The Law of Unintended Consequences: Supreme Court Jurisdiction over Interlocutory Class Certification Rulings

In recent decades the number of class actions filed in federal court has increased dramatically. (1) In many such cases, a ruling on the propriety of class certification effectively determines the outcome of the litigation. A denial of certification often means the end of the case because plaintiffs conclude that pursuing their claims on any basis other than as a class action fails to make economic sense. On the other hand, even in a case with relatively weak merits, certification may put what one court has described as "inordinate or hydraulic pressure" on defendants to settle in order to avoid the risk of substantial liability. (2) Despite the high stakes often dependent on certification decisions, such rulings are interlocutory and therefore not appealable under 28 U.S.C. [section] 1291, the principal statute granting appellate jurisdiction to the courts of appeals. In recognition of the proliferation of class actions and the benefits afforded by immediate review of certification rulings in some cases, the Federal Rules of Civil Procedure were amended in 1998 to allow interlocutory appellate review by courts of appeals of district court class certification rulings. Specifically, a new subsection was added to Rule 23, which addresses class actions in the federal courts. (3) Rule 23(f) provides: A court of appeals may in its discretion permit an appeal from an order of a district court granting or denying class action certification under this rule if application is made to it within ten days after entry of the order. An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders. (4) Both the Rule itself and the Advisory Committee Notes accompanying it suggest that courts of appeals have "unfettered discretion" (5) to decide whether to entertain review of a district court class certification ruling. (6) Although almost all circuits have set forth standards under which they will review a class certification ruling under Rule 23(f), (7) review has been granted in relatively few cases. (8) Ordinarily, the only recourse for a litigant dissatisfied with a ruling or action by a court of appeals is to seek review from the Supreme Court. While there is no guarantee that the Court will agree to hear a case--in fact the odds are decidedly against it(9)--many litigants avail themselves of the fight to request review. But does even the remote prospect of Supreme Court review exist when a party has been unsuccessful in persuading a court of appeals to grant its request for interlocutory review of a district court class certification ruling? More specifically, does the Court have jurisdiction under its certiorari authority to review either the court of appeals's denial of a Rule 23(f) petition, or the underlying substantive issues related to class certification? To date the Court itself has not answered this question, (10) and its prior decisions provide surprisingly little guidance about how the Court would rule were it to decide the issue. (11) A. SUPREME COURT CERTIORARI JURISDICTION The Supreme Court has "original jurisdiction" over certain types of cases specified in Article III of the Constitution, (12) but the scope of its jurisdiction is otherwise determined by Congress. (13) For about a century, beginning with the Judiciary Act of 1789, the Supreme Court's jurisdiction was entirely mandatory, and its review confined to cases in which the parties had a right to appeal. That changed with the Circuit Court of Appeals Act of 1891, which created the intermediate federal appellate system and granted the Supreme Court discretion to review certain types of cases decided by the circuit courts of appeals. That movement toward greater discretion for the Court in shaping its own docket continued with the Judiciary Act of 1925, after which, for the first time, the Court's cases reviewed by writ of certiorari outnumbered those reviewed on the basis of a mandatory appeal. …