Microsoft Corp. v. Baker

(Slip Opinion) OCTOBER TERM, 2016 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

MICROSOFT CORP. v. BAKER ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT

No. 15–457. Argued March 21, 2017—Decided June 12, 2017
Orders granting or denying class certification are inherently interlocu-
tory, hence not immediately reviewable under 28 U. S. C. §1291,
which empowers federal courts of appeals to review only “final deci-
sions of the district courts.” In Coopers & Lybrand v. Livesay, 437
U. S. 463, a 1978 decision, this Court held that the death-knell doc-
trine—which rested on courts’ recognition that a denial of class certi-
fication would sometimes end a lawsuit for all practical purposes—
did not warrant mandatory appellate jurisdiction of certification or-
ders. Id., at 470, 477. Although the death-knell theory likely “en-
hanced the quality of justice afforded a few litigants,” it did so at a
heavy cost to §1291’s finality requirement. Id., at 473. First, the po-
tential for multiple interlocutory appeals inhered in the doctrine. See
id., at 474. Second, the death-knell theory forced appellate courts in-
discriminately into the trial process, circumventing the two-tiered
“screening procedure” Congress established for interlocutory appeals
in 28 U. S. C. §1292(b). Id., at 474, 476. Finally, the doctrine “op-
erat[ed] only in favor of plaintiffs,” even though the class-certification
question may be critically important to defendants as well. Id., at
476.
Two decades later, in 1998, after Congress amended the Rules En-
abling Act, 28 U. S. C. §2071 et seq., to empower this Court to prom-
ulgate rules providing for interlocutory appeal of orders “not other-
wise provided for [in §1292],” §1292(e), this Court approved Federal
Rule of Civil Procedure 23(f). Rule 23(f) authorizes “permissive inter-
locutory appeal” from adverse class-certification orders in “the sole
discretion of the court of appeals.” 28 U. S. C. App., p. 815. This dis-
cretionary arrangement was the product of careful calibration on the
part of the rulemakers.
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Syllabus

Respondents, owners of Microsoft’s videogame console, the Xbox
360, filed this putative class action alleging a design defect in the de-
vice. The District Court struck respondents’ class allegations from
the complaint, and the Court of Appeals denied respondents permis-
sion to appeal that order under Rule 23(f). Instead of pursuing their
individual claims to final judgment on the merits, respondents stipu-
lated to a voluntary dismissal of their claims with prejudice, but re-
served the right to revive their claims should the Court of Appeals
reverse the District Court’s certification denial. Respondents then
appealed, challenging only the interlocutory order striking their class
allegations. The Ninth Circuit held it had jurisdiction to entertain
the appeal under §1291. It then held that the District Court’s ra-
tionale for striking respondents’ class allegations was an impermissi-
ble one, but refused to opine on whether class certification was inap-
propriate for a different reason, leaving that question for the District
Court on remand.
Held: Federal courts of appeals lack jurisdiction under §1291 to review
an order denying class certification (or, as here, an order striking
class allegations) after the named plaintiffs have voluntarily dis-
missed their claims with prejudice. Pp. 11–17.
(a) Section 1291’s final-judgment rule preserves the proper balance
between trial and appellate courts, minimizes the harassment and
delay that would result from repeated interlocutory appeals, and
promotes the efficient administration of justice. This Court has re-
sisted efforts to stretch §1291 to permit appeals of right that would
erode the finality principle and disserve its objectives. See, e.g., Mo-
hawk Industries, Inc. v. Carpenter, 558 U. S. 100, 112. Attempts to
secure appeal as of right from adverse class certification orders fit
that bill. Pp. 11–12.
(b) Respondents’ voluntary-dismissal tactic, even more than the
death-knell theory, invites protracted litigation and piecemeal ap-
peals. Under the death-knell doctrine, a court of appeals could de-
cline to hear an appeal if it determined that the plaintiff “ha[d] ade-
quate incentive to continue” despite the denial of class certification.
Coopers & Lybrand, 437 U. S., at 471. Under respondents’ theory,
however, the decision whether an immediate appeal will lie resides
exclusively with the plaintiff, who need only dismiss her claims with
prejudice in order to appeal the district court’s order denying class
certification. And she may exercise that option more than once, in-
terrupting district court proceedings with an interlocutory appeal
again, should the court deny class certification on a different ground.
Respondents contend that their position promotes efficiency, ob-
serving that after dismissal with prejudice the case is over if the
plaintiff loses on appeal. But plaintiffs with weak merits claims may
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Syllabus

readily assume that risk, mindful that class certification often leads
to a hefty settlement. And the same argument was evident in the
death-knell context, yet this Court determined that the potential for
piecemeal litigation was “apparent and serious.” Id., at 474. That
potential is greater still under respondents’ theory, where plaintiffs
alone determine whether and when to appeal an adverse certification
ruling. Pp. 12–14.
(c) Also like the death-knell doctrine, respondents’ theory allows
indiscriminate appellate review of interlocutory orders. Beyond dis-
turbing the “ ‘appropriate relationship between the respective
courts,’ ” Coopers & Lybrand, 437 U. S., at 476, respondents’ dismis-
sal tactic undercuts Rule 23(f)’s discretionary regime. This consider-
ation is “[o]f prime significance to the jurisdictional issue” in this
case, Swint v. Chambers County Comm’n, 514 U. S. 35, 46, because
Congress has established rulemaking as the means for determining
when a decision is final for purposes of §1291 and for providing for
appellate review of interlocutory orders not covered by statute, see
§§2072(c) and 1292(e).
Respondents maintain that Rule 23(f) is irrelevant, for it concerns
interlocutory orders, whereas this case involves an actual final judg-
ment. Yet permitting respondents’ voluntary-dismissal tactic to yield
an appeal of right would seriously undermine Rule 23(f)’s careful cal-
ibration, as well as Congress’ designation of rulemaking “as the pre-
ferred means for determining whether and when prejudgment orders
should be immediately appealable,” Mohawk Industries, 558 U. S., at
113. Plaintiffs in putative class actions cannot transform a tentative
interlocutory order into a final judgment within the meaning of §1291
simply by dismissing their claims with prejudice. Finality “is not a
technical concept of temporal or physical termination.” Cobbledick v.
United States, 309 U. S. 323, 326. It is one “means [geared to]
achieving a healthy legal system,” ibid., and its contours are deter-
mined accordingly. Pp. 14–16.
(d) The one-sidedness of respondents’ voluntary-dismissal device
reinforces the conclusion that it does not support mandatory appel-
late jurisdiction of refusals to grant class certification. The tactic
permits only plaintiffs, never defendants, to force an immediate ap-
peal of an adverse certification ruling. Yet the “class issue” may be
just as important to defendants, Coopers & Lybrand, 437 U. S., at
476, for class certification may force a defendant to settle rather than
run the risk of ruinous liability. P. 17.
797 F. 3d 607, reversed and remanded.

GINSBURG, J., delivered the opinion of the Court, in which KENNEDY,
BREYER, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS, J., filed an opin-
4 MICROSOFT CORP. v. BAKER

Syllabus

ion concurring in the judgment, in which ROBERTS, C. J., and ALITO, J.,
joined. GORSUCH, J., took no part in the consideration or decision of the
case.
 Cite as: 582 U. S. ____ (2017) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 15–457
_________________

MICROSOFT CORPORATION, PETITIONER v.

SETH BAKER, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 12, 2017]

JUSTICE GINSBURG delivered the opinion of the Court.
This case concerns options open to plaintiffs, when
denied class-action certification by a district court, to gain
appellate review of the district court’s order. Orders
granting or denying class certification, this Court has
held, are “inherently interlocutory,” Coopers & Lybrand v.
Livesay, 437 U. S. 463, 470 (1978), hence not immediately
reviewable under 28 U. S. C. §1291, which provides for
appeals from “final decisions.” Pursuant to Federal Rule
of Civil Procedure 23(f ), promulgated in 1998, however,
orders denying or granting class certification may be
appealed immediately if the court of appeals so permits.
Absent such permission, plaintiffs may pursue their indi-
vidual claims on the merits to final judgment, at which
point the denial of class-action certification becomes ripe
for review.
The plaintiffs in the instant case, respondents here,
were denied Rule 23(f ) permission to appeal the District
Court’s refusal to grant class certification. Instead of
pursuing their individual claims to final judgment on the
merits, respondents stipulated to a voluntary dismissal of
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Opinion of the Court

their claims “with prejudice,” but reserved the right to
revive their claims should the Court of Appeals reverse
the District Court’s certification denial.
We hold that the voluntary dismissal essayed by re-
spondents does not qualify as a “final decision” within the
compass of §1291. The tactic would undermine §1291’s
firm finality principle, designed to guard against piece-
meal appeals, and subvert the balanced solution Rule 23(f )
put in place for immediate review of class-action orders.
I

A

Under §1291 of the Judicial Code, federal courts of
appeals are empowered to review only “final decisions of
the district courts.” 28 U. S. C. §1291.1 Two guides, our
decision in Coopers & Lybrand v. Livesay, 437 U. S. 463
(1978), and Federal Rule of Civil Procedure 23(f ), control
our application of that finality rule here.
1
In Coopers & Lybrand, this Court considered whether a
plaintiff in a putative class action may, under certain
circumstances, appeal as of right a district court order
striking class allegations or denying a motion for class
certification. We held unanimously that the so-called
“death-knell” doctrine did not warrant mandatory appel-
late jurisdiction of such “inherently interlocutory” orders.
437 U. S., at 470, 477. Courts of Appeals employing the
doctrine “regarded [their] jurisdiction as depending on
whether [rejection of class-action status] had sounded the
‘death knell’ of the action.” Id., at 466. These courts
asked whether the refusal to certify a class would end a
lawsuit for all practical purposes because the value of the
——————
1 Section 1292, which authorizes review of certain interlocutory deci-

sions, does not include among those decisions class-action certifications.
See 28 U. S. C. §1292.
 Cite as: 582 U. S. ____ (2017) 3

Opinion of the Court

named plaintiff ’s individual claims made it “economically
imprudent to pursue his lawsuit to a final judgment and
[only] then seek appellate review of [the] adverse class
determination.” Id., at 469–470. If, in the court of ap-
peals’ view, the order would terminate the litigation, the
court deemed the order an appealable final decision under
§1291. Id., at 471. If, instead, the court determined that
the plaintiff had “adequate incentive to continue [litigat-
ing], the order [was] considered interlocutory.” Ibid.
Consequently, immediate appeal would be denied.
The death-knell theory likely “enhance[d] the quality of
justice afforded a few litigants,” we recognized. Id., at
473. But the theory did so, we observed, at a heavy cost to
§1291’s finality requirement, and therefore to “the judicial
system’s overall capacity to administer justice.” Id., at
473; see id., at 471 (Section 1291 “evinces a legislative
judgment that ‘restricting appellate review to final deci-
sions prevents the debilitating effect on judicial admin-
istration caused by piecemeal appeal disposition.’ ” (quot-
ing Eisen v. Carlisle & Jacquelin, 417 U. S. 156, 170
(1974) (alterations and internal quotation marks omit-
ted))). First, the potential for multiple interlocutory ap-
peals inhered in the doctrine: When a ruling denying class
certification on one ground was reversed on appeal, a
death-knell plaintiff might again claim “entitle[ment] to
an appeal as a matter of right” if, on remand, the district
court denied class certification on a different ground.
Coopers & Lybrand, 437 U. S., at 474.
Second, the doctrine forced appellate courts indiscrimi-
nately into the trial process, thereby defeating a “vital
purpose of the final-judgment rule—that of maintaining
the appropriate relationship between the respective
courts.” Id., at 476 (internal quotation marks omitted);
see id., at 474. The Interlocutory Appeals Act of 1958, 28
U. S. C. §1292(b), we explained, had created a two-tiered
“screening procedure” to preserve this relationship and to
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Opinion of the Court

restrict the availability of interlocutory review to “appro-
priate cases.” 437 U. S., at 474. For a party to obtain
review under §1292(b), the district court must certify that
the interlocutory order “involves a controlling question of
law as to which there is substantial ground for difference
of opinion and that an immediate appeal from the order
may materially advance the ultimate termination of the
litigation.” The court of appeals may then, “in its discre-
tion, permit an appeal to be taken from such order.” The
death-knell doctrine, we stressed, “circumvent[ed]
[§1292(b)’s] restrictions.” Id., at 475.
Finally, we observed, the doctrine was one sided: It
“operate[d] only in favor of plaintiffs,” even though the
class-certification question is often “of critical importance
to defendants as well.” Id., at 476. Just as a denial of
class certification may sound the death knell for plaintiffs,
“[c]ertification of a large class may so increase the defend-
ant’s potential damages liability and litigation costs that
he may find it economically prudent to settle and to aban-
don a meritorious defense.” Ibid.2
In view of these concerns, the Court reached this conclu-
sion in Coopers & Lybrand: “The fact that an interlocutory
order may induce a party to abandon his claim before final
judgment is not a sufficient reason for considering [the
order] a ‘final decision’ within the meaning of §1291.” Id.,
at 477.3
——————
2 Thisscenario has been called a “reverse death knell,” Sullivan &
Trueblood, Rule 23(f ): A Note on Law and Discretion in the Courts of
Appeals, 246 F. R. D. 277, 280 (2008), or “inverse death knell,” 7B C.
Wright, A. Miller, & M. Kane, Federal Practice and Procedure §1802, p.
299 (3d ed. 2005), for it too ends the litigation as a practical matter.
3 Coopers & Lybrand also rejected the collateral-order doctrine as a

basis for invoking §1291 to appeal an order denying class certification.
The collateral-order doctrine applies only to a “small class” of decisions
that are conclusive, that resolve important issues “completely separate
from the merits,” and that are “effectively unreviewable on appeal from
a final judgment.” 437 U. S., at 468. An order concerning class certifi-
 Cite as: 582 U. S. ____ (2017) 5

Opinion of the Court

2
After Coopers & Lybrand, a party seeking immediate
review of an adverse class-certification order had no easy
recourse. The Federal Rules of Civil Procedure did not
then “contain any unique provisions governing appeals” in
class actions, id., at 470, so parties had to survive
§1292(b)’s two-level inspection, see id., at 474–475, and
n. 27; supra, at 3–4, or satisfy the extraordinary-
circumstances test applicable to writs of mandamus, see
Will v. United States, 389 U. S. 90, 108 (1967) (Black, J.,
concurring) (“[In] extraordinary circumstances, mandamus
may be used to review an interlocutory order which is by
no means ‘final’ and thus appealable under federal stat-
utes.”); cf. Coopers & Lybrand, 437 U. S., at 466, n. 6.
Another avenue opened in 1998 when this Court ap-
proved Federal Rule of Civil Procedure 23(f ). Seen as a
response to Coopers & Lybrand, see, e.g., Blair v. Equifax
Check Services, Inc., 181 F. 3d 832, 834 (CA7 1999); Soli-
mine & Hines, Deciding To Decide: Class Action Certifica-
tion and Interlocutory Review by the United States Courts
of Appeals Under Rule 23(f ), 41 Wm. & Mary L. Rev.
1531, 1568 (2000), Rule 23(f ) authorizes “permissive
interlocutory appeal” from adverse class-certification
orders in the discretion of the court of appeals, Advisory
Committee’s 1998 Note on subd. (f ) of Fed. Rule Civ. Proc.
23, 28 U. S. C. App., p. 815 (hereinafter Committee Note
on Rule 23(f )). The Rule was adopted pursuant to
§1292(e), see Committee Note on Rule 23(f ), which em-
powers this Court, in accordance with the Rules Enabling
Act, 28 U. S. C. §2072, to promulgate rules “to provide for
an appeal of an interlocutory decision to the courts of
appeals that is not otherwise provided for [in §1292].”
§1292(e).4 Rule 23(f ) reads:
——————
cation, we explained, fails each of these criteria. See id., at 469.
4 Congress amended the Rules Enabling Act, 28 U. S. C. §2071 et seq.,
6 MICROSOFT CORP. v. BAKER

Opinion of the Court

“A court of appeals may permit an appeal from an or-
der granting or denying class-action certification . . . if
a petition for permission to appeal is filed with the
circuit clerk within 14 days after the order is entered.
An appeal does not stay proceedings in the district
court unless the district judge or the court of appeals
so orders.”5
Courts of appeals wield “unfettered discretion” under Rule
23(f ), akin to the discretion afforded circuit courts under
§1292(b). Committee Note on Rule 23(f ). But Rule 23(f )
otherwise “departs from the §1292(b) model,” for it re-
quires neither district court certification nor adherence to
§1292(b)’s other “limiting requirements.” Committee Note
on Rule 23(f ); see supra, at 3–4.
This resolution was the product of careful calibration.
By “[r]emoving the power of the district court to defeat any
opportunity to appeal,” the drafters of Rule 23(f ) sought to
provide “significantly greater protection against improvi-
dent certification decisions than §1292(b)” alone offered.
Judicial Conference of the United States, Advisory Com-
mittee on Civil Rules, Minutes of November 9–10, 1995.
But the drafters declined to go further and provide for
appeal as a matter of right. “[A] right to appeal would
——————
in 1990 to authorize this Court to prescribe rules “defin[ing] when a
ruling of a district court is final for the purposes of appeal under section
1291.” §2072(c). Congress enacted §1292(e) two years later, and that
same year the Advisory Committee on the Federal Rules of Civil
Procedure began to review proposals for what would become Rule 23(f ).
See Solimine & Hines, Deciding To Decide: Class Action Certification
and Interlocutory Review by the United States Courts of Appeals
Under Rule 23(f ), 41 Wm. & Mary L. Rev. 1531, 1563–1564, 1566, n.
189 (2000).
5 Rule 23(f ) has changed little since its adoption in 1998. See Ad-

visory Committee’s 2007 and 2009 Notes on subd. (f ) of Fed. Rule Civ.
Proc. 23, 28 U. S. C. App., p. 820 (deleting a redundancy and increas-
ing the time to petition for permission to appeal from ten to 14 days,
respectively).
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Opinion of the Court

lead to abuse” on the part of plaintiffs and defendants
alike, the drafters apprehended, “increas[ing] delay and
expense” over “routine class certification decisions” unwor-
thy of immediate appeal. Ibid. (internal quotation marks
omitted). See also Brief for Civil Procedure Scholars as
Amici Curiae 6–7, 11–14 (“Rule 23(f ) was crafted to bal-
ance the benefits of immediate review against the costs of
interlocutory appeals.” (capitalization omitted)). Rule
23(f ) therefore commits the decision whether to permit
interlocutory appeal from an adverse certification decision
to “the sole discretion of the court of appeals.” Committee
Note on Rule 23(f ); see Federal Judicial Center, T.
Willging, L. Hooper, & R. Niemic, Empirical Study of
Class Actions in Four Federal District Courts: Final Re-
port to the Advisory Committee on Civil Rules 86 (1996)
(hereinafter Federal Judicial Center Study) (“The discre-
tionary nature of the proposed rule . . . is designed to be a
guard against abuse of the appellate process.”).6
The Rules Committee offered some guidance to courts of
appeals considering whether to authorize appeal under
Rule 23(f ). “Permission is most likely to be granted,” the
Committee Note states, “when the certification decision
turns on a novel or unsettled question of law,” or when
“the decision on certification is likely dispositive of the
litigation,” as in a death-knell or reverse death-knell
situation. Committee Note on Rule 23(f ); see supra, at 4,
——————
6 Legislation striking this balance was also introduced in Congress.
See H. R. 660, 105th Cong., 1st Sess. (1997). The bill, which would
have amended §1292(b) to provide for interlocutory appeal of adverse
class determinations, likewise committed the decision whether an
immediate appeal would lie exclusively to the courts of appeals: “The
court of appeals may, in its discretion, permit the appeal to be taken
from such determination.” Ibid. Upon learning that “proposed Rule
23(f ) [was] well advanced,” the bill’s sponsor, Representative Charles
Canady, joined forces with the Rules Committee. See Judicial Confer-
ence of the United States, Advisory Committee on Civil Rules, Minutes
of May 1–2, 1997.
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Opinion of the Court

and n. 2. Even so, the Rule allows courts of appeals to
grant or deny review “on the basis of any consideration.”
Committee Note on Rule 23(f ) (emphasis added).
B
With this background in mind, we turn to the putative
class action underlying our jurisdictional inquiry. The
lawsuit is not the first of its kind. A few years after peti-
tioner Microsoft Corporation released its popular video-
game console, the Xbox 360, a group of Xbox owners
brought a putative class action against Microsoft based on
an alleged design defect in the device. See In re Microsoft
Xbox 360 Scratched Disc Litigation, 2009 WL 10219350,
*1 (WD Wash., Oct. 5, 2009). The named plaintiffs, ad-
vised by some of the same counsel representing respond-
ents in this case, asserted that the Xbox scratched (and
thus destroyed) game discs during normal game-playing
conditions. See ibid. The District Court denied class
certification, holding that individual issues of damages
and causation predominated over common issues. See id.,
at *6–*7. The plaintiffs petitioned the Ninth Circuit
under Rule 23(f ) for leave to appeal the class-certification
denial, but the Ninth Circuit denied the request. See 851
F. Supp. 2d 1274, 1276 (WD Wash. 2012). Thereafter, the
Scratched Disc plaintiffs settled their claims individually.
851 F. Supp. 2d, at 1276.
Two years later, in 2011, respondents filed this lawsuit
in the same Federal District Court. They proposed a
nationwide class of Xbox owners based on the same design
defect alleged in Scratched Disc Litigation. See 851
F. Supp. 2d, at 1275–1276. The class-certification analysis
in the earlier case did not control, respondents urged,
because an intervening Ninth Circuit decision constituted
a change in law sufficient to overcome the deference ordi-
narily due, as a matter of comity, the previous certification
denial. Id., at 1277–1278. The District Court disagreed.
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Opinion of the Court

Concluding that the relevant Circuit decision had not
undermined Scratched Disc Litigation’s causation analy-
sis, the court determined that comity required adherence
to the earlier certification denial and therefore struck
respondents’ class allegations. 851 F. Supp. 2d, at 1280–
1281.
Invoking Rule 23(f ), respondents petitioned the Ninth
Circuit for permission to appeal that ruling.7 Interlocu-
tory review was appropriate in this case, they argued, be-
cause the District Court’s order striking the class allega-
tions created a “death-knell situation”: The “small size of
[their] claims ma[de] it economically irrational to bear the
cost of litigating th[e] case to final judgment,” they asserted,
so the order would “effectively kil[l] the case.” Pet. for
Permission To Appeal Under Rule 23(f ) in No. 12–80085
(CA9), App. 118. The Ninth Circuit denied the petition.
Order in No. 12–80085 (CA9, June 12, 2012), App. 121.
Respondents then had several options. They could have
settled their individual claims like their Scratched Disc
predecessors or petitioned the District Court, pursuant to
§1292(b), to certify the interlocutory order for appeal, see
supra, at 3–4. They could also have proceeded to litigate
their case, mindful that the District Court could later
reverse course and certify the proposed class. See Fed.
Rule Civ. Proc. 23(c)(1)(C) (“An order that grants or denies
class certification may be altered or amended before final
judgment.”); Coopers & Lybrand, 437 U. S., at 469 (a
certification order “is subject to revision in the District
Court”). Or, in the event the District Court did not change
——————
7 An order striking class allegations is “functional[ly] equivalent” to

an order denying class certification and therefore appealable under
Rule 23(f ). Scott v. Family Dollar Stores, Inc., 733 F. 3d 105, 110–111,
n. 2 (CA4 2013) (quoting In re Bemis Co., 279 F. 3d 419, 421 (CA7
2002)). See also United Airlines, Inc. v. McDonald, 432 U. S. 385, 388,
and n. 4 (1977) (equating order striking class allegations with “a denial
of class certification”).
10 MICROSOFT CORP. v. BAKER

Opinion of the Court

course, respondents could have litigated the case to final
judgment and then appealed. Id., at 469 (“an order deny-
ing class certification is subject to effective review after
final judgment at the behest of the named plaintiff ”).
Instead of taking one of those routes, respondents
moved to dismiss their case with prejudice. “After the
[c]ourt has entered a final order and judgment,” respond-
ents explained, they would “appeal the . . . order striking
[their] class allegations.” Motion To Dismiss in No. 11–cv–
00722 (WD Wash., Sept. 25, 2012), App. 122–123. In
respondents’ view, the voluntary dismissal enabled them
“to pursue their individual claims or to pursue relief solely
on behalf of the class, should the certification decision be
reversed.” Brief for Respondents 15. Microsoft stipulated
to the dismissal, but maintained that respondents would
have “no right to appeal” the order striking the class
allegations after thus dismissing their claims. App. to Pet.
for Cert. 35a–36a. The District Court granted the stipu-
lated motion to dismiss, id., at 39a, and respondents ap-
pealed. They challenged only the District Court’s inter-
locutory order striking their class allegations, not the
dismissal order which they invited. See Brief for Plaintiffs-
Appellants in No. 12–35946 (CA9).
The Ninth Circuit held it had jurisdiction to entertain
the appeal under §1291. 797 F. 3d 607, 612 (2015). The
Court of Appeals rejected Microsoft’s argument that re-
spondents’ voluntary dismissal, explicitly engineered to
appeal the District Court’s interlocutory order striking the
class allegations, impermissibly circumvented Rule 23(f ).
Ibid., n. 3. Because the stipulated dismissal “did not
involve a settlement,” the court reasoned, it was “ ‘a suffi-
ciently adverse—and thus appealable—final decision’ ”
under §1291. Id., at 612 (quoting Berger v. Home Depot
USA, Inc., 741 F. 3d 1061, 1065 (CA9 2014)); see id., at
1065 (relying on 7B C. Wright, A. Miller, & M. Kane,
Federal Practice and Procedure §1802, pp. 297–298 (3d ed.
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Opinion of the Court

2005), for the proposition “that finality for appeal purposes
can be achieved in this manner”).
Satisfied of its jurisdiction, the Ninth Circuit held that
the District Court had abused its discretion in striking
respondents’ class allegations. 797 F. 3d, at 615. The
Court of Appeals “express[ed] no opinion on whether”
respondents “should prevail on a motion for class certifica-
tion,” ibid., concluding only that the District Court had
misread recent Circuit precedent, see id., at 613–615, and
therefore misapplied the comity doctrine, id., at 615.
Whether a class should be certified, the court said, was a
question for remand, “better addressed if and when [re-
spondents] move[d] for class certification.” Ibid.
We granted certiorari to resolve a Circuit conflict over
this question: Do federal courts of appeals have jurisdic-
tion under §1291 and Article III of the Constitution to
review an order denying class certification (or, as here, an
order striking class allegations) after the named plaintiffs
have voluntarily dismissed their claims with prejudice?8
577 U. S. ___ (2016). Because we hold that §1291 does not
countenance jurisdiction by these means, we do not reach
the constitutional question, and therefore do not address
the arguments and analysis discussed in the opinion
concurring in the judgment.
II
“From the very foundation of our judicial system,” the
general rule has been that “the whole case and every

——————
8 Compare Berger v. Home Depot USA, Inc., 741 F. 3d 1061, 1065
(CA9 2014) (assuming jurisdiction under these circumstances); Gary
Plastic Packaging Corp. v. Merrill Lynch, 903 F. 2d 176, 179 (CA2
1990) (assuming jurisdiction after dismissal for failure to prosecute),
with Camesi v. University of Pittsburgh Medical Center, 729 F. 3d 239,
245–247 (CA3 2013) (no jurisdiction under §1291 or Article III in this
situation); Rhodes v. E. I. du Pont de Nemours & Co., 636 F. 3d 88, 100
(CA4 2011) (no jurisdiction under Article III).
12 MICROSOFT CORP. v. BAKER

Opinion of the Court

matter in controversy in it [must be] decided in a single
appeal.” McLish v. Roff, 141 U. S. 661, 665–666 (1891).
This final-judgment rule, now codified in §1291, preserves
the proper balance between trial and appellate courts,
minimizes the harassment and delay that would result
from repeated interlocutory appeals, and promotes the
efficient administration of justice. See Firestone Tire &
Rubber Co. v. Risjord, 449 U. S. 368, 374 (1981).
Construing §1291 in line with these reasons for the rule,
we have recognized that “finality is to be given a practical
rather than a technical construction.” Eisen, 417 U. S., at
171 (internal quotation marks omitted). Repeatedly we
have resisted efforts to stretch §1291 to permit appeals of
right that would erode the finality principle and disserve
its objectives. See, e.g., Mohawk Industries, Inc. v. Car-
penter, 558 U. S. 100, 112 (2009); Digital Equipment Corp.
v. Desktop Direct, Inc., 511 U. S. 863, 878–879, 884 (1994);
Cobbledick v. United States, 309 U. S. 323, 324–325, 330
(1940) (construing §1291’s predecessor statute). Attempts
to secure appeal as of right from adverse class-certification
orders fit that bill. See supra, at 2–4. Because respond-
ents’ dismissal device subverts the final-judgment rule
and the process Congress has established for refining that
rule and for determining when nonfinal orders may be
immediately appealed, see §§2072(c) and 1292(e), the
tactic does not give rise to a “final decisio[n]” under §1291.
A
Respondents’ voluntary-dismissal tactic, even more than
the death-knell theory, invites protracted litigation and
piecemeal appeals. Under the death-knell doctrine, a
court of appeals could decline to hear an appeal if it de-
termined that the plaintiff “ha[d] adequate incentive to
continue” despite the denial of class certification. Coopers
& Lybrand, 437 U. S., at 471. Appellate courts lack even
that authority under respondents’ theory. Instead, the
 Cite as: 582 U. S. ____ (2017) 13

Opinion of the Court

decision whether an immediate appeal will lie resides
exclusively with the plaintiff; she need only dismiss her
claims with prejudice, whereupon she may appeal the
district court’s order denying class certification. And, as
under the death-knell doctrine, she may exercise that
option more than once, stopping and starting the district
court proceedings with repeated interlocutory appeals.
See id., at 474 (death-knell doctrine offered “no assurance
that the trial process [would] not again be disrupted by
interlocutory review”).
Consider this case. The Ninth Circuit reviewed and
rejected only the District Court’s application of comity as a
basis for striking respondents’ class allegations. 797 F. 3d,
at 615. The appeals court declined to reach Microsoft’s
other arguments against class certification. See ibid. It
remained open to the District Court, in the Court of
Appeals’ view, to deny class certification on a differ-
ent ground, and respondents would be free, under their
theory, to force appellate review of any new order denying
certification by again dismissing their claims. In design-
ing Rule 23(f )’s provision for discretionary review, the
Rules Committee sought to prevent such disruption and
delay. See supra, at 6–8.9
Respondents nevertheless maintain that their position
promotes efficiency, observing that after dismissal with
prejudice the case is over if the plaintiff loses on appeal.
Brief for Respondents 38–39. Their way, they say, means
prompt resolution of many lawsuits and infrequent use of
the voluntary-dismissal tactic, for “most appeals lose” and
——————
9 Rule 23(f ) avoids delay not only by limiting class-certification ap-

peals to those permitted by the federal courts of appeals, but also by
specifying that “[a]n appeal does not stay proceedings in the district
court unless the district judge or the court of appeals so orders.” See
Blair v. Equifax Check Services, Inc., 181 F. 3d 832, 835 (CA7 1999)
(“Rule 23(f ) is drafted to avoid delay.”). Respondents’ dismissal tactic,
by contrast, halts district court proceedings whenever invoked.
14 MICROSOFT CORP. v. BAKER

Opinion of the Court

few plaintiffs will “take th[e] risk” of losing their claims for
good. Id., at 35–36. Respondents overlook the prospect
that plaintiffs with weak merits claims may readily as-
sume that risk, mindful that class certification often leads
to a hefty settlement. See Coopers & Lybrand, 437 U. S.,
at 476 (defendant facing the specter of classwide liability
may “abandon a meritorious defense”). Indeed, the same
argument—that the case was over if the plaintiff lost on
appeal—was evident in the death-knell context, yet this
Court determined that the potential for piecemeal litiga-
tion was “apparent and serious.” Id., at 474.10 And that
potential is greater still under respondents’ theory, where
plaintiffs alone determine whether and when to appeal an
adverse certification ruling.
B
Another vice respondents’ theory shares with the death-
knell doctrine, both allow indiscriminate appellate review
of interlocutory orders. Ibid. Beyond disturbing the “ap-
propriate relationship between the respective courts,” id.,
at 476 (internal quotation marks omitted), respondents’
dismissal tactic undercuts Rule 23(f )’s discretionary re-
gime. This consideration is “[o]f prime significance to the
jurisdictional issue before us.” Swint v. Chambers County
Comm’n, 514 U. S. 35, 46 (1995) (pendent appellate juris-
diction in collateral-order context would undermine
§1292(b)); see supra, at 3–4 (death-knell doctrine imper-
missibly circumvented §1292(b)).
——————
10 The very premise of the death-knell doctrine was that plaintiffs

“would not pursue their claims individually.” Coopers & Lybrand, 437
U. S., at 466. Having pressed such an argument for the benefit of
immediate review, a death-knell plaintiff who lost on appeal would
encounter the general proposition, long laid down, that “where a party
assumes a certain position in a legal proceeding, and succeeds in
maintaining that position, he may not thereafter, simply because his
interests have changed, assume a contrary position.” Davis v. Wakelee,
156 U. S. 680, 689 (1895).
 Cite as: 582 U. S. ____ (2017) 15

Opinion of the Court

In the Rules Enabling Act, as earlier recounted, Con-
gress authorized this Court to determine when a decision
is final for purposes of §1291, and to provide for appellate
review of interlocutory orders not covered by statute. See
supra, at 5–6, and n. 4. These changes are to come from
rulemaking, however, not judicial decisions in particular
controversies or inventive litigation ploys. See Swint, 514
U. S., at 48. In this case, the rulemaking process has dealt
with the matter, yielding a “measured, practical solu-
tio[n]” to the questions whether and when adverse certifi-
cation orders may be immediately appealed. Mohawk
Industries, 558 U. S., at 114. Over years the Advisory
Committee on the Federal Rules of Civil Procedure stud-
ied the data on class-certification rulings and appeals,
weighed various proposals, received public comment, and
refined the draft rule and Committee Note. See Solimine
& Hines, 41 Wm. & Mary L. Rev., at 1564–1566, and nn.
178–189; Federal Judicial Center Study 80–87. Rule 23(f )
reflects the rulemakers’ informed assessment, permitting,
as explained supra, at 5–7, interlocutory appeals of ad-
verse certification orders, whether sought by plaintiffs or
defendants, solely in the discretion of the courts of ap-
peals. That assessment “warrants the Judiciary’s full
respect.” Swint, 514 U. S., at 48; see Mohawk Industries,
558 U. S., at 118–119 (THOMAS, J., concurring in part and
concurring in judgment).
Here, however, the Ninth Circuit, after denying re-
spondents permission to appeal under Rule 23(f ), never-
theless assumed jurisdiction of their appeal challenging
only the District Court’s order striking the class allega-
tions. See supra, at 9–10. According to respondents, even
plaintiffs who altogether bypass Rule 23(f ) may force an
appeal by dismissing their claims with prejudice. See Tr.
of Oral Arg. 34. Rule 23(f ), respondents say, is irrelevant,
for it “address[es] interlocutory orders,” whereas this case
involves “an actual final judgment.” Brief for Respondents
16 MICROSOFT CORP. v. BAKER

Opinion of the Court

26, 28.
We are not persuaded. If respondents’ voluntary-
dismissal tactic could yield an appeal of right, Rule 23(f )’s
careful calibration—as well as Congress’ designation of
rulemaking “as the preferred means for determining
whether and when prejudgment orders should be immedi-
ately appealable,” Mohawk Industries, 558 U. S., at 113
(majority opinion)—“would be severely undermined,”
Swint, 514 U. S., at 47. Respondents, after all, “[sought]
review of only the [inherently interlocutory] orde[r]” strik-
ing their class allegations; they “d[id] not complain of the
‘final’ orde[r] that dismissed their cas[e].” Camesi v. Uni-
versity of Pittsburgh Medical Center, 729 F. 3d 239, 244
(CA3 2013).
Plaintiffs in putative class actions cannot transform a
tentative interlocutory order, see supra, at 9, into a final
judgment within the meaning of §1291 simply by dismiss-
ing their claims with prejudice—subject, no less, to the
right to “revive” those claims if the denial of class certifi-
cation is reversed on appeal, see Brief for Respondents 45;
Tr. of Oral Arg. 31 (assertion by respondents’ counsel that,
if the appeal succeeds, “everything would spring back to
life” on remand). Were respondents’ reasoning embraced
by this Court, “Congress[’] final decision rule would end up
a pretty puny one.” Digital Equipment Corp., 511 U. S., at
872. Contrary to respondents’ argument, §1291’s firm
final-judgment rule is not satisfied whenever a litigant
persuades a district court to issue an order purporting to
end the litigation. Finality, we have long cautioned, “is
not a technical concept of temporal or physical termina-
tion.” Cobbledick, 309 U. S., at 326. It is one “means
[geared to] achieving a healthy legal system,” ibid., and its
contours are determined accordingly, see supra, at 12.11
——————
11 Respondents also invoke our decision in United States v. Procter &

Gamble Co., 356 U. S. 677 (1958), but that case—a civil antitrust
 Cite as: 582 U. S. ____ (2017)
17

Opinion of the Court

C

The one-sidedness of respondents’ voluntary-dismissal
device “reinforce[s] our conclusion that [it] does not sup-
port appellate jurisdiction of prejudgment orders denying
class certification.” Coopers & Lybrand, 437 U. S., at 476;
see supra, at 4. Respondents’ theory permits plaintiffs
only, never defendants, to force an immediate appeal of an
adverse certification ruling. Yet the “class issue” may be
just as important to defendants, Coopers & Lybrand, 437
U. S., at 476, for “[a]n order granting certification . . . may
force a defendant to settle rather than . . . run the risk of
potentially ruinous liability,” Committee Note on Rule
23(f ); see supra, at 4, and n. 2 (defendants may face a
“reverse death knell”). Accordingly, we recognized in
Coopers & Lybrand that “[w]hatever similarities or differ-
ences there are between plaintiffs and defendants in this
context involve questions of policy for Congress.” 437
U. S., at 476. Congress chose the rulemaking process to
settle the matter, and the rulemakers did so by adopting
Rule 23(f )’s evenhanded prescription. It is not the prerog-
ative of litigants or federal courts to disturb that settle-
ment. See supra, at 14–15.
* * *
For the reasons stated, the judgment of the Court of
Appeals for the Ninth Circuit is reversed, and the case is
remanded for further proceedings consistent with this
opinion.
It is so ordered.

JUSTICE GORSUCH took no part in the consideration or
decision of this case.
——————
enforcement action—involved neither class-action certification nor the
sort of dismissal tactic at issue here. See id., at 681 (the Government
“did not consent to a judgment against [it]” (internal quotation marks
omitted)).
 Cite as: 582 U. S. ____ (2017) 1

THOMAS
THOMAS , J., concurring
, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES
_________________

No. 15–457
_________________

MICROSOFT CORPORATION, PETITIONER v.

SETH BAKER, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 12, 2017]

JUSTICE THOMAS, with whom THE CHIEF JUSTICE and
JUSTICE ALITO join, concurring in the judgment.
I agree with the Court that the Court of Appeals lacked
jurisdiction over respondents’ appeal, but I would ground
that conclusion in Article III of the Constitution instead of
28 U. S. C. §1291. I therefore concur only in the judgment.
The plaintiffs in this case, respondents here, sued Mi-
crosoft, petitioner here, to recover damages after they
purchased allegedly faulty video game consoles that Mi-
crosoft manufactured. The plaintiffs brought claims for
themselves (individual claims) and on behalf of a putative
class of similarly situated consumers (class allegations).
Early in the litigation, the District Court granted Mi-
crosoft’s motion to strike the class allegations, effectively
declining to certify the class. The Court of Appeals denied
permission to appeal that decision under Federal Rule of
Civil Procedure 23(f ), which requires a party to obtain
permission from the court of appeals before appealing a
decision regarding class certification.
The plaintiffs decided not to pursue their individual
claims, instead stipulating to a voluntary dismissal of
those claims with prejudice. They then filed a notice of
appeal from the voluntary dismissal order. On appeal,
they did not ask the Court of Appeals to reverse the Dis-
trict Court’s dismissal of their individual claims. They
2 MICROSOFT CORP. v. BAKER

THOMAS
THOMAS , J., concurring
, J., concurring in judgment

instead asked the Court of Appeals to reverse the order
striking their class allegations. The question presented in
this case is whether the Court of Appeals had jurisdiction
to hear the appeal under both §1291, which grants appel-
late jurisdiction to the courts of appeals over “final deci-
sions” by district courts, and under Article III of the Con-
stitution, which limits the jurisdiction of federal courts to
“cases” and “controversies.”
The Court today holds that the Court of Appeals lacked
jurisdiction under §1291 because the voluntary dismissal
with prejudice did not result in a “final decision.” I dis-
agree with that holding. A decision is “final” for purposes of
§1291 if it “ends the litigation on the merits and leaves
nothing for the court to do but execute the judgment.”
Catlin v. United States, 324 U. S. 229, 233 (1945). The
order here dismissed all of the plaintiffs’ claims with
prejudice and left nothing for the District Court to do but
execute the judgment. See App. to Pet. for Cert. 39a
(“direct[ing] the Clerk to enter Judgment . . . and close
th[e] case”).
The Court reaches the opposite conclusion, relying not
on the text of §1291 or this Court’s precedents about final-
ity, but on Rule 23(f ). Rule 23(f ) makes interlocutory
orders regarding class certification appealable only with
the permission of the court of appeals. The Court con-
cludes that the plaintiffs’ “voluntary dismissal” “does not
qualify as a ‘final decision’ ” because allowing the plain-
tiffs’ appeal would “subvert the balanced solution Rule
23(f ) put in place for immediate review of class-action
orders.” Ante, at 2.
The Court’s conclusion does not follow from its reason-
ing. Whether a dismissal with prejudice is “final” depends
on the meaning of §1291, not Rule 23(f ). Rule 23(f ) says
nothing about finality, much less about the finality of an
order dismissing individual claims with prejudice. I agree
with the Court that the plaintiffs are trying to avoid the
 Cite as: 582 U. S. ____ (2017) 3

THOMAS
THOMAS , J., concurring
, J., concurring in judgment

requirements for interlocutory appeals under Rule 23(f ),
but our view of the balance struck in that rule should not
warp our understanding of finality under §1291.
Although I disagree with the Court’s reading of §1291, I
agree that the plaintiffs could not appeal in these circum-
stances. In my view, they could not appeal because the
Court of Appeals lacked jurisdiction under Article III of
the Constitution. The “judicial Power” of the United
States extends only to “Cases” and “Controversies.”
Art. III, §2. This requirement limits the jurisdiction of the
federal courts to issues presented “in an adversary con-
text,” Flast v. Cohen, 392 U. S. 83, 95 (1968), in which the
parties maintain an “actual” and “concrete” interest,
Campbell-Ewald Co. v. Gomez, 577 U. S. ___, ___ (2016)
(slip op., at 6) (internal quotation marks omitted). Put
another way, “Article III denies federal courts the power to
decide questions that cannot affect the rights of litigants
in the case before them, and confines them to resolving
real and substantial controversies admitting of specific
relief through a decree of a conclusive character.” Lewis v.
Continental Bank Corp., 494 U. S. 472, 477 (1990) (inter-
nal quotation marks, citation, and alteration omitted).
The plaintiffs’ appeal from their voluntary dismissal did
not satisfy this jurisdictional requirement. When the
plaintiffs asked the District Court to dismiss their claims,
they consented to the judgment against them and dis-
avowed any right to relief from Microsoft. The parties thus
were no longer adverse to each other on any claims, and
the Court of Appeals could not “affect the[ir] rights” in any
legally cognizable manner. Ibid. Indeed, it has long been
the rule that a party may not appeal from the voluntary
dismissal of a claim, since the party consented to the
judgment against it. See, e.g., Evans v. Phillips, 4 Wheat.
73 (1819); Lord v. Veazie, 8 How. 251, 255–256 (1850);
United States v. Babbitt, 104 U. S. 767 (1882); Deakins v.
Monaghan, 484 U. S. 193, 199–200 (1988).
4 MICROSOFT CORP. v. BAKER

THOMAS
THOMAS , J., concurring
, J., concurring in judgment

The plaintiffs contend that their interest in reversing
the order striking their class allegations is sufficient to
satisfy Article III’s case-or-controversy requirement, but
they misunderstand the status of putative class actions.
Class allegations, without an underlying individual claim,
do not give rise to a “case” or “controversy.” Those allega-
tions are simply the means of invoking a procedural
mechanism that enables a plaintiff to litigate his individ-
ual claims on behalf of a class. See Shady Grove Orthope-
dic Associates, P. A. v. Allstate Ins. Co., 559 U. S. 393, 408
(2010) (plurality opinion). Thus, because the Court of
Appeals lacked Article III jurisdiction to adjudicate the
individual claims, it could not hear the plaintiffs’ appeal of
the order striking their class allegations.
Plaintiffs’ representation that they hope to “revive their
[individual] claims should they prevail” on the appeal of
the order striking their class allegations does not under-
mine this conclusion. Brief for Respondents 45. This
Court has interpreted Article III “to demand that an ac-
tual controversy be extant at all stages of review, not merely
at the time the complaint is filed.” Campbell Ewald Co.,
supra, at ___ (slip op., at 6) (internal quotation marks and
alterations omitted). And in any event, a favorable ruling
on class certification would not “revive” their individual
claims: A court’s decision about class allegations “in no
way touch[es] the merits” of those claims. Gardner v.
Westinghouse Broadcasting Co., 437 U. S. 478, 482 (1978).
* * *
Because I would hold that the Court of Appeals lacked
jurisdiction under Article III to consider respondents’
appeal, I concur in the judgment.