In Re: Jeh Johnson.

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 21, 2014 Decided August 1, 2014

No. 13-8002

IN RE: JEH CHARLES JOHNSON, SECRETARY OF THE U.S.
DEPARTMENT OF HOMELAND SECURITY,
PETITIONER

On Petition for Permission to Appeal
from the United States District Court
for the District of Columbia
(No. 1:00-cv-00953)

Marina Utgoff Braswell, Assistant U.S. Attorney, argued the
cause for petitioner. With her on the briefs were Stuart F.
Delery, Assistant Attorney General, U.S. Department of
Justice; Douglas N. Letter, Director; Marleigh D. Dover and
Charles W. Scarborough, Attorneys; Ronald C. Machen Jr.,
U.S. Attorney; and R. Craig Lawrence, Benton G. Peterson,
and Peter C. Pfaffenroth, Assistant U.S. Attorneys.

Catherine E. Stetson argued the cause for respondents. With
her on the brief were E. Desmond Hogan, Erica Knievel
Songer, Jennifer I. Klar, John P. Relman, and Megan Cacace.

Before: GARLAND, Chief Judge, WILKINS, Circuit Judge, and
GINSBURG, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge
GINSBURG.
 2

GINSBURG, Senior Circuit Judge: Eight African-
American Secret Service agents who were denied promotions
to the GS-14 or GS-15 level, allegedly because of their race,
were certified by the district court to sue the Secretary of the
Department of Homeland Security on behalf of a class
comprising all similarly situated agents, of whom there are
approximately 120. The Government argues the plaintiffs are
not eligible to proceed as a class under Federal Rule of Civil
Procedure 23 because they do not meet the requirements of
Rule 23(a) that there be “questions of law or fact common to
the class” and that “the representative parties will fairly and
adequately protect the interests of the class,” nor the
requirements of Rule 23(b)(3) that “questions of law or fact
common to class members predominate over any questions
affecting only individual members, and that a class action is
superior to other available methods for fairly and efficiently
adjudicating the controversy.” The Government asks this
court to exercise its discretion under Rule 23(f) to grant
interlocutory review of the class certification order on the
ground either that the decision is “manifestly erroneous” or
that it presents “an unsettled and fundamental issue of law
relating to class actions ... that is likely to evade end-of-the-
case review.” In re Lorazepam & Clorazepate Antitrust
Litig., 289 F.3d 98, 105 (D.C. Cir. 2002). Because we
conclude neither of these reasons for Rule 23(f) review is
applicable, we shall not at this time review the order of the
district court certifying the class.
 3
I. Background*

The Secret Service employs about 3,000 Special Agents
in seven major offices, each headquartered in Washington,
D.C. Each office is run by an Assistant Director who reports
to the Deputy Director and the Director of the Secret Service.

The Secret Service used a multistage process known as
the Merit Promotion Plan (MPP) to select Special Agents for
promotion to the GS-14 and GS-15 positions at issue in this
case. In the first stage of the process, a Special Agent
received numerical scores from (1) his or her immediate
supervisor (First Level Evaluation), (2) a panel comprising a
representative from each Assistant Director’s office (Second
Level Evaluation), and (3) for promotion to a GS-14 position,
a panel comprising six peers and two alternates who are
selected and convened annually by the Deputy Director (Peer
Panel Evaluation). The MPP prescribed the criteria each of
the three groups had to use to assign scores and the training
that scorers received, provided common evaluation forms to
scorers and applicants, and assigned weights to each of the
component scores in order to come up with a final MPP score
for each candidate. A Special Agent seeking a promotion
used his or her final MPP score to “bid” for one or more
available positions. Bidders for each position were ranked by
their scores and the top 30 or the top 25%, whichever was
greater, were placed on a “best qualified list” (BQL). Then
the Advisory Board, comprising the Deputy Director, the
seven Assistant Directors, and the Chief Counsel, reviewed

*
Part I describes the facts as they were relevant to the certification
order. They are taken from the opinion of the district court and the
joint appendix provided by the parties and they are undisputed in
this proceeding.
 4
the BQL for each position and made a recommendation to the
Director of the Secret Service, who made the final promotion
decision.

The named plaintiffs in this suit are current and former
African-American Special Agents who bid for but did not
receive GS-14 or GS-15 promotions under the MPP in the
period from 1995 to 2005. They allege both that the Secret
Service engaged in a pattern or practice of racial
discrimination in making promotions and that the MPP had a
disparate impact upon African-American Special Agents
seeking promotions, in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Civil
Rights Act of 1991, 42 U.S.C. § 1981a. The plaintiffs request
relief in the form of back pay and compensatory damages to
the extent the discrimination cost them promotions, and also
ask for a declaratory judgment and an injunction requiring the
Secret Service to end its allegedly discriminatory promotion
practices. In order to support their two theories of
discrimination, the plaintiffs proffered evidence that African-
American Special Agents were disadvantaged both in the
scoring process and in the final selection process.

BQLs were used to narrow the pool of applicants for
approximately half the vacancies that arose during the class
period; for the other half, there were few enough applicants
that all were placed on the relevant BQL. The plaintiffs have
proffered statistical evidence that the use of scores pursuant to
the MPP disproportionately disqualified African-American
Special Agents from reaching the BQLs throughout the class
period. Additionally, their statistical evidence shows that
when African-American Special Agents were included in the
BQLs, they had lower mean ranks than would be expected in
the absence of discrimination and more frequently failed to
score as high as did the lowest-scoring agent who was
 5
promoted that year. The plaintiffs have also proffered
statistical evidence that even when African-American Special
Agents made it onto the BQLs, for certain years in the class
period (1998 to 2000 for GS-14 promotions and 2002 to 2005
for GS-15 promotions), fewer of them were selected for
promotion than would be expected in the absence of
discrimination. Additionally, the plaintiffs have pointed to a
“substantial continuity” throughout the class period among
the personnel serving on the rating panels, on the Advisory
Board, and as the Director, suggesting class members
experienced in common whatever racial bias may have
affected the subjective elements of the promotions process.

The named plaintiffs seek to represent the class of all
similarly situated African-American Special Agents. The
order here challenged by the Government was issued after the
plaintiffs’ fourth attempt to define the class so as to meet the
requirements of Rule 23 for certification. Rule 23(a) requires
that (1) the class be so numerous that joinder is impracticable,
(2) there be at least one question essential to the resolution of
the suit that can be answered in common for all members of
the class, (3) the claims of the named plaintiffs be typical of
the claims of all class members, and (4) the representative
parties, i.e. the named plaintiffs and their counsel, will fairly
and adequately protect the interests of the class. Rule
23(b)(3) requires a class seeking damages to show that “the
questions of law or fact common to class members
predominate over any questions affecting only individual
members, and that a class action is superior to other available
methods for fairly and efficiently adjudicating the
controversy.” FED. R. CIV. P. 23(b)(3).

The class, as certified by the district court, comprises the
following individuals, numbering approximately 120:
 6
[A]ll current and former African-American Special
Agents who bid for promotion to a GS-14 position from
1995 to 2004 and were not promoted to GS-14 on the
first bid list on which they bid; and all current and former
African-American Special Agents who bid for promotion
to a GS-15 position from 1995 to 2005 and were not
promoted to GS-15 on the first bid list on which they bid;
but excluding Special Agents who served as an Assistant
Director, a Deputy Director, or the Director of the Secret
Service during the class period.

Moore v. Napolitano, 926 F. Supp. 2d 8, 35 (2013). The
plaintiffs arrived at this definition after having been denied
class certification for including in the putative class Special
Agents against whom class members had made “direct
accusations of discrimination.” Id. at 31-32 (quoting Moore
v. Napolitano, 269 F.R.D. 21, 34 (2010)). Finding no such
conflict of interest in a class excluding those agents, the
district court determined the plaintiffs met the adequacy of
representation requirement. Id. at 32. The court also
analyzed the admissibility of the plaintiffs’ statistical
evidence and determined it was reliable and relevant to the
question of discrimination vel non under Title VII. Id. at 27.
Having determined that each of the four requirements of Rule
23(a) was met, that common issues predominated over
individual ones, and that the class device was superior to
other methods, the court certified the class under Rule
23(b)(3). Id. at 35. The Government then petitioned for
interlocutory review per Rule 23(f), challenging the court’s
determinations with respect to commonality, adequacy of
representation, predominance, and superiority.
 7
II. Analysis

This court has identified three reasons for which
interlocutory review of a class certification order is
appropriate under Rule 23(f):

(1) when a “questionable” class certification decision
creates a “death-knell situation” for either party; (2) when
the certification decision presents “an unsettled and
fundamental issue of law relating to class actions ... that
is likely to evade end-of-the-case review”; and (3) when
the certification decision is manifestly erroneous.

In re Veneman, 309 F.3d 789, 794 (2002) (quoting
Lorazepam, 289 F.3d at 105). Other circumstances may also
justify review per Rule 23(f), but we have cautioned that such
review should be “granted rarely.” Lorazepam, 289 F.3d at
105.

The Government here invokes both the second and third
reasons and additionally argues this case presents “special
circumstances” of the sort present In re Rail Freight Fuel
Surcharge Antitrust Litig., 725 F.3d 244 (D.C. Cir. 2013),
where a “confluence of multiple rationales,” including a
subsequent decision of the Supreme Court, justified
immediate review of the class certification order. Id. at 250.
None of these three justifications obtains in the present case.

A. Unsettled and Fundamental Issue Likely to Evade End-of-
the-Case Review

The Government fails to demonstrate this case presents
any unsettled and fundamental issue of law relating to class
actions that is likely to evade end-of-the case review. To be
sure, the Government points out areas of ambiguity in the law
 8
of class actions that are relevant to its case, but it fails to
provide any reason we should resolve those issues now: The
Government’s briefs simply ignore the requirement that the
issues be “likely to evade end-of-the-case review.”
Lorazepam, 289 F.3d at 105. When pressed at oral argument
the Government suggested settlement pressure would prevent
end-of-the-case review, but that is no more than a belated
argument that it faces a “death-knell situation.” Even if it had
been timely raised, the argument would be misplaced, for it is
appropriate only when “the grant of class status raises the cost
and stakes of the litigation so substantially that a rational
defendant would feel irresistible pressure to settle.” Rail
Freight, 725 F.3d at 251. The costs and stakes here are
insignificant in relation to the litigating resources of the
defendant, upon which it has drawn for more than 14 years in
tenaciously defending this case. We are confident, therefore,
that any novel legal question raised by this case can be
addressed after judgment.

B. Manifest Error

The Government next contends the class certification
decision is manifestly erroneous. This is a difficult standard
to meet; we have never before granted Rule 23(f) review on
the basis of a manifest error and other circuits, too, have
indicated there is a high bar for doing so. See, e.g.,
Chamberlan v. Ford Motor Co., 402 F.3d 952, 962 (9th Cir.
2005) (“It is difficult to show that a class certification order is
manifestly erroneous unless the district court applies an
incorrect Rule 23 standard or ignores a directly controlling
case. Class certification decisions rarely will involve legal
errors, however, simply because class actions typically
involve complex facts that are unlikely to be on all fours with
existing precedent.” (citations omitted)).
 9
Despite its need to clear this high bar, the Government
has made almost no effort to explain which of the district
court’s alleged errors it thinks manifest. Out of an abundance
of caution, therefore, we consider whether any of its
challenges to the class certification requirements —
commonality, adequacy of representation, predominance, and
superiority — is based upon an error that can be deemed
manifest. We conclude that none of these rulings on the
requirements for certification is manifestly erroneous because
the court applied the correct standards and the cases relied
upon by the Government do not squarely foreclose the class
certification here. We therefore decline to exercise our
discretion under Rule 23(f) to conduct a more searching
inquiry now into the application of those standards to the facts
here.

1. Commonality

The district court found the commonality requirement
was satisfied because every class member’s claim of
employment discrimination could be moved toward resolution
by answering the common contention, supported by some
evidence, that there was a policy or practice of racial
discrimination infecting the promotion process at the Secret
Service in the period 1995-2005. Moore, 926 F. Supp. 2d at
28-30. The Government argues this conclusion is at odds
with the Supreme Court’s decision in Wal-Mart Stores, Inc. v.
Dukes, __ U.S. __, 131 S.Ct. 2541, 2550-57 (2011), in which
a putative class alleging employment discrimination failed the
commonality requirement. The Court there stated that
“[w]ithout some glue holding the alleged reasons for all [the
promotion] decisions together, it will be impossible to say that
examination of all the class members’ claims for relief will
produce a common answer to the crucial question why was I
disfavored.” Id. at 2552. According to the Government, there
 10
is no such glue in this case because class members allege
discrimination at different stages in the MPP process, where
they faced different decision makers. Id. at 2551 (class
“claims must depend upon a common contention — for
example, the assertion of discriminatory bias on the part of
the same supervisor”). The Government also relies upon this
court’s decision in DL v. District of Columbia, 713 F.3d 120
(2013), in which, as in Wal-Mart, class members’ experiences
varied to the point that their complaints could not be resolved
together. The facts in the present case, however, are
sufficiently different from the facts in those cases, and the
claims of the class members here are sufficiently alike, so as
not squarely to foreclose the district court’s determination, in
effect, that it is indeed possible to find a common answer to
the crucial question why was I disfavored. See Wal-Mart, 131
S.Ct. at 2551, quoting Richard A. Nagareda, Class
Certification in the Age of Aggregate Proof, 84 N.Y.U. L.
REV. 97, 132 (2009) (“What matters to class certification ... is
not the raising of common ‘questions’ — even in droves —
but, rather, the capacity of a class-wide proceeding to
generate common answers apt to drive the resolution of the
litigation”).

In Wal-Mart, the only feature common to all promotion
decisions was the policy of delegating those discretionary
decisions to individual store managers. See id. at 2554. In
essence, all they had in common was that each one (or, more
precisely, each manager’s decision) was different. In
contrast, under the MPP here at issue, every class member
was evaluated upon the same criteria and scored using the
same numerical system. Furthermore, every promotion
decision was ultimately made by the Director of the Secret
Service. Although different decision makers no doubt
injected some subjectivity into the evaluations of different
class members, which might be enough to cast doubt upon the
 11
commonality of their claims were we engaged in a more
searching inquiry, the policy here was far from the complete
delegation involved in Wal-Mart; hence, if the district court
erred in coming to a different conclusion, then the error is
certainly not manifest and so need not be reviewed at this
stage in the litigation.

In DL, all the class members alleged they had been
deprived of a “free appropriate public education” as a result of
various failings at different stages in the District of
Columbia’s process to “identify, locate, evaluate, and offer
special education and related services to disabled preschool-
age children.” See 713 F.3d at 122. Because the class
members were suing for injunctive relief to obtain
improvements at various different stages in the delivery of
disability services, the court held there was no question
capable of common resolution for all class members. See id.
at 125, 127-28. Here, all class members are seeking damages
to compensate them for the allegedly discriminatory decisions
not to promote them. The Government seeks to differentiate
class members by the stage of the promotion process in which
they may have encountered discrimination; for instance, it
suggests class members who applied for promotions in years
for which there was no statistically significant disparity in the
BQL-to-promotion rate are in actuality complaining only
about discrimination from the scoring and ranking process,
not about discrimination in management’s subjective
decision-making process. These distinctions, however, are
not indicated by DL because all the class members here are
seeking the same relief and, in so doing, must all show that
promotion decisions made pursuant to the MPP were affected
by discrimination generally. Because there is a good deal of
commonality in the way all those promotion decisions were
made, the district court did not manifestly err in finding the
class claims could be moved together toward resolution.
 12
2. Adequacy of representation

The Government next contends the district court erred in
holding the named plaintiffs could adequately represent the
entire class because some class members had served as
scorers in the evaluation process at the first stage of the MPP.
The Government argues this decision “cannot be squared
with” Wagner v. Taylor, 836 F.2d 578 (D.C. Cir. 1987), in
which we held the named plaintiff could not adequately
represent the class in part because he had “accused his own
supervisor, who is a potential class member, of racial
discrimination.” 836 F.2d at 595. In order to eliminate just
such a conflict, the present plaintiffs amended the definition
of the putative class in their motion for certification
specifically to exclude Special Agents who were part of upper
management and were therefore responsible for selecting
candidates for promotion from the BQLs.* The district court
*
In their third certification motion, the plaintiffs submitted and the
court rejected the following class definition:

[A]ll current and former African-American Agents who
were employed as Criminal Investigators (GS/GM-1811)
and who had the required time-in-grade to seek promotion
to competitive positions at the GS-14 level at any time
during the years 1995 to 2004, and/or who had the required
time-in-grade to seek promotion to competitive positions at
the GS-15 level at any time during the years 1995 to 2005.

In their fourth certification motion, they proposed the following
class definition, the last clause of which excluded upper
management and which the court certified:

[A]ll current and former African-American Special Agents
who bid for promotion to a GS-14 position from 1995 to
2004 and were not promoted to GS-14 on the first bid list
 13
then distinguished Wagner and found the named plaintiffs
could adequately represent the class on the basis that “the
record does not show specific allegations of discrimination by
class members against other class members.” Moore, 926 F.
Supp. 2d at 32. We see no manifest error in this ruling. If
class members neutrally applied a flawed rating system and
thereby reached a discriminatory result, then they were not
themselves discriminating and therefore have no apparent
interest that is in conflict with the attempt to prove other
agents were denied promotions because of their race.

3. Predominance of the common issues

The district court held common issues predominated over
individual issues in this suit because there are no individual
issues involved in determining whether the MPP was
discriminatory and because the court, when and if it ever
reaches individualized questions, will send those questions to
separate hearings outside the class proceedings. Moore, 926
F. Supp. 2d at 33-34 & n.7. In the end, that is, only common
issues will be handled on a classwide basis, so common issues
necessarily predominate. Insofar as the Government argues
those issues cannot be resolved on a classwide basis and so
should weigh against predominance, that is nothing more than
a restatement of the Government’s commonality argument.

on which they bid; and all current and former African-
American Special Agents who bid for promotion to a GS-15
position from 1995 to 2005 and were not promoted to GS-
15 on the first bid list on which they bid; but excluding
Special Agents who served as an Assistant Director, a
Deputy Director, or the Director of the Secret Service
during the class period.

Moore, 926 F. Supp. 2d at 15, 35.
 14
Therefore, the district court could have erred only if it was
incorrect in thinking it lawfully could bifurcate the suit and
certify the class for the purpose of answering only the
common questions concerning discrimination vel non.

Because we see no facial defect in the district court’s
reasoning and there is no binding precedent on point, we
conclude the district court did not make a manifest error in
certifying the class solely to resolve the questions concerning
discrimination. The Supreme Court has instructed that in
pattern-or-practice class actions, the plaintiffs can first
“demonstrate that unlawful discrimination has been a regular
procedure or policy followed by an employer,” after which
members of the class will have the benefit of the presumption
at his or her individualized hearing (now known as a
Teamsters hearing) that “individual [employment] decisions
were made in pursuit of the discriminatory policy.” Int'l Bhd.
of Teamsters v. United States, 431 U.S. 324, 359-60 (1977)
(extending Franks v. Bowman Transp. Co., 424 U.S. 747
(1976)). In Wal-Mart, the Supreme Court held that a
defendant must have the opportunity in a Teamsters hearing
to rebut this presumption of discrimination on an
individualized basis; “a class cannot be certified on the
premise that [the defendant] will not be entitled to litigate its
statutory defenses to individual claims.” 131 S.Ct. at 2561.
Here, the district court anticipated individualized Teamsters
hearings and so, in effect complied in advance with that
aspect of the Wal-Mart decision. Unlike the lower courts in
Wal-Mart, the district court here did not certify the class on
the ground that it could resolve individualized issues on a
classwide basis. The practical effect of the district court’s
decision is that it certified a “class action with respect to
particular issues,” which it is expressly authorized to do by
Rule 23(c)(4).
 15
We recognize there is a controversy over the proper use
of issue classes, especially when the result is to isolate a
particular issue that would otherwise derogate from the
predominance of common issues in a 23(b)(3) class action.
See generally Robert H. Klonoff, The Decline of Class
Actions, 90 WASH. U. L. REV. 729, 807-15 (2013) (surveying
courts’ and scholars’ different approaches to Rule 23(c)(4)
and observing “[t]his rule has created significant conflict and
confusion among the courts”); Jenna G. Farleigh, Note,
Splitting the Baby: Standardizing Issue Class Certification, 64
VAND. L. REV. 1585 (2011) (discussing the controversy and
observing that the First, Second, Third, Fourth, Seventh, and
Ninth Circuits have held an issue class can be used to avoid a
predominance problem whereas the Fifth Circuit has held the
cause of action as a whole must pass the predominance test).
For example, in a prior case before the district court, the judge
took a different approach to separating the common and
individualized issues, despite being faced with facts similar to
those here. Taylor v. D.C. Water & Sewer Auth., 241 F.R.D.
33 (D.D.C. 2007). The court there certified the pattern-or-
practice class under Rule 23(b)(2) for the purposes of
determining discrimination and granting injunctive relief but
with respect to damages indicated it would later decide
between certifying the class under 23(b)(3) and conducting
Teamsters hearings. Id. at 47.

Because the appropriate use of an issue class was not
raised or briefed in the present case, we shall not review at
this time the district court’s determination of how best to
manage the issues before it. Cf. Veneman, 309 F.3d at 796
(declining to exercise 23(f) discretion because the important,
unresolved issues were entirely unbriefed). We may note
with confidence, however, that in general, a district court has
a good deal of discretion in the management of the litigation
before it, see, e.g., Cloverleaf Standardbred Owners Ass'n,
 16
Inc. v. Nat'l Bank of Washington, 699 F.2d 1274, 1277 (D.C.
Cir. 1983) (“A district judge, closer to the arena, is often
better situated than is an appellate panel to survey the
practicalities involved in the litigation” (quotation marks
omitted)), making it difficult to conclude the court has erred,
let alone manifestly erred, by in effect certifying an issue
class action.

4. Superiority of the class device

In the district court, the Government suggested no way of
handling class members’ claims that would be superior to the
class device, other than holding a separate trial for each
individual. Its argument before us is that the district court’s
analysis was insufficiently “rigorous” to determine the class
device was superior to that alternative.

Because the district court did identify factors that could
make the class device superior, and because it dealt with the
Government’s arguments to the contrary in its analyses of the
commonality and predominance requirements, the court’s
relatively brief discussion of superiority was sufficient unto
the task. The court explained that the interests of efficiency
and uniformity supported resolving the question of
discrimination in one stroke rather than requiring the same
question to be answered separately for each individual.
Moore, 926 F. Supp. 2d at 34. On the other hand, it
acknowledged the Government’s argument that class
members might have enough at stake in this litigation to make
individual trials viable. Id. It was not manifestly erroneous
for the district court to hold that argument was outweighed by
the court’s and the plaintiffs’ legitimate interests in efficiency
and uniformity. Furthermore, given the district court’s
identification of common questions susceptible to classwide
proof and its stated intention, if the plaintiffs prevailed on
 17
those questions, to hold Teamsters hearings for each class
member, we cannot credit the Government’s argument that
the district court failed adequately to analyze how the class
device would operate to conserve judicial resources.

C. Special Circumstances

Perhaps sensing it is not on solid ground with any of the
reasons for interlocutory review we identified in Lorazepam,
the Government contends this case presents “special
circumstances” similar to those that justified our granting
review under Rule 23(f) in Rail Freight, 725 F.3d 244. There
the district court had certified the class prior to the Supreme
Court issuing an opinion “with significant bearing” upon the
class certification question at issue. Id. at 254. That
development “tip[ped] the scales in favor of review” because
the case nearly qualified for interlocutory review for the first
reason set out in Lorazepam: There was a “questionable”
class certification decision that created a near “death-knell
situation.” Id. In this case, the Government points out that
two of the decisions upon which it relies, Comcast Corp. v.
Behrend, __ U.S. __, 133 S.Ct. 1426 (Mar. 27, 2013), and DL,
713 F.3d 120 (Apr. 12, 2013), were issued after the class
certification order (Feb. 25, 2013). As we have explained in
the foregoing sections, however, there is no similarly close
call in this case with respect to any of the three reasons given
for interlocutory review in Lorazepam. Accordingly, there is
no “confluence of multiple rationales” as there was in Rail
Freight, 725 F.3d at 250; therefore, even assuming they are
relevant, the two subsequent decisions do not tip the scales in
favor of immediate review.
 18
III. Conclusion

Although we recognize there are unsettled questions of
law relating to class actions at issue in this case, now is not
the appropriate time to resolve them. None of the district
court’s rulings in support of its order certifying the plaintiff
class is foreclosed by controlling precedent and the unsettled
questions are not likely to evade end-of-the-case review. As
we have observed before, “[t]he sheer number of class
actions, the district court’s authority to modify its class
certification decision, and the ease with which litigants can
characterize legal issues as novel, all militate in favor of
narrowing the scope of Rule 23(f) review.” Lorazepam, 289
F.3d at 105-06 (citations omitted). Accordingly, the
Government’s petition is

Denied.