                 United States Court of Appeals,

                        Eleventh Circuit.

                           No. 95-3255.

  David M. ARMSTRONG, L. Benson Barger, Wallace D. Black, Howard
Brooks, Jerry A. Budd, Sonja M. Carter, Dominick C. Cizek, Carol D.
Clark-Iley, Charles H. Davis, Kenneth O. Giessuebel, Herold P.
Glaser, Robert A. Havlish, Kumar Hinduja, Joseph C. Jett, Glenn E.
Johnson, Robert C. Lerche, Calvin N. Lightner, George W. McGuirk,
James W. McLean, William G. Murphy, Donald L. Prasky, Clark C.
Rains, Myrtle Y. Redding, Kenneth A. Richards, Russell G. Roberts,
Linda L. Ryan, Victor W. Shaw, Linton W. Smith, Michael Sylvestri,
Marlon K. Tarter, Delbert S. Turner, Edward W. Walsh, Joseph W.
Williamson, Plaintiffs-Appellants,

 Constantino A. Barbitta, James R. Baxter, Robert D. Biggs, James
H. Black, Rick L. Bordner, Rodmond M. Cookson, David B. Pool, Roger
A. Purcell, Rama S. Singh, Charles M. Smith, Robert G. Swanson,
William F. Waldrop, Kenneth E. Welch, Plaintiffs,

                                 v.

   MARTIN MARIETTA CORP., Martin Marietta Technologies, Inc.,
Defendants-Appellees.

                         Sept. 11, 1996.

Appeal from the United States District Court for the Middle
District of Florida. (No. 94-1066-CV-ORL-18), G. Kendall Sharp,
Judge.

Before HATCHETT and ANDERSON, Circuit Judges, and WOOD*, Senior
Circuit Judge.

     HATCHETT, Circuit Judge.

     As a matter of first impression in this circuit, the court

outlines options that plaintiffs, who have been dismissed from

class actions after opting-in to the class actions, may take to

protect their right to litigate their claims individually before a

statute of limitations runs.    We affirm in part, reverse in part,

and remand.


     *
      Honorable Harlington Wood, Jr., Senior U.S. Circuit Judge
for the Seventh Circuit, sitting by designation.
                         FACTS AND PROCEDURAL HISTORY

     In 1993, David M. Armstrong and thirty-two other former

employees   of    Martin    Marietta    Corporation     and     Martin    Marietta

Technologies, Inc. (collectively "Martin Marietta") opted in an Age

Discrimination in Employment Act (ADEA) class action captioned

Carmichael et al. v. Marietta Technologies, Inc., case no. 94-100-

Civ-Orl-18.       On   April   7,    1994,   the    district    court    dismissed

Armstrong   and    the    other     thirty-two     employees'    claims    without

prejudice concluding that they were not similarly situated to the

Carmichael plaintiffs.         On October 11, 1994, more than ninety days

after the district court's order of dismissal, Armstrong, the

thirty-two employees, and twelve additional former employees of

Martin Marietta (hereinafter the "Armstrong plaintiffs") filed this

ADEA action in the Middle District of Florida alleging that Martin

Marietta engaged in age discrimination when it laid them off in

1988 as part of its large scale work force reduction.                   On October

25, 1994, the Armstrong plaintiffs filed an amended complaint

adding an additional plaintiff making the number of plaintiffs in

this action forty-six.

     On January 17, 1995, Martin Marietta filed a motion for

partial summary judgment against twenty-nine of the forty-six

Armstrong plaintiffs on the grounds that these plaintiffs failed to

file their individual lawsuits within ninety days after receiving

notice of their dismissal from the Carmichael class action. Martin

Marietta also sought summary judgment against three other Armstrong

plaintiffs, Carol Clark-Iley, Glenn Johnson and Victor Shaw, on the

additional ground that they each failed to file a charge of
discrimination with the Equal Employment Opportunity Commission

(EEOC)    within    300   days    of      the   alleged      unlawful      practice,    in

violation of 29 U.S.C. 626(d)(2) (1994).

     On    March    22,   1995,       a   magistrate      judge      issued    a    report

recommending       that   the    district       court   grant       Martin    Marietta's

partial summary judgment motion.                 The magistrate judge concluded

that the ninety-day filing period commenced to run on the Armstrong

plaintiffs' claims when the district court dismissed them from the

Carmichael class action; therefore, their claims were time barred.

The magistrate judge also recommended that the district court grant

summary judgment against Marlon K. Tarter who was not included in

Martin Marietta's summary judgment motion. Finally, the magistrate

judge    concluded    that      the    "single-file"         rule    did   not      require

plaintiffs    Johnson,       Clark-Iley         and   Shaw    to    file     charges    of

discrimination with EEOC rejecting Martin Marietta's alternative

ground for partial summary judgment. On May 10, 1995, the district

court adopted the magistrate judge's report and recommendation and

granted partial summary judgment in favor of Martin Marietta.                           On

September 14, 1995, the district court amended its order and

entered    final    judgment     pursuant        to   Rule    54(b).         This   appeal

followed.

                                      CONTENTIONS

     The Armstrong plaintiffs contend that the ninety-day filing

period for bringing an ADEA action in district court remained

tolled after their dismissal from the class action because the

district court did not enter a final judgment. In the alternative,

the Armstrong plaintiffs contend that this court should excuse
their failure to file their individual lawsuits within the filing

period because they did not receive notice that the ninety-day

filing period resumed upon their dismissal from the class action.

In response, Martin Marietta contends that the "interlocutory"

status of the order dismissing the Armstrong plaintiffs from the

Carmichael    action    does    not   affect     the    Armstrong      plaintiffs'

obligation to file their individual lawsuits within ninety-days of

their dismissal from the class action.                   Martin Marietta also

contends     that   this    court     should     not    excuse   the     Armstrong

plaintiffs' failure to file their individual ADEA lawsuit within

the statute of limitations period.

                                      ISSUES

     The sole issue we address is whether the tolling of the

ninety-day    statute      of   limitations      of    the   ADEA,   due   to   the

claimants' membership in the class action, remains tolled when the

district court dismisses claimants from the pending class action in

an interlocutory order.

                                    DISCUSSION

        We review the district court's grant of summary judgment de

novo.    Johnson v. Arrow Co., 75 F.3d 1528, 1531 (11th Cir.1996).

Title 29 U.S.C. § 626(e) requires an ADEA claimant to file a

lawsuit within ninety days of receiving notice of the right to sue

from the EEOC.      Membership in a pending class action, however,

tolls the ninety-day period for filing an individual lawsuit.                   See

Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 352-53, 103

S.Ct. 2392, 2396-97, 76 L.Ed.2d 628 (1983).                  Title 29 U.S.C. §

216(b) authorizes an ADEA claimant to commence a class action or
opt into an existing class action.        See 26 U.S.C. § 626(b) (1994)

(borrowing the Fair Labor Standards Act of 1938, 29 U.S.C. §

216(b));    See also Grayson v. K Mart Corporation,        79 F.3d 1086,

1097 (11th Cir.1996) (an ADEA claimant must demonstrate that a

reasonable basis exists for his or her claim of class-wide age

discrimination and make detailed allegations, supporting those

allegations with affidavits).       As the Supreme Court explained in

Crown, Cork & Seal Co.:

     "[T]he commencement of a class action suspends the applicable
     statute of limitations as to all asserted members of the class
     who would have been parties had the suit been permitted to
     continue as a class action.' Once the statute of limitations
     has been tolled, it remains tolled for all members of the
     putative class until class certification is denied.

Crown, Cork & Seal Co., 462 U.S. at 353-54, 103 S.Ct. at 2397-98

(quoting American Pipe & Construction Co. v. Utah, 414 U.S. 538,

554, 94 S.Ct. 756, 766-67, 38 L.Ed.2d 713 (1974)) (citations

omitted).    The tolling of the ninety-day statute of limitations

protects    the   claimant   in   the   event   class   certification   is

ultimately denied or vacated.           Courts provide this protection

because it is reasonable for such claimants to rely on the named

plaintiffs in the pending class action to protect their rights.

Crown, Cork & Seal Co., 462 U.S. at 352-53, 103 S.Ct. at 2396-97

("Rule 23 both permits and encourages class members to rely on the

named plaintiffs to press their claims.");        Griffin v. Singletary,

17 F.3d 356, 360 (11th Cir.1994) ("Insofar as the individual claims

are concerned, punitive class members should be entitled to rely in

a class action as long as it is pending.").       Neither this court nor

other circuits, however, have addressed whether the ninety-day

statute of limitations period remains tolled when the district
court   dismisses   claimants   from    a   pending   class    action    in    an

interlocutory order.       This question is of particular importance

because at the time of dismissal claimants cannot appeal the

district court's dismissal order as of right because it is not a

final judgment.     See Fed.R.Civ.P. 54(b).

      In this case, the district court held that section 626(e) bars

the Armstrong plaintiffs' individual ADEA lawsuit because they

failed to commence their action within ninety days of receiving

notice of their dismissal from the Carmichael class action.                   The

district court found that in order for the Armstrong plaintiffs to

timely file their individual lawsuits under section 626(e), they

were required to file a lawsuit on or before July 7, 1994;                    the

Armstrong plaintiffs, however, filed their lawsuit on October 11,

1994. The Armstrong plaintiffs argue that the district court erred

in holding that section 626(e) barred their ADEA claims.                   They

contend that the ninety-day filing period remained tolled even

after their dismissal from the class action because the district

court's order constituted an unappealable order under rule 54(b) of

the   Rules   of   Civil   Procedure.       Specifically,     the   Armstrong

plaintiffs argue that the dismissal order did not have the effect

of commencing the ninety-day statute of limitations because the

district   court    in   Carmichael    dismissed   their      claims    without

prejudice;    therefore, the district court could have vacated its

order any time before final judgment.            See Fed.R.Civ.P. 54(b).

Based on this reasoning, the Armstrong plaintiffs contend that

tolling of the ninety-day filing period does not end until the

district court enters a final judgment in the Carmichael action.
     Martin Marietta concedes that the Armstrong plaintiffs' status

as opt-in plaintiffs in the class action tolled the ninety-day

filing period under section 626(e), but argues that the tolling of

the ninety-day filing period ceased and the ninety-day filing

period resumed when the district court dismissed the appellants

from the Carmichael action.      Martin Marietta also contends that

this is a just result because the Armstrong plaintiffs could not

reasonably rely on the class to represent their interests after

receiving notice of their dismissal.

      As previously discussed, courts will not toll the running of

the statute of limitations if claimants unreasonably relied on the

pending class action to protect their rights.         Crown, Cork & Seal

Co., 462 U.S. at 352-53, 103 S.Ct. 2396-97.           Thus, the central

question in this case is whether it is reasonable for claimants to

rely on a pending class action to protect their rights after their

dismissal from the class action when the district court's dismissal

order is subject to revision at any time before the entry of final

judgment   and   is   unappealable   until   entry   of   final   judgment.

Federal Rule of Civil Procedure 54(b) provides:

     any order or other form of decision, however designated, which
     adjudicates fewer than all the claims or the rights and
     liabilities of fewer than all the parties shall not terminate
     the action as to any of the claims or parties, and the order
     or other form of decision is subject to revision at any time
     before the entry of judgment adjudicating all claims and the
     rights and liabilities of all the parties.

Fed.R.Civ.P. 54(b) (emphasis added).         Although rule 54(b) permits

the court, upon a party's motion for entry of final judgment, to

direct final judgment as to one or more but fewer than all the

parties in a class action where "no just reason for delay exists,"
the court is not required to enter final judgment in an action

involving multiple parties.           Fed.R.Civ.P. 54(b).

        In the context of class actions, the "interlocutory" status

of the dismissal order does not negate the fact that the claimants

lose    their   membership       in   the    class    action.     This    loss    of

membership, however, may only be temporary because the district

court may reconsider its dismissal order and vacate the order, or

upon final judgment the claimants may appeal their dismissal and

the appellate court may reverse the district court's decision. For

these reasons, we hold that claimants dismissed from a class action

may:     (1)    within   the     remaining     time    before   the    statute    of

limitations runs, file an individual lawsuit thereby rendering any

appeal of their dismissal from the class action moot;                  or (2) await

final   judgment    in    the    class      action,   appeal    from   that    final

judgment, and if not successful file an individual lawsuit within

the time that remained at the time of their dismissal;                        or (3)

before the running of the statute of limitations, move for an

interlocutory appeal.           If the district court certifies the issue

for interlocutory appeal, interlocutory appeal is taken, and the

district court is affirmed, tolling of the running of the statute

of limitations ceases and the claimant may file an individual

lawsuit before the statute of limitations runs.                  If the district

court declines to certify the issue for appeal or an interlocutory

appeal is not taken, the claimant may file an individual lawsuit

within the time remaining or exercise option 2 and await final

judgment.

       Our   holding     today     promotes     section    216(b)      because    it
eliminates the need for claimants who intend to appeal their

dismissal from the class action to file individual lawsuits while

awaiting   final   judgment    and   avoids    "needless    multiplicity     of

actions—precisely    the   situation    that    [class    actions]    and   the

tolling rule of American Pipe were designed to avoid." Crown, Cork

& Seal Co., 462 U.S. at 351, 103 S.Ct. at 2396.            In addition, this

requirement discourages claimants who have opted into a pending

class and are ultimately dismissed from taking no action during the

pendency of the class action when they have no intention of

appealing their dismissal from the class.

     Moreover, the interests of justice necessitate our extending

the application of the class action tolling rule for several

reasons.    First, "[c]lass members who do not file [an individual

lawsuit] while the class action is pending cannot be accused of

sleeping on their rights."        Crown, Cork & Seal Co., 462 U.S. at

352, 103 S.Ct. at 2397.       Second, ending the tolling of the statute

of limitations under these circumstances, in effect, forces the

claimants upon dismissal from a class action in an interlocutory

order to choose between filing an individual lawsuit within the

statute of limitations period or exercising their right to appeal

their dismissal.     Third, and most importantly, the tolling of the

ninety-day statute "creates no potential for unfair surprise"

because    the   class   complaint   notifies    the     defendants   of    the

substantive claims, the number and " "generic identities of the

potential plaintiffs who may participate in the judgment.' "

Crown, Cork & Seal Co., 462 U.S. at 353, 103 S.Ct. at 2398 (quoting

American Pipe, 414 U.S. at 555, 94 S.Ct. at 767-68).
        If we applied this new rule of law to this case, section

626(e) would bar the Armstrong plaintiffs' individual actions

because      the    Armstrong         plaintiffs     filed       their   individual      ADEA

lawsuit after the ninety-day statute of limitations had expired but

before final judgment.             We find this result unjust because the law

prior to our holding today was silent on this issue.                           We therefore

conclude      that       the    Armstrong      plaintiffs          may    continue       their

individual lawsuits in this case, but may not appeal the dismissal

order   or    the       final    judgment     in    the    Carmichael       class     action.

Accordingly, we reverse the district court's conclusion of law that

section      626(e)      bars    the     individual       ADEA    lawsuit      as   to   these

plaintiffs.

     We      find       that    our    holding      today    renders       the      Armstrong

plaintiffs' remaining arguments moot;                        therefore, we summarily

reject them without discussion.

                                         CONCLUSION

     For the foregoing reasons, we reverse the district court's

grant of summary judgment against the Armstrong plaintiffs and

remand for further proceedings consistent with this opinion.

     REVERSED and REMANDED

     ANDERSON, Circuit Judge, dissenting:

     Because        I    believe       the   rule    created       by    the   majority     is

inconsistent        with       Supreme    Court     precedent      and    unjustified      by

considerations of policy, I respectfully dissent.                              I would have

affirmed the district court by holding that the tolling period

ceased, and thus the statute of limitations began to run again, as

soon as the district court excluded appellants as members of the
Carmichael class action.

     The majority's holding—that the statute of limitations remains

tolled through completion of the appeals process in the named

plaintiffs'     case—conflicts    with    Supreme    Court   precedent.     In

American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38

L.Ed.2d   713   (1974),   the    State   of   Utah   filed   a   class   action

antitrust complaint with just eleven days left to run in the

limitations period.       Several months later, the district court

entered an order denying class certification, because of the

failure to satisfy the numerosity requirement of Fed.R.Civ.P.

23(a)(1).     Eight days after this order, several state and local

agencies who had been putative class members moved to intervene in

the action to become plaintiffs.         The Court held that the filing of

the original class action complaint "suspended the running of the

limitation period only during the pendency of the motion to strip

the suit of its class action character."             Id. at 561, 94 S.Ct. at

770 (emphasis added).      The Court explained that "the intervenors

thus had 11 days after the entry of the order denying them

participation in the suit as class members in which to move for

permission to intervene."        Id.     Although apparently there was no

argument that tolling should continue thereafter because the order

denying class status was interlocutory, and thus it might be said

that the Court did not squarely reject such an argument, surely the

Court assumed that the crucial time for tolling to end was the

district court's order denying class certification, not some later

final order.

     In Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 103
S.Ct. 2392, 76 L.Ed.2d 628 (1983), the Court applied the American

Pipe tolling rule not only for persons who sought to intervene in

the named plaintiffs' case after class certification was denied,

but also for persons who wished to file separate suits.                Within

ninety days after the district court denied class certification in

the Title VII action, but almost two years after receiving a right

to sue notice from the EEOC, respondent Parker filed an individual

Title VII complaint. By explaining that Parker "retained a full 90

days in which to bring suit after class certification was denied,"

id. at 354, 103 S.Ct. at 2398 (emphasis added), the Court indicated

that the tolling of the statute of limitations ceased as soon as

the district court denied class certification, and not when a final

decision on the merits was reached.1

     In United Airlines, Inc. v. McDonald, 432 U.S. 385, 97 S.Ct.

2464, 53 L.Ed.2d 423 (1977), the district court denied class

certification   in   a   Title   VII   case,   and   the   named   plaintiffs

successfully litigated their case to a settlement.            Eighteen days

after the district court entered a judgment of dismissal upon the

settlement, a putative class member filed a motion to intervene for


     1
      The first sentence of the opinion reveals the Court's
belief that the statute of limitations recommences when the
district court denies class certification, not at some later
time:

               The question presented in this case is whether the
          filing of a class action tolls the applicable statute
          of limitations and thus permits all members of the
          putative class to file individual actions in the event
          that class certification is denied, provided, of
          course, that those actions are instituted within the
          time that remains on the limitations period.

     Id. at 346-47, 103 S.Ct. at 2394.
the sole purpose of appealing the district court's earlier denial

of class certification.   The Court held that the motion was timely

under Fed.R.Civ.P. 24 because it was filed "within the [30 day]

time period in which the named plaintiffs could have taken an

appeal."   Id. at 396, 103 S.Ct. at 2471.    In its analysis, the

Court addressed the defendant's argument that the intervenor had no

interest in the litigation because the statute of limitations had

expired.   The Court emphasized that the purpose of the motion was

to appeal the denial of class certification, and not to litigate an

individual claim:

          This [statute of limitations] argument might be
     persuasive if the respondent had sought to intervene in order
     to join the named plaintiffs in litigating her individual
     claim ..., for she then would have occupied the same position
     as the intervenors in American Pipe. But the later motion to
     intervene in this case was for a wholly different purpose.
     That purpose was to obtain appellate review of the District
     Court's order denying class action status ..., and the motion
     complied with, as it was required to, the time limitation for
     lodging an appeal.... Success in that review would result in
     the certification of a class, the named members of which had
     complied with the statute of limitations; the respondent is
     a member of that class against whom the statute had not run at
     the time the class action was commenced.

Id. at 392, 97 S.Ct. at 2468-69 (footnote omitted).    The passage

quoted above strongly implies that the statute of limitations for

suing in one's own name begins to run again as soon as the district

court denies class certification, although an excluded putative

class member whose individual claim is barred by the statute of

limitations may still appeal the denial of class certification.

     In addition to the Supreme Court precedent discussed above, at

least two federal appellate courts have rejected the argument that

the statute of limitations for filing an individual claim should

remain tolled through an unsuccessful appeal of the denial of class
certification.      See Nelson v. County of Allegheny, 860 F.Supp.

1080, 1084 (W.D.Pa.1994) ("[T]he claims of the plaintiff in United

Airlines only survive as part of the class action and only if the

decertification order is reversed on appeal."), aff'd, 60 F.3d 1010

(3d   Cir.1995)    (holding   that   the   tolling   of   the   statute   of

limitations ceased upon the district court's order denying class

certification, and did not continue through completion of the

appeals process), cert. denied, --- U.S. ----, 116 S.Ct. 1266, 134

L.Ed.2d 213 (1996); Calderon v. Presidio Valley Farmers Ass'n, 863

F.2d 384, 390 (5th Cir.) (per curiam) (holding that the statute of

limitations begins to run again upon the district court's original

denial of class certification, even if the district court later

reconsiders the issue and certifies a class), cert. denied, 493

U.S. 821, 110 S.Ct. 79, 107 L.Ed.2d 45 (1989).

      Considering the case law discussed above, I would hold that

the statute of limitations began to run again as soon as the

district court excluded appellants as members of the Carmichael

class action.     Moreover, several considerations of policy persuade

me that the result reached by the majority is unwise, and that the

court should have adopted the simpler approach I advocate.

      Tolling the statute of limitations while a class action is

pending encourages reasonable reliance on the named plaintiffs to

protect the interests of the putative class members.            See Crown,

Cork & Seal, 462 U.S. at 362-63, 103 S.Ct. at 2397 ("Class members

who do not file suit while the class action is pending cannot be

accused of sleeping on their rights;          Rule 23 both permits and

encourages class members to rely on the named plaintiffs to press
their claims.").           In my view, after the district court enters the

order denying class action status, reliance on the named plaintiffs

is no longer reasonable, and the excluded putative class members

should be on notice that they must act to protect their rights.

See United Airlines, Inc. v. McDonald, 432 U.S. 385, 399, 97 S.Ct.

2464,       2472,     53   L.Ed.2d    423    (1977)    (Powell,    J.,    dissenting).

According to the majority, however, continuing to toll the statute

of limitations after denial of class certification is justified:

the denial of class action status "may be only temporary because

the district court may reconsider its dismissal order and vacate

the order, or upon final judgment the claimants may appeal their

dismissal and the appellate court may reverse the district court's

decision."           Maj.Op. at 3460.       To the contrary, I find it difficult

to believe that a reasonable person would rely on the hope that

some       day   a    court   might   determine       that   the   suit   should   have

proceeded as a class action.                When the district court denies class

certification,2 the named plaintiffs no longer have a duty to

advance the interests of the excluded putative class members.                       See

Fed.R.Civ.P. 23(c)(1), advisory committee's note (explaining that

the trial court's order denying class action status "strip[s] [the

suit] of its character as a class action," thus requiring the

litigation to proceed as a non-class action, even though the

district court may change its mind and certify a class at any time


       2
      Technically speaking, the district court in the instant
case did not deny class certification altogether; rather, it
certified a narrow class that did not include appellants as
members. As a shorthand, I will refer in this opinion to the
more common situation where the district court denies class
certification altogether.
before a decision on the merits);               Pearson v. Ecological Science

Corp., 522 F.2d 171, 177 (5th Cir.1975) (rejecting the argument

that the interlocutory nature of the district court's order denying

class certification requires the named plaintiffs to exercise a

continuing fiduciary duty to the putative class members). Although

it is possible that the district court may reconsider its order

denying    class   certification,      or       that   an    appellate      court   may

ultimately reverse it, district courts have broad discretion with

respect to such rulings.          See, e.g., Jones v. Firestone Tire &

Rubber Co., Inc., 977 F.2d 527, 531 (11th Cir.1992) (citing cases

for the proposition that "[a] district court's denial of class

certification      will     not   be   disturbed            absent     an   abuse    of

discretion"), cert. denied, 508 U.S. 961, 113 S.Ct. 2932, 124

L.Ed.2d 682 (1993).       Thus, reliance on the possibility of a change

in   the   order   denying    class    certification           is    ordinarily     not

reasonable.3    For the foregoing reasons, I believe that tolling the

statute of limitations after the district court denies class

certification is unnecessary to protect any reasonable reliance by

putative class members on their former class representatives.

      While    tolerating    unreasonable        reliance      by     putative   class

members on their former class representatives, the majority's

extended    tolling   rule    creates       a    substantial         risk   of   unfair


      3
      Furthermore, it could take years for the named plaintiffs'
case to reach final judgment and completion of the appeals
process, and there are no guarantees that the named plaintiffs
will prevail on the merits (or obtain a favorable settlement).
Thus, even if the tolling of the statute of limitations is
extended as contemplated by the majority, many putative class
members will protect themselves by filing an individual suit soon
after the district court denies class certification.
prejudice to defendants.            Statutes of limitation are intended to

protect defendants by preventing "the revival of claims that have

been allowed to slumber until evidence has been lost, memories have

faded,   and    witnesses       have   disappeared."         Order     of   Railroad

Telegraphers v. Railway Express Agency, 321 U.S. 342, 348-49, 64

S.Ct. 582, 586, 88 L.Ed. 788 (1944).                   The majority's rule will

unfairly prejudice at least some defendants by extending the

tolling of the limitations period through the completion of an

appeal   of    the   class   certification        decision.      The    statute    of

limitations conceivably could remain tolled for several years,

especially under the majority's option 2 where no interlocutory

appeal occurs.        See Nelson v. County of Allegheny, 60 F.3d 1010,

1013 (3d Cir.1995) (holding that such an extended tolling period

would be "unreasonable"), cert. denied, --- U.S. ----, 116 S.Ct.

1266, 134 L.Ed.2d 213 (1996).              The potential length of the delay

certainly      increases     the    probability     of    lost   evidence,      faded

memories, missing witnesses, and other forms of prejudice to the

defendant.      Of course, the American Pipe tolling rule also causes

some delay, even if the tolling ceases as soon as the district

court denies class certification. However, the length of the delay

(and hence the risk of prejudice) is much smaller, in part because

Fed.R.Civ.P. 23(c)(1) directs the district court to make the class

certification        decision      "[a]s   soon   as     practicable    after     the

commencement of an action brought as a class action." See American

Pipe, 414 U.S. at 562, 94 S.Ct. at 770 (Blackmun, J., concurring)

(noting that district courts can make the American Pipe rule more

fair to defendants, inter alia, by making the class certification
decision promptly).

     Because I believe it is unreasonable for plaintiffs to rely on

an action after being dismissed from it, and because I believe the

majority's rule unfairly prejudices defendants, I would end the

tolling of the statute of limitations as soon as the trial court

denies class certification.      Thus, when the district court denies

class certification, I would require the dismissed class member to

file an individual suit (or intervene to become a party in the

named plaintiffs' case) within the time remaining in the statute of

limitations period.   If the claimant also wished to appeal his or

her exclusion from the class, he or she could file a motion

pursuant to Fed.R.Civ.P. 54(b) (or 28 U.S.C. § 1292(b)) seeking the

class action judge's permission to file an interlocutory appeal.

The claimant could then request a stay of his or her individual

lawsuit pending the outcome of the class certification appeal.

Although the decision whether to grant a stay is a matter of

discretion with the district court, the claimant would have a

strong argument for a stay if the class action judge allowed an

interlocutory appeal of the class certification issue and the

claimant   could   demonstrate     that   there   was   merit   to   the

interlocutory appeal.    My approach thus depends on the sound

discretion of district judges:     the discretion of the class action

judge to allow an interlocutory appeal in cases where there is some

hope for a successful appeal, and the discretion of the individual

suit judge to stay proceedings pending the outcome of an appeal if

such a stay would serve the interests of justice.

     The foregoing discussion demonstrates that the approach I
advocate is supported by strong Supreme Court dicta, by the square

holdings of two circuit courts of appeal, and by relevant policy

considerations. I also respectfully submit that the rule set forth

by the majority contains unnecessary ambiguities and complexities.

     As I understand it, the majority offers putative class members

the following three options after the district court enters the

order denying them participation in the class action:

     (1) They may file an individual lawsuit within the remaining
     time before the statute of limitations expires. The majority
     apparently contemplates that the tolled statute of limitations
     would recommence its running at the time of the district
     court's order denying class certification.4      The majority
     opinion also indicates that filing the individual suit
     operates as a waiver of the right to participate in any appeal
     regarding the denial of class certification;5 or

     (2) They may await final judgment in the named plaintiffs'
     case, intervene therein and appeal from the earlier order
     denying class certification.6 If that appeal is unsuccessful,

     4
      The majority makes this point clear in its treatment of the
facts of the case. See Maj.Op. at 3461 ("If we applied this new
rule of law to this case, [the statute of limitations] would bar
the Armstrong plaintiffs' individual actions because the
Armstrong plaintiffs filed their individual ADEA lawsuit after
the ninety-day statute of limitations had expired but before
final judgment."). Also, in its description of option 1, the
majority states that the individual suit should be filed "within
the remaining time before the statute of limitations runs."
     5
      I infer this "waiver" concept from the majority's
description of option 1, which states that the filing of an
individual suit renders "moot" any appeal regarding the denial of
class certification. I think the majority is creating a waiver,
because it is not clear how the concept of mootness would operate
in this context. Both ordinary principles of mootness and the
dicta in United Airlines, 432 U.S. at 392, 97 S.Ct. at 2468-69,
suggest that there is no mootness. (The doctrine of res
judicata, or the related doctrine of collateral estoppel, might
apply when the individual suit reaches a judgment; however,
those doctrines would not apply when the individual suit is
simply filed.)
     6
      It is not clear what happens if the putative class members
choose not to appeal their exclusion from the class (e.g., if the
defendant prevails on the merits). I presume that the statute of
     they may then file an individual suit within the time that
     remained as of the district court's order denying class
     certification.7   In other words, after the district court
     denies class certification, the statute of limitations for
     filing an individual suit remains tolled until the named
     plaintiffs' case reaches final judgment and no further appeals
     with respect to the denial of class certification are
     possible;8 or

     (3) They may move to intervene in the named plaintiffs' case
     in order to pursue an interlocutory appeal of the class
     certification decision.9 In this option, as in option 1, the
     majority apparently contemplates that the tolled statute of


limitations begins to run again upon the expiration of the time
for filing an appeal from the final judgment in the named
plaintiffs' case.
     7
      The majority's opinion does not explain the exact point at
which the statute of limitations begins to run again. For
example, does it recommence on the date of the appellate court's
opinion, or when the time for seeking certiorari expires? The
appropriate time would probably be when no further appeals (or
rehearings) are possible, which of course entails the maximum
delay before the statute of limitations would recommence.
     8
      To say that the statute of limitations remains "tolled"
this entire time is not completely accurate, because the majority
apparently contemplates that no individual suits may be filed in
the time period falling between options 1 and 2. The instant
case provides an example. The Armstrong plaintiffs filed this
suit more than ninety days after the district court's order
dismissing them from the Carmichael class action; thus, they are
too late to exercise option 1. However, their suit was filed
before the Carmichael case reached final judgment; thus, they
are too early to exercise option 2. Unwary plaintiffs who file
suit in the interim period between options 1 and 2 will have
their individual suits dismissed: should the dismissal be with
prejudice (because the statute of limitations has expired), or
without prejudice (because under option 2 the statute of
limitations will resurrect after the named plaintiffs' case
reaches final judgment)? The majority apparently contemplates
that the dismissal would be with prejudice. Maj.Op. at 3461 ("If
we applied this new rule of law to this case, section 626(e)
would bar the Armstrong plaintiffs' individual actions....").
Thus, the unwary plaintiff who files an individual suit late is
barred forever, but an individual plaintiff who waits pursuant to
option 2 is not barred.
     9
      If the named plaintiffs file an interlocutory appeal
regarding the denial of class certification, do the putative
class members still have to intervene in order to take advantage
of option 3?
     limitations would recommence its running at the time of the
     district court's order denying class certification, but would
     cease running and be tolled again when the claimant moves for
     an interlocutory appeal.10    If an interlocutory appeal is
     permitted and the district court is affirmed, then the
     majority explains that the running of statute of limitations
     recommences.11 If the district court declines to certify the
     issue for appeal or if an interlocutory appeal is not
     accepted, the majority apparently contemplates that the
     tolling ceases and the running of the statute of limitations
     recommences.12  If the recommenced statute of limitations
     expires before the claimant files an individual suit, the
     claimant may exercise option 2 (i.e., file suit after final
     judgment in the named plaintiffs' case—at which time the
     expired statute of limitations becomes resurrected).

From the foregoing discussion, it appears that the majority's array

of options will generate confusion and uncertainty.

     In sum, I submit that the majority's approach to this case is

inconsistent with precedent and the relevant policy considerations,

and also contains ambiguities and complexities.    Respectfully, I

dissent.


     10
      I infer that the running of the statute of limitations
recommences when the district court denies class certification.
See supra note 4. However, if the statute of limitations does
recommence at the time of the district court's order denying
class certification, then the statute would clearly have expired
by the time of final judgment in the named plaintiffs' case;
however, option 2 contemplates a resurrection of the statute of
that time. Does the statute of limitations run for purposes of
options 1 and 3, but not for purposes of option 2? See supra
note 8.
     11
      The majority does not clarify at what exact point the
statute of limitations begins to run again after an unsuccessful
appeal. See supra note 7.
     12
      I infer this point from the majority's description of
option 3, i.e., the language that the claimant may file an
individual lawsuit "within the time remaining." In this
situation, it is unclear exactly when the statute of limitations
recommences. It probably begins to run again when the district
court enters the order denying permission to file an
interlocutory appeal (or, if the district court grants such
permission, when the appellate court enters an order refusing to
entertain an interlocutory appeal).
