United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 21, 2014 Decided August 1, 2014

No. 13-8002

IN RE: JEH CHARLES JOHNSON, SECRETARY OF THE U.S.

DEPARTMENT OF HOMELAND SECURITY,

PETITIONER

On Petition for Permission to Appeal 

from the United States District Court

for the District of Columbia

(No. 1:00-cv-00953)

Marina Utgoff Braswell, Assistant U.S. Attorney, argued the 

cause for petitioner. With her on the briefs were Stuart F. 

Delery, Assistant Attorney General, U.S. Department of 

Justice; Douglas N. Letter, Director; Marleigh D. Dover and 

Charles W. Scarborough, Attorneys; Ronald C. Machen Jr., 

U.S. Attorney; and R. Craig Lawrence, Benton G. Peterson, 

and Peter C. Pfaffenroth, Assistant U.S. Attorneys.

Catherine E. Stetson argued the cause for respondents. With 

her on the brief were E. Desmond Hogan, Erica Knievel 

Songer, Jennifer I. Klar, John P. Relman, and Megan Cacace.

Before: GARLAND, Chief Judge, WILKINS, Circuit Judge, and 

GINSBURG, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

GINSBURG.
2

GINSBURG, Senior Circuit Judge: Eight AfricanAmerican Secret Service agents who were denied promotions

to the GS-14 or GS-15 level, allegedly because of their race,

were certified by the district court to sue the Secretary of the

Department of Homeland Security on behalf of a class 

comprising all similarly situated agents, of whom there are 

approximately 120. The Government argues the plaintiffs are

not eligible to proceed as a class under Federal Rule of Civil 

Procedure 23 because they do not meet the requirements of 

Rule 23(a) that there be “questions of law or fact common to 

the class” and that “the representative parties will fairly and 

adequately protect the interests of the class,” nor the 

requirements of Rule 23(b)(3) that “questions of law or fact 

common to class members predominate over any questions 

affecting only individual members, and that a class action is 

superior to other available methods for fairly and efficiently 

adjudicating the controversy.” The Government asks this

court to exercise its discretion under Rule 23(f) to grant

interlocutory review of the class certification order on the 

ground either that the decision is “manifestly erroneous” or 

that it presents “an unsettled and fundamental issue of law 

relating to class actions ... that is likely to evade end-of-thecase review.” In re Lorazepam & Clorazepate Antitrust 

Litig., 289 F.3d 98, 105 (D.C. Cir. 2002). Because we 

conclude neither of these reasons for Rule 23(f) review is 

applicable, we shall not at this time review the order of the 

district court certifying the class.
3

I. Background*

The Secret Service employs about 3,000 Special Agents 

in seven major offices, each headquartered in Washington, 

D.C. Each office is run by an Assistant Director who reports

to the Deputy Director and the Director of the Secret Service.

The Secret Service used a multistage process known as 

the Merit Promotion Plan (MPP) to select Special Agents for 

promotion to the GS-14 and GS-15 positions at issue in this 

case. In the first stage of the process, a Special Agent

received numerical scores from (1) his or her immediate 

supervisor (First Level Evaluation), (2) a panel comprising a 

representative from each Assistant Director’s office (Second 

Level Evaluation), and (3) for promotion to a GS-14 position, 

a panel comprising six peers and two alternates who are 

selected and convened annually by the Deputy Director (Peer 

Panel Evaluation). The MPP prescribed the criteria each of 

the three groups had to use to assign scores and the training

that scorers received, provided common evaluation forms to 

scorers and applicants, and assigned weights to each of the 

component scores in order to come up with a final MPP score

for each candidate. A Special Agent seeking a promotion 

used his or her final MPP score to “bid” for one or more 

available positions. Bidders for each position were ranked by 

their scores and the top 30 or the top 25%, whichever was

greater, were placed on a “best qualified list” (BQL). Then 

the Advisory Board, comprising the Deputy Director, the 

seven Assistant Directors, and the Chief Counsel, reviewed

 

*

Part I describes the facts as they were relevant to the certification 

order. They are taken from the opinion of the district court and the 

joint appendix provided by the parties and they are undisputed in 

this proceeding.
4

the BQL for each position and made a recommendation to the 

Director of the Secret Service, who made the final promotion 

decision.

The named plaintiffs in this suit are current and former 

African-American Special Agents who bid for but did not 

receive GS-14 or GS-15 promotions under the MPP in the 

period from 1995 to 2005. They allege both that the Secret 

Service engaged in a pattern or practice of racial 

discrimination in making promotions and that the MPP had a

disparate impact upon African-American Special Agents 

seeking promotions, in violation of Title VII of the Civil 

Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Civil 

Rights Act of 1991, 42 U.S.C. § 1981a. The plaintiffs request 

relief in the form of back pay and compensatory damages to 

the extent the discrimination cost them promotions, and also 

ask for a declaratory judgment and an injunction requiring the 

Secret Service to end its allegedly discriminatory promotion 

practices. In order to support their two theories of 

discrimination, the plaintiffs proffered evidence that AfricanAmerican Special Agents were disadvantaged both in the 

scoring process and in the final selection process.

BQLs were used to narrow the pool of applicants for

approximately half the vacancies that arose during the class 

period; for the other half, there were few enough applicants 

that all were placed on the relevant BQL. The plaintiffs have

proffered statistical evidence that the use of scores pursuant to 

the MPP disproportionately disqualified African-American 

Special Agents from reaching the BQLs throughout the class 

period. Additionally, their statistical evidence shows that 

when African-American Special Agents were included in the 

BQLs, they had lower mean ranks than would be expected in 

the absence of discrimination and more frequently failed to 

score as high as did the lowest-scoring agent who was 
5

promoted that year. The plaintiffs have also proffered 

statistical evidence that even when African-American Special 

Agents made it onto the BQLs, for certain years in the class 

period (1998 to 2000 for GS-14 promotions and 2002 to 2005 

for GS-15 promotions), fewer of them were selected for 

promotion than would be expected in the absence of 

discrimination. Additionally, the plaintiffs have pointed to a 

“substantial continuity” throughout the class period among

the personnel serving on the rating panels, on the Advisory 

Board, and as the Director, suggesting class members 

experienced in common whatever racial bias may have 

affected the subjective elements of the promotions process.

The named plaintiffs seek to represent the class of all 

similarly situated African-American Special Agents. The 

order here challenged by the Government was issued after the 

plaintiffs’ fourth attempt to define the class so as to meet the 

requirements of Rule 23 for certification. Rule 23(a) requires 

that (1) the class be so numerous that joinder is impracticable, 

(2) there be at least one question essential to the resolution of 

the suit that can be answered in common for all members of 

the class, (3) the claims of the named plaintiffs be typical of

the claims of all class members, and (4) the representative 

parties, i.e. the named plaintiffs and their counsel, will fairly 

and adequately protect the interests of the class. Rule 

23(b)(3) requires a class seeking damages to show that “the 

questions of law or fact common to class members 

predominate over any questions affecting only individual 

members, and that a class action is superior to other available 

methods for fairly and efficiently adjudicating the 

controversy.” FED. R. CIV. P. 23(b)(3). 

The class, as certified by the district court, comprises the 

following individuals, numbering approximately 120:
6

[A]ll current and former African-American Special 

Agents who bid for promotion to a GS-14 position from 

1995 to 2004 and were not promoted to GS-14 on the 

first bid list on which they bid; and all current and former 

African-American Special Agents who bid for promotion 

to a GS-15 position from 1995 to 2005 and were not 

promoted to GS-15 on the first bid list on which they bid; 

but excluding Special Agents who served as an Assistant 

Director, a Deputy Director, or the Director of the Secret 

Service during the class period.

Moore v. Napolitano, 926 F. Supp. 2d 8, 35 (2013). The

plaintiffs arrived at this definition after having been denied 

class certification for including in the putative class Special 

Agents against whom class members had made “direct 

accusations of discrimination.” Id. at 31-32 (quoting Moore 

v. Napolitano, 269 F.R.D. 21, 34 (2010)). Finding no such 

conflict of interest in a class excluding those agents, the 

district court determined the plaintiffs met the adequacy of 

representation requirement. Id. at 32. The court also

analyzed the admissibility of the plaintiffs’ statistical 

evidence and determined it was reliable and relevant to the 

question of discrimination vel non under Title VII. Id. at 27.

Having determined that each of the four requirements of Rule 

23(a) was met, that common issues predominated over 

individual ones, and that the class device was superior to 

other methods, the court certified the class under Rule 

23(b)(3). Id. at 35. The Government then petitioned for

interlocutory review per Rule 23(f), challenging the court’s

determinations with respect to commonality, adequacy of 

representation, predominance, and superiority.
7

II. Analysis

This court has identified three reasons for which

interlocutory review of a class certification order is

appropriate under Rule 23(f): 

(1) when a “questionable” class certification decision 

creates a “death-knell situation” for either party; (2) when 

the certification decision presents “an unsettled and 

fundamental issue of law relating to class actions ... that 

is likely to evade end-of-the-case review”; and (3) when 

the certification decision is manifestly erroneous. 

In re Veneman, 309 F.3d 789, 794 (2002) (quoting 

Lorazepam, 289 F.3d at 105). Other circumstances may also 

justify review per Rule 23(f), but we have cautioned that such

review should be “granted rarely.” Lorazepam, 289 F.3d at

105.

The Government here invokes both the second and third

reasons and additionally argues this case presents “special 

circumstances” of the sort present In re Rail Freight Fuel 

Surcharge Antitrust Litig., 725 F.3d 244 (D.C. Cir. 2013), 

where a “confluence of multiple rationales,” including a

subsequent decision of the Supreme Court, justified 

immediate review of the class certification order. Id. at 250. 

None of these three justifications obtains in the present case.

A. Unsettled and Fundamental Issue Likely to Evade End-ofthe-Case Review

The Government fails to demonstrate this case presents 

any unsettled and fundamental issue of law relating to class 

actions that is likely to evade end-of-the case review. To be 

sure, the Government points out areas of ambiguity in the law 
8

of class actions that are relevant to its case, but it fails to 

provide any reason we should resolve those issues now: The 

Government’s briefs simply ignore the requirement that the 

issues be “likely to evade end-of-the-case review.” 

Lorazepam, 289 F.3d at 105. When pressed at oral argument 

the Government suggested settlement pressure would prevent 

end-of-the-case review, but that is no more than a belated 

argument that it faces a “death-knell situation.” Even if it had 

been timely raised, the argument would be misplaced, for it is 

appropriate only when “the grant of class status raises the cost 

and stakes of the litigation so substantially that a rational 

defendant would feel irresistible pressure to settle.” Rail 

Freight, 725 F.3d at 251. The costs and stakes here are 

insignificant in relation to the litigating resources of the 

defendant, upon which it has drawn for more than 14 years in 

tenaciously defending this case. We are confident, therefore, 

that any novel legal question raised by this case can be 

addressed after judgment.

B. Manifest Error

The Government next contends the class certification 

decision is manifestly erroneous. This is a difficult standard 

to meet; we have never before granted Rule 23(f) review on 

the basis of a manifest error and other circuits, too, have 

indicated there is a high bar for doing so. See, e.g.,

Chamberlan v. Ford Motor Co., 402 F.3d 952, 962 (9th Cir. 

2005) (“It is difficult to show that a class certification order is 

manifestly erroneous unless the district court applies an 

incorrect Rule 23 standard or ignores a directly controlling 

case. Class certification decisions rarely will involve legal 

errors, however, simply because class actions typically 

involve complex facts that are unlikely to be on all fours with 

existing precedent.” (citations omitted)).
9

Despite its need to clear this high bar, the Government 

has made almost no effort to explain which of the district 

court’s alleged errors it thinks manifest. Out of an abundance 

of caution, therefore, we consider whether any of its 

challenges to the class certification requirements —

commonality, adequacy of representation, predominance, and 

superiority — is based upon an error that can be deemed

manifest. We conclude that none of these rulings on the 

requirements for certification is manifestly erroneous because 

the court applied the correct standards and the cases relied 

upon by the Government do not squarely foreclose the class 

certification here. We therefore decline to exercise our 

discretion under Rule 23(f) to conduct a more searching 

inquiry now into the application of those standards to the facts 

here.

1. Commonality

The district court found the commonality requirement 

was satisfied because every class member’s claim of 

employment discrimination could be moved toward resolution 

by answering the common contention, supported by some 

evidence, that there was a policy or practice of racial 

discrimination infecting the promotion process at the Secret 

Service in the period 1995-2005. Moore, 926 F. Supp. 2d at

28-30. The Government argues this conclusion is at odds 

with the Supreme Court’s decision in Wal-Mart Stores, Inc. v. 

Dukes, __ U.S. __, 131 S.Ct. 2541, 2550-57 (2011), in which 

a putative class alleging employment discrimination failed the 

commonality requirement. The Court there stated that 

“[w]ithout some glue holding the alleged reasons for all [the 

promotion] decisions together, it will be impossible to say that 

examination of all the class members’ claims for relief will 

produce a common answer to the crucial question why was I 

disfavored.” Id. at 2552. According to the Government, there 
10

is no such glue in this case because class members allege 

discrimination at different stages in the MPP process, where 

they faced different decision makers. Id. at 2551 (class 

“claims must depend upon a common contention — for 

example, the assertion of discriminatory bias on the part of 

the same supervisor”). The Government also relies upon this 

court’s decision in DL v. District of Columbia, 713 F.3d 120 

(2013), in which, as in Wal-Mart, class members’ experiences

varied to the point that their complaints could not be resolved

together. The facts in the present case, however, are 

sufficiently different from the facts in those cases, and the 

claims of the class members here are sufficiently alike, so as

not squarely to foreclose the district court’s determination, in 

effect, that it is indeed possible to find a common answer to 

the crucial question why was I disfavored. See Wal-Mart, 131 

S.Ct. at 2551, quoting Richard A. Nagareda, Class 

Certification in the Age of Aggregate Proof, 84 N.Y.U. L.

REV. 97, 132 (2009) (“What matters to class certification ... is 

not the raising of common ‘questions’ — even in droves —

but, rather, the capacity of a class-wide proceeding to 

generate common answers apt to drive the resolution of the 

litigation”).

In Wal-Mart, the only feature common to all promotion

decisions was the policy of delegating those discretionary 

decisions to individual store managers. See id. at 2554. In 

essence, all they had in common was that each one (or, more 

precisely, each manager’s decision) was different. In 

contrast, under the MPP here at issue, every class member 

was evaluated upon the same criteria and scored using the 

same numerical system. Furthermore, every promotion 

decision was ultimately made by the Director of the Secret 

Service. Although different decision makers no doubt 

injected some subjectivity into the evaluations of different 

class members, which might be enough to cast doubt upon the 
11

commonality of their claims were we engaged in a more 

searching inquiry, the policy here was far from the complete 

delegation involved in Wal-Mart; hence, if the district court 

erred in coming to a different conclusion, then the error is 

certainly not manifest and so need not be reviewed at this 

stage in the litigation.

In DL, all the class members alleged they had been 

deprived of a “free appropriate public education” as a result of 

various failings at different stages in the District of 

Columbia’s process to “identify, locate, evaluate, and offer 

special education and related services to disabled preschoolage children.” See 713 F.3d at 122. Because the class 

members were suing for injunctive relief to obtain

improvements at various different stages in the delivery of 

disability services, the court held there was no question 

capable of common resolution for all class members. See id.

at 125, 127-28. Here, all class members are seeking damages 

to compensate them for the allegedly discriminatory decisions 

not to promote them. The Government seeks to differentiate 

class members by the stage of the promotion process in which 

they may have encountered discrimination; for instance, it 

suggests class members who applied for promotions in years 

for which there was no statistically significant disparity in the 

BQL-to-promotion rate are in actuality complaining only 

about discrimination from the scoring and ranking process, 

not about discrimination in management’s subjective 

decision-making process. These distinctions, however, are 

not indicated by DL because all the class members here are 

seeking the same relief and, in so doing, must all show that 

promotion decisions made pursuant to the MPP were affected 

by discrimination generally. Because there is a good deal of

commonality in the way all those promotion decisions were 

made, the district court did not manifestly err in finding the 

class claims could be moved together toward resolution.
12

2. Adequacy of representation

The Government next contends the district court erred in 

holding the named plaintiffs could adequately represent the 

entire class because some class members had served as

scorers in the evaluation process at the first stage of the MPP. 

The Government argues this decision “cannot be squared

with” Wagner v. Taylor, 836 F.2d 578 (D.C. Cir. 1987), in 

which we held the named plaintiff could not adequately 

represent the class in part because he had “accused his own 

supervisor, who is a potential class member, of racial 

discrimination.” 836 F.2d at 595. In order to eliminate just 

such a conflict, the present plaintiffs amended the definition 

of the putative class in their motion for certification

specifically to exclude Special Agents who were part of upper 

management and were therefore responsible for selecting 

candidates for promotion from the BQLs.*The district court 

 

*

In their third certification motion, the plaintiffs submitted and the 

court rejected the following class definition:

[A]ll current and former African-American Agents who 

were employed as Criminal Investigators (GS/GM-1811) 

and who had the required time-in-grade to seek promotion 

to competitive positions at the GS-14 level at any time 

during the years 1995 to 2004, and/or who had the required 

time-in-grade to seek promotion to competitive positions at 

the GS-15 level at any time during the years 1995 to 2005.

In their fourth certification motion, they proposed the following 

class definition, the last clause of which excluded upper 

management and which the court certified:

[A]ll current and former African-American Special Agents 

who bid for promotion to a GS-14 position from 1995 to 

2004 and were not promoted to GS-14 on the first bid list 
13

then distinguished Wagner and found the named plaintiffs 

could adequately represent the class on the basis that “the 

record does not show specific allegations of discrimination by 

class members against other class members.” Moore, 926 F.

Supp. 2d at 32. We see no manifest error in this ruling. If 

class members neutrally applied a flawed rating system and 

thereby reached a discriminatory result, then they were not 

themselves discriminating and therefore have no apparent 

interest that is in conflict with the attempt to prove other 

agents were denied promotions because of their race.

3. Predominance of the common issues

The district court held common issues predominated over 

individual issues in this suit because there are no individual 

issues involved in determining whether the MPP was 

discriminatory and because the court, when and if it ever 

reaches individualized questions, will send those questions to 

separate hearings outside the class proceedings. Moore, 926 

F. Supp. 2d at 33-34 & n.7. In the end, that is, only common 

issues will be handled on a classwide basis, so common issues 

necessarily predominate. Insofar as the Government argues 

those issues cannot be resolved on a classwide basis and so 

should weigh against predominance, that is nothing more than

a restatement of the Government’s commonality argument. 

 

on which they bid; and all current and former AfricanAmerican Special Agents who bid for promotion to a GS-15 

position from 1995 to 2005 and were not promoted to GS15 on the first bid list on which they bid; but excluding 

Special Agents who served as an Assistant Director, a 

Deputy Director, or the Director of the Secret Service 

during the class period.

Moore, 926 F. Supp. 2d at 15, 35.
14

Therefore, the district court could have erred only if it was 

incorrect in thinking it lawfully could bifurcate the suit and 

certify the class for the purpose of answering only the 

common questions concerning discrimination vel non.

Because we see no facial defect in the district court’s 

reasoning and there is no binding precedent on point, we 

conclude the district court did not make a manifest error in

certifying the class solely to resolve the questions concerning 

discrimination. The Supreme Court has instructed that in 

pattern-or-practice class actions, the plaintiffs can first 

“demonstrate that unlawful discrimination has been a regular 

procedure or policy followed by an employer,” after which 

members of the class will have the benefit of the presumption 

at his or her individualized hearing (now known as a 

Teamsters hearing) that “individual [employment] decisions 

were made in pursuit of the discriminatory policy.” Int'l Bhd. 

of Teamsters v. United States, 431 U.S. 324, 359-60 (1977) 

(extending Franks v. Bowman Transp. Co., 424 U.S. 747 

(1976)). In Wal-Mart, the Supreme Court held that a 

defendant must have the opportunity in a Teamsters hearing 

to rebut this presumption of discrimination on an 

individualized basis; “a class cannot be certified on the 

premise that [the defendant] will not be entitled to litigate its 

statutory defenses to individual claims.” 131 S.Ct. at 2561. 

Here, the district court anticipated individualized Teamsters

hearings and so, in effect complied in advance with that 

aspect of the Wal-Mart decision. Unlike the lower courts in 

Wal-Mart, the district court here did not certify the class on 

the ground that it could resolve individualized issues on a 

classwide basis. The practical effect of the district court’s 

decision is that it certified a “class action with respect to 

particular issues,” which it is expressly authorized to do by 

Rule 23(c)(4).
15

We recognize there is a controversy over the proper use 

of issue classes, especially when the result is to isolate a 

particular issue that would otherwise derogate from the

predominance of common issues in a 23(b)(3) class action.

See generally Robert H. Klonoff, The Decline of Class 

Actions, 90 WASH. U. L. REV. 729, 807-15 (2013) (surveying 

courts’ and scholars’ different approaches to Rule 23(c)(4) 

and observing “[t]his rule has created significant conflict and 

confusion among the courts”); Jenna G. Farleigh, Note,

Splitting the Baby: Standardizing Issue Class Certification, 64 

VAND. L. REV. 1585 (2011) (discussing the controversy and 

observing that the First, Second, Third, Fourth, Seventh, and 

Ninth Circuits have held an issue class can be used to avoid a 

predominance problem whereas the Fifth Circuit has held the 

cause of action as a whole must pass the predominance test). 

For example, in a prior case before the district court, the judge 

took a different approach to separating the common and 

individualized issues, despite being faced with facts similar to 

those here. Taylor v. D.C. Water & Sewer Auth., 241 F.R.D. 

33 (D.D.C. 2007). The court there certified the pattern-orpractice class under Rule 23(b)(2) for the purposes of 

determining discrimination and granting injunctive relief but

with respect to damages indicated it would later decide 

between certifying the class under 23(b)(3) and conducting

Teamsters hearings. Id. at 47.

Because the appropriate use of an issue class was not

raised or briefed in the present case, we shall not review at 

this time the district court’s determination of how best to 

manage the issues before it. Cf. Veneman, 309 F.3d at 796 

(declining to exercise 23(f) discretion because the important, 

unresolved issues were entirely unbriefed). We may note 

with confidence, however, that in general, a district court has 

a good deal of discretion in the management of the litigation

before it, see, e.g., Cloverleaf Standardbred Owners Ass'n, 
16

Inc. v. Nat'l Bank of Washington, 699 F.2d 1274, 1277 (D.C. 

Cir. 1983) (“A district judge, closer to the arena, is often 

better situated than is an appellate panel to survey the 

practicalities involved in the litigation” (quotation marks 

omitted)), making it difficult to conclude the court has erred, 

let alone manifestly erred, by in effect certifying an issue 

class action.

4. Superiority of the class device

In the district court, the Government suggested no way of 

handling class members’ claims that would be superior to the 

class device, other than holding a separate trial for each 

individual. Its argument before us is that the district court’s 

analysis was insufficiently “rigorous” to determine the class 

device was superior to that alternative.

Because the district court did identify factors that could 

make the class device superior, and because it dealt with the 

Government’s arguments to the contrary in its analyses of the 

commonality and predominance requirements, the court’s

relatively brief discussion of superiority was sufficient unto 

the task. The court explained that the interests of efficiency 

and uniformity supported resolving the question of 

discrimination in one stroke rather than requiring the same 

question to be answered separately for each individual. 

Moore, 926 F. Supp. 2d at 34. On the other hand, it

acknowledged the Government’s argument that class 

members might have enough at stake in this litigation to make

individual trials viable. Id. It was not manifestly erroneous

for the district court to hold that argument was outweighed by

the court’s and the plaintiffs’ legitimate interests in efficiency 

and uniformity. Furthermore, given the district court’s 

identification of common questions susceptible to classwide 

proof and its stated intention, if the plaintiffs prevailed on 
17

those questions, to hold Teamsters hearings for each class 

member, we cannot credit the Government’s argument that 

the district court failed adequately to analyze how the class 

device would operate to conserve judicial resources.

C. Special Circumstances

Perhaps sensing it is not on solid ground with any of the 

reasons for interlocutory review we identified in Lorazepam, 

the Government contends this case presents “special 

circumstances” similar to those that justified our granting 

review under Rule 23(f) in Rail Freight, 725 F.3d 244. There

the district court had certified the class prior to the Supreme 

Court issuing an opinion “with significant bearing” upon the 

class certification question at issue. Id. at 254. That

development “tip[ped] the scales in favor of review” because 

the case nearly qualified for interlocutory review for the first 

reason set out in Lorazepam: There was a “questionable” 

class certification decision that created a near “death-knell 

situation.” Id. In this case, the Government points out that 

two of the decisions upon which it relies, Comcast Corp. v. 

Behrend, __ U.S. __, 133 S.Ct. 1426 (Mar. 27, 2013), and DL, 

713 F.3d 120 (Apr. 12, 2013), were issued after the class 

certification order (Feb. 25, 2013). As we have explained in 

the foregoing sections, however, there is no similarly close 

call in this case with respect to any of the three reasons given 

for interlocutory review in Lorazepam. Accordingly, there is 

no “confluence of multiple rationales” as there was in Rail

Freight, 725 F.3d at 250; therefore, even assuming they are 

relevant, the two subsequent decisions do not tip the scales in 

favor of immediate review.
18

III. Conclusion

Although we recognize there are unsettled questions of

law relating to class actions at issue in this case, now is not 

the appropriate time to resolve them. None of the district 

court’s rulings in support of its order certifying the plaintiff 

class is foreclosed by controlling precedent and the unsettled 

questions are not likely to evade end-of-the-case review. As 

we have observed before, “[t]he sheer number of class 

actions, the district court’s authority to modify its class 

certification decision, and the ease with which litigants can 

characterize legal issues as novel, all militate in favor of 

narrowing the scope of Rule 23(f) review.” Lorazepam, 289 

F.3d at 105-06 (citations omitted). Accordingly, the 

Government’s petition is

Denied.