OPINION OF THE COURT
VAN DUSEN, Circuit Judge.
This is an appeal by the plaintiffs, two married, female graduate students at the University of Pittsburgh,
The plaintiffs brought this action on December 28, 1971, to challenge the constitutionality of the Auditor General's Rule B(2), which classified
The plaintiffs assert that the rule denied female students equal protection of the laws. They sought both to have the operation of the Rule enjoined
The plaintiffs-appellants assert this court's jurisdiction on the basis of criteria for application of the "collateral order doctrine" set forth in Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974).
We find that the second Cohen criterion is not met by the district court's June 7, 1974, order.
The orders appealed from in Eisen and Cohen exemplify the sorts of matters which "could not be reviewed effectively on appeal from the final judgment." 417 U.S. at 171, 94 S.Ct. at 2149. In Cohen the district court, in the face of a statute which allowed a corporation to demand security for its litigation expenses from the plaintiffs in a stockholder's derivative action, had allowed the plaintiff to proceed without posting such security. 337 U.S. at 543-545, 69 S.Ct. 1221, 93 L.Ed. 1528. The order appealed from thus determined who would bear the risk of loss of the corporation's counsel fees during the pendency of the litigation. An improper allocation of risk created by the order could not have been repaired retrospectively in an appeal brought after the district court litigation had reached its conclusion. Id. at 546, 69 S.Ct. 1221, 93 L.Ed. 1528. Similarly, the district court in Eisen had allowed the plaintiff class to proceed without bearing, during the pendency of the litigation, the risk of loss of the expense of notification, in the face of the "usual rule . . . that a plaintiff must initially bear the cost of notice to the class." 417 U.S. at 178, 94 S.Ct. at 2153. If the Court had not allowed the appeal, the defendants might ultimately have prevailed on the merits and yet have been unable to recover the cost of notice from the representative plaintiffs.
The plaintiffs in the case now under appeal have shown no similar prejudice which could outweigh the burden of piecemeal review. Both in their brief opposing the defendants' motions to dismiss the appeal, see Plaintiffs'-Appellants' Reply to Defendants'-Appellees' Motions to Dismiss at 4 (footnote), and again at oral argument, the plaintiffs advanced the thesis that the June 7 order may cause members of the class who pursue their damage claims individually to incur litigation expenses which could prove to have been unnecessary if the decertification were reversed on appeal from a final judgment. The prejudice arising from delay would only arise if, on appeal from a judgment with respect to the named plaintiffs, the court of appeals found that the action had been improperly decertified, but found that the
We do not find this possible prejudice to be sufficient to outweigh the burden of allowing the present appeal. It should not be unduly time consuming for the named plaintiffs to reduce their individual claims to judgment and bring a unitary appeal in which the damage and litigation expense awards, if any, can throw helpful light on the correctness of the challenged decertification order.
More importantly, however, we do not believe that the loss to absent class members of the economies inherent in class action adjudication is the type of prejudice which the Eisen and Cohen decisions contemplated as justification for immediate appeal. Whenever a district court refuses to certify a class, there is some danger that absent class members will file individual suits, thus incurring litigation expenses which might prove to have been unnecessary if the denial of class status is ultimately reversed. The above rationale would render immediately appealable virtually every adverse class action determination. We cannot believe that the Supreme Court intended such a result by its reaffirmation of Cohen in Eisen. Instead, we maintain the position adopted by this Circuit in Hackett v. General Host Corp., 455 F.2d 618, 623-624 (3d Cir.), cert. denied, 407 U.S. 925, 92 S.Ct. 2460, 32 L.Ed.2d 812 (1972), that the more desirable route through which aspiring class representatives should be required to obtain review of adverse class action determinations is the mechanism of F.R.Civ.P. 54(b) or 28 U.S.C. § 1292(b).
The presence of such alternative routes for appellate review necessarily affects our judgment whether "the inconvenience and costs of piecemeal review" outweigh "the danger of denying justice by delay." The benefit of a district court's views as to appealability secured through certification under F.R. Civ.P. 54(b) or 28 U.S.C. § 1292(b) would be lost if aspiring class representatives were allowed to appeal, without such certification, adverse class action determinations under the collateral order doctrine. This loss, together with the additional burden placed on appellees and the appellate court whenever piecemeal appeals are permitted, greatly outweighs the danger that some class members may, by proceeding individually, lose the economies of scale associated with class treatment.
In their brief opposing defendants' motions to dismiss, the plaintiffs also appear to request this court to stay the district court's June 7 decertification order even if we find that we have no jurisdiction over the appeal. Plaintiffs'-Appellants' Reply to Defendants'-Appellees' Motions to Dismiss at 4 (footnote). If this court lacks jurisdiction, it cannot stay the proceedings in the district court. The equitable arguments for granting such a stay, in fact, go to the question of our jurisdiction under the collateral order doctrine; they have been considered and rejected above.
Accordingly, that part of the July 10, 1974, order of this court which stayed the June 7, 1974, order of the district court will be vacated and the appeal dismissed for want of an appealable order under 28 U.S.C. § 1291.
Samuel v. Univ. of Pittsburgh, 375 F.Supp. 1119, 1122 (W.D.Pa.1974).
In the present case, the plaintiffs brought motions both under Rule 54(b) and under § 1292(b). The district court's denials of both motions have not been challenged by the plaintiffs. Cf. Katz, supra at 752.