by simply comparing the claims of the named plaintiffs with an arbitrarily selected jurisdictional amount; " 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. Moreover, if the jurisdictional

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.

18 See n. 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.

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.19

And

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.20 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"; "1 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

19 Cf. Milberg v. Western Pacific R. Co., 443 F. 2d 1301 (CA2 1971). 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).

21 Hooley v. Red Carpet Corp., supra, at 645.

remand for further factual development may be required.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),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." 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

22 See, e. g., Jelfo v. Hickok Mfg. Co., 531 F. 2d 680, 681 (CA2 1976). 23 See n. 5, supra.

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., 4-6 (1958); Note, Interlocutory Appeals in the Federal Courts under 28 U. S. C. § 1292 (b), 88 Harv. L. Rev. 607, 610 (1975).

of appeals.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." 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.27

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....

"

cases.

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 [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."

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). 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 inter

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. 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."

" 29

locutory 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).

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, 181–182. 29 Parkinson v. April Industries, Inc., supra, at 654.