that the impairment was unreasonable. Because any impairment must be both necessary and reasonable, the impairment here does not survive Contract Clause scrutiny.

' TV."

Because VIESA substantially impaired the USW .and AFT collective bargaining agreements, and such impairment was unreasonable, we hold that VIESA violates the Contract Clause as applied to those collective bargaining agreements. Accordingly, we will reverse the District Court’s order. We will also remand to the District Court so that it may reconsider its holding with respect to the Unions’ territorial claims, specifically the Public Employee Relations Act claim, in light of this opinion.

      . In addition to AFT and USW, several other unions brought suit in the District Court. We refer to those plaintiffs below as the "Union-plaintiffs.” For purposes of our casé, only AFT, AFT’s vice president, and USW appealed the District Court's judgment.

      . We perceive no obstacle to the Unions’ suit posed by the Eleventh Amendment because the Revised Organic Act of the Virgin Islands—which extends constitutional provisions to the Virgin Islands and does not expressly provide Eleventh Amendment protection, see 48 U.S.C. § 1S61—authorizes suits against the Virgin Islands "arising out of contract,” id. § 1541(b). Thus, even if the Eleventh Amendment did apply to the Virgin Islands—a question we do not decide today—the Revised Organic Act indicates that Contract Clause violations would fall outside the scope of the Amendment's protection. Cf. United States v. Government of Virgin Islands, 363 F.3d 276, 286-87 (3d Cir. 2004) (declining to decide whether the Eleventh Amendment applies to the Virgin Islands); Fleming v. Dep’t of Pub. Safety, 837 F.2d 401, 407 (9th Cir. 1988) (concluding the Northern Mariana Islands lack Eleventh Amendment immunity because it was not expressly conferred upon them).

      . The Government and Unions both agreed to stay the arbitration pending the outcome of this appeal.

      . The Contract Clause was made applicable to the Virgin Islands in 1954 through section 3 of the Revised Organic Act of the Virgin Islands, 48 U.S.C. § 1561. See West Indian Co. v. Government of Virgin Islands, 844 F.2d 1007, 1016 (3d Cir. 1988).

      . Other courts have consistently found that contracts were impaired where compensation levels called for in the contracts were reduced. E.g., Balt. Teachers Union, 6 F.3d at 1018 (finding that ''[i]n the employment context, there likely is no right ... more central to the contract’s inducement” than tire right to compensation, and holding that salary reductions constituted a substantial impairment); Condell v. Bress, 983 F.2d 415, 419 (2d Cir. 1993) (holding that a payroll lag whereby union employees were paid 90% of their salary and received the withheld 10% of their pay at the termination of their employment constituted a substantial impairment); Ass’n of Surrogates & Supreme Court Reporters v. New York, 940 F.2d 766, 772 (2d Cir. 1991) (same).

      . We note, however, that although VIESA substantially impaired the collective bargaining agreements, such impairment was not unreasonable on its face, Rather, VIESA’s impairment of the agreements here was unreasonable in light of the timeline of events in this particular case. The agreements with AFT and USW were concluded after the justification for VIESA was known to the Government, Thus, VIESA violates the Contract Clause as applied‘only to the USW and AFT collective bargaining agreements.


author: SMITH, Chief Judge.

text:
    Steven HALLE, on behalf of himself and all others similarly situated v. WEST PENN ALLEGHENY HEALTH SYSTEM INC.; Western Pennsylvania Healthcare System Inc.; Alle Kiski Medical Center; Allegheny General Hospital; Allegheny General Hospital Suburban Campus; Western Pennsylvania Hospital; Western Pennsylvania Hospital Forbes Regional Campus; Allegheny Medical Practice Network; Allegheny Specialty Practice Network; West Penn Physician Practice Network; Allegheny Singer Research Institute; Highmark Inc.; Allegheny Health Network; John W. Paul; Bart Metzger; Christopher T. Olivia; John Lasky; Canonsburg General Hospital Senora Tarpley; Katiejo Bigenho; Wayne Haber, on their own behalf and on behalf of all other opt-in plaintiffs, Appellants

      No. 15-3089
    United States Court of Appeals, Third Circuit.
    Argued September 28, 2016
    (Filed: November 18, 2016)

      David S. Fryman (Argued), Elizabeth K. McManus, Ballard Spahr, 1735 Market Street, 51st Floor, Philadelphia, PA 19103, Counsel for Appellee.
    Jonathan W. Ferris, J. Nelson Thomas (Argued), Thomas & Solomon, 693 East Avenue, Rochester, NY 14607, Counsel for Appellant.
    Before: AMBRO, SMITH, and FISHER, Circuit Judges

       Honorable D. Brooks Smith, United States Circuit Judge for the Third Circuit, assumed Chief Judge status on October 1, 2016.

   OPINION

SMITH, Chief Judge.

Appellants are three hospital employees who claim they were not properly compensated for work performed, during meal breaks. They seek review of a District Court’s decision that declined to permit a civil case in which they wished to participate to continue as a collective action under the Fair Labor .Standards Act (“FLSA”) § 16(b), 29 U.S.C. § 216(b).

This is the second decertification-related appeal in a. series of four similar FLSA cases filed in the Western District of Pennsylvania. We dismissed the first appeal, which consolidated two of the District Court proceedings, for lack of appellate jurisdiction and mootness. Camesi v. University of Pittsburgh Med. Ctr., 729 F.3d 239 (3d Cir. 2013). Appellants in the current appeal candidly acknowledge that they are before us in an effort to correct the procedural flaws that prevented us from reaching the merits of the decertifi-cation decision in the first appeal. Despite their efforts, Appellants fare no better this time around. We will dismiss this appeal.

I.

A.

The first round of litigation began in 2009 when two groups of plaintiffs filed separate but similar complaints against two large Western Pennsylvania hospitals and their affiliated health care facilities and centers: Camesi v. University of Pittsburgh Medical Center, No. 3:09-cv-00085 (W.D. Pa.), and Kuznyetsov v. West Penn Allegheny Health System, Inc., No. 2:09—cv-00379 (W.D. Pa.) (later consolidated into No.. 2:10-cv-00948 (W.D. Pa.)). The complaints alleged that the hospital defendants violated the FLSA by failing to properly pay their employees for work performed during scheduled meal breaks. The named plaintiffs purported to bring the claims as collective actions on behalf of themselves,and all other similarly situated employees pursuant to FLSA § 16(b), 29 U.S.C. § 216(b).

District Judge Cathy Bissoon conditionally certified the collective action in Came-si on May 14, 2009, and District Judge Donetta Ambrose conditionally certified the collective action in Kuznyetsov on June 1, 2009. Both judges approved detailed notices to be sent to potential collective action members. Among other things, the notices advised that, by consenting to opt in to the suit, an employee would “[j]oin in this lawsuit,” “[ajwait the outcome,” and “[gjive up the right to sue separately.” The notices further provided that “[ojnce people have had the chance to opt in, the Court will decide whether people who have opted in may participate in this collective action. Only people ‘similarly situated’ to the plaintiffs may participate in this collective action.”

A consent form accompanied the court-approved notices in Camesi and Kuznyet-sov. The consent form indicated, among other things, that “[ujnless I opt to retain separate counsel of my own choice and at my own expense, I hereby ... authorize the named plaintiffs to make decisions on my behalf concerning the litigation, the method and manner of conducting this litigation, and all other matters pertaining to this lawsuit, including any settlement... Using those forms, more than 3,000 individuals consented to opt in to the Camesi collective action and more than 800 consented to opt in to the Kuznyetzov collective action.

The parties conducted collective action related discovery for nearly two years, including expert discovery and fact discovery of the named plaintiffs and a sample of the collective action members. The District Judges then entertained cross-motions by the plaintiffs to certify the collective actions and by the defendants to decertify the collective actions.

Both judges decertified the collective actions. In her opinion decertifying Kuznyet-sov, Judge Ambrose described the basic factual allegations of the claim as follows:

Defendants require Plaintiffs to take daily, uncompensated meal breaks. To accomplish this, Defendants adopted a computerized timekeeping system, called Kronos, that automatically deducts a thirty minute meal period from nonexempt employees’ time records when an employee has worked a shift of more than five or six hours. If an employee is unable to take an uninterrupted thirty minute meal break, the entire thirty minute automatic deduction may be canceled so that the employee is paid for the entire meal break. The manner in which the deduction is cancelled, however, varied by location, department, shift, and supervisor.

Kuznyetsov, No. 2:10-cv-00948, 2011 WL 6372852, at *1 (W.D. Pa. Dec. 20, 2011). Judge Ambrose then concluded that the plaintiffs’ job duties varied significantly from one individual to the next, and that those job duties were “highly relevant in terms of how, why and whether the employees were compensated properly for missed or interrupted meal breaks.” Id. at *5. In addition, more than 300 different individuals supervised the plaintiffs, the supervisors had individual authority to implement policies as to the meal deduction, and the supervisors’ practices varied in this regard. Id. Finally, Judge Ambrose agreed with the defendants’ argument that they would need to present individualized defenses to establish whether the FLSA was violated as to each plaintiff, which “could not be generalized among the 824 plaintiffs.” Id. at *6. Judge Bissoon reached similar conclusions in Camesi. See Camesi v. Univ. of Pittsburgh Med. Ctr., No. 09-85J, 2011 WL 6372873 (W.D. Pa. Dec. 20, 2011).

Thus, both judges concluded that the opt-in plaintiffs were not “similarly situated” to the named plaintiffs. When they decertified the two collective actions, the judges also dismissed the claims of all opt-in plaintiffs without prejudice to re-filing individual actions.

B.

In an express effort to seek immediate appellate review of the decertification orders, the named plaintiffs in both Camesi and Kuznyetsov moved to voluntarily dismiss their claims with prejudice pursuant to Rule 41(a) of the Federal Rules of Civil Procedure. The two district judges granted the motions and the named plaintiffs promptly filed notices of appeal. This court consolidated the two appeals. In Camesi v. Univ. of Pittsburgh Med. Ctr., 729 F.3d 239 (3d Cir. 2013), we dismissed the appeals for lack of jurisdiction.

First, we determined that a decertification order, like a class certification order in the Rule 23 context, is an interlocutory order that is not appealable under 28 U.S.C. § 1291. Id. at 245. Then, relying on our class action decision in Sullivan v. Pac. Indem. Co., 566 F.2d 444 (3d Cir. 1977), which we found to be controlling, we determined that the named plaintiffs in Camesi and Kuznyetsov improperly had attempted to short-circuit the procedure for appealing an interlocutory order that is separate from, and unrelated to, the merits of their case. Camesi, 729 F.3d at 245. We explained that the named plaintiffs could have obtained appellate review of the de-certification decision by proceeding to a final judgment on the merits of their individual claims or, in the alternative, by seeking permission to certify an interlocutory appeal under 28 U.S.C. § 1292(b). Instead, plaintiffs attempted to manufacture finality through a voluntary dismissal of their cases. We rejected this “procedural sleight-of-hand.” Id.

We further determined that, by voluntarily dismissing their claims with prejudice, the named plaintiffs mooted their claims in Camesi and Kuznyetsov. Id. at 247. In doing so, the named plaintiffs extinguished any residual representational interest they may once have had in bringing claims on behalf of individuals who had filed consents to opt in to the collective action. Id. We did not then address the more difficult question of whether, when individuals have opted in to a collective action following conditional certification, a plaintiff who has filed the collective action may retain a justiciable interest in the litigation based only upon his or her representative capacity. Instead, we concluded that, in the specific circumstance of a voluntary dismissal, “it would be anomalous to conclude that [the Camesi/Kuznyetsov] Appellants are ‘similarly situated’ to opt-in plaintiffs who, unlike Appellants, have actually retained their individual claims. Without any personal stake in the matter, [the Camesi/Kuznyetsov] Appellants should not be permitted to represent opt-in plaintiffs.” Id.

We therefore dismissed Camesi for lack of appellate jurisdiction.

C.

Soon after we issued our Camesi opinion, the next round of district court litigation began. The same law firm that represented the Camesi/Kuznyetsov plaintiffs filed two new FLSA collective action complaints on behalf of two new sets of named plaintiffs against the same hospital defendants, raising substantially the same FLSA claims concerning work during unpaid meal breaks. The new complaints proposed slightly different definitions of the collective actions than had been proposed in Camesi and Kuznyetsov. The follow-up to Camesi was Belle v. Univ. of Pittsburgh Med. Ctr., No. 2:13-cv-01448, 2014 WL 4828899 (W.D. Pa. Sept. 29, 2014), while the follow-up to Kuznyetsov was Halle v. West Penn Allegheny Health Sys., No. 2:13-cv-01449 (W.D. Pa.). Both cases were assigned to Judge Bissoon, who had presided over Camesi.

In Belle, before the named plaintiffs filed a motion to conditionally certify a collective action, more than 900 individuals filed consents to opt in. The defendants moved to dismiss the collective action allegations on grounds of issue preclusion, arguing that the issue of certification of the colléctive action had been fully litigated in Camesi and should not be relitigated in Belle.

Judge Bissoon agreed. By order dated September 29, 2014, she concluded that, despite minor “tweakfs],” Belle was a “re-dux” of Camesi in which the “theories of liability remain[ed] materially unchanged.” Belle, No; 2:13-cv-01448, 2014 WL 4828899 at *1 (W.D. Pa. Sept.. 29, 2014). She therefore queried whether it would be proper to allow the Camesi opt-ins to re-litigate the unfavorable decertification ruling in Camesi through a new lawsuit. She concluded, invoicing the doctrine of issue preclusion, that “[t]he answer to this question is, resoundingly, ‘no.’ ” Id.

Specifically, Judge Bissoon determined that issue preclusion applied because de-certification already had been litigated in Camesi, the decision in Camesi was sufficiently final fob purposes of issue preclusion, and all the named plaintiffs in Belle had opted in to Camesi and thus had a full and fair opportunity to litigate the issue. Accordingly, she granted the defendants’ motion to dismiss, struck the collective action allegations from the complaint, and dismissed the claims of the opt-in plaintiffs without prejudice to re-filing individual complaints. The named Belle plaintiffs subsequently accepted offers of judgment under Rule 68 of the Federal Rules of Civil Procedure. Nó appeal followed.

As in Belle, numerous individuals (more than 250) filed consents to opt in to Halle before Judge Bissoon had an opportunity to address whether a collective action should be conditionally certified. Also as in Belle, the defendants filed a motion to dismiss the collective action allegations on the ground of issue preclusion. On November 6, 2014, Judge Bissoon granted the motion, incorporating by reference her opinion on issue preclusion in Belle. See Halle v. W. Penn Allegheny Health Sys. Inc., No. 2:13-cv-1449-CB (W.D. Pa. filed Nov. 6, 2014).

On July 27, 2015, the sole named plaintiff in Halle, Steven Halle, accepted an offer of judgment from West Penn under Rule 68 of the Federal Rules of Civil Procedure in the amount of $2,392,00 for back pay and liquidated damages. Consistent with the terms of Halle’s acceptance, Judge Bissoon entered judgment against West Penn, dismissed Halle’s claims against the remaining defendants with prejudice, and administratively closed the case.

Then, three of. the Halle opt-in plaintiffs—Señora Tarpley, KatieJo Bigenho, and Wayne Haber—filed this appeal. Steven Halle did not appeal and is not participating in this appeal.

II.

Before turning to the matter before us, we consider a fundamental question arising from the procedural history of this case: just what is a “collective action” under the FLSA?

To answer this question, we first look to the relevant portion of the FLSA, which provides that an action may be brought “by any one or more employees for and in behalf of himself or themselves and other employees similarly situated” and that “[n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.” 29 U.S.C. § 216(b). This language raises more questions than it provides answers. While the first sentence sounds in representational terms (to proceed “in behalf of’ others “similarly situated”), the second sentence refers to those who file consents as “party plaintiffs,” seeming to imply that all who affirmatively choose to become participants .have an equal, -individual stake-in the proceeding.

Congress has not acted to shed light on any of these provisions. Since the statute was enacted in its- current form in 1947, Congress has provided no framework setting forth how and when it is to be determined whether employees are “similarly situated,” the significance of “party plaintiff’ status, or—most relevant to the parties here—who may appeal a collective action determination and when that appeal may be taken. Nor have procedural rules been promulgated to'guide courts and parties in processing collective actions. As a result, courts have been left to consider these matters when they arise, frequently borrowing or adapting procedures, concepts, and nomenclature from the Rule 23 class action context, while recognizing that there remain important differences between a Rule 23 class action and a collective action. Compare 7B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1807 (3d ed. 2016) (“[C]ollective actions behave in many ways like Rule 23 class actions....”) with Genesis Healthcare Corp. v. Symczyk, — U.S. —, 133 S.Ct. 1523, 1529, 185 L.Ed.2d 636 (2013) (distinguishing class action cases because “Rule 23 class actions are fundamentally different from collective actions under the FLSA ...” (citation omitted)); see also, e.g., Cameron-Grant v. Maxim Healthcare Svcs., Inc., 347 F.3d 1240, 1249 (11th Cir. 2003) (“[Section] 216(b) is a fundamentally different creature than the Rule 23 class action.”). Indeed, we have recognized an unfortunate side effect of the often blurred lines between the two types of proceedings: “expedient adoption of Rule 23 terminology, with no mooring in the- statutory text.of § 216(b) may have injected a measure.of confusion into the wider body of FLSA jurisprudence.” Symczyk v. Genesis Healthcare Corp., 656 F.3d 189, 194 (3d Cir. 2011), rev’d on other grounds by — U.S. —, 133 S.Ct. 1523, 185 L.Ed.2d 636.

To focus, then, on what a collective action is and is not, we first observe the unremarkable fact that an FLSA collective action is a form of group litigation in which a named employee plaintiff or plaintiffs file a complaint “in behalf of’ a group of other, initially unnamed employees who purport to be “similarly situated” to the ■named plaintiff.- Thus, via § 216(b), the FLSA provides -a vehicle for managing claims of multiple employees against a single employer. By permitting employees to proceed collectively, the FLSA provides employees the advantages of pooling resources and lowering individual costs so that those with relatively small claims may pursue relief where -individual litigation might otherwise be cost-prohibitive. It also yields efficiencies for . the judicial system through resolution in one proceeding of common issues arising from the same allegedly wrongful activity affecting numerous individuals. See Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 170, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989); see also 1 Joseph M. McLaughlin, McLaughlin on Class Actions § 2:16 (12th ed. 2015) (“The purpose of a collective action under the FLSA is to allow plaintiffs to minimize individual expense in pursuing wage rights through pooled resources and to benefit the judicial system through unitary resolution of common legal and factual issues arising from the same conduct.”).

When a named plaintiff files a complaint containing FLSA' collective action allegations, the mere presence of the allegations does not automatically give rise to the kind of aggregate litigation provided for in Rule 23. Rather, the existence of a collective action depends upon the affirmative participation of opt-in plaintiffs. See Smith v. T-Mobile USA, Inc., 570 F.3d 1119, 1121 (9th Cir. 2009); Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1259 (11th Cir. 2008). Courts are then called upon to decide whether those who purport to join the collective action are “similarly situated” as intended by the statute. Because there are no formal procedural rules that mandate how to accomplish this task, courts have developed a practical- approach to managing FLSA collective actions. This approach, which has been recognized by the Supreme Court and is widely accepted in most jurisdictions, is a two-step certification process. See Genesis Healthcare, 133 S.Ct. at 1530; Zavala v. Wal Mart Stores Inc., 691 F.3d 527, 536 (3d Cir. 2012).

The first step, so-called conditional certification, requires a named plaintiff to make a “modest factual showing”— something beyond mere speculation—to demonstrate a factual nexus between the manner in which the employer’s alleged policy affected him or her and the manner in which it affected the proposed collective action members. Zavala, 691 F.3d at 536 n. 4. The “sole consequence” of conditional certification is the dissemination of court-approved notice to potential collective action members. Genesis Healthcare, 133 5.Ct. at 1530. Conditional certification, therefore, is not a true certification, but rather an exercise of a district court’s discretionary authority to oversee and facilitate the notice process. Zavala, 691 F.3d at 536 (citing Hoffman-La Roche v. Sperling, 493 U.S. 165, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989)).

While conditional certification is discretionary, the Supreme Court has recognized its importance. A district court’s early intervention in the preparation and distribution of notice to potential participants serves legitimate purposes, including avoidance of a multiplicity of duplicative suits and establishing cut-off dates to expedite disposition of the action. Hoffman-La Roche, 493 U.S. at 171-72, 110 S.Ct. 482. Nevertheless, “[wjhatever significance ‘conditional certification’ may have in § 216(b) proceedings, it is not tantamount to class certification under Rule 23.” Genesis Healthcare, 133 S.Ct. at 1532.

A denial at the conditional certification stage is not' necessarily a final determination of whether the matter may proceed as a collective action. Some courts permit the issue to be revisited after discovery or efforts by the named plaintiff to re-define the contours of the proposed collective action. See, e.g., Bamgbose v. Delta-T Group, Inc., 724 F.Supp.2d 510, 514 (E.D. Pa. 2010) (motion for conditional certification denied without prejudice, to be revisited after discovery for possibility of developing “subclasses”); see also Wright & Miller, supra, § 1807 (“If conditional certification is denied, the court may allow discovery to provide plaintiffs a second opportunity to obtain sufficient evidence of a collective to warrant conditional certification and the notice to opt in.”).

Generally, after conditional certification has been granted (although not always, given the discretionary nature of the first stage), individuals file notices providing their written consent to participate in the collective action pursuant to § 216(b). As in Kuznyetsov and Halle, the notices may indicate that the opt-in plaintiffs consent to having the named plaintiffs litigate, on their behalf, the FLSA claims. See, e.g., Prickett v. DeKalb County, 349 F.3d 1294, 1297 (11th Cir. 2003) (“The consent given was for the named plaintiffs to represent the interests of the employee in adjudicating all claims that the employee had under the FLSA.”).

This “opt-in” requirement—mandating that each individual must file an affirmative consent to join the collective action—is the most conspicuous difference between the FLSA collective action device and a class action under Rule 23. See De Asencio v. Tyson Foods, Inc., 342 F.3d 301, 306 (3d Cir. 2003). “This difference means that every plaintiff who opts in to a collective action has party status, whereas unnamed class members in Rule 23 class actions do not.” Wright & Miller, supra, § 1807; see also Prickett, 349 F.3d at 1297 (“[B]y referring to them as ‘party plaintiffis],’ Congress indicated that opt-in plaintiffs should have the same status in relation to the claims of the lawsuit as the named plaintiffs.”). This prompts the as-yet unanswered question of what “party status” means in a collective action, particularly before a district court has considered whether those who have filed consent forms are in fact “similarly situated” to the named plaintiff for purposes of § 216(b).

Also after a grant of conditional certification, the parties conduct certification-related discovery, as they did in Camesi and Kuznyetsov. Initial discovery may include efforts by the named plaintiffs to obtain employee contact information for purposes of notifying potential collective action members of the pending matter. Once opt-in consents have been filed, discovery typically moves forward to assess whether the opt-ins are “similarly situated” to the named plaintiffs. Frequently, this discovery focuses on the named plaintiffs and a subset of the collective group. In Camesi, for instance, the parties agreed to conduct discovery regarding 75 current and former employees to be chosen by the defendants, including 10 depositions and the completion of written questionnaires. Camesi, No. 3:09-ev-00085, 2011 WL 6372873 at *2 (W.D. Pa. Dec. 20, 2011). Similarly, in Kuznyetsov the parties conducted discovery as to “18 sample Plaintiffs.” Kuznyetsov, 2011 WL 6372852 at *4. See also, e.g., Lusardi v. Xerox Corp., 975 F.2d 964, 967 (3d Cir. 1992) (in ADEA collective action, parties randomly selected 51 out of the 1,312 conditional collective action members for discovery to determine whether all opt-ins were similarly situated to the named plaintiffs). Upon conclusion of discovery, the parties will file motions seeking final certification or decertification of the collective action.

At this stage, known as final certification, the named plaintiffs bear the burden of showing that the opt-in plaintiffs are “similarly situated” to them for FLSA purposes. Zavala, 691 F.3d at 537; see also Bouaphakeo v. Tyson Foods, Inc., 765 F.3d 791, 801 (8th Cir. 2014) aff'd, — U.S. —, 136 S.Ct. 1036, 194 L.Ed.2d 124 (2016); O’Brien v. Ed Donnelly Enter., Inc., 575 F.3d 567, 584 (6th Cir. 2009), abrogated on other grounds by Campbell-Ewald Co. v. Gomez, — U.S. —, 136 S.Ct. 663, 669, 193 L.Ed.2d 571 (2016). “Being ‘similarly situated’ ... means that one is subjected to some common employer practice that, if proved, would help demonstrate a violation of the FLSA.” Zavala, 691 F.3d at 538.

Courts will consider a variety of factors in reaching this determination. “These include the factual and employment settings of the • individual plaintiffs, the different defenses to which the plaintiffs may be subject on an individual basis, the degree of fairness and procedural impact of certifying the action as a collective action, and whether plaintiffs have made the appropriate filings with the EEOC.” Wright & Miller, supra, § 1807, Our Court endorses an ad hoc approach to this analysis, considering all relevant factors and making a determination on a case-by-case basis as to whether the named plaintiffs have satisfied this burden by a preponderance of the evidence. Zavala, 691 F.3d at 536-37.

If a collective action is decerti-fied at the final stage, the matter will proceed as in Camesi and Kuznyetzov. the court will decertify the class, dismiss the opt-in plaintiffs without prejudice, and permit the named plaintiffs to proceed to trial., See Lusardi v. Lechner, 855 F.2d 1062, 1079 (3d Cir. 1988) (“A district court has no power or jurisdiction to rule on the merits of the claims of individual [opt-in] members of a putative opt-in class when it denies certification.”); see also Wright & Miller, supra, § 1807. If, however, final certification is granted, “the action proceeds to trial on a representative basis.” Id. As previously discussed, a decision on certification of a collective action is interlocutory and therefore not immediately ap-pealable pursuant to § 1291. Camesi, 729 F.3d at 245.

III.

With this understanding of the FLSA collective action device, we turn to the appeal before us. The District Court exercised jurisdiction pursuant to 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291 to review “final decisions” of district courts. Giles v. Campbell, 698 F.3d 153, 157 (3d Cir. 2012). A final decision is one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945)). Although the parties did not raise the issue, we must satisfy ourselves of our jurisdiction over this appeal. See Emp’rs Ins. of Wausau v. Crown Cork & Seal Co., 905 F.2d 42, 45 (3d Cir. 1990).

In the' end, Appellants, three opt-in plaintiffs, were dismissed without prejudice from Halle’s case and lost no substantive or procedural rights. Therefore, they have no final order from which to appeal. This conclusion is reinforced both by the language of their opt-in consent forms, which handed over all litigation authority to named plaintiff Steven Halle, and by the opt-in plaintiffs’ passive role in the suit. While it may seem unfair to require the opt-in plaintiffs either to litigate a case to conclusion or certify an interlocutory appeal, finality—not unsupported assertions about fairness—defines our court’s jurisdiction.

A.

.Appellants seek review of Judge Bis-soon’s order dated November 6,2014. That order had two important effects: it dismissed Steven Halle’s collective action allegations with prejudice on the ground of issue preclusion, and it also dismissed the claims of the opt-in plaintiffs without prejudice to re-filing individual actions. Neither of these aspects of Judge Bis-soon’s order constitutes a final, appealable decision for purposes of 28 U.S.C. § 1291.

The dismissal of the opt-in plaintiffs’ claims without prejudice is not a final decision for purposes of § 1291. All opt-in plaintiffs may pursue their FLSA claims. “Typically a dismissal without prejudice is not a final decision because the plaintiff may refile the complaint, thereby creating the risk of ‘piecemeal’ appellate litigation.” S.B. v. Kindercare Learning Ctrs., LLC, 815 F.3d 150, 152 (3d Cir. 2016); see also Borelli v. City of Reading, 532 F.2d 950, 951 (3d Cir. 1976) (“Generally, an order which dismisses a complaint without prejudice is neither final nor ap-pealable because the deficiency may be corrected by the plaintiff without affecting the cause of action.”). The November 6, 2014 order does not resolve any of the opt-in plaintiffs’ claims on the merits and acknowledges that those individuals remain free to file their own FLSA actions.

In addition, the dismissal of Halle’s collective action allegations is not a final, appealable decision under § 1291. Although that decision arose in the context of a motion to dismiss rather than a motion to decertify, it results in a complaint that no longer alleges a collective action. Our decision in Camesi therefore controls: such an order is interlocutory and does not provide a basis for an immediate appeal under § 1291. Camesi, 729 F.3d at 245; see also, e.g., In re: Complaint of Ingram Barge Co., 517 F.3d 246, 247 (5th Cir. 2008) (per curiam) (holding that the court did not have appellate jurisdiction under § 1291 or § 1292(a)(3) because the district court’s order striking class action allegations did not settle parties’ rights). Because the decertification is separate from, and unrelated to, the merits of Halle’s individual case, in the absence of a district court order under 28 U.S.C. § 1292(b) permitting an immediate appeal (which Halle did not request and which Judge Bissoon therefore did not grant), appellate review of this interlocutory decertification decision is available by proceeding to a final judgment on the merits of Halle’s individual claims. See Camesi, 729 F.3d at 245.

Appellants concede that the November 6 order was not appealable when Judge Bis-soon entered it, and they did not appeal at that time. Instead, they waited to appeal until after Steven Halle accepted West Penn’s offer of judgment in full satisfaction of his individual claims.

B.

On July 27, 2015, Judge Bissoon entered judgment consistent with Halle’s acceptance of West Penn’s offer of judgment, dismissed Halle’s remaining claims against the other defendants with prejudice, and administratively closed the case. This, Appellants argue, constitutes a final decision for purposes of § 1291, and, for appeal purposes, merges with all prior decisions in the case, including the November 6, 2014, decertification decision. See In re: Westinghouse Sec. Litig., 90 F.3d 696, 706 (3d Cir. 1996) (“Under the ‘merger rule,’ prior interlocutory orders merge with the final judgment in a case, and the interlocutory orders (to the extent that they affect the final judgment) may be reviewed on appeal from the final order.” (citations omitted)).

West Penn argues that Halle’s acceptance of an offer of judgment operates like the voluntary dismissal in Camesi: it moots Halle’s personal claims and extinguishes his representational interest in proceeding on behalf of the opt-in plaintiffs. While this area of the law is “in a state of flux,” Camesi, 729 F.3d at 247, we need not reach that issue because Halle did not file this appeal. Instead, in some procedural gymnastics apparently aimed at avoiding the mootness issue, three opt-in plaintiffs—Señora Tarpley, Katie Jo Bigenho, and Wayne Haber—filed this appeal on behalf of themselves and “all other opt-in plaintiffs whose claims were dismissed.”

C.

We must, therefore, consider whether Appellants retained a stake in Steven Halle’s ongoing individual case such that they are entitled to pursue an appeal as of right at its conclusion, after Halle’s individual claims have become moot. We conclude that, for purposes of appeal, Appellants were no longer “parties” to the case after they were dismissed without prejudice from Halle’s proceeding. See Devlin v. Scardelletti, 536 U.S. 1, 7-8, 122 S.Ct. 2005, 153 L.Ed.2d 27 (2002) (an appeal of a class action settlement by an unnamed class member does not raise concerns of standing, but rather “[w]hat is at issue, instead, is whether petitioner should be considered a ‘party’ for the purposes of appealing.”). Appellants therefore' cannot pursue an appeal from Steven Halle’s individual judgment.

In Devlin, the Supreme Court concluded that an unnamed member of a Rule 23 class action who was affected by, and had objected to, the settlement of a class action during a hearing pursuant to Rule 23(e) of the Federal Rules of Civil Procedure had the right, as a party to the action, to appeal the settlement without first filing a motion for leave to intervene. The Supreme Court held that “[w]hat is most important to this case is that nonnamed class members are parties to the -proceedings in the sense of being bound by the settlement.” Devlin, 536 U.S. at 10, 122 S.Ct. 2005.

The opt-in plaintiffs here stand in contrast to the unnamed Rule 23 class member bound by a class action settlement as described in Devlin. The opt-in plaintiffs were dismissed without prejudice when the collective action allegations were struck from the complaint and are not bound by any aspect of the judgment that was ultimately entered in Steven Halle’s case. Consequently, they are not subject to a final decision disposing of their rights from which they may file an appeal under § 1291. See id. at 14,122 S.Ct. 2005 (“[N]o federal statute or procedural rule directly addresses the question of who may appeal from approval of class action settlements, while the right to appeal from an action that finally disposes of one’s rights has a statutory basis.” (citing 28 U.S.C. § 1291)).

Even if, after Judge Bissoon dismissed the collective action allegations, Steven Halle retained some residual right to represent “similarly situated” employees, any such residual right does, not extend to -the opt-in plaintiffs. The opt-in plaintiffs retained their own substantive FLSA claims and remain free to file such claims and pursue final judgments on the merits. “While [a named plaintiffs] settlement may have the collateral effect of foreclosing unjoined claimants from having their rights vindicated in respondent’s suit, such putative plaintiffs remain free to vindicate their rights in their own suits. They are no less able to have their .claims settled or adjudicated- following respondent’s suit than if her suit has never been filed at all.” Genesis Healthcare, 133 S.Ct. at 1531.

When the opt-in plaintiffs were dismissed without prejudice, they did not suffer an adverse judgment on the merits of any claim. They lost nothing but the ability to proceed in Halle’s case. This does not give rise to a right to pursue an appeal from Halle’s individual final judgment. See McLaughlin v. Pernsley, 876 F.2d 308, 313 (3d Cir. 1989) (where district court’s order does not affect a legally cognizable interest of appellant, appeal will be dismissed for lack of standing); In re: Glenn W. Turner Enter. Litig., 521 F.2d 775, 781 (3d Cir. 1975) (“A party may appeal only if he is aggrieved by the judgment or the order of the district court.”).

Our understanding of the representative nature of FLSA collective actions is consistent with our conclusion that the opt-in plaintiffs cannot pursue this appeal. Steven Halle filed this proceeding, representing both himself and others “similarly situated.” Halle alone litigated in that representational role: after filing the complaint, he raised and responded to motions, participated in alternative dispute resolution, and actively engaged in the litigation process. The opt-in plaintiffs were mere passive observers until they were struck from the proceeding' entirely.

When they opted to benefit from the efficiencies of participating in a collective action, these individuals agreed to set aside the individual authority to litigate, including the ability to appeal. Each of the opt-in plaintiffs’ consent forms stated, “I hereby ... authorize and designate the named plaintiffs to act on my behalf concerning the litigation, this investigation, consideration of settlement and attorneys’ fees and costs, and all other matters pertaining to this lawsuit.” To the extent that the Appellants could have appealed—and we hold above that they could not—this language waived their right to do so. Cf. Pyickett, 349 F.3d at 1297 (relying, on “the language of the consent forms that the opt-in plaintiffs signed in this case” to determine which rights opt-in plaintiffs delegated to the named plaintiffs). By consenting to join Halle’s collective action, these opt-in plaintiffs ceded to Halle the ability to act on their behalf in all matters, including the ability to pursue this appeal.

D.

Appellants do not identify a single case in which a Court of Appeals has exercised jurisdiction over an appeal remotely similar to this one—in which a collective action opt-in plaintiff seeks appellate review of a decision striking collective action allegations from a complaint and where the named plaintiffs claims are moot. Appellants are subject tó a non-final order dismissing their claims without prejudice, and they offer ho clear basis for the exercise of appellate jurisdiction. Rather, they advocate that, as a matter of fairness, this Court should exercise jurisdiction over this appeal.

Appellants contend it would be unfair to dismiss this appeal because it leaves the opt-in plaintiffs without an opportunity to obtain appellate review of Judge Bissoon’s decision to dismiss the collective allegations from Halle’s complaint now that West Penn has “picked off” Halle by offering him a Rule 68 judgment which mooted his claims. It is true that we have observed the practical concern that the opt-in plaintiffs raise—namely, that offers - of judgment, like the offer Halle accepted, are used by defendants to strategically “pick off’ named plaintiffs prior to certification (or, here, appellate review of certification-related decisions), and may thereby result in the frustration of the collective action vehicle. See Symc-zyk, 656 F.3d at 197-98.

When the Supreme Court considered this argument, the potential for unfairness did not affect its determination that, where the named plaintiffs Rule 68 judgment mooted her claims, the Court was deprived of jurisdiction. Genesis Healthcare, 133 S.Ct. at 1531. Similarly here, fairness considerations do riot undermine our fundamental conclusion that the opt-in plaintiffs lack a final decision that we may' review under § 1291.

And any perceived unfairness is tempered by the fact that, in Camesi, the panel set forth a path for pursuing review of FLSA collective action certification decisions. We here echo that point: to obtain appellate review of an order decertifying a collective action, the plaintiff must either proceed to a final judgment on the merits of his or her individual claims or seek the District Court’s permission to pursue an immediate appeal. Camesi, 729 F.3d at 245. Appellants have pursued neither course, It should, therefore, be unsurprising that they face dismissal for lack of appellate jurisdiction.

IV.

For the foregoing reasons, we lack jurisdiction over this appeal. Accordingly, it will be dismissed, . . ..

      . The complaints also raised class action claims pursuant to Rule 23 of the Federal Rules of Civil Procedure, and claims under the Employee Retirement Income Security Act of 1974 ("ERISA”), 29 U.S.C. § 1132, and the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1964. The ERISA and RICO claims were dismissed with • prejudice. No Rule 23 class was certified, nor were those dismissals challenged in the earlier appeal,

      . Among the many Kuznyetsov opt-in plaintiff consent forms are those of individuals who will soon re-appear as participants in the next round of district court litigation, see infra, including Steven Halle, Wayne Haber, and KatieJo Bigenho. It appears Señora Tarpley is the sole participant in the current appeal who did not consent to opt in to Kuznyetsov.

      . Judge Bissoon also observed that, although a “scant number" of Belle opt-ins had not participated in Camesi (less than 5% of them), principles of privity would extend the issue preclusion bar to those in Belle who had not opted in to Camesi.

      . Judge Bissoon observed that the "overlap” between Kuznyetsov and Halle was less than .in Camesi/Belle (just less than 81%, as opposed to slightly more than 95%), but concluded “this distinction does not modify the Court’s analyses and conclusions.” Halle v. W. Penn Allegheny Health Sys. Inc., No. 2:13-cv-1449-CB, slip op. at 1 n.l (W.D. Pa. filed Nov. 6, 2014).

      .Although the statute does not employ the phrase "collective action,” the term appears in the FLSA's legislative history, see H.R. Rep. No. 80-326, at 13 (1947) (Conf. Rep.), and is accepted as the appropriate designation for the type of representative action described in FLSA § 216(b).

      . Further, Congress added the "opt-in" provision, setting forth that “no employee shall be a party plaintiff to any such action unless he gives his consent in writing....” See H.R. Rep. No. 80-326, at 13 (1947) (Conf. Rep.).

      . A minority of courts has rejected the two-step certification approach in favor of a more traditional Rule 23-s1yle analysis, considering numerosity, commonality, typicality, and adequacy of representation. See 1 Joseph M. McLaughlin, McLaughlin on Class Actions § 2:16 & n.74 (13th ed. 2013). We rejected that approach in Zavala v. Wal Mart Stores Inc., 691 F.3d 527, 536 (3d Cir. 2012).

      . Although Hoffman-La Roche arose in the context of a proceeding under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, the ADEA incorporates enforcement provisions of the FLSA, including the collective action provisions of 29 U.S.C. § 216(b).

      . Some courts refer to the process of opting in to a collective action as "joinder.” See Grayson v. K Mart Corp., 79 F.3d 1086, 1096 (11th Cir. 1996) (Garth, J.) (referring to a certification of an ADEA collective action as "permitting opt-in joinder of ‘similarly situated’ plaintiffs”). But opt-in plaintiffs are held to a lesser standard than FLSA named plaintiffs or other plaintiffs who jo.in in .civil actions. For instance, ADEA opt-in plaintiffs do not need to exhaust administrative remedies, while ADEA named plaintiffs do. See Lusardi v. Lechner, 855 F.2d 1062, 1078 (3d Cir. 1988) (recognizing that “in other contexts the opt-in class action has been analogized to permissive joinder and intervention” but concluding that opt-ins in ADEA suit need not satisfy exhaustion requirements where named plaintiffs have done so). Moreover, opt-in plaintiffs are held to a less stringent standard than under Rule 20 of the Federal Rules of Civil Procedure. See Grayson, 79 F.3d at 1096-97.

      . Notably, § 216(b) is written in the negative, providing that "[n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.” Thus, the statute establishes that it is, at a minimum, necessary to file a written consent in order to become a party-plaintiff, but it is silent as to whether filing such a consent, without more, is sufficient to confer that status.

      . While a dismissed opt-in plaintiff retains the ability to pursue individual claims after a district court decertifies a collective action, we have located no authority (nor have the parties cited any) discussing the approach taken by Steven Halle in tlte underlying case • here—namely, his decision, upon dismissal without prejudice from Kuznyetsov, to re-file not only his individual claims, but also to try to resurrect substantially similar collective action allegations.

      . Because the parties' briefs give rise to doubts concerning our ability to exercise appellate jurisdiction, we directed the parties to file supplemental briefs on this issue.

      . Although the order states that the opt-in claims were “denied,” a denial implies a decision on the merits of the claim. Because Judge Bissoon did not reach the merits of the opt-in plaintiffs' claims, for clarity we refer to the claims as dismissed.

      . Similarly, in the context of class actions, prior to the 1998 amendments to Rule 23(f) that today permit parties to pursue immediate review of certification decisions, decisions de-certifying a class had to await review until the plaintiff obtained a final judgment in the case—even if proceeding as an individual rather than as part of a larger group might mean the "death knell” for the action. Coopers & Lybrand v. Livesay, 437 U.S. 463, 471, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978).

      . Compare U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 400, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980) (holding that, in the Rule 23 class action context, named plaintiff may appeal a denial of class certification even if his or her individual claims had been satisfied through the entry of judgment), with Genesis Healthcare, 133 S.Ct. at 1529 (distinguishing Ger-aghty to hold that, prior to any individuals opting in, mooting the named plaintiffs claims moots the entire suit); Cameron-Grant, 347 F.3d at 1249 ("[A] § 216(b) plaintiff ... presents only a claim on the merits ... [and] has no claim that he is entitled to represent other plaintiffs.”); Lusardi v. Xerox Corp., 975 F.2d at 974 (comparing collective actions to class actions and observing that "[njormally, when claims of the named plaintiffs become moot before class certification, dismissal of the action is required”); Smith v. T-Mobile USA Inc., 570 F.3d 1119, 1123 (9th Cir. 2009) ("Because the plaintiffs voluntarily settled all of their claims after the district court’s denial of certification, they have failed to retain a personal stake in the litigation and their case is moot.”).

      . Appellants did not actively participate in the proceeding at any time prior to their notice of appeal. For example, when Steven Halle accepted judgment, Appellants did not move to intervene and substitute themselves as named plaintiffs in Steven Halle's stead. Thus, we need not consider whether such efforts might have been sufficient to keep the case “alive” for purposes of appealing' the dismissal of the collective action allegations. See, e.g., Lusardi, 975 F.2d at 984-85 (discussing unsuccessful efforts of opt-in plaintiffs to intervene in decertified collective action after named plaintiffs' claims were extinguished).

      . During oral argument, Appellants attempted to argue for the first time that an inability to obtain merits review in this appeal would amount to a deprivation of their constitutional right to due process. .".An appellant waives an argument in support of reversal if he does not raise that argument in his opening brief.” AT & T Inc. v. FCC, 582 F.3d 490, 495 (3d Cir. 2009) (citation omitted), rev’d on other grounds, 562 U.S. 397, 131 S.Ct. 1177, 179 L.Ed.2d 132 (2011). Because the constitutional claim was not presented in Appellants’ opening brief, it is waived.