FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KERI MCELMURRY; KAREN MRAZEK, 

individual and on behalf of all

similarly situated,

Plaintiffs-Appellants,

v. No. 05-36047

U.S. BANK NATIONAL ASSOCIATION,  D.C. No.

and its affiliates and subsidiaries, CV-04-00642-DJH

Defendant-Appellee,

and

DOES 1-25,

Defendant. 

Appeal from the United States District Court

for the District of Oregon

Ancer L. Haggerty, District Judge, Presiding

9449
In re: KERI MCELMURRY; In re: 

KAREN MRAZEK, individually and

on behalf of all similarly situated,

KERI MCELMURRY; KAREN MRAZEK,

individual and on behalf of all

similarly situated, No. 05-76425

Petitioners,

D.C. No.

v.  CV-04-00642-ALH

UNITED STATES DISTRICT OPINION

COURT FOR THE DISTRICT OF

OREGON,

Respondent,

U.S. BANK NATIONAL ASSOCIATION,

and its affiliates and subsidiaries;

DOES 1-25,

Real Parties in Interest. 

Petition for Writ of Mandamus to the

United States District Court for the

District of Oregon

Argued and Submitted

February 5, 2007—Portland, Oregon

Filed August 8, 2007

Before: Dorothy W. Nelson, Andrew J. Kleinfeld, and

Jay S. Bybee, Circuit Judges.

Opinion by Judge Bybee

9450 MCELMURRY v. U.S. BANK NAT’L ASSOC.
COUNSEL

Jacqueline L. Koch, Koch & Deering, Portland, Oregon, for

the petitioners. 

Timothy R. Volpert and Christopher McCracken, Davis

Wright Tremaine LLP, Portland, Oregon, for the respondent.

OPINION

BYBEE, Circuit Judge: 

Plaintiffs-Appellants Keri McElmurry and Karen Mrazek

bring this interlocutory appeal from a district court order

9452 MCELMURRY v. U.S. BANK NAT’L ASSOC.
denying their motion to issue notice of a collective action

brought under § 16(b) of the Fair Labor Standards Act

(“FLSA”), 29 U.S.C. § 216(b). We hold that the collateral

order exception to the final judgment rule is inapplicable here

because the district court’s order is not “effectively unreviewable on appeal from a final judgment.” Coopers & Lybrand

v. Livesay, 437 U.S. 463, 468 (1978); see also Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47 (1949). We

thus dismiss Appellants’ interlocutory appeal for lack of

appellate jurisdiction. We also deny Appellants’ petition for

a writ of mandamus.

I

Appellants are current or former employees of U.S. Bank

National Association (“U.S. Bank”). They brought suit to

recover overtime pay allegedly denied them, in violation of

the FLSA. The FLSA requires employers to pay time-and-ahalf for hourly work in excess of forty hours per week. See 29

U.S.C. § 207(a). Appellants allege that U.S. Bank underpaid

them because the bank’s conversion chart required hourly

U.S. Bank employees to round down the actual time worked

to the next lowest tenth of an hour1 and, according to the complaint, they were underreporting their hours. Appellants

brought their claim as a collective action under the FLSA,

which authorizes an employee to bring an action on behalf of

“himself . . . and other employees similarly situated.” 29

U.S.C. § 216(b). Here, the asserted “similarly situated”

employees were other workers governed by U.S. Bank’s timekeeping practices. 

A “collective action” differs from a class action. See generally CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY

KANE, 7B FED. PRAC. & PROC. § 1807 (3d ed. 2005). In a class

1

If, for example, an employee worked 0-5 minutes, the chart indicated

a conversion to 0.0 hours, if an employee worked 6-11 minutes, the chart

indicated a conversion to 0.1 hours, and so on. 

MCELMURRY v. U.S. BANK NAT’L ASSOC. 9453
action, once the district court certifies a class under Rule 23,

all class members are bound by the judgment unless they opt

out of the suit. By contrast, in a collective action each plaintiff

must opt into the suit by “giv[ing] his consent in writing.” 29

U.S.C. § 216(b). As result, unlike a class action, only those

plaintiffs who expressly join the collective action are bound

by its results. See 29 U.S.C. § 256; Partlow v. Jewish

Orphans’ Home of S. Cal., Inc., 645 F.2d 757, 758-59 (9th

Cir. 1981), abrogated on other grounds by Hoffman-LaRoche

Inc. v. Sperling, 493 U.S. 165 (1989). Because non-parties to

a collective action are not subject to claim preclusion, giving

notice to potential plaintiffs of a collective action has less to

do with the due process rights of the potential plaintiffs and

more to do with the named plaintiffs’ interest in vigorously

pursuing the litigation and the district court’s interest in

“managing collective actions in an orderly fashion.”

Hoffmann-LaRoche, 493 U.S. at 173. Although § 216(b) does

not require district courts to approve or authorize notice to

potential plaintiffs, the Supreme Court held in HoffmanLaRoche that it is “within the discretion of a district court” to

authorize such notice. Id. at 171; see Does I thru XXIII v.

Advanced Textile Corp., 214 F.3d 1058, 1064 (9th Cir. 2000)

(a district court “may authorize the named plaintiffs . . . to

send notice to all potential plaintiffs”). In this case, after

extensive discovery, Appellants twice asked the district court

to approve notice to potential plaintiffs and to toll the statute

of limitations pending the notice process. The district court

denied both requests. The current appeal is from the district

court’s second order, dated October 7, 2005, denying Appellants’ request for notice and rejecting as moot a request to toll

the statute of limitations. Subsequent to that order, Appellants

filed both this appeal and a petition for a writ of mandamus.

II

[1] The threshold issue is whether we have appellate jurisdiction over the district court’s order denying Appellants’

motion for notice to putative class members. The order is not

9454 MCELMURRY v. U.S. BANK NAT’L ASSOC.
a final decision subject to appeal under 28 U.S.C. § 1291,2

and Appellants did not seek certification under 28 U.S.C.

§ 1292.3 Consequently, the district court’s order is appealable

only if it falls within the collateral order exception to the final

judgment rule. See Cohen, 337 U.S. at 546-47. 

[2] Under the collateral order exception, an appellate court

“may exercise its § 1291 jurisdiction to review a district court

order that is not a final decision.” Does I thru XXIII, 214 F.3d

at 1066. This is “a narrow exception to the requirement that

all appeals under § 1291 await final judgment on the merits.”

Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374

(1981). Jurisdiction exists in only a “small class” of cases that

are deemed “too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Cohen,

337 U.S. at 546. To qualify as a collateral order suitable for

appellate review, an order must: 1) “conclusively determine

the disputed question”; 2) “resolve an important issue completely separate from the merits of the action”; and 3) “be

effectively unreviewable on appeal from a final judgment.”

Does I thru XXIII, 214 F.3d at 1066 (quoting Coopers & Lybrand, 437 U.S. at 468). Because collateral jurisdiction

requires all three elements, we lack collateral order jurisdiction if even one is not met. See Stringfellow v. Concerned

Neighbors in Action, 480 U.S. 370, 375 (1987). 

2Section 1291 provides that “[t]he courts of appeals . . . shall have jurisdiction of appeals from all final decisions of the district courts of the

United States.” 

3Under 28 U.S.C. § 1292(b), had plaintiffs sought and received from the

district court a statement that the denial of motion for notice “involve[d]

a controlling question of law as to which there is substantial ground for

difference of opinion and that an immediate appeal . . . may materially

advance the ultimate termination of the litigation,” we would “have jurisdiction of [the] appeal” and could, “in [our] discretion, permit [the] appeal

to be taken . . . .” 

MCELMURRY v. U.S. BANK NAT’L ASSOC. 9455
[3] The district court’s order denying Appellants’ motion

for notice would not be “effectively unreviewable” if we do

not exercise jurisdiction. An order is deemed effectively unreviewable only where “ ‘the legal and practical value of [the

right at stake will] be destroyed if [ ] not vindicated before

trial.’ ” Midland Asphalt Corp. v. United States, 489 U.S. 794,

799 (1989) (quoting United States v. MacDonald, 435 U.S.

850, 860 (1978)). For example, in Cohen, the defendants

appealed when the district court denied their request that the

plaintiffs post a bond for costs and attorneys fees under New

Jersey law. See Cohen, 337 U.S. at 544-45. The Court held

that the denial was immediately appealable because it was

conclusive; the posting of a bond was collateral to the merits;

and, if review were postponed to the termination of the case,

“it [would] be too late effectively to review the present order

and the rights conferred by the statute, if it is applicable,

[would] have been lost, probably irreparably.” Id. at 546.

Similarly, in Does I Thru XXIII, the district court dismissed

a “John Doe” complaint brought under the FLSA, but with

leave to amend the complaint with the plaintiffs’ true names.

See 214 F.3d at 1062. The plaintiffs appealed the order, arguing that they feared that if their names were revealed they

would be fired from their employment, deported, and jailed in

their home country. See id. We accepted the appeal and

explained the plaintiffs’ dilemma: 

If plaintiffs amend their complaint to state their true

names, plaintiffs will lose the opportunity to have

the anonymity question decided by an appellate

court. Plaintiffs could obtain immediate review by

not amending their complaint and instead allowing

the district court to enter a final judgment. But if

they lose on appeal of the anonymity issue, they will

have lost the option to pursue their FLSA claims

under their real names because the district court will

have already entered a final judgment dismissing the

case. 

9456 MCELMURRY v. U.S. BANK NAT’L ASSOC.
Does I thru XXIII, 214 F.3d at 1067. 

[4] We cannot see that Appellants will forfeit the opportunity to raise their arguments on an appeal from a final judgment in this case. Appellants argue that the statute of

limitations will continue to run, and that some employees may

lose their opportunity to participate in a collective action if

they wait until after an appeal from final judgment. Although

employees who may be similarly situated but have not optedin to the action are not bound by its conclusion, and may pursue their actions individually, see Ballaris v. Wacker Siltronic

Corp., 370 F.3d 901, 906 n.9 (9th Cir. 2004), we understand

Appellants’ concern. However, these arguments have been

made in the context of class action suits as well, and it is wellestablished that there is no collateral order jurisdiction over a

district court decision to certify or not to certify a class action

under Rule 23. See Coopers & Lybrand, 437 U.S. at 477 (no

collateral jurisdiction over appeal from order refusing to certify the class); Blackie v. Barrack, 524 F.2d 891, 895 (9th Cir.

1975) (no collateral jurisdiction over appeal from order certifying the class). Although, as we have pointed out, there are

differences between a collective action brought pursuant to

§ 216(b) and a class action brought under Rule 23, those differences are not relevant to whether we may exercise collateral order jurisdiction. See Baldridge v. SBC Commc’ns, Inc.,

404 F.3d 930, 931-32 & n.2 (5th Cir. 2005) (applying Coopers & Lybrand, by analogy, to collective actions).4

4Appellants point out that Rule 23 now provides that “A court of

appeals may in its discretion permit an appeal from an order of a district

court granting or denying class action certification . . . .” FED. R. CIV. P.

23(f). This provision, adopted in 1998, abrogates Coopers & Lybrand to

the extent it permits interlocutory review of class certification decisions.

See Baldridge, 404 F.3d at 932. It does not, however, affect the reasoning

in Coopers & Lybrand. Moreover, because there is no comparable interlocutory review provision in § 216(b), Rule 23(f) only strengthens our

conclusion. 

MCELMURRY v. U.S. BANK NAT’L ASSOC. 9457
[5] Our conclusion is consistent with the views of the other

circuits that have addressed collateral order jurisdiction over

§ 216(b) collective action decisions. Those courts have uniformly held that they lacked jurisdiction over the appeal, both

where the district court has certified and decertified the collective action. The Sixth Circuit addressed the question most

recently in Comer v. Wal-Mart Stores, Inc., 454 F.3d 544 (6th

Cir. 2006). Wal-Mart appealed a district court order granting

the plaintiffs’ request for notice to potential plaintiffs in the

region. See id. at 545. The Sixth Circuit held that it lacked

jurisdiction: “there is no reason our court could not, following

an appeal from final judgment, determine that part or all of

the plaintiff group was improperly deemed to be similarly situated and therefore improperly notified and included by optin. We see no obstacle to our court’s later review of this

issue.” Id. at 549. See also Baldridge, 404 F.3d at 931;

Lusardi v. Xerox Corp., 747 F.2d 174, 177-78 (3d Cir. 1984).

The Third Circuit came to the same conclusion in a case in

which the district court first certified and then decertified the

collective action. See Lusardi v. Lechner, 855 F.2d 1062,

1065 (3d Cir. 1988). The court concluded that “[a] decertification order is reviewable upon appeal from a final judgment.

Therefore, such an order . . . fails to fall within the Cohen

‘collateral order’ exception.” Id. at 1068-69 (citation omitted).

Appellants contend that the district court erred by considering evidence that goes to the merits. They point to language

in Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974), that “a

preliminary determination of the merits may result in substantial prejudice” because it “may color the subsequent proceedings.” Id. at 177-78. Eisen was an interlocutory appeal of an

order allocating the costs of providing notice in a Rule 23

class action. See id. at 167-69. However, the language in

Eisen that Appellants invoke referred to the district court’s

decision on the merits, not to the Court’s consideration of the

jurisdictional question. Contrary to Appellants’ arguments,

Eisen did not rely on burdens in discovery to support interlocutory jurisdiction. Rather, Eisen observed that the order at

9458 MCELMURRY v. U.S. BANK NAT’L ASSOC.
issue resembled the posting of a bond for costs, see Cohen,

337 U.S. 541, the effects of which could not be reversed on

appeal. See 417 U.S. at 171-72. Eisen provides no support for

appeal of the district court’s order here. See Coopers & Lybrand, 437 U.S. at 468 & n.9 (distinguishing Eisen from

Cohen). 

[6] We have reviewed Appellants’ remaining arguments

and find them without merit. Appellants have twice requested

notice to potential plaintiffs; nothing in the district court

orders would preclude the court from revisiting its decision

during subsequent proceedings. See Comer, 454 F.3d at 548-

49; Baldridge, 404 F.3d at 931-32. In any event, the district

court’s decision is reviewable in an appeal from a final judgment. We lack jurisdiction over this appeal. 

III

[7] Alternatively, Appellants petition for a writ of mandamus, which would permit review of this otherwise nonappealable order. Mandamus is “an extraordinary remedy, to be

reserved for extraordinary situations.” Gulfstream Aerospace

Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988). To

issue a writ of mandamus, we must be “firmly convinced that

the district court has erred and that the petitioner’s right to the

writ is clear and indisputable.” Credit Suisse v. U.S. Dist.

Court, 130 F.3d 1342, 1345 (9th Cir. 1997); see also United

States v. Austin, 416 F.3d 1016, 1024 (9th Cir. 2005) (reviewing for clear error). 

[8] We have identified five factors for determining whether

mandamus relief is warranted: 

(1) “[petitioner] has no other adequate means, such

as a direct appeal, to attain the relief he or she

desires”; (2) “[t]he petitioner will be damaged or

prejudiced in a way not correctable on appeal”; (3)

“[t]he district court’s order is clearly erroneous as a

MCELMURRY v. U.S. BANK NAT’L ASSOC. 9459
matter of law”; (4) “[t]he district court’s order is an

oft-repeated error, or manifests a persistent disregard

of the federal rules”; and (5) “[t]he district court’s

order raises new and important problems, or issues

of law of first impression.” 

Bauman v. U.S. Dist. Court, 557 F.2d 650, 654-55 (9th Cir.

1977) (citations omitted). The first two factors are not met

here, for all the reasons we have discussed in the previous

section. Consequently, we will deny the petition for a writ of

mandamus. 

IV

For the foregoing reasons, we dismiss the appeal for lack

of jurisdiction and deny Appellants’ petition for a writ of

mandamus. 

Appeal DISMISSED; Petition DENIED. 

9460 MCELMURRY v. U.S. BANK NAT’L ASSOC.