FILED 

U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 October 20, 2003 

 THOMAS K. KAHN 

 CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 03-11546

________________________

D. C. Docket No. 02-80326-CV-KAM

MAXINE CAMERON-GRANT,

FELSHIA TISSIERA,

VELDA A. FREDERICK,

 Plaintiffs,

ROSS BASIL, 

 Plaintiff-Appellant,

versus

MAXIM HEALTHCARE SERVICES, INC., 

a Foreign corporation,

 Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(October 20, 2003)
*Honorable Norman H. Stahl, United States Circuit Judge for the First Circuit, sitting by

designation.

2

Before HULL, MARCUS and STAHL*

, Circuit Judges.

PER CURIAM:

Plaintiff-appellant Ross Basil was one of four plaintiffs who brought this

action under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., on

behalf of themselves as well as “similarly situated” employees. This appeal raises

the question whether Basil, whose personal claims are settled and now moot, may

appeal the district court’s order denying his motion to notify other potential

plaintiffs of this FLSA action. After review and oral argument, we determine that

this action is moot. 

I. BACKGROUND

On April 12, 2002, plaintiff-appellant Ross Basil, and plaintiffs Maxine

Cameron-Grant, Feleshia Tissiera, and Velda A. Frederick, brought this action

against defendant-appellee Maxim Healthcare, Inc. (“Maxim”) under the FLSA,

29 U.S.C. § 201 et seq. The plaintiffs filed this action “on behalf of themselves

and other similarly situated employees,” seeking to recover unpaid back wages,

unpaid overtime compensation, an additional equal amount as liquidated damages,

and reasonable attorneys’ fees and costs.
1Section 216(b) of the FLSA provides, in pertinent part: 

An action to recover the liability prescribed in either of the preceding sentences may

be maintained against any employer (including a public agency) in any Federal or

State court of competent jurisdiction by any one or more employees for and in behalf

of himself or themselves and other employees similarly situated. No 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. 

3

According to the complaint, Defendant Maxim provides healthcare services

to adults. At various times, Maxim employed the four named plaintiffs, who are

nurses that rendered nursing services on Maxim’s behalf. The complaint alleges

that the four named plaintiffs sometimes worked longer than forty hours per week

and that Maxim failed to compensate them for their work in excess of forty hours

per week at a rate of at least one and one-half (11⁄2) times the regulated rate at

which they were employed, in violation of 29 U.S.C. § 207. The complaint also

alleges that Maxim failed to pay the plaintiffs the applicable minimum hourly rate,

in violation of 29 U.S.C. §§ 206 and 215(a)(2), and that Maxim retaliated against

the plaintiffs after they complained about not receiving back pay or overtime

compensation. 

On September 27, 2002, the four named plaintiffs filed a motion for an

order permitting court supervised notice to employees of their opt-in rights. The

plaintiffs sought permission from the district court to proceed as a “collective

action” under 29 U.S.C. § 216(b),1 asserting that they “know that their claims are
29 U.S.C. § 216(b). 

2

In Hipp v. Liberty National Life Insurance Co., 252 F.3d 1208 (11th Cir. 2001), this

Court specifically considered collective actions brought under the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. §§ 621-34. Hipp, 252 F.3d at 1214-

15. However, the Hipp analysis is relevant to FLSA collective actions because“[p]laintiffs

wishing to sue as a class under ADEA must utilize the opt-in class mechanism provided in 29

U.S.C. § 216(b) instead of the opt-out class procedure provided in Fed. R. Civ. P. 23.” Hipp, 252

F.3d at 1216 (citation omitted). 

Hipp outlined a two-tiered procedure that district courts should use in certifying

collective actions under § 216(b), stating as follows: 

The first determination is made at the so-called “notice stage.” At the notice stage,

the district court makes a decision – usually based only on the pleadings and any

affidavits which have been submitted – whether notice of the action should be

given to potential class members. 

Because the court has minimal evidence, this determination is made using a fairly

lenient standard, and typically results in “conditional certification” of a

representative class. If the district court “conditionally certifies” the class, putative

class members are given notice and the opportunity to “opt- in.” The action

proceeds as a representative action throughout discovery. 

The second determination is typically precipitated by a motion for

“decertification” by the defendant usually filed after discovery is largely complete

and the matter is ready for trial. At this stage, the court has much more

information on which to base its decision, and makes a factual determination on

the similarly situated question. If the claimants are similarly situated, the district

court allows the representative action to proceed to trial. If the claimants are not

similarly situated, the district court decertifies the class, and the opt-in plaintiffs

are dismissed without prejudice. The class representatives – i.e. the original

plaintiffs – proceed to trial on their individual claims. 

Id. at 1218 (quoting Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213-14 (5th Cir. 1995)

(internal footnote omitted)). Since Hipp, the district courts in our circuit have utilized the twotiered approach described above. See, e.g., Reed v. Mobile County Sch. Sys., 246 F. Supp. 2d

1227, 1230 (S.D. Ala. 2003); Barron v. Henry County Sch. Sys., 242 F. Supp. 2d 1096, 1102

(M.D. Ala. 2003); Stone v. First Union Corp., 2003 WL 21850449, *3-5 (S.D. Fla. 2003).

4

typical of the claims of other employees of the defendant and are typical of the

claims of all members of the representative class.”2 See 29 U.S.C. § 216(b). 
5

On January 9, 2003, three of the four named plaintiffs, Maxine CameronGrant, Feleshia Tissiera, and Velda Frederick, filed a stipulation for dismissal with

prejudice of “all of their . . . claims and causes of action in the above-styled case,

in their entirety.” The district court accepted the dismissal of their claims. 

On January 22, 2003, Maxim stipulated to paying the fourth plaintiff’s,

appellant Basil’s, claims for unpaid wages and overtime pay. Basil had other

claims pending. 

On February 6, 2003, the district court denied the plaintiffs’ motion to allow

notification to potential opt-in plaintiffs. In analyzing the plaintiffs’ motion, the

district court applied the two-part test set forth in Dybach v. State of Florida

Department of Corrections, 942 F.2d 1562 (11th Cir. 1991). In Dybach, this Court

stated that the district court, before exercising its power to give notice to other

potential members of the plaintiff class to “opt-in” to the lawsuit, “should satisfy

itself that there are other employees of the department-employer who desire to

‘opt-in’ and who are ‘similarly situated’ with respect to their job requirements and

with regard to their pay provisions.” Id. at 1567-68. The district court concluded

that “the affidavits and deposition transcripts provided by Plaintiffs are sufficient

to satisfy this Court that there are other employees of Defendant who are similarly

situated with respect to their job requirements and with regard to pay provisions.” 
6

However, the district court also found that the plaintiffs failed to set forth evidence

that any employees desired to opt-in to the lawsuit. 

After the denial of this motion, plaintiff Basil and defendant Maxim agreed

to the dismissal of Basil’s remaining claims – leaving no claims pending against

Maxim. Thus, on March 5, 2003, the district court issued an order entering final

judgment on Maxim’s stipulation that it would pay some of Basil’s claims and that

his other claims would be dismissed. According to the order and stipulated final

judgment, Maxim specifically “agreed to pay, and now has fully paid [Basil] all

claimed unpaid wages and overtime pay, liquidated damages equal to that amount,

and [Basil]’s costs and attorneys’ fees.” The order also stated that “[a]ll other

claims in this case have been dismissed with prejudice.” 

Plaintiff Basil now appeals the district court’s order denying the motion to

allow notification to potential opt-in plaintiffs. Because Basil has settled some of

his claims with Maxim, agreed to dismissal of the remainder of his claims, and

even recovered his costs and attorneys’ fees, we first must consider whether this

action is moot. 

II. DISCUSSION

This appeal raises an issue of first impression: whether a district court’s

denial of a motion to notify potential opt-in plaintiffs under § 216(b) of the FLSA
7

may be reviewed on appeal after the named plaintiff’s personal claims have

become “moot.”

The general rule is that settlement of a plaintiff’s claims moots an action. 

See Lake Coal Co. v. Roberts & Schaefer Co., 474 U.S. 120, 106 S. Ct. 553, 554,

88 L.Ed.2d 418 (1985); Hammond Clock Co. v. Schiff, 293 U.S. 529, 530, 55 S.

Ct. 146, 79 L.Ed. 639 (1934). In the Rule 23 class action context, however,

unique mootness principles may apply – when the named plaintiff seeks to have a

class certified, the class certification is denied, and his personal claims

subsequently become moot – to permit the named plaintiff to appeal the denial of

class certification. See, e.g., United States Parole Comm’n v. Geraghty, 445 U.S.

388, 100 S. Ct. 1202, 63 L.Ed.2d 479 (1980); Deposit Guar. Nat’l Bank v. Roper,

445 U.S. 326, 100 S. Ct. 1166, 63 L.Ed.2d 427 (1980); Love v. Turlington, 733

F.2d 1562 (11th Cir. 1984). In this case, we consider whether the mootness

principles in the Rule 23 class action context apply to collective actions brought

under § 216(b) of the FLSA. 

A. Mootness/Personal Stake and Rule 23 Class Actions 

As required by Article III of the Constitution the exercise of judicial power

by federal courts “depends upon the existence of a case or controversy.” North

Carolina v. Rice, 404 U.S. 244, 246, 92 S. Ct. 402, 404, 30 L.Ed.2d 413 (1971)
8

(internal quotation marks omitted); 31 Foster Children v. Bush, 329 F.3d 1255,

1263 (11th Cir. 2003), petition for cert. filed, 72 U.S.L.W. 3171 (U.S. Sep. 2,

2003) (No. 03-351). “A case is moot when it no longer presents a live controversy

with respect to which the court can give meaningful relief.” 31 Foster Children,

329 F.3d at 1263 (internal quotation marks and citation omitted). More

specifically, a case becomes moot “when the issues presented are no longer ‘live’

or the parties lack a legally cognizable interest in the outcome.” Powell v.

McCormack, 395 U.S. 486, 496, 89 S. Ct. 1944, 1951, 23 L.Ed.2d 491 (1969); 31

Foster Children, 329 F.3d at 1263.

The “legally cognizable interest” or “personal stake” requirement derives

from Article III’s case or controversy limitation, which restricts the jurisdiction of

federal courts “to disputes capable of judicial resolution.” Geraghty, 445 U.S. at

396, 100 S. Ct. at 1208. “The ‘personal stake’ aspect of mootness doctrine []

serves primarily the purpose of assuring that federal courts are presented with

disputes they are capable of resolving.” Id. at 397, 100 S. Ct. at 1209. 

In two cases decided on the same day, United States Parole Commission v.

Geraghty, 445 U.S. 388, 100 S. Ct. 1202, 63 L.Ed.2d 479 (1980), and Deposit

Guaranty National Bank v. Roper, 445 U.S. 326, 100 S. Ct. 1166, 63 L.Ed.2d 427 

(1980), the United States Supreme Court discussed whether the named plaintiff,
3As stated in Geraghty, the plaintiff “was mandatorily released from prison; he had served

22 months of his sentence, and had earned good-time credits for the rest.” Geraghty, 445 U.S. at

394.

9

whose personal claims became moot after the denial of class certification under

Rule 23, had a personal stake in appealing that denial. In Geraghty, the plaintiff

prisoner challenged the parole release guidelines, but his substantive claims

became moot because he was released from prison.3

 In Roper, the plaintiffs

challenged the usurious interest rates of the defendant bank, which tendered to

plaintiffs the maximum amounts, including interest and costs, that could be

recovered. Although the Roper plaintiffs refused the tender, the district court

entered judgment for the defendant bank over plaintiffs’ objection, which mooted

their substantive claims.

In Geraghty, the Supreme Court concluded that the named plaintiff in a Rule

23 class action may have a “personal stake” in the class certification claim in one

of two ways. See Geraghty, 445 U.S. at 402, 100 S. Ct. at 1212. First, the named

plaintiff may retain, in some cases, a “legally cognizable interest” in the

“traditional sense.” See id. (citing Powell v. McCormack, 395 U.S. 486, 496, 89

S. Ct. 1944, 1951, 23 L.Ed.2d 491 (1969)). For example, the named plaintiff who

retains an “economic interest” in the class certification question continues to have

a personal stake in the action. See Roper, 445 U.S. at 336-37, 100 S. Ct. at 1173. 
10

In Roper, the Supreme Court recognized that an economic interest could include

the named plaintiff’s continuing individual interest in shifting the costs of

litigation to the entire class. Id.

In this case, plaintiff Basil does not argue that he has an “economic interest”

in appealing the district court’s order. Here, the parties agreed to a settlement of

some of Basil’s claims and the dismissal of his other claims. Thus, in light of the

parties’ settlement agreement, Basil has no costs or attorneys’ fees that he can shift

to other members of the putative class. See id. 

Having no economic interest in this appeal or any other legally cognizable

interest in the “traditional sense,” plaintiff Basil’s only recourse is to argue that as

a named plaintiff in a § 216(b) collective action, he has a “personal stake” in the

second manner identified by the Supreme Court in Geraghty – i.e., that the named

plaintiff may continue to have a personal stake in the class certification claim that

derives from the unique nature of the Rule 23 class action mechanism, as

discussed infra. 

In discussing how the named plaintiff might have a personal stake in the

class certification claim, the Supreme Court in Geraghty and Roper first examined

the purposes underlying the creation of Rule 23. In Roper, the Supreme Court

explained that the “aggregation of individual claims in the context of a classwide
11

suit [under Rule 23] is an evolutionary response to the existence of injuries

unremedied by the regulatory action of government.” Roper, 445 U.S. at 339, 100

S. Ct. at 1174. The Roper Court stated that “[w]here it is not economically

feasible to obtain relief within the traditional framework of a multiplicity of small

individual suits for damages, aggrieved persons may be without any effective

redress unless they may employ the class-action device.” Id. In Geraghty, the

Supreme Court added that the Rule 23 class action mechanism was developed to

accommodate varying types of interests, including “the protection of the defendant

from inconsistent obligations, the protection of the interests of absentees, the

provision of a convenient and economical means for disposing of similar lawsuits,

and the facilitation of the spreading of litigation costs among numerous litigants

with similar claims.” Geraghty, 445 U.S. at 402-403, 100 S. Ct. at 1212. 

To achieve the primary benefits of class suits, as stated above, the Geraghty

Court stated that “the Federal Rules of Civil Procedure give the proposed class

representative the right to have a class certified if the requirements of the Rules

are met.” Id. at 403, 100 S. Ct. at 1212. In essence, the named plaintiff who seeks

to represent a class under Rule 23 acts in a role that is “analogous to the private

attorney general.” See id.; Roper, 445 U.S. at 338, 100 S. Ct. at 1174 (stating that

class actions represent an “increasing reliance on the ‘private attorney general’ for
12

the vindication of legal rights”). 

Thus, the Geraghty Court stated that, in the Rule 23 context, the named

plaintiff “presents two separate issues for judicial resolution. One is the claim on

the merits; the other is the claim that he is entitled to represent a class.” Geraghty,

445 U.S. at 402, 100 S. Ct. at 1211 (emphasis added); Love, 733 F.2d at 1565.

1984). In other words, the named plaintiff has a “procedural . . . right to represent

a class” that is independent of his substantive claims. Geraghty, 445 U.S. at 402,

100 S. Ct. at 1212. The denial of a motion to certify a class under Rule 23 is “an

example of a procedural ruling, collateral to the merits of a litigation, that is

appealable after the entry of final judgment.” Roper, 445 U.S. at 336, 100 S. Ct. at

1173. 

The Geraghty Court noted, however, that a legally cognizable interest “in

the traditional sense rarely ever exists with respect to the class certification claim.” 

Geraghty, 445 U.S. at 402, 100 S. Ct. at 1212. To ensure that the procedural right

is appealable (and to effectuate the purposes of class action suits under Rule 23),

the Geraghty Court stated that the named plaintiff nevertheless has a personal

stake in the class certification claim so long as “[t]he imperatives of a dispute

capable of judicial resolution are sharply presented issues in a concrete factual

setting and [there are] self-interested parties vigorously advocating opposing
4See Martinez-Mendoza v. Champion Int. Corp, 340 F.3d 1200, 1215-16 (11th Cir. 2003)

(stating that “a plaintiff’s capacity to act as representative of the class is not ipso facto

terminated when he loses his case on the merits. See Satterwhite v. City of Greenville, 634 F.2d

231 (5th Cir. Jan. 1981) (en banc); Armour v. City of Anniston, 654 F.2d 382 (5th Cir. Unit B

Aug. 1981) (per curiam); see also Armstrong v. Martin Marietta Corp, 138 F.3d 1374, 1383 n.16

(11th Cir. 1998) (en banc) (noting that in some cases the named plaintiff may appeal a denial of

class certification even if she ceases individually to have a controversy with the defendant)”).

13

positions.” Id. at 403, 100 S. Ct. at 1212. 

In Geraghty, the Supreme Court explicitly left open the question “whether a

named plaintiff who settles the individual claim after denial of class certification”

has a personal stake to appeal the denial of class certification. 445 U.S. at 404

n.10, 100 S. Ct. at 1212 (emphasis added). Since Geraghty, however, this Court

has concluded that the rule in Geraghty also applies when the named plaintiff

settles his claims. Love, 733 F.2d at 1565 (stating that there was “no meaningful

distinction between the settlement of the claim here at issue and the expiration of

the claim in Geraghty for purposes of the ability of the named plaintiff to pursue

an appeal of the denial of certification”).4

 

B. Collective Actions Under FLSA § 216(b) 

The pertinent question in this case, then, is whether the named plaintiff in a

§ 216(b) action under the FLSA has the right to represent other plaintiffs – that is,

whether the named plaintiff has a procedural right analogous to the right provided

for by Rule 23 in which the plaintiff can have a personal stake. 
5

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we

adopted as binding precedent the decisions of the former Fifth Circuit handed down prior to

October 1, 1981. 

14

In analyzing this question, we begin by looking to the purposes of § 216(b). 

Section 216(b) of the FLSA provides, in pertinent part, that: 

An action to recover the liability prescribed in either of the preceding sentences

may be maintained against any employer (including a public agency) in any

Federal or State court of competent jurisdiction by any one or more employees

for and in behalf of himself or themselves and other employees similarly

situated. No 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) (emphasis added). The provisions of § 216(b) are derived in

substantial part from the Portal to Portal Act of 1947, pt. IV, § 5, 61 Stat. 84, 87,

88 (1947). See United Food & Commercial Workers Union v. Albertson’s, Inc.,

207 F.3d 1193, 1200 (10th Cir. 2000); see also LaChapelle v. Owens-Illinois, Inc.,

513 F.2d 286, 287 n.6 (5th Cir. 1975).5

In 1947, Congress enacted the Portal to Portal Act “in response to a

‘national emergency’ created by a flood of suits under the FLSA aimed at

collecting portal-to-portal pay allegedly due employees.” Arrington v. Nat’l

Broad. Co., 531 F. Supp. 498, 500 (D.D.C.1982); see also Albertson’s, 207 F.3d at

1200-01 (noting that Arrington’s interpretation of Congress’s intent in enacting

the Portal-to-Portal Act has been embraced by almost all courts confronting the
15

issue in published opinions). Congress amended the FLSA to limit the parties

who could bring suit under that statute. See State of Nevada Employees’ Ass’n v.

Bryan, 916 F.2d 1384, 1391 (9th Cir. 1990) (citing 61 Stat. 87). Specifically,

§ 216(b) was amended to provide that “standing to pursue an action for liability is

statutorily limited to employees only.” Albertson’s, 207 F.3d at 1200. By

identifying “employees” as the only proper parties in a § 216(b) action, the Portal

to Portal Act aimed to ban representative actions that previously had been brought

by unions on behalf of employees. Id. (stating that the ban was aimed “‘at a fear

that unions, as representatives, were concretely benefitting from participation in

the FLSA suits’”) (quoting Arrington, 531 F. Supp. at 502 n.8). 

While employees still may sue on behalf of other employees under § 216(b),

the 1947 amendments did restrict their rights in one important respect. The 1947

amendments added an “opt-in” provision, which provides 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); see also LaChapelle, 513 F.2d at 287 & n.6. 

Congress’s aim in adding the “opt-in” language to § 216(b) was to “‘prevent[]

large group actions, with their vast allegations of liability, from being brought on

behalf of employees who had no real involvement in, or knowledge of, the
16

lawsuit.’” Albertson’s, 207 F.3d at 1200 (quoting Arrington, 531 F. Supp. at 501). 

“The ‘consent in writing’ requirement . . . [sought] to eradicate the problem of

totally uninvolved employees gaining recovery as a result of some third party’s

action in filing suit.” Arrington, 531 F. Supp. at 502. Thus, the 1947 amendments

to the FLSA prohibit what precisely is advanced under Rule 23 – a representative

plaintiff filing an action that potentially may generate liability in favor of

uninvolved class members. 

This distinction between § 216(b) collective actions and Rule 23 class

actions is further reflected by the manner in which the two actions are structured. 

In a Rule 23 proceeding, the named plaintiff describes the class. LaChapelle, 513

F.2d at 288. If the district court determines that the described class meets the

requirements of subdivision (a) and either subdivision (b)(1), (b)(2), or (b)(3) of

Rule 23, the class comes into being and “each person within the description is

considered to be a class member.” Id. The existence of a class under Rule 23,

therefore, does not depend in theory on the participation of other class members. 

Irrespective of whether other class members take any or no role in the action, they

are bound by the judgment, whether favorable or unfavorable, unless they
6

“More correctly, class members may opt out only when the action is maintainable under

subdivision (b)(3) of Rule 23. When either subdivision (b)(1) or (b)(2) applies, the rule does not

allow a class member to avoid the effect of judgment by disassociating himself from the suit.” 

LaChapelle, 513 F.2d at 288 n.7; Fed. R. Civ. P. 23. 

17

affirmatively “opt out” of the suit.6

 Thus, the structure of Rule 23 reflects that the

named plaintiff has a claim that “he is entitled to represent a class.” See Geraghty,

445 U.S. at 402, 100 S. Ct. at 1211 (emphasis added). 

In light of the history underlying the amendments to the FLSA, it is not

surprising that § 216(b) is a fundamentally different creature than the Rule 23

class action. Even if the § 216(b) plaintiff can demonstrate that there are other

plaintiffs “similarly situated” to him, see 29 U.S.C. § 216(b), he has no right to

represent them. Under § 216(b), the action does not become a “collective” action

unless other plaintiffs affirmatively opt into the class by giving written and filed

consent. See LaChapelle, 513 F.2d at 288. Until such consent is given, “no

person will be bound by or may benefit from judgment.” Id. Thus, in contrast to

Rule 23 class actions, the existence of a collective action under § 216(b) does

depend on the active participation of other plaintiffs. In other words, under

§ 216(b), the named plaintiff does not have the right to act in a role analogous to

the private attorney general concept. 

Considering the "fundamental, irreconcilable difference" between § 216(b)
7Because Basil has no personal stake in this appeal, we need not consider whether the

controversy is “live.” See Powell, 395 U.S. 486, 496, 89 S. Ct. 1944, 1951, 23 L.Ed.2d 491

(1969).

18

and Rule 23, see LaChapelle, 513 F.2d at 288, we conclude that a § 216(b)

plaintiff, like Basil, presents only a claim on the merits. In contrast to the Rule 23

plaintiff, a § 216(b) plaintiff has no claim that he is entitled to represent other

plaintiffs.7

 Accordingly, because Plaintiff Basil has no remaining personal claims,

this action is moot. 

III. CONCLUSION

For the reasons stated above, we dismiss this appeal as moot. 

APPEAL DISMISSED.