March 21, 2017
OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT No. 15-457.
granting or denying class certification are inherently
interlocutory, hence not immediately reviewable under 28
U.S.C. §1291, which empowers federal courts of appeals
to review only "final decisions of the district
courts." In Coopers & Lybrand v. Livesay,
437 U.S. 463, a 1978 decision, this Court held that the
death-knell doctrine-which rested on courts'
recognition that a denial of class certification would
sometimes end a lawsuit for all practical purposes- did not
warrant mandatory appellate jurisdiction of certification
orders. Id., at 470, 477. Although the death-knell
theory likely "enhanced the quality of justice
afforded a few litigants, " it did so at a heavy cost
to §1291's finality requirement. Id., at
473. First, the potential for multiple interlocutory
appeals inhered in the doctrine. See id., at 474.
Second, the death-knell theory forced appellate courts
indiscriminately into the trial process, circumventing the
two-tiered "screening procedure" Congress
established for interlocutory appeals in 28 U.S.C. §
1292(b). Id., at 474, 476. Finally, the doctrine
"op-erat[ed] only in favor of plaintiffs, " even
though the class-certification question may be critically
important to defendants as well. Id., at 476.
decades later, in 1998, after Congress amended the Rules
Enabling Act, 28 U.S.C. §2071 et seq., to
empower this Court to promulgate rules providing for
interlocutory appeal of orders "not otherwise provided
for [in §1292], " § 1292(e), this Court
approved Federal Rule of Civil Procedure 23(f). Rule 23(f)
authorizes "permissive interlocutory appeal" from
adverse class-certification orders in "the sole
discretion of the court of appeals." 28 U.S.C. App.,
p. 815. This discretionary arrangement was the product of
careful calibration on the part of the rulemakers.
owners of Microsoft's videogame console, the Xbox 360,
filed this putative class action alleging a design defect
in the device. The District Court struck respondents'
class allegations from the complaint, and the Court of
Appeals denied respondents permission to appeal that order
under Rule 23(f). Instead of pursuing their individual
claims to final judgment on the merits, respondents
stipulated to a voluntary dismissal of their claims with
prejudice, but reserved the right to revive their claims
should the Court of Appeals reverse the District
Court's certification denial. Respondents then
appealed, challenging only the interlocutory order striking
their class allegations. The Ninth Circuit held it had
jurisdiction to entertain the appeal under §1291. It
then held that the District Court's rationale for
striking respondents' class allegations was an
impermissible one, but refused to opine on whether class
certification was inappropriate for a different reason,
leaving that question for the District Court on remand.
Federal courts of appeals lack jurisdiction under
§1291 to review an order denying class certification
(or, as here, an order striking class allegations) after
the named plaintiffs have voluntarily dismissed their
claims with prejudice. Pp. 11-17.
Section 1291's final-judgment rule preserves the proper
balance between trial and appellate courts, minimizes the
harassment and delay that would result from repeated
interlocutory appeals, and promotes the efficient
administration of justice. This Court has resisted efforts
to stretch §1291 to permit appeals of right that would
erode the finality principle and disserve its objectives.
See, e.g., Mohawk Industries, Inc. v. Carpenter,
558 U.S. 100, 112. Attempts to secure appeal as of right
from adverse class certification orders fit that bill. Pp.
voluntary-dismissal tactic, even more than the death-knell
theory, invites protracted litigation and piecemeal
appeals. Under the death-knell doctrine, a court of appeals
could decline to hear an appeal if it determined that the
plaintiff "ha[d] adequate incentive to continue"
despite the denial of class certification. Coopers
& Lybrand, 437 U.S., at 471. Under
respondents' theory, however, the decision whether an
immediate appeal will he resides exclusively with the
plaintiff, who need only dismiss her claims with prejudice
in order to appeal the district court's order denying
class certification. And she may exercise that option more
than once, interrupting district court proceedings with an
interlocutory appeal again, should the court deny class
certification on a different ground.
contend that their position promotes efficiency, observing
that after dismissal with prejudice the case is over if the
plaintiff loses on appeal. But plaintiffs with weak merits
claims may readily assume that risk, mindful that class
certification often leads to a hefty settlement. And the
same argument was evident in the death-knell context, yet
this Court determined that the potential for piecemeal
litigation was "apparent and serious."
Id., at 474. That potential is greater still under
respondents' theory, where plaintiffs alone determine
whether and when to appeal an adverse certification ruling.
like the death-knell doctrine, respondents' theory
allows indiscriminate appellate review of interlocutory
orders. Beyond disturbing the " 'appropriate
relationship between the respective courts, '"
Coopers & Lybrand, 437 U.S., at 476,
respondents' dismissal tactic undercuts Rule
23(f)'s discretionary regime. This consideration is
"[o]f prime significance to the jurisdictional
issue" in this case, Swint v. Chambers County
Comm'n, 514 U.S. 35, 46, because Congress has
established rulemaking as the means for determining when a
decision is final for purposes of §1291 and for
providing for appellate review of interlocutory orders not
covered by statute, see §§2072(c) and 1292(e).
maintain that Rule 23(f) is irrelevant, for it concerns
interlocutory orders, whereas this case involves an actual
final judgment. Yet permitting respondents'
voluntary-dismissal tactic to yield an appeal of right
would seriously undermine Rule 23(f)'s careful
calibration, as well as Congress' designation of
rulemaking "as the preferred means for determining
whether and when prejudgment orders should be immediately
appealable, " Mohawk Industries, 558 U.S., at
113. Plaintiffs in putative class actions cannot transform
a tentative interlocutory order into a final judgment
within the meaning of §1291 simply by dismissing their
claims with prejudice. Finality "is not a technical
concept of temporal or physical termination."
Cobbledick v. United States, 309 U.S. 323, 326. It
is one "means [geared to] achieving a healthy legal
system, " ibid., and its contours are
determined accordingly. Pp. 14-16.
one-sidedness of respondents' voluntary-dismissal
device reinforces the conclusion that it does not support
mandatory appellate jurisdiction of refusals to grant class
certification. The tactic permits only plaintiffs, never
defendants, to force an immediate appeal of an adverse
certification ruling. Yet the "class issue" may
be just as important to defendants, Coopers &
Lybrand, 437 U.S., at 476, for class certification may
force a defendant to settle rather than run the risk of
ruinous liability. P. 17.
797 F.3d 607, reversed and remanded.
GlNSBURG, J., delivered the opinion of the Court, in which
KENNEDY, BREYER, SOTOMAYOR, and Kagan, JJ., joined. THOMAS,
J., filed an opin- ion concurring in the judgment, in which
ROBERTS, C. J., and ALITO, J., joined. GORSUCH, J., took no
part in the consideration or decision of the case.
case concerns options open to plaintiffs, when denied
class-action certification by a district court, to gain
appellate review of the district court's order. Orders
granting or denying class certification, this Court has held,
are "inherently interlocutory, " Coopers &
Lybrand v. Livesay, 437 U.S. 463, 470 (1978), hence not
immediately reviewable under 28 U.S.C. §1291, which
provides for appeals from "final decisions."
Pursuant to Federal Rule of Civil Procedure 23(f),
promulgated in 1998, however, orders denying or granting
class certification may be appealed immediately if the court
of appeals so permits. Absent such permission, plaintiffs may
pursue their individual claims on the merits to final
judgment, at which point the denial of class-action
certification becomes ripe for review.
plaintiffs in the instant case, respondents here, were denied
Rule 23(f) permission to appeal the District Court's
refusal to grant class certification. Instead of pursuing
their individual claims to final judgment on the merits,
respondents stipulated to a voluntary dismissal of their
claims "with prejudice, " but reserved the right to
revive their claims should the Court of Appeals reverse the
District Court's certification denial.
that the voluntary dismissal essayed by respondents does not
qualify as a "final decision" within the compass of
§1291. The tactic would undermine §1291's firm
finality principle, designed to guard against piecemeal
appeals, and subvert the balanced solution Rule 23(f) put in
place for immediate review of class-action orders.
§1291 of the Judicial Code, federal courts of appeals
are empowered to review only "final decisions of the
district courts." 28 U.S.C. §1291. Two guides, our
decision in Coopers & Lybrand v. Livesay, 437
U.S. 463 (1978), and Federal Rule of Civil Procedure 23(f),
control our application of that finality rule here.
Coopers & Lybrand, this Court considered whether
a plaintiff in a putative class action may, under certain
circumstances, appeal as of right a district court order
striking class allegations or denying a motion for class
certification. We held unanimously that the so-called
"death-knell" doctrine did not warrant mandatory
appellate jurisdiction of such "inherently
interlocutory" orders. 437 U.S., at 470, 477. Courts of
Appeals employing the doctrine "regarded [their]
jurisdiction as depending on whether [rejection of
class-action status] had sounded the 'death knell' of
the action." Id., at 466. These courts asked
whether the refusal to certify a class would end a lawsuit
for all practical purposes because the value of the named
plaintiff's individual claims made it "economically
imprudent to pursue his lawsuit to a final judgment and
[only] then seek appellate review of [the] adverse class
determination." Id., at 469-470. If, in the
court of appeals' view, the order would terminate the
litigation, the court deemed the order an appealable final
decision under §1291. Id., at 471. If, instead,
the court determined that the plaintiff had "adequate
incentive to continue [litigating], the order [was]
considered interlocutory." Ibid. Consequently,
immediate appeal would be denied.
death-knell theory likely "enhance[d] the quality of
justice afforded a few litigants, " we recognized.
Id., at 473. But the theory did so, we observed, at
a heavy cost to §1291's finality requirement, and
therefore to "the judicial system's overall capacity
to administer justice." Id., at 473; see
id., at 471 (Section 1291 "evinces a
legislative judgment that 'restricting appellate review
to final decisions prevents the debilitating effect on
judicial administration caused by piecemeal appeal
disposition.'" (quoting Eisen v. Carlisle &
Jacquelin, 417 U.S. 156, 170 (1974) (alterations and
internal quotation marks omitted))). First, the potential for
multiple interlocutory appeals inhered in the doctrine: When
a ruling denying class certification on one ground was
reversed on appeal, a death-knell plaintiff might again claim
"entitle[ment] to an appeal as a matter of right"
if, on remand, the district court denied class certification
on a different ground. Coopers & Lybrand, 437
U.S., at 474.
the doctrine forced appellate courts indiscriminately into
the trial process, thereby defeating a "vital purpose of
the final-judgment rule-that of maintaining the appropriate
relationship between the respective courts."
Id., at 476 (internal quotation marks omitted); see
id., at 474. The Interlocutory Appeals Act of 1958,
28 U.S.C. § 1292(b), we explained, had created a
two-tiered "screening procedure" to preserve this
relationship and to restrict the availability of
interlocutory review to "appropriate cases." 437
U.S., at 474. For a party to obtain review under §
1292(b), the district court must certify that the
interlocutory 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." The court of appeals may then, "in its
discretion, permit an appeal to be taken from such
order." The death-knell doctrine, we stressed,
restrictions." Id., at 475.
we observed, the doctrine was one sided: It "operate[d]
only in favor of plaintiffs, " even though the
class-certification question is often "of critical
importance to defendants as well." Id., at 476.
Just as a denial of class certification may sound the death
knell for plaintiffs, "[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
of these concerns, the Court reached this conclusion in
Coopers & Lybrand: "The fact that an
interlocutory order may induce a party to abandon his claim
before final judgment is not a sufficient reason for
considering [the order] a 'final decision' within the
meaning of §1291." Id., at
Coopers & Lybrand, a party seeking immediate
review of an adverse class-certification order had no easy
recourse. The Federal Rules of Civil Procedure did not then
"contain any unique provisions governing appeals"
in class actions, id., at 470, so parties had to
survive §1292(b)'s two-level inspection, see
id., at 474-475, and n. 27; supra, at 3-4,
or satisfy the extraordinary-circumstances test applicable to
writs of mandamus, see Will v. United States, 389
U.S. 90, 108 (1967) (Black, J., concurring) ("[In]
extraordinary circumstances, mandamus may be used to review
an interlocutory order which is by no means 'final'
and thus appealable under federal statutes."); cf
Coopers & Lybrand, 437 U.S., at 466, n. 6.
avenue opened in 1998 when this Court approved Federal Rule
of Civil Procedure 23(f). Seen as a response to Coopers
& Lybrand, see, e.g., Blair v. Equifax Check
Services, Inc.,181 F.3d 832, 834 (CA7 1999); Soli-mine
& Hines, Deciding To Decide: Class Action Certification
and Interlocutory Review by the United States Courts of
Appeals Under Rule 23(f), 41 Wm. & Mary L. Rev. 1531,
1568 (2000), Rule 23(f) authorizes "permissive
interlocutory appeal" from adverse class-certification
orders in the discretion of the court of appeals, Advisory
Committee's 1998 Note on subd. (f) of Fed. Rule Civ.
Proc. 23, 28 U.S.C. App., p. 815 (hereinafter Committee Note
on Rule 23(f)). The Rule was adopted pursuant to §
1292(e), see Committee Note on Rule 23(f), which empowers
this Court, in accordance with the Rules Enabling Act, 28