dissenting:
The majority holds that the plaintiffs’ class action is barred by the six-year statute of limitations because the plaintiffs failed to file a class action on behalf of this class within six years of the adoption of the challenged regulations. Yet plaintiffs were members of the class that did file a timely action in 1986 to challenge the policies. The present action seeks to present a claim within the standing limitations of a statute that was not enacted until 1996. Thus the majority holds that the plaintiffs, before 1993, should have responded to a statute that was not passed until 1996.
Having already filed a complaint in 1986, plaintiffs should have been able to proceed by amending their original complaint to respond to the new statute. They had to file this second class action only because, in an earlier appeal, the majority ordered the first action dismissed without an opportunity to amend, thus creating the very statute of limitations issue that confronts us today. See Catholic Social Servs. v. Reno, 134 F.3d 921 (9th Cir.1998) (“CSS V”). As I wrote in my partial dissent then, the majority should have followed the lead of the Supreme Court in its 1993 opinion in Reno v. Catholic Social Servs., 509 U.S. 43, 65-67, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993) (“CSS III”), and remanded for the district court to determine whether there were members of the larger class that met the new standing requirements. CSS V, 134 F.3d at 928-29 (Schroeder, J. dissenting in part). Having left the door open a crack at that time, CSS V, 134 F.3d at 928 n. 4, the majority now slams it shut and effectively announces that we have all been wasting our time for the last thirteen years of class litigation.
The guiding authorities should be American Pipe and Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 *1063(1974), and Crown, Cork & Seal, Co. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983), which address the problem of asserted members of an uncer-tified class action who rely upon that ongoing litigation representing their interests and refrain from filing a separate suit. These cases hold that, for such plaintiffs, the statute of limitations is tolled during the period of the pendency of the class action. See American Pipe, 414 U.S. at 554, 94 S.Ct. 756; Crown, Cork, 462 U.S. at 350, 103 S.Ct. 2392. This case presents an even more compelling argument for tolling than American Pipe and Crown, Cork, since the same organizational plaintiffs and their attorneys have continually directed all of this litigation and have conscientiously sought to respond to the changing legal standards imposed by Congress and the courts. Unlike the authorities relied upon by the majority, plaintiffs are guilty of no abuse.
In the cases the majority cites, the plaintiffs were not doing their best to respond to shifting legal standards but were trying to relitigate the issue of class certification. See Basch v. Ground Round, Inc., 139 F.3d 6, 11 (1st Cir.1998) (plaintiffs cannot perpetually toll the statute of limitations by filing successive class actions to attract more potential plaintiffs “regardless of how many times a court declines to certify the class”); Griffin v. Singletary, 17 F.3d 356, 359 (11th Cir.1994) (plaintiffs may not piggyback class actions onto each other to repeatedly litigate the issue of the adequacy of the named class representative); Andrews v. Orr, 851 F.2d 146, 148 (6th Cir.1988) (prior action where class certification denied did not toll the statute of limitations for subsequent class action); Robbin v. Fluor Corp., 835 F.2d 213, 214-15 (9th Cir.1987) (same); Korwek v. Hunt, 827 F.2d 874, 879 (2d Cir.1987) (“The Supreme Court ... certainly did not intend to afford plaintiffs the opportunity to argue and reargue the question of class certification by filing new but repetitive complaints.”); Salazar-Calderon v. Presidio Valley Farmers Assoc., 765 F.2d 1334, 1351 (5th Cir.1985) (statute of limitations tolled the first time plaintiffs move to certify a class; if this motion fails, the statute of limitations is not tolled during any subsequent certification motions). The majority correctly notes that Robbin is the law of the circuit and that we must obey its holding. See Maj. Op. at 1059. But Robbin does not speak to the issue that confronts us here. As the majority recognizes, in Robbin we adopted the Second Circuit’s reasoning in Korwek. Maj. Op. at 1059. Korwek expressly left open almost the identical question presented here: “whether the filing of a potentially proper subclass would be entitled to tolling under American Pipe.” 827 F.2d at 879.
The majority faults the plaintiffs for not citing authority in support of their argument that the statute of limitations should be tolled for a subsequent class action only where the prior class action was not certified. Maj. Op. at 1059. More telling is that the majority does not cite to a single case where tolling was not allowed when the prior class action was certified but the case dismissed on unrelated grounds. The majority implies that Konuek was such a case, Maj. Op. at 1061, but a close reading of Konuek discloses that the plaintiffs sought to certify a class nearly identical to a class that the district court had previously rejected. 827 F.2d at 876, 879.
In contrast to the cases cited by the majority, tolling in the present case would further the policy of judicial efficiency and economy underlying the class action procedure. American Pipe, 414 U.S. at 553, 94 S.Ct. 756. Judicial economy would be ill-served by forcing the plaintiffs here to proceed in individual lawsuits. Id. at 553-54, 94 S.Ct. 756; see also Crown, Cork, 462 U.S. at 350-51, 103 S.Ct. 2392. “The result would be a needless multiplicity of actions — precisely the situation that Federal Rule of Civil Procedure 23 and the tolling rule of American Pipe were designed to avoid.” Crown, Cork, 462 U.S. at 351, 103 S.Ct. 2392.
Moreover, allowing tolling here would not frustrate the two purposes of the stat*1064ute of limitations, which are giving timely notice to defendants and barring plaintiffs who have slept on their rights. American Pipe, 414 U.S. at 554, 94 S.Ct. 756; Crown, Cork, 462 U.S. at 352, 103 S.Ct. 2392. The government is not being caught unaware in this case. The prior CSS suit informed the government “not only of the substantive claims being brought against [it], but also of the number and generic identities of the potential plaintiffs who may participate in the judgment.” American Pipe, 414 U.S. at 554-55, 94 S.Ct. 756. Furthermore, “[cjlass members who do not file suit while the class action is pending cannot be accused of sleeping on their rights.” Crown, Cork, 462 U.S. at 352, 103 S.Ct. 2392. It was entirely appropriate for the plaintiffs here to rely on the previous action. The class that was certified in the prior CSS litigation encompassed claims of front-desking. CSS III, 509 U.S. at 47-48, 113 S.Ct. 2485; CSS V, 134 F.3d at 924. Nor has CSS slept on its rights by not anticipating IIRIRA. The majority’s holding thus disregards the Supreme Court’s reasoning in American Pipe and Crown, Cork and works a grave injustice upon aliens who have been aggrieved by an INS regulation that we have recognized as invalid. Catholic Social Servs., Inc. v. Thornburgh, 956 F.2d 914 (9th Cir.1992), vacated on other grounds, CSS III, 509 U.S. 43, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993).
For these reasons, I respectfully dissent.