dissenting in part, concurring in part:
I respectfully dissent in part, and concur in part. For the reasons expressed below, I would reverse the district court’s ruling that 29 U.S.C. § 626(e) operates to bar the individual ADEA lawsuits of the appellants and remand for further proceedings.
I.
In Armstrong v. Martin Marietta Corp., 93 F.3d 1505 (11th Cir.1996), a divided panel of this court outlined three options that plaintiffs who have been dismissed from class actions may take to protect their rights to litigate their claims individually before the applicable statute of limitations runs. The court agreed to reconsider the panel’s decision en banc, Armstrong v. Martin Marietta Corp., 107 F.3d 830 (11th Cir.1997) (en banc). The principal question that brought this case en banc concerned what action ousted class members may take to protect their rights.
The Judicial Conference of the United States, through its Committee on Rules of Practice and Procedure, has now effectively answered that question. An amendment to the Federal Rules of Civil Procedure that is currently pending details a clear procedure for avoiding an undesirable result like the one that the majority endorses today. See Proposed Fed.R.Civ.P. 23(f).47 The proposed amendment vests in the federal appellate courts the discretion to permit an appeal from an order of a district court granting or *1395denying class action certification if an application is made within ten days after the entry of the district court’s order. Under the proposed amendment, the court of appeals and the district court would each have the discretion to stay proceedings pending the appeal — an action that would also operate to continue the tolling of any applicable statute of limitations.48
Of course, the proposed amendment has not yet been adopted.49 But that does not mean that the courts currently lack the supervisory authority to extend the doctrine of tolling to fashion an interim rule, so long as that rule promotes the purposes of Federal Rule of Civil Procedure 23 and does not encourage dismissed class members to “sleep[] on their rights.” Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 351, 103 S.Ct. 2392, 2396, 76 L.Ed.2d 628 (1983). In the interim, the appropriate answer to the central question before the court — that is, whether the tolling of the ADEA’s ninety-day statute of limitations due to the plaintiffs’ membership in a pending class action remained tolled when the district court dismissed the plaintiffs from the pending class action in an interlocutory order — turns on the policy considerations animating tolling in the first instance, and the interplay between those policy considerations and the purposes statutes of limitations serve.
In Crown, Cork & Seal, the Supreme Court indicated that “the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.” 462 U.S. at 349, 103 S.Ct. at 2395. According to the Court, tolling is appropriate when a class action is pending in order to protect the principal policies behind the class action procedure — the “promotion of efficiency and economy of litigation.” 462 U.S. at 349, 103 S.Ct. at 2395: The Court also described the purposes of statutes of limitations, indicating that “limitations periods are designed to put defendants on notice of adverse claims and to prevent plaintiffs from sleeping on their rights.” 462 U.S. at 351, 103 S.Ct. at 2396. Such purposes, the Court indicated, are — -for two distinct reasons — not frustrated when class action-based tolling occurs. First, “[e]lass members who do not file suit while the class action is pending cannot be accused of sleeping on their rights; Rule 23 both permits and encourages class, members to rely-on named plaintiffs to press their claims.” 462 U.S. at 352-53, 103 S.Ct. at 2396-97. Second,
a class complaint notifies the defendants not only of the substantive claims being brought against them, but also of the number and generic identities of the potential plaintiffs who may participaté in the judgment. The defendants will be aware of the need to preserve evidence and witnesses respecting the claims of all members of the class. Tolling the statute of limitations thus creates no potential for unfair surprise, regardless of the method class members choose to enforce their rights upon denial of class certification.
462 U.S. at 353, 103 S.Ct. at 2397 (citations and quotation marks omitted).
Crown, Cork & Seal makes it clear that the class action complaint itself eliminates the potential for unfair surprise to defendants— “regardless of the method class members choose to enforce their rights upon denial of class certification.” 462 U.S. at 353, 103 S.Ct. at 2397. Accordingly, the case for continued tolling when some putative class mem*1396bers have been dismissed from the class turns on whether continued tolling promotes efficiency and economy of litigation without encouraging dismissed class members to sleep on their rights. Continued tolling satisfies these dual objectives in some circumstances.50
Consider, for instance, the generic case— not much unlike the case at bar — where a district court makes an arguably erroneous interlocutory decision denying or limiting class certification. The interlocutory decision leaves a large number of putative class members in limbo — unable to obtain an immediate appeal as of right; at least potentially out of the ease; and possibly at risk of losing their claims altogether if individual lawsuits are not promptly filed. From a policy standpoint, it is far more preferable for the .large number of putative class members to get a prompt appeal and possible reversal of the arguably erroneous class certification decision than it is for them to clog the legal system with a multitude of individual lawsuits filed solely to preserve claims that arguably could and should be dealt with collectively. Without tolling — at least while the putative class members seek permission to pursue an interlocutory or direct appeal- — the preferable approach will often not be taken, as the putative class members will have to file individual lawsuits in order to avoid running afoul of the appropriate statute of limitations.
Unless or until Congress enacts Proposed Rule 23(f), I would grant to plaintiffs who have been dismissed from a class action two options to pursue. First, to avoid the potential problem of litigants “sleeping on their rights,” I emphasize that dismissed plaintiffs should act promptly. If dismissed plaintiffs are convinced that the district court’s order denying or limiting class certification is legally unassailable, they should promptly file individual actions (or move to intervene in the named plaintiff’s ease) within the number of days remaining under the applicable statute of limitations period. If, on the other hand, dismissed plaintiffs are convinced that the district court’s class certification order is subject to reversal on appeal as an abuse of discretion, they should promptly move for an interlocutory appeal pursuant to 28 U.S.C. § 1292(b) or for a final judgment pursuant to Federal Rule of Civil Procedure 54(b) so that a direct appeal can be pursued pursuant to 28 U.S.C. § 1291. In my view, the statute of limitations does not run for the dismissed plaintiffs during the pendency of the motion for interlocutory appeal or final judgment as the dismissed plaintiffs can in no way be said to be “sleeping on their rights,” and the motion serves the interests of justice in potentially preventing the filing of unnecessary lawsuits.
The district court should, in almost every instance, grant an interlocutory appeal or enter a final judgment pursuant to rule 54(b). If the requirements for certification of an appeal pursuant to section 1292(b) are not met, it will generally be the ease that “no just reason for delay” exists to preclude the entry of final judgment as to the dismissed plaintiffs. See Fed.R.Civ.P. 54(b); Brandt v. Bassett (In re Southeast Banking Corp.), 69 F.3d 1539, 1547 n. 2 (11th Cir.1995) (immediate appeal proper for some parties where hardship or injustice is thereby alleviated). Once an appeal has been authorized through either section 1292(b) or section 1291 (following the entry of final judgment pursuant to *1397rule 54(b)), the question of tolling the applicable statute of limitations for individual claims lies with the court of appeals as a matter of equitable discretion, at least where the dismissed plaintiffs accompany their appeal with a motion asserting that good cause exists for continued tolling.
To summarize, the procedure that I would implement would require plaintiffs who have been dismissed from a class action to act promptly to protect their rights to pursue their individual claims. They must file individual lawsuits or intervene in the existing lawsuit within the applicable statute of limitations, or make a prompt effort to obtain appellate review of the denial of class certification through the procedures authorized in 28 U.S.C. §§ 1291 or 1292(b). Failure to pursue prompt appellate review, under my approach, would result in a statute of limitations time bar for any individual claims the dismissed plaintiffs may have possessed. Unlike the majority’s superficially pleasing bright line, the foregoing options justly provide adequate protection to dismissed class members, discourage the filing of needless lawsuits and provide clear markers for defendants regarding the scope and duration of their potential liability.
II.
Unlike the majority, I would not retroactively impose on any of the appellants the rule announced today, whether it be the majority’s or my own. The question before the court is one of first impression in this circuit. See Satterwhite v. City of Greenville, 578 F.2d 987, 997 (5th Cir.1978) (en banc) (expressly leaving open the question of whether tolling continues until an appellate court has affirmed the district court’s order denying class certification), vacated on other grounds, 445 U.S. 940, 100 S.Ct. 1334, 63 L.Ed.2d 773 (1980). Other courts have addressed the same question, directly or indirectly, and expressed discordant views. Some courts have effectively concluded that tolling continues until the dismissed plaintiffs have an opportunity to appeal the district court’s class certification determination. See Jimenez v. Weinberger, 523 F.2d 689, 696 (7th Cir.1975) (“In this case we have no doubt that the filing of the [class action] complaint tolled the statute at least until the date of the three-judge district court decision on the merits. If that decision had expressly refused to certify the case as a class action, we think the tolling would have continued if the plaintiffs had appealed from such a rul-ing____”) (Stevens, J.), cert. denied, 427 U.S. 912, 96 S.Ct. 3200,. 49 L.Ed.2d 1204 (1976).51 Other courts appear to have reached the opposite conclusion. See 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 the district court’s original denial of 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).52
Given the ambiguous state of the law when the appellants in this case were dismissed from the Carmichael class action, they urge *1398that the new rule should not be applied to them. The appellees, of course, urge that it should. Although recognizing that it is a close call, I would allow the appellants to continue pursuing their individual claims even though those claims would otherwise be barred under either the majority’s rule or my proposed one.
As this court recently stated in McKinney v. Pate, 20 F.3d 1550 (11th Cir.1994) (en banc), cert. denied, 513 U.S. 1110, 115 S.Ct. 898, 130 L.Ed.2d 783 (1995), the Supreme Court has established a three factor test for determining whether to apply a newly announced non-criminal decision retroactively, prospectively or selectively prospectively. 20 F.3d at 1565 (citing Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971)).
First, the decision must announce a new principle of law, either by overruling clear past precedent or by deciding an issue of first impression the resolution of which was not clearly foreshadowed. Second, the application of the old rule in the instant case must not contravene the purpose and operation of the provision being interpreted. And, third, application of the new rule in the instant case must be inequitable.
McKinney, 20 F.3d at 1565.
In the past, the court has concentrated on the potential inequity to the plaintiff in assessing the third factor, McKinney, 20 F.3d at 1566. Here, the inequity to the appellants is clear: their individual claims are extinguished without review of the district court’s decision dismissing them from the Carmichael class action, even though they were without clear guidance on the proper route to pursue for relief. I also note the minimal prejudice to the appellees in allowing the appellants to proceed individually. The appellants in this case ultimately brought individual lawsuits only three months after the statute of limitations would have expired if tolling commenced immediately following the district court’s interlocutory order. Accordingly, it is unlikely that the appellees experienced any significant prejudice in this case in terms of lost evidence, fading memories and disappearing witnesses. The minimal prejudice to the appellees is also apparent from the fact that the class complaint in the Carmichael case notified the defendants of the substantive claims, number and specific identities of these parties.' Cf. Crown, Cork & Seal, 462 U.S. at 354-55, 103 S.Ct. at 2397-98 (Powell, Rehnquist & O’Connor, JJ., concurring) (when the defendant has been notified of the subject matter and size of the prospective litigation, “the defendant normally is not prejudiced by tolling of the statute of limitations”). I therefore find that the third Chevron Oil factor is satisfied in this ease.
Although it is a closer question, I also find that the first Chevron Oil factor is satisfied, because the court resolves an issue of first impression the resolution of which was not clearly foreshadowed in light of the discordant ease law cited above and our express reservation of this issue in Satterwhite. Finally, I find that the second Chevron Oil factor is satisfied in light of the fact that the appellants in this ease did not sleep on then-rights in the face of clear contrary binding precedent.
Accordingly, because I would reverse the judgment of the district court in its entirety and remand for further proceedings, I dissent from the majority’s affirmance as to appellants Barger, Black, Brooks, Budd, Carter, Davis, Giessuebel, Glaser, Havlish, Hin-duja, Jett, Lerche, Lightner, MeGuirk, McLean, Murphy, Prasky, Rains, Roberts, Ryan, Smith, Sylvestri, Turner and Williamson, in addition to appellants Clarke-Iley, Johnson and Shaw. I specially concur in the majority’s reversal as to appellants Armstrong, Cizek, Richards and Walsh.
. Proposed Federal Rule of Civil Procedure 23(f) states:
(f) Appeals. A court of appeals may in its discretion permit an appeal from an order of a district court granting or denying class action certification under this rule if application is made to it within ten days after entry of the order. An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders.
. Unlike the majority, I find no reason not to conclude that a stay necessarily tolls the applicable statute of limitations. After all, "[t]o 'stay’ an order ... means to hold it in abeyance, or refrain from enforcing it.” Black’s Law Dictionary 1267 (5th ed.1979). In the abundance of caution, however, ousted plaintiffs may wish to accompany their motion to stay with a motion asserting that good cause exists for continued tolling.
. On November 12, 1997, the Judicial Conference of the United States forwarded the proposed amendment to the Supreme Court with the recommendation that the "amendment be approved by the Court and transmitted to the Congress pursuant to law.” Memorandum from Leonidas Ralph Mecham, Director, Administrative Office of the United States Courts, to the Chief Justice of-the United States and the Associate Justices of the Supreme Court (Nov. 12, 1997). See 28 U.S.C. §§ 2072-74 (1994). On or before May 1, 1998, the Supreme Court will decide whether to approve the proposed rule and transmit it to Congress. See 28 U.S.C. § 2074(a). If adopted, the rule could take effect as early as December 1, 1998. See 28 U.S.C. § 2074(a).
. I am mindful of dicta in Chardon v. Soto, 462 U.S. 650, 103 S.Ct. 2611, 77 L.Ed.2d 74 (1983), that appears to be in tension with the conclusions I reach today. See 462 U.S. at 661, 103 S.Ct. at 2618 (stating that after class certification is denied, 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 an applicable tolling statute). The central issue in Chardon, however, was not whether tolling should, under some circumstances, continue pending an appeal, but whether federal or state law provided the appropriate tolling rule in the case at issue. 462 U.S. at 655-62, 103 S.Ct. at 2615-16. Chardon is therefore not dispositive on the question before us today. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 379, 114 S.Ct. 1673, 1676, 128 L.Ed.2d 391 (1994) (stating that it is to the holdings of the Supreme Court, not its dicta, that courts must attend). I further note that the author of Chardon, Justice Stevens, also authored Jimenez v. Weinberger, 523 F.2d 689, 696 (7th Cir.1975), cert. denied, 427 U.S. 912, 96 S.Ct. 3200, 49 L.Ed.2d 1204 (1976), which indicates that tolling continues pending appeal of a district court decision denying class certification.
. See also West Haven Sch. Dist. v. Owens-Coming Fiberglas Corp., 721 F.Supp. 1547, 1555 (D.Conn.1988) (''[Tjhere was a 'definitive determination’ of the class certification no earlier than when the appeals on that issue ran their course on October 20, 1986, and until that date the statute of limitation was suspended under American Pipe rule.”); Byrd v. Travenol Laboratories, Inc., 675 F.Supp. 342, 347 (N.D.Miss.1987) (tolling of statute of limitations ended when appeal involving denial of class certification had run its course, i.e., on the date the Supreme Court denied certiorari); Davis v. Bethlehem Steel Corp., 600 F.Supp. 1312, 1316 (D.Md.), aff' d, 769 F.2d 210 (4th Cir.), cert. denied, 474 U.S. 1021, 106 S.Ct. 573, 88 L.Ed.2d 557 (1985); American Tierra Corp. v. City of West Jordan, 840 P.2d 757, 762 (Utah 1992) (“We agree with the federal interpretations and conclude as a matter of Utah law that when a proper appeal of a class certification decision is taken, the tolling benefit continues on behalf of all members of the class until the class issue is finally determined by the decision on appeal.").
. Supportive language for the view endorsed in Calderon can also be found in the following cases: Nelson v. County of Allegheny, 860 F.Supp. 1080, 1084 (W.D.Pa.1994), aff'd, 60 F.3d 1010 (3d Cir. 1995), cert. denied, 516 U.S. 1173, 116 S.Ct. 1266, 134 L.Ed.2d 213 (1996); Chardon v. Soto, 462 U.S. 650, 103 S.Ct. 2611, 77 L.Ed.2d 74 (1983); Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983); United Airlines, Inc. v. McDonald, 432 U.S. 385, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977); and American Pipe & Const. Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974).