                            PUBLISHED

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


LOUISE ROSMER, on behalf of herself      
and as class representative,
                  Plaintiff-Appellant,
                  v.                             No. 00-2224

PFIZER INCORPORATED,
                Defendant-Appellee.
                                         
                       Filed: November 14, 2001


                               ORDER



  Appellant filed a petition for rehearing and rehearing en banc.

  On the petition for rehearing, Chief Judge Wilkinson and Judge
Hall (SUSCJ, 9CCA) voted to deny. Judge Motz voted to grant.

   A member of the Court requested a poll on whether this case
should be reheard en banc. The poll did not attract a majority of the
judges in active service.

  Judges Widener, Niemeyer, Luttig, and Motz voted for rehearing
en banc. Chief Judge Wilkinson and Judges Williams, Michael, and
Gregory voted against rehearing en banc. Judges Wilkins, Traxler,
and King were disqualified from participation in the poll on rehearing
en banc.

   Chief Judge Wilkinson filed an opinion concurring in the denial of
rehearing en banc. Judge Niemeyer filed an opinion dissenting from
the denial of rehearing en banc. Judge Motz filed an opinion dissent-
2                         ROSMER v. PFIZER
ing from the denial of rehearing en banc, in which Judge Luttig
joined.

  The petition for rehearing and rehearing en banc are hereby denied.
Entered at the direction of Chief Judge Wilkinson for the Court.

                                                       For the Court

                                      /s/ Patricia S. Connor
                                      Clerk
                            ROSMER v. PFIZER                             3
WILKINSON, Chief Judge, concurring in the denial of rehearing en
banc:

   The panel majority opinion sets out at length my view of the proper
interpretation of 28 U.S.C. § 1367. See Rosmer v. Pfizer Inc., 263
F.3d 110 (4th Cir. 2001). I do not intend to reiterate my position here.
However, I do wish to state briefly my points of difference with my
brother’s dissent to the denial of rehearing en banc in this case.

   Some of the dissent’s objections are different from those expressed
in the dissent from the panel majority opinion. See Rosmer, 263 F.3d
at 122-29 (Motz, J., dissenting). Nevertheless, there is a common
denominator. Indeed, the two dissents bring to mind Yogi Berra’s
immortal words: "It’s like deja vu all over again." Like the earlier dis-
sent’s reading of § 1367, this dissent’s textual analysis represents a
thinly-veiled attack upon diversity jurisdiction. The opinion begins
with policy, ends with policy, and sprinkles plenty of policy argu-
ments in between. See post at 8-12 and 17. Because I do not believe
that the text of § 1367 is consistent with the dissent’s policy concerns,
and because I do not believe that the federal courts are empowered
to employ policy arguments to trump the plain meaning of Congress’
words, I concur in the denial of rehearing en banc.

                                    I.

   The dissent’s approach rests in unadorned fashion upon two prem-
ises. The first is that diversity is a disfavored form of federal jurisdic-
tion. And the second is that Rule 23 is a disfavored rule in the Federal
Rules of Civil Procedure. The dissent objects that the majority opin-
ion "substantially expand[s] diversity jurisdiction in the federal
courts." Post at 8. It reiterates that "[b]y opening federal courts to vir-
tually every class action involving state law, the panel opinion
broadly expands federal jurisdiction in diversity cases." Post at 9. It
submits that the majority opinion’s reading of § 1367 "requires the
court to put blinders on and thus ignore long-standing principles of
federal jurisdiction and class action law." Post at 9. In a similar vein,
the panel majority ignores "whether Congress intended to preserve the
traditional principles of jurisdiction." Post at 10. The result the major-
ity opinion reaches is "traumatic." Post at 10.
4                           ROSMER v. PFIZER
   Continuing its policy brief, the dissent observes that diversity juris-
diction "inherently . . . comes into tension with the traditional division
of judicial responsibility between the states and the federal govern-
ment." Post at 17. "And for that reason, and other more pragmatic
ones," it explains, "diversity jurisdiction has never been favored with
aggressive expansion, either by Congress or the courts." Post at 17.
"Indeed," it relates, "over the years, Congress has continually and
without exception taken modest steps to limit the scope of diversity
jurisdiction in this sensitive area of federalism." Post at 17. As if the
real source of objection to the panel majority opinion were not
already abundantly clear, the dissent cannot resist adding that the
panel majority "lack[s] a sensitivity for this overarching policy in the
federal structure," and "not only amplifies manyfold the circum-
stances in which diversity jurisdiction is available, but also increases
vastly the power of federal class actions, all at the expense of the
states’ long-standing privilege to decide state-law cases in their own
courts." Post at 17. The panel majority decision is therefore "a
momentous mistake." Post at 17.

   The consequences of the two candidly stated premises that animate
these policy prescriptions are quite remarkable. We are being asked
to arrogate unto ourselves, under the guise of interpretive maxims or
otherwise, the authority to establish the parameters of our own juris-
diction. This is fundamentally at odds with the separation of powers
and the constitutional scheme.

   Whether we like it or not, Congress has long had the authority to
set the bounds of federal jurisdiction. See U.S. Const. art. III, § 1.
Congress has long had the authority to invest diversity jurisdiction in
the federal courts. See 28 U.S.C. § 1332. And assuming the strict
requirements of Fed. R. Civ. P. 23 can be satisfied, the resolution of
class actions is likewise part of the accepted business of the federal
judiciary.

                                   II.

   The text and statutory structure of § 1367 are straightforward. Sec-
tion 1367(a) is a general grant of supplemental jurisdiction, stating
that "in any civil action of which the district courts have original
jurisdiction, the district courts shall have supplemental jurisdiction
                           ROSMER v. PFIZER                            5
over all other claims that are so related to claims in the action within
such original jurisdiction that they form part of the same case or con-
troversy under Article III of the United States Constitution."
§ 1367(a). Section 1367(b) contains a list of exceptions to the supple-
mental jurisdiction authority conferred by § 1367(a). Rule 23 is not
among them.

   The dissent advances a number of suggestions as to how we might
accomplish the insertion of Rule 23 into § 1367(b)’s list of excep-
tions. These suggestions simply do not work. The dissent first argues
that there was no "civil action of which the district courts have origi-
nal jurisdiction" in this case, as required by § 1367. This is because
the only "civil action" actually commenced was a class action, and
"the class cannot be broken apart for purposes of creating original
jurisdiction and then mended back together under the illusion that the
class members who destroyed original jurisdiction can be converted
to ‘supplemental’ members under § 1367." Post at 12.

   The problems with this objection are manifold. First, as the major-
ity opinion states, see Rosmer, 263 F.3d at 116, the idea that a "civil
action" in § 1367(a) means the entire class action and not just
Rosmer’s claim renders virtually superfluous other language in the
statute — in particular, the phrase "over all other claims that are so
related to claims in the action within such original jurisdiction."
§ 1367(a). The language of § 1367(a) itself contemplates that a "civil
action" refers to one claim in which original jurisdiction is proper. Id.
The other claims that are "so related to claims in the action within
such original jurisdiction" are properly in federal court because of
§ 1367’s grant of supplemental jurisdiction. Id.

   In addition, § 1367(b) contains an exception for Rule 20. And Rule
20 authorizes permissive joinder of parties at the beginning of an
action, not just in an ongoing diversity action. Indeed, a plaintiff will
usually join all Rule 20 defendants in the initial complaint rather than
waiting to do so later. Thus, if the dissent were correct, there would
be no need to except Rule 20 from the grant of supplemental jurisdic-
tion in § 1367(a). Section 1367(a) itself would except Rule 20 from
the statute’s conferral of supplemental jurisdiction.

   The dissent next advances the novel argument that the supplemen-
tal claims of the unnamed class members are not part of the same con-
6                          ROSMER v. PFIZER
stitutional case under United Mine Workers v. Gibbs, 383 U.S. 715,
725 (1966), as required by § 1367(a). Post at 12-13. Rather, the dis-
sent submits, the "absent class members’ claims are bundled with rep-
resentative parties’ claims in order to facilitate adjudication." Post at
13.

    To my knowledge, this suggestion has not been advanced by any
other judge or court. The dissent cites no specific authority to support
it. Instead, it states that "all the jurisprudence of Rule 23(b)(3) class
actions and of Article III of the Constitution" supports its view. Post
at 13. What likely accounts for the dissent’s failure to reference case
law or academic commentators is that its proposal leads inescapably
to the conclusion that Rule 23 somehow runs afoul of the case or con-
troversy requirement of Article III.

   Indeed, the dissent states that "[t]here is no constitutional require-
ment prohibiting two constitutional cases from being adjudicated
simultaneously, and the simultaneous prosecution of similar claims
for judicial efficiency is the justification for Rule 23(b)(3)." Post at
14. But I am at a loss to identify the doctrinal foundations for such
a position. A class action is, by definition, one action — i.e., one case
or controversy. It certainly contains many claims by many plaintiffs.
But the suggestion that each of those claims constitutes a separate
constitutional case or controversy is quite misplaced. The traditional
legal understanding is that a class action must satisfy the transactional
test of Gibbs. See 7A Charles Alan Wright, Arthur R. Miller, & Mary
Kay Kane, Federal Practice and Procedure § 1778 (1986) (citing
cases holding that "an action can be brought under subdivision (b)(3)
even though there is not a complete identity of facts relating to all
class members, as long as a ‘common nucleus of operative facts’ is
present, a test very similar to that used to determine the application
of the doctrine of pendent jurisdiction [under Gibbs]") (footnotes
omitted). See also William A. Fletcher, "Common Nucleus of Opera-
tive Fact" and Defensive Set-Off: Beyond the Gibbs Test, 74 Ind. L.J.
171, 174 (1998) (Symposium: A Reappraisal of the Supplemental-
Jurisdiction Statute: Title 28 U.S.C. § 1367).

   The dissent claims that "the constitutionally distinct nature of the
claims aggregated under Rule 23(b)(3) was the backbone of the
Supreme Court’s decision in Zahn." Post at 13 (referring to Zahn v.
                            ROSMER v. PFIZER                            7
Int’l Paper Co., 414 U.S. 291 (1973)). But the Zahn Court never said
anything to the effect that claims aggregated in a class action are
"constitutionally distinct." Indeed, Zahn does not so much as mention
Gibbs. Thus, the word "backbone" is doing an awful lot of inferential
work in that contention.

   In addition, the dissent’s view of class actions is flatly inconsistent
with the Supreme Court’s decision in Supreme Tribe of Ben-Hur v.
Cauble, 255 U.S. 356 (1921). Realizing that Ben-Hur strongly cuts
against its contention that claims aggregated under Rule 23(b)(3) are
"constitutionally distinct," the dissent suggests that Ben-Hur "likely
would not apply to 23(b)(3) class actions." Post at 14 n.2. No author-
ity of which I am aware supports this assertion. The dissent offers
none. Again, I am at a loss to identify any doctrinal source for this
argument.

   Not only is there a lack of authority to support the dissent’s view
of class actions, but its position also generates perverse implications
from its own perspective. The dissent purports to desire to limit the
scope of the class action device, accusing the panel majority in
Rosmer of "increas[ing] vastly the power of federal class actions, all
at the expense of the states’ long-standing privilege to decide state-
law cases in their own courts." Post at 17. But in freeing the claims
of absent class members from the case or controversy requirement,
the dissent opens the jurisdictional doors in federal class actions wide
open. The dissent is the unwitting advocate of expanding the use of
class actions in federal court.

   The dissent’s next contention is that "Congress would never even
have considered adding Rule 23 to the list" of § 1367(b)’s exceptions
because "Rule 23 does not provide for the addition of parties and their
claims." Rather, "[a]ll parties and claims are already included as the
underlying case over which the court must have jurisdiction." Post at
15. But in so asserting, the dissent’s analysis proves no more persua-
sive than any argument that assumes its conclusion. Nothing supports
the contention that "Rule 23 cannot be broken into an underlying
claim and added claims," Post at 16, except the fact that the dissent
says so.

  The dissent’s final plea is that we consult the legislative history.
This argument has already been canvassed at length in Rosmer. See
8                           ROSMER v. PFIZER
263 F.3d at 117-18, 121-22. I see no reason to revisit it here. The sug-
gestion that Congress could not possibly have meant what it said is
self-evidently erroneous. The reason that Rule 23 is not included in
§ 1367(b)’s list of exceptions may very well have to do with the "judi-
cial efficiency" concerns that the dissent concedes to be the virtue of
the class action device. Post at 8. Congress provided for a single class
action to be resolved in a single federal forum, assuming it satisfies
Rule 23’s requirements and jurisdiction exists over the named plain-
tiff’s claim. Congress has struck the balance between limiting diver-
sity and enhancing efficiency, and it is not for us to undo it.

                                   III.

   I may well share the dissent’s policy predilections. What I abso-
lutely do not share, however, is the view that our notions of federal
jurisdiction trump those of the coordinate branch of government to
which such questions are constitutionally entrusted. We are being
called upon to express our policy preferences against diversity juris-
diction and against class actions by the bald amendment of a statute
from the bench. We are being asked quite transparently to insert the
words "Rule 23" into § 1367(b)’s list of exceptions where Congress
has not included them. It is difficult to imagine a more obvious situa-
tion for the application of expressio unius est exclusio alterius. Sec-
tion 1367(b) includes Rules 14, 19, 20, and 24 among its list of
exceptions. It does not include Rule 23. The federal judiciary is being
invited to perform a legislative trick.

NIEMEYER, Circuit Judge, dissenting:

   On the poll to rehear this case en banc, three members of the court
unfortunately found themselves unable to participate, leaving a four-
four vote and denying the possibility that the court en banc can recon-
sider this important case. Because I believe that this vote leaves us
with an opinion advancing a fundamentally flawed interpretation of
supplemental jurisdiction under 28 U.S.C. § 1367 and substantially
expanding diversity jurisdiction in the federal courts, I write in dissent
from our denial of an en banc hearing.

                                    I

   Louise Rosmer, on behalf of herself and a class of all persons simi-
larly situated, filed this class action against Pfizer, Incorporated, in
                           ROSMER v. PFIZER                            9
South Carolina state court, for injury caused by the antibiotic Trovan.
She asserted only state-law causes of action. When Pfizer removed
the case to federal court, relying on diversity jurisdiction under 28
U.S.C. § 1332, Rosmer filed a motion to remand the case to state
court on the ground that class members could not satisfy the jurisdic-
tional requirements of 28 U.S.C. § 1332. She acknowledged, how-
ever, that she and Pfizer were of diverse citizenship and that the
amount in controversy between them exceeded $75,000.

   The district court denied Rosmer’s motion to remand and retained
jurisdiction over the case, concluding that it had diversity jurisdiction
over Rosmer’s individual claim against Pfizer and that it had supple-
mental jurisdiction, under 28 U.S.C. § 1367, over class members
whose claims were for less than the $75,000 minimum amount
required for diversity jurisdiction. By a split decision, a three-judge
panel of this court affirmed the district court. See Rosmer v. Pfizer,
Inc., 263 F.3d 110 (4th Cir. 2001). On the poll for rehearing en banc,
four judges voted in favor of rehearing the case, four voted against
rehearing the case, and three recused themselves.

   The panel opinion, which has thus been left standing, holds that,
in a class action, 28 U.S.C. § 1367 confers federal subject matter
jurisdiction over class members whose individual claims do not sat-
isfy the amount in controversy requirement of 28 U.S.C. § 1332, "as
long as diversity jurisdiction exists over the claims of one named
plaintiff." Rosmer, 263 F.3d at 112. With this dramatic holding, the
court concludes that virtually every class action under state law may
be brought in federal court because only one claimant needs to satisfy
the jurisdictional requirements of § 1332. By opening federal courts
to virtually every class action involving state law, the panel opinion
broadly expands federal jurisdiction in diversity cases.

    When it adopted 28 U.S.C. § 1367, Congress never intended this
startling conclusion, and the plain language of § 1367 does not justify
it. To read § 1367 as the panel majority does requires the court to put
blinders on and thus ignore long-standing principles of federal juris-
diction and class action law. The panel’s construction also compels
the conclusion that Congress sub silentio overruled the Supreme
Court’s seminal decision in Zahn v. International Paper Co., 414 U.S.
10                         ROSMER v. PFIZER
291 (1973), which Congress stated, in its legislative history, it did not
intend to do when it enacted § 1367.

                                   II

   No one disputes that Congress enacted 28 U.S.C. § 1367 to over-
rule the Supreme Court’s decision in Finley v. United States, 490 U.S.
545 (1989) (holding that federal courts were not conferred pendent-
party jurisdiction under then-existing law), and to expand the concept
of pendent-claim jurisdiction in its then-existing form, as articulated
in United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966), to
include pendent-party jurisdiction. In other words, § 1367 was
enacted to cover not only related claims of parties, but also related
claims of nonparties. The only limitation imposed was that the related
claims must be part of a single, constitutional case. See 28 U.S.C.
§ 1367(a). As the Court in Gibbs articulated:

     Pendent jurisdiction, in the sense of judicial power, exists
     whenever there is a claim "arising under [the] Constitution,
     the Laws of the United States, and Treaties made, or which
     shall be made, under their Authority . . .," U.S. Const., Art.
     III, § 2, and the relationship between that claim and the state
     claim permits the conclusion that the entire action before
     the court comprises but one constitutional "case." . . . The
     state and federal claims must derive from a common nucleus
     of operative fact.

Id. (emphasis added).

   While § 1367 expanded supplemental jurisdiction to include related
claims of nonparties, Congress never intended to expand original
jurisdiction over the underlying claims to which the pendent claims
attached. Yet, the panel opinion concludes that, regardless of whether
Congress intended to preserve the traditional principles of jurisdic-
tion, the language of § 1367, perhaps unwittingly, undid the amount
in controversy requirement for original jurisdiction. A straightforward
reading of § 1367, however, demonstrates that such a traumatic result
is erroneous.
                             ROSMER v. PFIZER                             11
   The statutory grant of supplemental jurisdiction applies only to
"civil action[s] of which the district courts have original jurisdiction."
28 U.S.C. § 1367(a) (emphasis added). The first step in any analysis,
therefore, is to determine whether the original jurisdiction require-
ment has been satisfied. The panel majority overlooked this step alto-
gether.

   The panel opinion, through a sleight of analytical hand, avoids the
first step by converting Rosmer’s class action claim into an individual
claim to create original jurisdiction and then adding back the absent
class action members’ claims as "supplemental" claims.1 Such analyt-
  1
   It is curious that my good colleague’s opinion concurring in the
refusal to hear this case en banc states on the one hand that, as used in
§ 1367(a) "a ‘civil action’ refers to one claim in which original jurisdic-
tion is proper," ante at 5 (emphasis added), and on the other hand, when
referring to a class action, the whole case becomes the civil action, as
"Congress provided for a single class action to be resolved in a single
federal forum," id. at 8. Obviously, when it becomes necessary to avoid
the requirement of § 1367(a) that the federal court have jurisdiction over
a "civil action" before it can consider supplemental jurisdiction over
other claims, the concurring opinion defines "civil action" to be a claim.
But when a class action under Rule 23(b)(3) is examined, the opinion
acknowledges, as it must, that the "civil action" is the class action. This
double standard for analysis continues what I have observed about the
panel majority opinion — it functions with the "sleight of analytical
hand."
  Of course, a class action is one civil action. See Fed. R. Civ. P. 2; id.
23(b) (stating that a class action is one way of maintaining a civil action).
And the "claims" within a civil action are in the aggregate one civil
action. It is precisely for this reason that when § 1367(a) requires that the
federal court first have jurisdiction over the "civil action," it must be
requiring that the court have jurisdiction over the class action. Because
each count or claim of Rosmer’s civil action is made on behalf of a class,
the district court cannot reach the question of supplemental jurisdiction
before it satisfies the requirement of original jurisdiction over Rosmer’s
class action. The original jurisdiction requirement cannot be satisfied by
considering only Rosmer’s personal claim, which constitutes only an
analytical part of the "civil action."
  Section 1367(a)’s requirement of a constitutional case, which the con-
curring opinion confuses with a civil action, comes after the requirement
12                           ROSMER v. PFIZER
ical magic, however, perpetuates a misunderstanding of Federal Rule
of Civil Procedure 23, governing class actions.

   Unlike the other forms of aggregation permitted under the Federal
Rules — impleader, joinder, and intervention — Rule 23 is not a
mechanism to add parties. In a class action, both the parties and the
class members whom the parties purport to represent are already "in"
the action. Because class members are part and parcel of a class
action, the class cannot be broken apart for purposes of creating origi-
nal jurisdiction and then mended back together under the illusion that
the class members who destroyed original jurisdiction can be con-
verted to "supplemental" members under § 1367.

   Accordingly, when determining whether the court has original
jurisdiction over the "civil action" — in this case a Rule 23(b)(3) class
action — it must focus on the action commenced and not on part of
it as convenient to achieve a desired result. When looking at original
diversity jurisdiction in a Rule 23(b)(3) class action, the court must
be satisfied that the claim of each party and class member, individu-
ally, satisfies the jurisdictional amount. Zahn, 414 U.S. at 301.
Because that requirement is concededly not satisfied in this case, the
first step of the § 1367 analysis is not satisfied and there is no federal
case to which supplemental jurisdiction can attach.

                                     III

  Even if we assume that the "take-it-apart and put-it-back-together"
end-run around the original jurisdiction requirement in § 1367 is legit-
imate, the panel’s conclusion must fail because the proposed "supple-

that the court have jurisdiction over a civil action is satisfied. Only after
finding original jurisdiction over a civil action may a court exercise sup-
plemental jurisdiction over other claims that are part of the "same case"
(in a constitutional sense). The concurring opinion persists in overlook-
ing the distinctions, made in the text of § 1367(a), between a civil action
and a constitutional case. This same confusion also led the panel majority
opinion to fail to recognize that a civil action may include an aggregation
of distinct constitutional cases. See, e.g., Zahn, 414 U.S. at 296 (observ-
ing that a 23(b)(3) class action is a "congeries of separate suits").
                           ROSMER v. PFIZER                           13
mental" claims are not part of the "same case," as required by Gibbs
and codified in § 1367(a). To qualify for supplemental jurisdiction
under § 1367(a), the supplemental claims must be so related to the
original claim that the two "form part of the same case or controversy
under Article III of the United States Constitution." 28 U.S.C.
§ 1367(a). But Rule 23(b)(3) authorizes class actions involving differ-
ent cases or controversies that are constitutionally distinct, as long as
they involve a common question of law or fact. Although absent class
member’s claims are bundled with representative parties’ claims in
order to facilitate adjudication, the claims formulating the bundle are
not part of one case in a constitutional sense. To conclude that they
are is simply inconsistent with all the jurisprudence of Rule 23(b)(3)
class actions and of Article III of the Constitution.

   Rule 23(b)(3), added in 1966, authorizes a representative party to
represent absent class members if there are common questions of law
or fact and those questions predominate. See Rule 23(a), (b)(3). The
existence of common questions of law and fact, however, does not
make bundled claims part of the "same case" in a constitutional sense.
The parts of the bundle do not derive from a common nucleus of
operative fact. In this case, for example, each claim in the Rule
23(b)(3) bundle has different facts with regard to the circumstances
under which the claimants’ husbands took Trovan, their medical his-
tory, the amounts taken, and the effects on the claimants. This bundle
of cases, derived from different nuclei of operative fact is joined only
for judicial efficiency, not because they are the "same case" as under-
stood under Article III.

   Indeed, the constitutionally distinct nature of the claims aggregated
under Rule 23(b)(3) was the backbone of the Supreme Court’s deci-
sion in Zahn. The Court accepted the characterization that a spurious
class action before 1966 and a 23(b)(3) class action after the 1966
changes remained "a congeries of separate suits." Zahn, 414 U.S. at
296 (quoting Steele v. Guaranty Trust Co. of N.Y., 164 F.2d 387, 388
(2d Cir. 1947)). The separate quality of the absent members’ claims
led to the conclusion that "each claimant must, as to his own claim,
meet the jurisdictional requirements." Id.; see also id. at 301 (requir-
14                          ROSMER v. PFIZER
ing "[e]ach plaintiff in a Rule 23(b)(3) class action [to] satisfy the
jurisdictional amount").2

   As a codification of Gibbs, § 1367(a) clearly requires that the origi-
nal and supplemental claims "form part of the same case or contro-
versy under Article III." Section 1367(a) does not affect the
requirement that the state and federal claims must derive from a com-
mon nucleus of operative fact. Accordingly, the statute preserves the
justification for Zahn and cannot be understood to undo that case.

   The holding in Zahn, of course, does not say that a class action
authorized under Rule 23(b)(3) cannot be prosecuted legitimately as
a group of cases under Article III of the Constitution. There is no con-
stitutional requirement prohibiting two constitutional cases from
being adjudicated simultaneously, and the simultaneous prosecution
of similar claims for judicial efficiency is the justification for Rule
23(b)(3). But this simultaneous processing of similar claims does not
mean that the various claims are one constitutional claim. They are
not, as Zahn explains; they do not derive from the same nucleus of
operative fact, see Gibbs, 383 U.S. at 725.

  2
    The categorization, in Zahn, of 23(b)(3) class actions as an aggrega-
tion of separate suits would likely also require complete diversity among
23(b)(3) class members, as per Strawbridge v. Curtis, 7 U.S. (3 Cranch)
267 (1806). While Supreme Tribe of Ben Hur v. Cauble, 255 U.S. 356
(1921) is often cited for the proposition that a class action may go for-
ward in federal court when the complete diversity requirement is met as
to class representatives only, that case likely would not apply to 23(b)(3)
class actions. Ben Hur involved a class, consisting of members of a fra-
ternal benefit organization, suing over the organization’s practices.
Because "prosecution of separate actions by . . . individual members of
the class would create a risk of inconsistent or varying adjudications
. . . which would establish incompatible standards of conduct for the
party opposing the class," that case would have been certified under the
current Rule 23(b)(1). As the facts were clearly distinguishable from the
scenario envisioned by Rule 23(b)(3), Ben Hur likely is not applicable
to Rule 23(b)(3). Accordingly, complete diversity among class members
appears to be required for diversity jurisdiction over Rule 23(b)(3) class
actions.
                              ROSMER v. PFIZER                              15
   The panel opinion ignores this understanding of Rule 23 and conse-
quently feels free to "find" original jurisdiction by reason of Rosmer’s
individual claim and then to "find" supplemental jurisdiction over all
other class members’ claims, even though they do not arise from the
same nucleus of operative fact. By doing so, the panel majority opin-
ion tramples an explicit requirement of § 1367(a).

                                      IV

   The panel majority also relies, for its conclusion, on the fact that,
in § 1367(b), the class action rule is not included in the list of rules
that will destroy diversity jurisdiction. Section 1367(b) indicates sim-
ply that supplemental jurisdiction is not conferred in diversity juris-
diction cases over "persons made parties under Rule 14, 19, 20, or
24." The panel majority reasons that, because Rule 23 is not so listed,
Congress must have intended to permit supplemental jurisdiction in
federal court over class action cases. But this again mischaracterizes
§ 1367(b) and perpetuates the misunderstanding of Rule 23.3

   Contrary to the panel majority’s assertion, the absence of Rule 23
from the list in § 1367(b) does not signal an overruling of Zahn. Rule
23 is absent because it is different than Rules 14, 19, 20, and 24.
While the Rules in the list enable adding (whether structurally or ana-
lytically) new parties and their claims to an underlying claim for
which diversity jurisdiction exists, Rule 23 does not provide for the
addition of parties and their claims. All parties and claims are already
included as the underlying case over which the court must have juris-
diction. Because both structurally and analytically the class action
rule is not a device to add parties, the question never arises whether
the addition of parties will destroy class action jurisdiction. In enact-
ing § 1367(b), Congress was focusing on whether diversity jurisdic-
  3
   The concurring opinion continues this misunderstanding of Rule 23
by suggesting that under my analysis, because parties can be joined
under Rule 20 at the commencement of an action, Rule 20 should also
not be on the list. Ante at 5. Unlike Rule 23, however, Rule 20 is like the
other rules on the list in that its structure requires, as a condition prece-
dent, an underlying civil action to which related claims are added. In
contrast, a class action is, structurally, the "underlying" civil action, there
are no related claims to add.
16                         ROSMER v. PFIZER
tion over an underlying claim would be destroyed by the addition of
parties, and it concluded that such an addition would indeed destroy
diversity jurisdiction. As Rule 23 cannot be broken into an underlying
claim and added claims, it is analytically distinct from and does not
belong among the rules listed in § 1367(b).

   To read a repeal of Zahn by implication, based on the ground that
Rule 23 was not included in the list of rules set forth in § 1367(b),
represents a basic misunderstanding of the reason for the exceptions
in § 1367(b) and the nature of Rule 23. With a more focused under-
standing of § 1367(b)’s exceptions, it becomes clear that Congress
would never even have considered adding Rule 23 to the list. Accord-
ingly, no valid conclusions can be drawn from the fact that Rule 23
was excluded from the list.

                                   V

   The panel opinion also refuses to consult the legislative history,
concluding that the language of § 1367 so clearly supports its inter-
pretation that no ambiguity exists to justify looking at what Congress
said it intended.

   While I assert in this opinion that a natural reading of § 1367 more
clearly supports the conclusions that I have reached, both the panel
majority opinion and I should recognize a sufficient level of ambigu-
ity to permit a look at the legislative history. Obviously, the panel
opinion cannot afford to take that look; the report attending the bill
clearly states that Congress did not wish to overrule Zahn. See H.R.
Rep. No. 101-734, at 28-29 (1990), reprinted in 1990 U.S.C.C.A.N.
6860, 6874-75, 6875 n. 17. The panel dismisses this observation sim-
ply by noting that it is "buried" in the legislative history. Yet, it is
"buried" precisely at the point of the legislative history where Con-
gress describes its intent. The fact that Congress describes its intent
after several pages addressed to other subjects should not deny its
consideration.

   By dismissing this legislative history with the assertion that the
statutory language of § 1367 unambiguously favors its interpretation,
the panel majority conveniently concludes that Congress, sub silentio,
overruled the seminal Supreme Court decision in Zahn. However,
                            ROSMER v. PFIZER                           17
Congress’s stated intent further clarifies what is apparent from read-
ing § 1367 in light of the nature of Rule 23 — such a drastic change
in federal jurisdiction was not Congress’ intent.

                                   VI

   Over the years, diversity jurisdiction has served a useful role in
providing an alternative forum for state-law claims, particularly to
avoid potential local prejudices in particular types of cases. But inher-
ently, any such facility comes into tension with the traditional divi-
sion of judicial responsibility between the states and the federal
government. And for that reason, and other more pragmatic ones,
diversity jurisdiction has never been favored with aggressive expan-
sion, either by Congress or the courts. Indeed, over the years, Con-
gress has continually and without exception taken modest steps to
limit the scope of diversity jurisdiction in this sensitive area of feder-
alism.

   Lacking a sensitivity for this overarching policy in the federal
structure, the panel majority in this case not only amplifies manyfold
the circumstances in which diversity jurisdiction is available, but also
increases vastly the power of federal class actions, all at the expense
of the states’ long-standing privilege to decide state-law cases in their
own courts.

   This decision is a momentous mistake, and I respectfully dissent
from the decision of our court not to rehear this case en banc.

DIANA GRIBBON MOTZ, dissenting from the denial of rehearing
en banc:

   I voted to rehear this case for the reasons set forth in my panel dis-
sent. See Rosmer v. Pfizer Inc., 263 F.3d 110, 122-129 (4th Cir. 2001)
(Motz, J., dissenting). I will not repeat those reasons here. I write
again only to address the assertion in the concurrence that some per-
sonal policy preference disfavoring diversity jurisdiction animates my
views. Ante at 3. The panel majority made a similar contention. See
Rosmer, 263 F.3d at 119, 121. This suggestion is as inaccurate now
as it was then. In fact, as a member of the Federal Courts Study Com-
18                           ROSMER v. PFIZER
mittee, I voted against the Committee’s recommendation to abolish
or limit diversity jurisdiction. See Report of the Federal Courts Study
Committee at 42-43 (April 2, 1990). My panel dissent and vote to
rehear this case reflect no distaste for diversity jurisdiction. On the
contrary, my views in this case simply evidence the recognition that
as a judge I must follow congressionally enacted statutory language,
regardless of personal preference.

     Judge Luttig joins in this dissent.
