Rule 23(f) and Rulemaking

Section 1292(e) of Title 28 lets the Supreme Court prescribe rules, under section 2072 (the Rules Enabling Act, which governs the Court's power to write federal rules of procedure), providing for appeal to the courts of appeals from an interlocutory decision not otherwise provided for under subsection (a), (b), (c), or (d).¹ Subsections (a) through (d), covered earlier in this chapter, describe orders and cases by type. Subsection (e) describes no type at all. It is residual in two ways: it reaches only decisions the other four subsections leave uncovered, and what it reaches depends on the rules the Court chooses to write.

Class certification shows why the statute needed such a route. In Coopers & Lybrand v. Livesay, the Supreme Court held that an order denying class certification or decertifying a class is not a “final decision” under § 1291 and so is not appealable as of right. The Court rejected the death knell exception as resting on policy considerations better left to Congress, and as unfairly facilitating early appeals only by plaintiffs.² Congress then took up the Court's invitation for a legislative solution. The 1998 amendments to the federal class-action rule authorized interlocutory appeals of class-certification orders at the appellate court's discretion, and they thereby created an exception to the finality principle.³

That exception differs in kind from Rule 54(b). Provisions of that type are not exceptions to the final judgment rule; they supply standards for applying the rule in multi-claim, multi-party disputes.⁴ Rule 23(f) permits review of an order that is not final, so it departs from the rule instead of applying it. Rule 54(b) would not have filled the gap anyway. Class-action allegations are not “claims” as that term is traditionally understood, and even if they were, their factual overlap with other claims is usually fatal to Rule 54(b) treatment.⁵

Rulemaking also explains why a rule could succeed where the collateral order doctrine failed. Under Rule 23(c)(1)(C), an order that grants or denies class certification may be altered or amended before final judgment. The Court therefore found such an order unsuitable for collateral order review, and Rule 23(f) now permits the appeal that the doctrine could not.⁶

The Rule 23(f) Petition

Rule 23(f), as revised in 2007, provides that a court of appeals may permit an appeal from an order granting or denying class-action certification if a petition for permission to appeal is filed with the circuit clerk within 14 days after the order is entered.⁷ A 2018 amendment extends the period to 45 days whenever a party is the United States, a United States agency, or a United States officer or employee sued for an act or omission occurring in connection with duties performed on the United States' behalf.⁸ Three features of that text carry the doctrine. The court of appeals “may” permit the appeal, so review is discretionary. The party seeking review must file a petition within a fixed and short period. And the rule covers orders granting certification as well as orders denying it, so either side may petition.

The third feature answers the objection that sank the death knell theory, which helped plaintiffs alone. A lender ordered to defend a certified class of thousands of customers may petition on the same terms as a consumer whose class was refused.

The petition resembles the certified appeal taught earlier in one respect: in both, the court of appeals decides whether to take the case. The text of Rule 23(f) asks only that a petition be filed with the circuit clerk. It does not require a written certification from the district judge, and its deadline is 14 days rather than the ten days that § 1292(b) allows. A student who imports the § 1292(b) steps into a certification problem adds a gate the rule does not contain. The discretionary character also separates this route from an appeal as of right under § 1291, which Coopers & Lybrand held unavailable for these orders.⁹

Two points are easy to miss on an exam. A timely petition does not bind the court of appeals, which may deny it, and the certification ruling then remains reviewable on appeal from the final judgment. And when a party is the United States, a federal agency, or an officer or employee sued over official duties, the window is 45 days, so a petition filed on day 30 is timely.

No Manufactured Finality

A plaintiff who loses certification has an obvious temptation to skip the petition process. The plaintiff can dismiss the claims voluntarily with prejudice, which produces a final judgment, and then appeal the certification ruling as of right. In Microsoft Corp. v. Baker the Supreme Court rejected that strategy. An appeal as of right in those circumstances, the Court reasoned, would seriously undermine “Rule 23(f)’s careful calibration” and Congress's designation of rulemaking as the preferred means of deciding whether and when prejudgment orders may be appealed at once.¹¹

The dismissal does end the case in the formal sense, so the objection lies in what the tactic would do to the rule. Rule 23(f) pairs two limits: the court of appeals' discretion and a short filing window. A plaintiff who could manufacture a final judgment would sidestep both, because that appeal would run as of right with no permission and no petition. It would also hand the plaintiff, by another route, the appeal as of right that Coopers & Lybrand denied. A rule built to let the court of appeals choose which certification rulings it reviews cannot coexist with a tactic that lets the litigant choose.

The plaintiff's legitimate options are narrower than the tactic suggests. A timely Rule 23(f) petition leaves the claims alive and asks the court of appeals for permission to review the ruling. Litigating the individual claim to final judgment keeps the certification ruling reviewable on appeal from that judgment. An exam answer about a plaintiff who has just lost certification should therefore begin with the petition and the 14 days, and it should reject both the death knell argument and the voluntary dismissal as ways to appeal as of right.