Respondents, who had purchased securities in reliance on a
prospectus, brought this action on behalf of themselves and a class
of similarly situated purchasers, alleging that petitioner
accounting firm had violated the federal securities laws. The
District Court first certified the action as a class action under
Fed.Rule Civ.Proc. 23, and then, after further proceedings,
decertified the class. Respondents then filed a notice of appeal
pursuant to 28 U.S.C. § 1291, under which courts of appeals have
jurisdiction of appeals from all "final decisions" of the district
courts except where a direct review may be had in the Supreme
Court. After examining the amount of respondents' claims in
relation to their financial resources and the probable cost of the
litigation, the Court of Appeals concluded that they would not
pursue their claims individually. On the basis of the "death knell"
doctrine (which assumes that, without the incentive of a possible
group recovery, the individual plaintiff may find it economically
imprudent to pursue his lawsuit to a final judgment and then seek
appellate review of an adverse class determination), the Court of
Appeals held that it had jurisdiction to hear the appeal, and
reversed the District Court's order decertifying the class.
Respondents contend in this Court that an order denying class
certification is appealable under both the "death knell" doctrine
and the "collateral order" exception articulated in
Cohen v.
Beneficial Industrial Loan Corp., 337 U.
S. 541.
Held:
1. The "collateral order" exception does not apply to a
prejudgment order denying class certification because such an order
is subject to revision in the District Court, Fed.Rule Civ.Proc.
23(c)(1); involves considerations that are "enmeshed in the factual
and legal issues comprising the plaintiff's cause of action,"
Mercantile Nat. Bank v. Langdeau, 371 U.
S. 555,
371 U. S. 558;
and is subject to effective review after final judgment at the
behest of the named plaintiff or intervening class members.
United Airlines, Inc. v. McDonald, 432 U.
S. 385. Pp.
437 U. S.
468-469.
2. Nor does the "death knell" doctrine support appellate
jurisdiction of a prejudgment order denying class certification.
Pp.
437 U.S. 469-476.
(a) The formulation of an appealability rule that turns on
the
Page 437 U. S. 464
amount of the plaintiff's claim is plainly a legislative, not a
judicial, function. Pp.
437 U. S.
472-473.
(b) The alternative approach to the "death knell" rule that is
based on a thorough study of the possible impact of the class order
on the fate of the litigation would have a seriously debilitating
effect on the administration of justice. The district court would
have to take evidence, entertain argument, and make findings, which
the court of appeals would have to review simply to determine
whether a discretionary class determination is subject to appellate
review, with the possibility of remand for further factual
development. Further appeals from adverse rulings on other grounds
could likewise be anticipated. Pp.
437 U. S.
473-474.
(c) Perhaps the principal vice of the doctrine is that it
authorizes indiscriminate interlocutory review of the trial judge's
decisions, circumventing restrictions imposed by the Interlocutory
Appeals Act of 1958. Pp.
437 U. S.
474-475
(d) The doctrine favors only plaintiffs, even though the class
issue will often be critically important to defendants as well. P.
437 U. S.
476.
(e) Allowing appeals as a matter of right from nonfinal orders
that turn on the facts of a particular case thrusts appellate
courts indiscriminately into the trial process, thus defeating a
vital purpose of the final judgment rule of maintaining the
appropriate relationship between the respective courts. P.
437 U. S.
476.
550 F.2d 1106, reversed. STEVENS, J., delivered the opinion for
a unanimous Court.
MR. JUSTICE STEVENS delivered the opinion of the Court.
The question in this case is whether a district court's
determination that an action may not be maintained as a class
action pursuant to Fed.Rule Civ.Proc. 23 is a "final decision"
Page 437 U. S. 465
within the meaning of 28 U.S.C. § 1291, [
Footnote 1] and therefore appealable as a matter of
right. Because there is a conflict in the Circuits over this issue,
[
Footnote 2] we granted
certiorari, and now hold that such an order is not appealable under
§ 1291.
Petitioner, Coopers & Lybrand, is an accounting firm that
certified the financial statement in a prospectus issued in
connection with a 1972 public offering of securities in Punta Gorda
Isles for an aggregate price of over $18 million. Respondents
purchased securities in reliance on that prospectus. In its next
annual report to shareholders, Punta Gorda restated the earnings
that had been reported in the prospectus for 1970 and 1971 by
writing down its net income for each year by over $1 million.
Thereafter, respondents sold their Punta Gorda securities and
sustained a loss of $2,650 on their investment.
Respondents filed this action on behalf of themselves and a
class of similarly situated purchasers. They alleged that
petitioner and other defendants [
Footnote 3] had violated various sections of
Page 437 U. S. 466
the Securities Act of 1933 and the Securities Exchange Act of
134. [
Footnote 4] The District
Court first certified, and then, after further proceedings,
decertified the class.
Respondents did not request the District Court to certify its
order for interlocutory review under 28 U.S.C. § 1292(b). [
Footnote 5] Rather, they filed a notice
of appeal pursuant to § 1291. [
Footnote 6] The Court of Appeals regarded its appellate
jurisdiction as depending on whether the decertification order had
sounded the "death knell" of the action. After examining the amount
of respondents' claims in relation to their financial resources and
the probable cost of the litigation, the court concluded that they
would not pursue their claims individually. [
Footnote 7] The Court
Page 437 U. S. 467
of Appeal therefore held that it had jurisdiction to hear the
appeal and, on the merits, reversed the order decertifying the
class.
Livesay v. Punta Gorda Isles, Inc., 550 F.2d
1106.
Federal appellate jurisdiction generally depends on the
existence of a decision by the District Court that "ends the
litigation on the merits and leaves nothing for the court to do but
execute the judgment."
Catlin v. United States,
324 U. S. 229,
324 U. S. 229-233.
[
Footnote 8] An order refusing
to certify, or decertifying, a class does not, of its own force,
terminate the entire litigation, because the plaintiff is free to
proceed on his individual claim. Such an order is appealable,
therefore, only if it comes within an appropriate exception to the
final judgment rule. In this
Page 437 U. S. 468
case, respondents rely on the "collateral order" exception
articulated by this Court in
Cohen v. Beneficial Industrial
Loan Corp., 337 U. S. 541, and
on the "death knell" doctrine adopted by several Circuits to
determine the appealability of orders denying class
certification.
I
In
Cohen, the District Court refused to order the
plaintiff in a stockholder's derivative action to post the security
for costs required by a New Jersey statute. The defendant sought
immediate review of the question whether the state statute applied
to derivative suits in federal court. This Court noted that the
purpose of the finality requirement "is to combine in one review
all stages of the proceeding that effectively may be reviewed and
corrected if and when final judgment results."
Id. at
337 U. S. 546.
Because immediate review of the District Court's order was
consistent with this purpose, the Court held it appealable as a
"final decision" under § 1291. The ruling had
"settled conclusively the corporation's claim that it was
entitled by state law to require the shareholder to post security
for costs . . . [and] concerned a collateral matter that could not
be reviewed effectively on appeal from the final judgment.
[
Footnote 9]"
To come within the "small class" of decisions excepted from the
final judgment rule by
Cohen, the order must conclusively
determine the disputed question, resolve an important issue
completely separate from the merits of the action, and be
effectively unreviewable on appeal from a final judgment. [
Footnote 10]
Abney v. United
States, 431 U. S. 651,
431 U. S. 658;
United States
v.
Page 437 U. S. 469
MacDonald, 435 U. S. 850,
435 U. S. 855.
An order passing on a request for class certification does not fall
in that category. First, such an order is subject to revision in
the District Court. Fed.Rule Civ.Proc. 23(c)(1). [
Footnote 11] Second, the class
determination generally involves considerations that are "enmeshed
in the factual and legal issues comprising the plaintiff's cause of
action."
Mercantile Nat. Bank v. Langdeau, 371 U.
S. 555,
371 U. S. 558.
[
Footnote 12] Finally, an
order denying class certification is subject to effective review
after final judgment at the behest of the named plaintiff or
intervening class members.
United Airlines, Inc. v.
McDonald, 432 U. S. 385. For
these reasons, as the Courts of Appeals have consistently
recognized, [
Footnote 13]
the collateral order doctrine is not applicable to the kind of
order involved in this case.
II
Several Circuits, including the Court of Appeals in this case,
have held that an order denying class certification is appealable
if it is likely to sound the "death knell" of the litigation.
[
Footnote 14] The "death
knell" doctrine assumes that, without the incentive of a possible
group recovery, the individual plaintiff may find it economically
imprudent to pursue his lawsuit to a final
Page 437 U. S. 470
judgment and then seek appellate review of an adverse class
determination. Without questioning this assumption, we hold that
orders relating to class certification are not independently
appealable under § 1291 prior to judgment.
In addressing the question whether the "death knell" doctrine
supports mandatory appellate jurisdiction of orders refusing to
certify class actions, the parties have devoted a portion of their
argument to the desirability of the small claim class action.
Petitioner's opposition to the doctrine is based in part on
criticism of the class action as a vexatious kind of litigation.
Respondents, on the other hand, argue that the class action serves
a vital public interest and, therefore, special rules of appellate
review are necessary to ensure that district judges are subject to
adequate supervision and control. Such policy arguments, though
proper for legislative consideration, are irrelevant to the issue
we must decide.
There are special rules relating to class actions and, to that
extent, they are a special kind of litigation. Those rules do not,
however, contain any unique provisions governing appeals. The
appealability of any order entered in a class action is determined
by the same standards that govern appealability in other types of
litigation. Thus, if the "death knell" doctrine has merit, it would
apply equally to the many interlocutory orders in ordinary
litigation -- rulings on discovery, on venue, on summary judgment
-- that may have such tactical economic significance that a defeat
is tantamount to a "death knell" for the entire case.
Though a refusal to certify a class is inherently interlocutory,
it may induce a plaintiff to abandon his individual claim. On the
other hand, the litigation will often survive an adverse class
determination. What effect the economic disincentives created by an
interlocutory order may have on the fate of any litigation will
depend on a variety of factors. [
Footnote 15] Under the
Page 437 U. S. 471
"death knell" doctrine, appealability turns on the court's
perception of that impact in the individual case. Thus, if the
court believes that the plaintiff has adequate incentive to
continue, the order is considered interlocutory; but if the court
concludes that the ruling, as a practical matter, makes further
litigation improbable, it is considered an appealable final
decision.
The finality requirement in § 1291 evinces a legislative
judgment that
"[r]estricting appellate review to 'final decisions' prevents
the debilitating effect on judicial administration caused by
piecemeal appeal disposition of what is, in practical consequence,
but a single controversy."
Eisen v. Carlisle & Jacquelin, 417 U.
S. 156,
417 U. S. 170.
Although a rigid insistence on technical finality would sometimes
conflict with the purposes of the statute,
Cohen v. Beneficial
Industrial Loan Corp., 337 U. S. 541,
even adherents of the "death knell" doctrine acknowledge that a
refusal to certify a class does not fall in that limited category
of orders which, though nonfinal, may be appealed without
undermining the policies served by the general rule. It is
undisputed that allowing an appeal from such an order in the
ordinary case would run "directly contrary to the policy of the
final judgment rule embodied in 28 U.S.C. § 1291 and the sound
reasons for it. . . ." [
Footnote
16] Yet several Courts of Appeals have sought to identify on a
case-by-case basis those few interlocutory orders which, when
viewed from the standpoint of economic prudence, may induce a
plaintiff to abandon the litigation. These orders, then, become
appealable as a matter of right.
In administering the "death knell" rule, the courts have used
two quite different methods of identifying an appealable class
ruling. Some courts have determined their jurisdiction
Page 437 U. S. 472
by simply comparing the claims of the named plaintiffs with an
arbitrarily selected jurisdictional amount; [
Footnote 17] others have undertaken a thorough
study of the possible impact of the class order on the fate of the
litigation before determining their jurisdiction. Especially when
consideration is given to the consequences of applying these tests
to pretrial orders entered in non-class action litigation, it
becomes apparent that neither provides an acceptable basis for the
exercise of appellate jurisdiction.
The formulation of an appealability rule that turns on the
amount of the plaintiff's claim is plainly a legislative, not a
judicial, function. While Congress could grant an appeal of right
to those whose claims fall below a specific amount in controversy,
it has not done so. Rather, it has made "finality" the test of
appealability. Without a legislative prescription, an "amount in
controversy" rule is necessarily an arbitrary measure of finality,
because it ignores the variables that inform a litigant's decision
to proceed, or not to proceed, in the face of an adverse class
ruling. [
Footnote 18]
Moreover, if the jurisdictional
Page 437 U. S. 473
amount is to be measured by the aggregated claims of the named
plaintiffs, appellate jurisdiction may turn on the joinder
decisions of counsel, rather than the finality of the order.
[
Footnote 19]
While slightly less arbitrary, the alternative approach to the
"death knell" rule would have a serious debilitating effect on the
administration of justice. It requires class action plaintiffs to
build a record in the trial court that contains evidence of those
factors deemed relevant to the "death knell" issue and district
judges to make appropriate findings. [
Footnote 20] And one Court of Appeals has even required
that the factual inquiry be extended to all members of the class,
because the policy against interlocutory appeals can be easily
circumvented by joining "only those whose individual claims would
not warrant the cost of separate litigation"; [
Footnote 21] to avoid this possibility, the
named plaintiff is required to prove that no member of the
purported class has a claim that warrants individual
litigation.
A threshold inquiry of this kind may, it is true, identify some
orders that would truly end the litigation prior to final judgment;
allowing an immediate appeal from those orders may enhance the
quality of justice afforded a few litigants. But this incremental
benefit is outweighed by the impact of such an individualized
jurisdictional inquiry on the judicial system's overall capacity to
administer justice.
The potential waste of judicial resources is plain. The district
court must take evidence, entertain argument, and make findings;
and the court of appeals must review that record and those findings
simply to determine whether a discretionary class determination is
subject to appellate review. And if the record provides an
inadequate basis for this determination, a
Page 437 U. S. 474
remand for further factual development may be required.
[
Footnote 22] Moreover, even
if the court makes a "death knell" finding and reviews the class
designation order on the merits, there is no assurance that the
trial process will not again be disrupted by interlocutory review.
For even if a ruling that the plaintiff does not adequately
represent the class is reversed on appeal, the district court may
still refuse to certify the class on the ground that, for example,
common questions of law or fact do not predominate. Under the
"death knell" theory, plaintiff would again be entitled to an
appeal as a matter of right pursuant to § 1291. And since other
kinds of interlocutory orders may also create the risk of a
premature demise, the potential for multiple appeals in every
complex case is apparent and serious.
Perhaps the principal vice of the "death knell" doctrine is that
it authorizes indiscriminate interlocutory review of decisions made
by the trial judge. The Interlocutory Appeals Act of 1958, 28
U.S.C. § 1292(b), [
Footnote
23] was enacted to meet the recognized need for prompt review
of certain nonfinal orders. However, Congress carefully confined
the availability of such review. Nonfinal orders could never be
appealed as a matter of right. Moreover, the discretionary power to
permit an interlocutory appeal is not, in the first instance,
vested in the courts of appeals. [
Footnote 24] A party seeking review of a nonfinal order
must first obtain the consent of the trial judge. This screening
procedure serves the dual purpose of ensuring that such review will
be confined to appropriate cases and avoiding time-consuming
jurisdictional determinations in the court
Page 437 U. S. 475
of appeals. [
Footnote 25]
Finally, even if the district judge certifies the order under §
1292(b), the appellant still "has the burden of persuading the
court of appeals that exceptional circumstances justify a departure
from the basic policy of postponing appellate review until after
the entry of a final judgment."
Fisons, Ltd. v. United
States, 458 F.2d 1241, 1248 (CA7 1972). The appellate court
may deny the appeal for any reason, including docket congestion.
[
Footnote 26] By permitting
appeals of right from class designation orders after jurisdictional
determinations that turn on questions of fact, the "death knell"
doctrine circumvents these restrictions. [
Footnote 27]
Page 437 U. S. 476
Additional considerations reinforce our conclusion that the
"death knell" doctrine does not support appellate jurisdiction of
prejudgment orders denying class certification. First, the doctrine
operates only in favor of plaintiffs even though the class issue --
whether to certify, and if so, how large the class should be --
will often be of critical importance to defendants as well.
Certification of a large class may so increase the defendant's
potential damages liability and litigation costs that he may find
it economically prudent to settle and to abandon a meritorious
defense. Yet the Courts of Appeals have correctly concluded that
orders granting class certification are interlocutory. Whatever
similarities or differences there are between plaintiffs and
defendants in this context involve questions of policy for
Congress. [
Footnote 28]
Moreover, allowing appeals of right from nonfinal orders that turn
on the facts of a particular case thrusts appellate courts
indiscriminately into the trial process, and thus defeats one vital
purpose of the final judgment rule --
"that of maintaining the appropriate relationship between the
respective courts. . . . This goal, in the absence of most
compelling reasons to the contrary, is very much worth preserving.
[
Footnote 29] "
Page 437 U. S. 477
Accordingly, we hold that the fact that an interlocutory order
may induce a party to abandon his claim before final judgment is
not a sufficient reason for considering it a "final decision"
within the meaning of § 1291. [
Footnote 30] The judgment of the Court of Appeals is
reversed with directions to dismiss the appeal.
It is so ordered.
[
Footnote 1]
"The courts of appeals shall have jurisdiction of appeals from
all final decisions of the district courts of the United States . .
. except where a direct review may be had in the Supreme
Court."
[
Footnote 2]
Compare Hackett v. General Host Corp., 455 F.2d 618
(CA3 1972),
cert. denied, 407 U.S. 925;
King v. Kansas
City Southern Industries, Inc., 479 F.2d 1259 (CA7 1973)
(holding that such an order is not immediately appealable under §
1291),
with Hartmann v. Scott, 488 F.2d 1215 (CA8 1973);
Ott v. Speedwriting Pub. Co., 518 F.2d 1143 (CA6 1975);
Eisen v. Carlisle & Jacquelin, 370 F.2d 119 (CA2
1966),
cert. denied, 386 U.S. 1035 (holding that such an
order is immediately appealable under § 1291).
[
Footnote 3]
The other defendants, Punta Gorda and several of its officers
and directors, also filed a petition for writ of certiorari in this
Court.
Punta Gorda Isles, Inc. v. Livesay, No. 76-1837.
After we granted certiorari in this case and No. 76-1837, 434 U.S.
954, the parties entered into a tentative settlement agreement.
Respondents and petitioners in No. 76-1837 agreed to dismiss that
petition; petitioner in this case, however, did not stipulate to
dismissal of its petition. In view of the tentative nature of the
settlement, this case is not moot.
[
Footnote 4]
§§ 11, 12(2) and 17(b) of the Securities Act of 1933, 15 U.S.C.
§§ 77k, 77
l(2), and 77q(b) (1976 ed.), and § 10(b) of the
Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) (1976 ed.).
[
Footnote 5]
Section 1292(b) provides:
"When a district judge, in making in a civil action an order not
otherwise appealable under this section, shall be of the opinion
that such order involves a controlling question of law as to which
there is substantial ground for difference of opinion and that an
immediate appeal from the order may materially advance the ultimate
termination of the litigation, he shall so state in writing in such
order. The Court of Appeals may thereupon, in its discretion,
permit an appeal to be taken from such order, if application is
made to it within ten days after the entry of the order:
Provided, however, That application for an appeal
hereunder shall not stay proceedings in the district court unless
the district judge or the Court of Appeals or a judge thereof shall
so order."
[
Footnote 6]
Respondents also petitioned for a writ of mandamus directing the
District Court to recertify the class. Since the Court of Appeals
accepted appellate jurisdiction, it dismissed the petition for a
writ of mandamus.
[
Footnote 7]
"Plaintiffs, both of whom are employed, have an aggregate yearly
gross income of $26,000. Their total net worth is approximately
$75,000, but only $4,000 of this sum is in cash. The remainder
consists of equity in their home and investments."
"As of December, 1974, plaintiffs had already incurred expenses
in excess of $1,200 in connection with this lawsuit. Plaintiffs'
new counsel has estimated expenses of this lawsuit to be $15,000.
The nature of this case will require extensive discovery, much of
which must take place in Florida, where most defendants reside.
Moreover, the allegations regarding the prospectus and financial
statements will likely require expert testimony at trial."
"After considering all the relevant information in the record,
we are convinced that plaintiffs have sustained their burden of
showing that they will not pursue their individual claim if the
decertification order stands. Although plaintiffs' total net worth
could absorb the cost of this litigation,"
"it [takes] no great understanding of the mysteries of high
finance to make obvious the futility of spending a thousand dollars
to get a thousand dollars -- or even less."
"Douglas, Protective Committees in Railroad Reorganizations, 47
Harv.L.Rev. 565, 567 (1934). We conclude we have jurisdiction to
hear the appeal."
Livesay v. Punta Gorda Isles, Inc., 550 F.2d 1106,
1109-1110.
[
Footnote 8]
For a unanimous Court in
Cobbledick v. United States,
309 U. S. 323,
309 U. S. 325,
Mr. Justice Frankfurter wrote:
"Since the right to a judgment from more than one court is a
matter of grace, and not a necessary ingredient of justice,
Congress, from the very beginning, has, by forbidding piecemeal
disposition on appeal of what for practical purposes is a single
controversy, set itself against enfeebling judicial administration.
Thereby is avoided the obstruction to just claims that would come
from permitting the harassment and cost of a succession of separate
appeals from the various rulings to which a litigation may give
rise, from its initiation to entry of judgment. To be effective,
judicial administration must not be leaden-footed. Its momentum
would be arrested by permitting separate reviews of the component
elements in a unified cause."
[
Footnote 9]
Eisen v. Carlisle & Jacquelin, 417 U.
S. 156,
417 U. S.
171.
[
Footnote 10]
As the Court summarized the rule in
Cohen:
"This decision appears to fall in that small class which finally
determine claims of right separable from, and collateral to, rights
asserted in the action, 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."
337 U.S. at
337 U. S.
546.
[
Footnote 11]
The Rule provides that an order involving class status may be
"altered or amended before the decision on the merits." Thus, a
district court's order denying or granting class status is
inherently tentative.
[
Footnote 12]
"Evaluation of many of the questions entering into determination
of class action questions is intimately involved with the merits of
the claims. The typicality of the representative's claims or
defenses, the adequacy of the representative, and the presence of
common questions of law or fact are obvious examples. The more
complex determinations required in Rule 23(b)(3) class actions
entail even greater entanglement with the merits. . . ."
15 C. Wright, A. Miller, & E. Cooper, Federal Practice and
Procedure § 3911, p. 485 n. 45 (1976).
[
Footnote 13]
See, e.g., King v. Kansas City Southern Industries,
Inc., 479 F.2d 1259 (CA7 1973);
Williams v. Mumford,
167 U.S.App.D.C. 125, 511 F.2d 363 (1975),
cert. denied,
423 U.S. 828.
[
Footnote 14]
See n 2,
supra.
[
Footnote 15]
E.g., the plaintiff's resources; the size of his claim
and his subjective willingness to finance prosecution of the claim;
the probable cost of the litigation and the possibility of joining
others who will share that cost; and the prospect of prevailing on
the merits and reversing an order denying class certification.
[
Footnote 16]
Korn v. Franchard Corp., 443 F.2d 1301, 1305 (CA2
1971).
[
Footnote 17]
Thus, orders denying class certification have been held
nonappealable because the plaintiffs alleged damages in the
$3,000-$8,000 range.
Shayne v. Madison Square Garden, 491
F.2d 397 (CA2 1974);
Korn v. Franchard Corp., supra; Gosa v.
Securities Inv. Co., 449 F.2d 1330 (CA5 1971);
Domaco
Venture Capital Fund v. Teltronics Services, Inc., 551 F.2d
508 (CA2 1977). Smaller claims, however, have been held sufficient
to support appellate jurisdiction in other cases.
See, e.g.,
Green v. Wolf Corp., 406 F.2d 291 (CA2 1968),
cert.
denied, 395 U.S. 977.
[
Footnote 18]
See 437 U. S. 15,
supra. Thus, it is not at all clear that the prospect of
recovering $3,000 would provide more incentive to sustain complex
litigation against corporate defendants than the prospect of
recovering $1,000. Yet the "amount in controversy" test allows an
appeal in the latter case, but not in the former.
Compare Green
v. Wolf Corp., supra at 295 n. 6,
with Gosa v. Securities
Inv. Co., supra. The arbitrariness of this approach is
exacerbated by the fact that the Courts of Appeals have not settled
on a specific jurisdictional amount; rather, they have simply
determined on an
ad hoc basis whether the plaintiff's
claim is too small to warrant individual prosecution.
[
Footnote 19]
Cf. Milberg v. Western Pacific R. Co., 443 F.2d 1301
(CA2 1971).
[
Footnote 20]
See, e.g., Hooley v. Red Carpet Corp., 549 F.2d 643
(CA9 1977);
Ott v. Speedwriting Pub. Co., 518 F.2d 1143
(CA6 1975).
[
Footnote 21]
Hooley v. Red Carpet Corp., supra at 645.
[
Footnote 22]
See, e.g.,Jelfo v. Hickok Mfg. Co., 531 F.2d 680, 681
(CA2 1976).
[
Footnote 23]
See n 5,
supra.
[
Footnote 24]
Thus, Congress rejected the notion that the courts of appeals
should be free to entertain interlocutory appeals whenever, in
their discretion, it appeared necessary to avoid unfairness in the
particular case. H.R.Rep. No. 1667, 85th Cong.,2d Sess., 6 (1958);
Note, Interlocutory Appeals in the Federal Courts under 28 U.S.C. §
1292(b), 88 Harv.L.Rev. 607, 610 (1975).
[
Footnote 25]
H.R.Rep. No. 1667,
supra at 5-6:
"We also recognize that such savings may be nullified in
practice by indulgent extension of the amendment to inappropriate
cases or by enforced consideration in Courts of Appeals of many
ill-founded applications for review. The problem, therefore, is to
provide a procedural screen through which only the desired cases
may pass, and to avoid the wastage of a multitude of fruitless
applications to invoke the amendment contrary to its purpose. . .
."
". . . Requirement that the Trial Court certify the case as
appropriate for appeal serves the double purpose of providing the
Appellate Court with the best informed opinion that immediate
review is of value, and at once protects appellate dockets against
a flood of petitions in inappropriate cases. . . . [A]voidance of
ill-founded applications in the Courts of Appeals for piecemeal
review is of particular concern. If the consequence of change is to
be crowded appellate dockets as well as any substantial number of
unjustified delays in the Trial Court, the benefits to be expected
from the amendment may well be outweighed by the lost motion of
preparation, consideration, and rejection of unwarranted
applications for its benefits."
[
Footnote 26]
Hearings on H.R. 6238 and H.R. 7260 before Subcommittee No. 3 of
the House Committee on the Judiciary, 85th Cong., 2d Sess., 21
(1958).
[
Footnote 27]
Several Courts of Appeals have heard appeals from discretionary
class determinations pursuant to § 1292(b).
See, e.g., Lukenas
v. Bryce's Mountain Resort, Inc., 538 F.2d 594 (CA4 1976);
Susman v. Lincoln American Corp., 561 F.2d 86 (CA7 1977).
See also Samuel v. University of Pittsburgh, 506 F.2d 355
(CA3 1974). As Judge Friendly has noted:
"[T]he best solution is to hold that appeals from the grant or
denial of class action designation can be taken only under the
procedure for interlocutory appeals provided by 28 U.S.C. §
1292(b). . . . Since the need for review of class action orders
turns on the facts of the particular case, this procedure is
preferable to attempts to formulate standards which are necessarily
so vague as to give rise to undesirable jurisdictional litigation
with concomitant expense and delay."
Parkinson v. April Industries, Inc., 520 F.2d 650, 660
(CA2 1975) (concurring opinion).
[
Footnote 28]
"The Congress is in a position to weigh the competing interests
of the dockets of the trial and appellate courts, to consider the
practicability of savings in time and expense, and to give proper
weight to the effect on litigants. . . . This Court . . . is not
authorized to approve or declare judicial modification. It is the
responsibility of all courts to see that no unauthorized extension
or reduction of jurisdiction, direct or indirect, occurs in the
federal system. . . . Any such
ad hoc decisions
disorganize practice by encouraging attempts to secure or oppose
appeals with a consequent waste of time and money. The choices fall
in the legislative domain."
Baltimore Contractors v. Bodinger, 348 U.
S. 176,
348 U. S.
181-182.
[
Footnote 29]
Parkinson v. April Industries, Inc., supra at 654.
[
Footnote 30]
Respondents also suggest that the Court's decision in
Gillespie v. United States Steel Corp., 379 U.
S. 148, supports appealability of a class designation
order as a matter of right. We disagree. In
Gillespie, the
Court upheld an exercise of appellate jurisdiction of what it
considered a marginally final order that disposed of an unsettled
issue of national significance because review of that issue
unquestionably "implemented the same policy Congress sought to
promote in § 1292(b),"
id. at
379 U. S. 154,
and the arguable finality issue had not been presented to this
Court until argument on the merits, thereby ensuring that none of
the policies of judicial economy served by the finality requirement
would be achieved were the case sent back with the important issue
undecided. In this case, in contrast, respondents sought review of
an inherently nonfinal order that tentatively resolved a question
that turns on the facts of the individual case; and, as noted
above, the indiscriminate allowance of appeals from such
discretionary orders is plainly inconsistent with the policies
promoted by § 1292(b). If
Gillespie were extended beyond
the unique facts of that case, § 1291 would be stripped of all
significance.