concurring in part and dissenting in part:
I concur in the majority’s holding that Plaintiffs who are “constructive front-desk-ers” may bring an equal protection challenge. That claim did not arise until 1996, when Congress enacted § 377. See Sisseton-Wahpeton Sioux Tribe v. United States, 895 F.2d 588, 594 (9th Cir.1990) (holding that a constitutional challenge to a federal statute accrued when the statute was enacted); 28 U.S.C. § 2401 (providing a six-year statute of limitation for actions against the United States). I respectfully dissent, however, from the remainder of the opinion, because I believe that the other claims are time-barred.
BACKGROUND
1. General Background
The basic issue in all the Catholic Social Services (CSS) cases is whether certain Immigration and Naturalization Service (INS) regulations are valid. Those regulations — the “advance parole” regulations— state that aliens who once left the United States without prior INS approval, even for the briefest periods, are ineligible for amnesty under the Immigration Reform and Control Act of 1986. 8 C.F.R. § 2245a.1(g).
There are three possible kinds of plaintiffs. “Front-deskers” are those aliens who tendered an application for amnesty to the INS, but had the application immediately rejected at the “front desk” based on the advance parole regulations. “Non-filers” are most of those aliens who never applied for amnesty. “Constructive front-deskers” are those non-filers who can demonstrate that the INS’ front-desking policy was a substantial cause of their failure to apply. In CSS III, the Supreme Court held that non-filers could not challenge the advance parole regulations because the regulations never had been applied to them, but also held that front-deskers could. CSS III, 509 U.S. 43, 58-59 & n. 20, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993). The Court left open the question whether constructive front-deskers could challenge the regulations. Id. at 66 & n. 28, 113 S.Ct. 2485.
2. CSS V
On remand from the Supreme Court, “the district court modified the class definition so as to include persons who had actually been front-desked and those who came within the Court’s dicta [concerning constructive front-deskers] by being otherwise adversely affected by the front-desk-ing policy.” CSS V, 134 F.3d 921, 924 (9th Cir.1998). The district court granted class-wide injunctive relief from the advance parole regulations.
*1157While the government’s appeal from the district court’s order was pending, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Section 377 of IIRIRA provides in part:
Notwithstanding any other provision of law, no court shall have jurisdiction of any cause of action or claim by or on behalf of any person asserting an interest under this section unless such person in fact filed an application under this section ... or attempted to file a complete application and application fee with an authorized legalization officer....
In other words, under the statute, only individuals who either actually filed applications or were front-desked can challenge the advance parole regulations. Constructive front-deskers are excluded.
This court in CSS V concluded that, due to § 377, the court lacked jurisdiction over the class that was certified by the district court because “none of the class members or named plaintiffs have alleged that they actually tendered an application and fee or attempted to do so but were rebuffed.” CSS V, 134 F.3d at 927. That statement seems incorrect because the class that had been certified by the district court clearly included front-deskers. (See the definition quoted at 1156-57, above.) Thus, at first blush, it is difficult to understand how CSS V could have held that no class member, as distinct from no named plaintiff, had alleged that he or she attempted to tender an application but was rebuffed.
CSS V further held that no member of the class that was before the court could challenge § 377 as violative of equal protection: “The class members before this court have not alleged facts sufficient to satisfy § 377’s requirement that they were actually front-desked nor have they alleged facts sufficient to demonstrate that they were discouraged from filing an application by the front-desking policy.” Id at 928.
3. The Present Case
After the dismissal of CSS V, a new group of named plaintiffs filed this action. None of the named plaintiffs in the present case was a named plaintiff in CSS V, although all the named plaintiffs (as well as all the class members) in this case were members of the class in CSS V The named plaintiffs in this case consist of some front-deskers and some constructive front-deskers. The class in this case is smaller than, but is encompassed within, the class in CSS V.
The front-deskers argue that the advance parole regulations conflict with the governing statute. The constructive front-deskers similarly argue that the regulations are invalid but, under § 377, the court lacks jurisdiction to hear their claim. Accordingly, they also argue that § 377 violates equal protection by discriminating irrationally between regular front-deskers, whose claims can be heard, and constructive front-deskers, whose claims cannot be heard.
TOLLING OF THE STATUTE OF LIMITATIONS
The majority opinion distinguishes Robbin v. Fluor Corp., 835 F.2d 213 (9th Cir.1987), Korwek v. Hunt, 827 F.2d 874 (2d Cir.1987), and all the other cases that have held that class actions may not be “stacked” for purposes of tolling, on the ground that Plaintiffs do not seek to reliti-gate the issue of class certification. Maj. op. at 1147-48. I disagree with that characterization of this case. In my view, Plaintiffs are seeking to relitigate the propriety of their proposed class. That is, even if the majority’s distinction were theoretically valid, it has no application here.
In CSS V, the court held that none of the named plaintiffs had alleged that he or she had been front-desked. 134 F.3d at 927. In the absence of such an allegation, the court lacked jurisdiction over the claims of the named plaintiffs due to § 377 and, thus, lacked jurisdiction over the *1158claims of the entire class. As a result, the court vacated the order of the district court that had certified the class, CSS V, 134 F.3d at 928, which is the equivalent of a denial of class certification. It cannot be disputed that, if one of the named plaintiffs in CSS V had alleged that he or she had been front-desked, the case would not have been dismissed under § 377. Thus, CSS V logically must be seen as resting on an implicit conclusion that the named plaintiffs were not adequate representatives of the class that had been certified by the district court. (The class as certified included front-deskers, but no named plaintiff actually was a front-desker.)
Consistent with that view of CSS V, the instant case is simply an attempt by Plaintiffs to relitigate the validity of their class based on their inclusion of new named plaintiffs in the complaint, some of whom do allege front-desking. In other words, the case amounts to nothing more than another attempt to plead a successful class action involving the same group of class members and the same basic claims. So viewed, the case is indistinguishable from all the other no-second-bite-at-the-apple cases, and the statute of limitations should not be tolled.
In addition, as noted above, the CSS V court confusingly held that no member of the class had alleged that he or she was front-desked, despite the fact that the district court certified a class that included front-deskers. Even if no named plaintiff alleged front-desking, it is unclear how the CSS V court reached the conclusion that no class member had been front-desked. Nonetheless, the court did reach that conclusion. The CSS V court’s holding is best understood as a holding that the class certified by the district court was improper. In particular, the court seems to have held that, although the district court certified a class including front-deskers, there were no factual allegations in the complaint sufficient to support the certification.
Once again, that view suggests that Plaintiffs simply are trying to relitigate the issue of the validity of the class. After all, the members of the putative class in this case all were members of the class that was dismissed in CSS V. Had they more fully alleged their claims in the complaint at issue in CSS V (as they now have done), the court would have had jurisdiction over those claims in the earlier iteration of the case and the class would have been valid.
In sum, these plaintiffs are no different from the plaintiffs in all the other cases1 who were trying to relitigate, in some way, the adequacy of an earlier, rejected class. As CSS V explained, the instant plaintiffs had ample time to respond to CSS III by amending their complaint to include named plaintiffs who actually had been front-desked plus factual allegations supporting the existence of a class of front-deskers. CSS V, 134 F.3d at 927-28. CSS V held that they had failed to do so, and Plaintiffs unfortunately are stuck with that holding, whether right or wrong. Having so failed, Plaintiffs cannot take advantage of the Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983), tolling rule in order to make timely their belated effort to relitigate the issue of the validity of the class by filing a new complaint that contains fuller factual allegations and names more adequate class representatives.
It is useful to remember that § 377 did not work a dramatic change in the law. The Supreme Court already had held that front-deskers had ripe claims but non-filers did not. The only change wrought by *1159§ 377 was to eliminate the possibility, skeptically noted by the Supreme Court in CSS III, that constructive front-deskers would have ripe claims. Thus, § 377 should not have caught the plaintiffs by surprise — it was hardly certain that a complaint alleging a class only of constructive front-deskers (which is what CSS V held that the plaintiffs had filed) would survive. It is unfortunate that the CSS V plaintiffs failed to name at least some front-deskers as class representatives in the wake of CSS III, but that omission is not of this court’s making.
For the foregoing reasons, I concur in part and dissent in part.
. Basch v. Ground Round, Inc., 139 F.3d 6 (1st Cir.1998); Griffin v. Singletary, 17 F.3d 356 (11th Cir.1994); Andrews v. Orr, 851 F.2d 146 (6th Cir.1988); Salazar-Calderon v. Presidio Valley Fanners Ass'n, 765 F.2d 1334 (5th Cir.1985); In re Westinghouse Securities Litigation, 982 F.Supp. 1031 (W.D.Pa.1997); In re Cypress Semiconductor Sec. Litig., 864 F.Supp. 957 (N.D.Cal.1994); Fleck v. Cablevision VII, Inc., 807 F.Supp. 824 (D.D.C.1992); Smith v. Flagship Int’l, 609 F.Supp. 58 (N.D.Tex.1985); Burns v. Ersek, 591 F.Supp. 837 (D.Minn.1984).