76 Fair empl.prac.cas. (Bna) 1007, 73 Empl. Prac. Dec. P 45,338, 11 Fla. L. Weekly Fed. C 1240 David M. Armstrong, L. Benson Barger, Wallace D. Black, Howard Brooks, Jerry A. Budd, Sonja M. Carter, Dominick C. Cizek, Carol D. Clarke-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, Kenneth A. Richards, Russell G. Roberts, Linda L. Ryan, Victor W. Shaw, Linton W. Smith, Michael Sylvestri, Delbert S. Turner, Edward W. Walsh, Joseph W. Williamson v. Martin Marietta Corp., Martin Marietta Technologies, Inc.

In Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983), the Supreme Court held that the commencement of a class action suspends the applicable statute of limitations for all asserted members of the putative class "until class certification is denied." Id. at 354-55, 103 S.Ct. at 2397-98. The question presented in this case is whether, in the absence of controlling authority, the statute of limitations begins to run again immediately upon the district court's entry of the interlocutory order denying class certification,1 or whether the statute remains tolled through final judgment in the former class action and completion of an appeal from the order denying class certification.2 The appellants advocate the latter rule, and a divided panel of this court adopted a variation of that rule.3 For the reasons set forth below, we hold that the tolling of the statute of limitations ceases when the district court enters an interlocutory order denying class certification.

This case arises under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (1994) (the "ADEA"). The thirty-one appellants in the instant case are former Martin Marietta4 employees who lost their jobs between 1992 and 1993. (Two other appellants, Myrtle Y. Redding and Marlon K. Tarter, have been dismissed from this appeal pursuant to joint stipulation of the parties.) Following their terminations, twenty-eight appellants filed timely charges of age discrimination with the Equal Employment Opportunity Commission (the "EEOC"), as is required by statute. See 29 U.S.C. § 626(d) (providing that a person who wishes to bring a civil action against his or her employer pursuant to the ADEA must first file a timely charge of discrimination with the EEOC). Three appellants--Clarke-Iley, Johnson, and Shaw--did not file EEOC charges.

At various times, the EEOC notified each appellant (other than Clarke-Iley, Johnson, and Shaw) that his or her charge of age discrimination was dismissed. Receipt of such notice triggers the statute of limitations for bringing a civil action in court, and the plaintiff must then file suit within ninety days. See 29 U.S.C. § 626(e).5 This ninety-day limitations period is tolled, however, while the plaintiff is a putative member of a class action. See Crown, Cork, 462 U.S. at 353-54, 103 S.Ct. at 2397-98. Twenty-eight of the thirty-one appellants opted into Carmichael v. Martin Marietta Corp., Case No. 93-434-CIV-ORL-19, an age discrimination class action that was already proceeding in the Middle District of Florida, on June 4, 1993.6 The remaining three appellants--Davis, Havlish, and Hinduja--were named plaintiffs in the Carmichael action.

On April 7, 1994, the district court in Carmichael determined that the appellants were not "similarly situated" to the other Carmichael plaintiffs. The Carmichael court therefore certified a plaintiff class that did not include as members the appellants in the instant case. The court then dismissed the claims of appellants Davis, Havlish, and Hinduja without prejudice, and denied the remaining appellants' requests to opt into the Carmichael class. None of the appellants requested leave to file an interlocutory appeal from that order under 28 U.S.C. § 1292(b).7

On October 11, 1994, more than ninety days after the Carmichael court's partial denial of class certification, the thirty-one appellants and fourteen additional plaintiffs (including former appellants Redding and Tarter) filed the complaint that commenced the instant action in the district court. On October 25, 1994, an amended complaint added a forty-sixth plaintiff, appellant Wallace Black.

On January 17, 1995, Martin Marietta filed a motion for partial summary judgment against the thirty-one appellants, on the ground that they had failed to file their individual lawsuits within ninety days after their dismissal from the Carmichael class action. Martin Marietta also sought summary judgment against appellants Clarke-Iley, Johnson, and Shaw on the alternative ground that each had failed to file a charge of age discrimination with the EEOC within 300 days of the alleged discrimination.

On March 22, 1995, a magistrate judge issued a report recommending that the district court grant Martin Marietta's motion for partial summary judgment. The magistrate judge concluded that the ninety-day statute of limitations, which was tolled while the appellants were putative members of the Carmichael class action, recommenced when the Carmichael court dismissed their claims. Therefore, because the appellants' instant claims were filed more than ninety days after the dismissal in Carmichael, those claims were barred by the statute of limitations. The magistrate judge rejected Martin Marietta's alternative ground for partial summary judgment against Clarke-Iley, Johnson, and Shaw, concluding that this circuit's "piggybacking" rule excused them from filing charges of discrimination with the EEOC. See Grayson v. K Mart Corp., 79 F.3d 1086, 1101-02 (11th Cir.1996) (holding that an individual who did not file an EEOC charge may opt into an ADEA class action by "piggybacking" onto a timely charge filed by one of the named plaintiffs, provided that the claims of the named plaintiff and the piggybacking plaintiff arise out of similar discriminatory treatment in the same time frame).8

On May 10, 1995, the district court adopted the magistrate judge's report and recommendation, and granted partial summary judgment against the thirty-one appellants. On September 14, 1995, the district court amended its order and replaced the partial summary judgement with a final judgment pursuant to Federal Rule of Civil Procedure 54(b). This appeal followed.

The primary issue on appeal is whether the district court was correct in holding that the statute of limitations, which was tolled while the appellants were putative members of the class action, resumed running when the Carmichael court dismissed the appellants' claims in that case. We hold that the limitations period for filing an individual suit (and for intervening in an extant action) did so resume. We therefore affirm the decision of the district court with regard to almost all of the appellants.9

The ADEA's statute of limitations requires the plaintiff to file suit within ninety days after receiving notice that the EEOC has dismissed the plaintiff's age discrimination charge. See 29 U.S.C. § 626(e). Membership in a pending class action, however, tolls the ninety-day period for filing an individual lawsuit. See Crown, Cork, 462 U.S. at 353-54, 103 S.Ct. at 2397-98. The purpose of such tolling is to encourage class members reasonably to rely on the class action to protect their rights. Without tolling, class members would have to take action prior to the running of the statute of limitations in order to protect themselves in case class certification is later denied, even when they may reasonably expect to receive relief through the already-filed class action. See id. at 350-51, 103 S.Ct. at 2396; see also Griffin v. Singletary, 17 F.3d 356, 360 (11th Cir.1994) ("Insofar as the individual claims are concerned, putative class members should be entitled to rely on a class action as long as it is pending."). Once the district court enters the order denying class certification, however, reliance on the named plaintiffs' prosecution of the matter ceases to be reasonable, and, we hold, the excluded putative class members are put on notice that they must act independently 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).

The appellants, however, argue that the statute of limitations should continue to be tolled, even after the district court's denial of class certification, because the denial of certification in an interlocutory order may be reversed by the district court at any time before final judgment, or by the court of appeals after final judgment or, in rare cases, on interlocutory review. We disagree. No reasonable person would rely on the hope that either the district court or this court might someday determine that the suit should have proceeded as a class action.

When the district court denies class certification,10 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 to 1966 amendment (explaining that the trial court's order denying class certification "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 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).11 Although it is possible that the district court may reconsider its order denying class certification, or that an appellate court may later reverse it, district courts have broad discretion with respect to such rulings, and denials of class certification usually stand. See, e.g., Jones v. Firestone Tire and Rubber Co., Inc., 977 F.2d 527, 531, 535 (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" and affirming denial of class certification), cert. denied, 508 U.S. 961, 113 S.Ct. 2932, 124 L.Ed.2d 682 (1993); see also, e.g., Forehand v. Florida State Hosp. at Chattahoochee, 89 F.3d 1562 (11th Cir.1996) (affirming decertification of plaintiff class); Hudson v. Delta Air Lines, Inc., 90 F.3d 451 (11th Cir.1996) (affirming denial of class certification); Washington v. Brown & Williamson Tobacco Corp., 959 F.2d 1566 (11th Cir.1992) (same); Ray v. United States Dep't of Justice, 908 F.2d 1549 (11th Cir.1990) (same); Palmer v. BRG of Georgia, 874 F.2d 1417 (11th Cir.1989) (same). Indeed, a review of this court's published caselaw reveals that one must go back to 1987--over a decade ago--to find a case in which this court squarely reversed a district court's denial of class certification on grounds that the district court abused its discretion. See Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718 (11th Cir.1987).12 Thus, reliance on the possibility of a reversal of the court's certification decision is ordinarily not reasonable. We therefore conclude that continued tolling of 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.

Caselaw from the Supreme Court and several federal appellate courts also indicates that the tolling period should cease upon denial of class certification. The plain language of Crown, Cork itself clearly implies that tolling is to end upon the district court's denial of class certification. The Crown, Cork Court wrote: "Once the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied. At that point, class members may choose to file their own suits or to intervene as plaintiffs in the pending action." Crown, Cork, 462 U.S. at 354, 103 S.Ct. at 2397-98. The dissent would have us read the word "denied" in the above passage to mean (among other things) "denied, appealed, denied again, appealed (perhaps) again, and denied again." Even if we were inclined to divine so much from that one word, "denied," we could not do so in light of the fact that in the very next sentence the Court suggests that putative class members who have been denied certification might "intervene as plaintiffs in the pending action." Id. at 354, 103 S.Ct. at 2398. If, as the dissent advocates, we are to read "denied" to mean "finally denied, after all hope for reversal on appeal is gone," then there will rarely be a "pending action" into which the disappointed putative class members might thereafter intervene.13 We therefore read Crown, Cork to imply strongly, if not to hold, that tolling of the statute of limitations ends upon the district court's denial of class certification.14

American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), provides further guidance from the Court. In American Pipe, the State of Utah filed a class action antitrust complaint with just eleven days before the limitations period expired. Several months later, the district court entered an order denying class certification. See id. at 541-43, 94 S.Ct. at 760-61. Eight days after that order was entered, several state and local agencies that had been putative class members moved to intervene in the action and become plaintiffs. Id. at 543-44, 94 S.Ct. at 761. The Supreme Court stated

that the commencement of the class action in this case suspended the running of the limitation period only during the pendency of the motion to strip the suit of its class action character. The class suit . . . was filed with 11 days yet to run in the [limitations] period . . . and 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. Since their motions were filed only eight days after the entry of [the] order, it follows that the motions were timely.

Id. at 561, 94 S.Ct. at 770 (emphasis added). In American Pipe, the parties did not argue that tolling should continue through appeals.15 It thus might be said that the Court did not squarely reject such an argument. The Court, however, clearly assumed that tolling should end when the district court denies class certification, not after the appeals process has run and some later final order is entered.

The Supreme Court's decision in United Airlines, Inc. v. McDonald, 432 U.S. 385, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977), also strongly suggests that the tolling of the statute of limitations ceases as soon the district court denies class certification. In that Title VII case, the district court denied class certification and the named plaintiffs thereafter settled their claims against the defendant. Eighteen days after the district court entered a judgment of dismissal based on the settlement, a disappointed putative class member filed a motion to intervene for the sole purpose of appealing the district court's earlier denial of class certification. See id. at 388-90, 97 S.Ct. at 2466-67. The Supreme Court held that the motion was timely because it was filed "within the [thirty-day] time period in which the named plaintiffs could have taken an appeal." Id. at 396, 97 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 [thirty-day] 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. The Court's rationale strongly implies that the statute of limitations for filing an individual suit (and for intervening to litigate one's claim) 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 intervene for the purpose of appealing the denial of class certification after final judgment.16

Finally, as the dissent concedes, language in Chardon v. Soto, 462 U.S. 650, 103 S.Ct. 2611, 77 L.Ed.2d 74 (1983), is in tension with the dissent's position. The specific issue before the Court in Chardon was whether a Puerto Rican statute of limitations would control in a class action brought under 42 U.S.C. § 1983. See id. at 651-52, 103 S.Ct. at 2613-14. The Court concluded that the Puerto Rican statute, and state statutes of limitations generally, would control in actions under section 1983 because the

federal interest in assuring the efficiency and economy of the class action procedure . . . is vindicated as long as each unnamed plaintiff is given as much time to intervene or file a separate action as he would have under a state savings statute applicable to a party whose action has been dismissed for reasons unrelated to the merits, or, in the absence of a statute, the time provided under the most closely analogous state tolling statute.

Id. at 661, 103 S.Ct. at 2618. As stated, Chardon dealt with a question of the applicability of state law under section 1983, and the Court's decision was therefore motivated in large part by concerns of federalism; in short, the Court concluded that the federal interest in the efficiency of federal class action procedure was satisfied as long as a putative class member in federal court had as long to file his individual suit as he would have had in state court.

The instant case presents no concerns of federalism, but the Court's holding in Chardon is still instructive. Chardon held that the federal interest in the efficiency of federal class action procedure was satisfied by the application of state statutes of limitations only "after class certification is denied " (and the facts of the case make it clear that the Court was referring to the district court's denial of certification). Id. (emphasis added). We therefore read Chardon to draw a distinction between 1) the federal interest in encouraging reliance upon the class action mechanism prior to denial of certification in the district court, and 2) the federal interest in doing so after denial of certification in the district court. The federal interest in encouraging reliance upon the class action mechanism prior to denial of certification is strong, because reliance on the mechanism is reasonable and saves many individual suits and motions for intervention from being filed; for this reason, as the Chardon Court noted, American Pipe established tolling of limitations during the pendency of a class action. See id. at 658-60, 103 S.Ct. at 2617-18. The federal interest in encouraging reliance upon the class action mechanism after denial of certification in the district court, however, is at best very weak (as explained infra, we believe it to be virtually non-existent); this, we believe, is the central reason why the Chardon Court allowed state tolling rules to trump the asserted federal interest in class action efficiency after the denial of certification in the district court but not before.

In addition to this guidance from the Supreme Court, several appellate courts have explicitly rejected the argument that the statute of limitations for filing an individual claim should remain tolled through an appeal of the denial of class certification. See Nelson v. County of Allegheny, 860 F.Supp. 1080, 1084 (W.D.Pa.1994) ("In our view, ... once certification has been denied by the district court, class members cannot reasonably rely on the existence of the suit to protect their rights, and they must timely assert claims in their individual capacities."), aff'd, 60 F.3d 1010 (3d Cir.1995) (reviewing state law and holding that, in federal courts, the tolling of the statute of limitations ceases upon the entry of the district court's order denying class certification, and does not continue through completion of the appeals process), cert. denied, 516 U.S. 1173, 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 entry of the district court's order denying 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); Andrews v. Orr, 851 F.2d 146, 149-50 (6th Cir.1988) (holding that the instant suit "ceased to be a class action," and tolling ended, upon entry of order denying class certification); Fernandez v. Chardon, 681 F.2d 42, 48 (1st Cir.1982) ("[T]olling would have ended, and the remaining portion of the limitations period would have recommenced running ... when the district court declined to certify the class."), cert. granted sub nom. Chardon v. Fumero Soto, 459 U.S. 987, 103 S.Ct. 339, 74 L.Ed.2d 382 (1982), cert. denied sub nom Fumero Soto v. Chardon, 459 U.S. 989, 103 S.Ct. 343, 74 L.Ed.2d 384 (1982), aff'd, Chardon v. Soto, 462 U.S. 650, 103 S.Ct. 2611, 77 L.Ed.2d 74 (1983); see also Korwek v. Hunt, 827 F.2d 874, 877-79 (2d Cir.1987) (holding that tolling under American Pipe "does not apply to permit a [disappointed putative class member] to file a subsequent class action following a definitive determination of the inappropriateness of class certification," and holding that a district court's determination that a class action would be unmanageable constitutes such a "definitive determination.");17 but see Jimenez v. Weinberger, 523 F.2d 689, 696 (7th Cir.1975) (stating, in dictum, court's supposition that an appeal from a denial of class certification would further toll the statute of limitations).18III.

Practical considerations also lead us to conclude that, if class certification is denied in whole or in part, the statute of limitations begins to run again as to excluded putative class members as of the date of the district court's order denying certification.

The district court's class certification decision, which defines which claimants are class members and which are not, is not a "final decision" within the meaning of 28 U.S.C. § 1291, because an excluded putative class member is free to proceed with his individual claim. Class certification decisions are therefore not appealable as a matter of right. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 467-69, 98 S.Ct. 2454, 2457-58, 57 L.Ed.2d 351 (1978). "Such an order is [interlocutorily] appealable, therefore, only if it comes within an appropriate exception to the final-judgment rule." Id. at 467, 98 S.Ct. at 2457. A class certification decision therefore could come before the Court of Appeals in one of three ways.19 The most common way is review after a final judgment in the case, be it after trial, after summary judgment or dismissal, or on a partial final judgment under Fed.R.Civ.P. 54(b).20 A much narrower route to the court of appeals is interlocutory review of the district court's class certification order under 28 U.S.C. § 1292(b).21 An even rarer basis for appellate review of a district court's certification decision is this court's mandamus jurisdiction.

Let us consider the possibility of mandamus review first. In In re Estelle, 516 F.2d 480 (5th Cir.1975), we stated that the writ of mandamus may issue to correct a clear abuse of discretion or the failure to carry out a ministerial task.22 We may issue the writ "only in drastic situations, when no other adequate means are available to remedy a clear usurpation of power or abuse of discretion." In re Temple, 851 F.2d 1269, 1271 (11th Cir.1988). We may issue the writ to direct a district court to take a particular action with regard to class certification only when 1) the district court's certification decision "inflict[s] irreparable harm in that an appeal at the end of the case would be ineffectual," and 2) the certification order constitutes, at a minimum, a clear abuse of discretion.23 5 James Wm. Moore et al., Moore's Federal Practice § 23.61[c], 23-290 (3d ed.1997) (citing Temple, 851 F.2d 1269). These conditions are rarely met; class certification decisions are left to the sound discretion of the district court, see Increase Minority Participation by Affirmative Change Today of Northwest Florida, Inc. (IMPACT) v. Firestone, 893 F.2d 1189, 1197 (11th Cir.1990) (Edmondson, J., concurring in part and dissenting in part), and in most cases, the certification issue can be effectively reviewed on appeal after final judgment. See, e.g., Plekowski v. Ralston-Purina Co., 557 F.2d 1218, 1220 (5th Cir.1977). In any case, excluded putative class members are not "irreparably harmed" by a denial of class certification, because they may still intervene in the ongoing action or file their own suits.

We have in the past issued mandamus to direct a district court to decertify an improperly certified class, when the certification of that class was a clear abuse of discretion. See, e.g., Temple, 851 F.2d 1269; In re Dennis Greenman Sec. Litigation, 829 F.2d 1539 (11th Cir.1987). These cases, however, presented circumstances not present in the instant case or in most cases,24 and moreover, for a court of appeals to direct the certification of a class after the district court has denied certification is even less likely than for a court of appeals to direct the decertification of a class after the district court has granted certification.25 In short, mandamus review of a district court's denial of class certification will be very rare, and reversal of such a denial pursuant to our mandamus jurisdiction will be extremely so; a review of this court's published case law of the last twenty years reveals no case in which we overturned a district court's denial of class certification pursuant to our mandamus jurisdiction.

Let us next consider the possibility of appellate review of a denial of class certification pursuant to 28 U.S.C. § 1292(b). Section 1292(b) authorizes the courts of appeals to exercise interlocutory review of district court orders only when the lower court certifies for review a question of law, and not when the lower court attempts to certify only discretionary matters, such as the decision to certify a class vel non.26 See 28 U.S.C. § 1292(b) (1994) (stating that a district court may certify for interlocutory appeal "a controlling question of law as to which there is substantial ground for difference of opinion") (emphasis added); Link v. Mercedes Benz of N. Am., 550 F.2d 860, 862-63 (3d Cir.1977) (holding that "section 1292(b) is not designed for review of factual matters but addresses itself to a 'controlling question of law,' " and that a class certification decision "does not present a 'controlling question of law' to which this court should be hospitable under § 1292(b)"), cert. denied, 431 U.S. 933, 97 S.Ct. 2641,