Eleventh Circuit Finds Rule 23(f) Interlocutory Review Limited to Class Certification Issues

In Escolastico de Leon-Granados, Rene Villatoro-De Leon et al. v. Eller & Sons Trees, Inc. et al., No. 06-15876 (11th Cir. August 31, 2007), the Eleventh Circuit Court of Appeals explained that when it accepts an appeal of a class certification order pursuant to Fed. R. Civ. P. 23(f), it may review only the certification order, not other interlocutory orders that the district court issued.


When the district court issued its order certifying a Rule 23(b)(3) class, it also entered a separate order in which it found that the applicable statute of limitations for the AWPA (Migrant and Seasonal Agricultural Worker Protection Act) is six years. In Appellants’ brief, they presented arguments regarding not only the pertinent class certification issues but also the statute of limitations issues. The Court of Appeals stated that it could not address the statute of limitations arguments in the context of a Rule 23(f) discretionary appeal. “This issue is not properly before us, however. With limited exceptions, the federal courts of appeal have jurisdiction to hear appeals only ‘from . . . final decisions of the district courts of the United States. Although Fed. R. Civ. P. 23(f) permits us to review ‘an order of a district court granting or denying class action certification,’ the district court’s finding on the applicable statute of limitations was made in a separate discovery order. The jurisdiction granted by Rule 23(f) does not extend to this separate order. Further, the Appellants have not argued any other exception to our limited review of interlocutory orders. Thus, we do not have jurisdiction to consider the statute of limitations issue.”  (emphasis supplied).

The court also found that Appellants waived their challenge to the 23(b)(3) certification on the basis numerosity because Appellants did not argue to the district court that the proposed plaintiff class failed to meet Rule 23(b)’s numerosity requirement.