The opinion
ARNOLD, Circuit Judge,
dissenting.
In my view, the Court today opens too wide a hole in the final-judgment rule. I therefore respectfully dissent.
In Coopers & Lybrand v. Livesay, 437 U.S. 463 , 98 S.Ct. 2454 , 57 L.Ed.2d 351 (1978), a unanimous Supreme Court held that orders denying class certification are not appealable as “final decisions” within the meaning of 28 U.S.C. § 1291 . In so holding, the Supreme Court reversed this Court, Livesay v. Punta Gorda Isles, Inc., 550 F.2d 1106 (8th Cir.1977), which had been among the courts of appeals holding that a plaintiff could appeal the denial of class certification if, as a practical matter, the failure to certify a class would be the “death knell” of his claim. The Court invoked many of the factors traditionally used to justify the final-judgment rule, by which Congress, ever since the Judiciary Act of 1789, has set its face against piecemeal appeals. The Court pointed out that orders passing on requests for class certification are “subject to revision in the District Court.” 437 U.S. at 469 , 98 S.Ct. at 2458 . “Thus, a district court’s order denying or granting class status is inherently tentative.” Id. at 469 n. 11, 98 S.Ct. at 2458 n. 11. In addition, “an order denying class certification is subject to effective review after final judgment at the behest of the named plaintiff or intervening class members.” Id. at 469 , 98 S.Ct. at 2458 .
The same considerations apply at least as strongly to orders, like that before us in this case, granting class certification. In fact, there seems never to have been any serious contention that orders granting certification could be appealed under § 1291. As the Court noted in Coopers & Lybrand, “the Courts of Appeals have correctly concluded that orders granting class certification are interlocutory.” Id. at 476, 98 S.Ct. at 2462 . Here, as in the case of denial of certification, an appeal after final judgment can correct any errors of the district courts. Neither the petitioning defendants nor this Court seem to dispute this point. It is true that a considerable amount of hypothetically unjustified expense and trouble will have to be borne before the time comes to appeal, but that is true of many pre-judgment rulings claimed to be incorrect. Congress has decided that the costs of allowing immediate appellate review usually exceed the benefits. In 1958 an exception was made to *619 the general rule, in the form of § 1292(b), allowing interlocutory appeals in some cases with the concurrence of both the trial and the appellate courts. Here, the District Court denied § 1292(b) certification.
All of this is by way of preamble, simply to show that there is a strong policy in the Federal system against pre-judgment appellate review. Whenever a petition for mandamus or other extraordinary relief is filed, we are in fact being asked to make an exception to that policy. We may not do so merely because we think immediate appellate intervention is necessary to avoid unfairness. When it passed § 1292(b), “Congress rejected the notion that the courts of appeals should be free to entertain interlocutory appeals whenever, in their discretion, it appeared necessary to avoid unfairness in the particular case.” Coopers & Lybrand, supra, 437 U.S. at 474 n. 24, 98 S.Ct. at 2461 n. 24. Congress considered and rejected the proposal that the courts of appeals alone, without a prior district-court certification, be allowed to entertain interlocutory appeals.
Mandamus is formally distinct, of course, technically an original rather than an appellate proceeding. But the Supreme Court, protective of the final-judgment rule, has long hedged mandamus about with various restrictive formulae. Most recently, in Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35 , 101 S.Ct. 188, 190 , 66 L.Ed.2d 193 (1980) (per curiam), the Court repeated that “[o]nly exceptional circumstances, amounting to a judicial usurpation of power, will justify the invocation of this extraordinary remedy.” The petitioner must show that he has no other adequate means to attain the relief he desires, and that his right to issuance of the writ is clear and indisputable. Ibid. The order complained of may be wrong; it may be infected with reversible error, so that a final judgment will have to be reversed on appeal; but more must be shown to justify pre-judgment intervention by a court of appeals. These considerations must have special force with respect to decisions, like class certification, which depend heavily on facts and one’s view of what they mean — decisions commonly called “discretionary,” not in the sense that a judge may decide them by whim, but in the sense that different judges, both weighing the same relevant factors, may reasonably come to different conclusions. That kind of decision may be reversed on post-final-judgment appeal only for an abuse of discretion. Something more than that, therefore, must be shown to justify mandamus if the vital distinction between that extraordinary remedy and an appeal is to be preserved. This is why the Supreme Court has warned against the dangers of issuing the writ “upon a mere showing of abuse of discretion.” Will v. Calvert Fire Ins. Co., 437 U.S. 655 , 665 n. 7, 98 S.Ct. 2552 , 2559 n. 7, 57 L.Ed.2d 504 (1978) (plurality opinion).
The “something more” that must be shown has most often been described by the label “usurpation of power.” Judicial action without jurisdiction of the person or subject-matter might qualify, but “usurpation of power” seems to include more than just want of jurisdiction properly so called. 1 We expressed the test in the following language in our most recent case involving a petition for mandamus to review an order on class certification: “mandamus should not issue unless it is shown that the trial judge clearly acted beyond his power given any reasonable interpretation of Rule 23(e).” In re Alleghany Corp., 634 F.2d 1148, 1149 (8th Cir.1980). Mandamus was denied, and one judge concurred even though he “believe[d] that a serious mistake ha[d] been made by the trial court” and. that the trial judge “should have recused *620 himself.” Id. at 1151 (Ross, J., concurring) (footnote omitted). The mistake, though serious, was just not egregious enough to be a “usurpation of power.”
I think the same result should be reached here. Perhaps Judge Alsop’s opinions denying class certification are more persuasive than Judge Weiner’s opinions granting it. Certainly I should not vote to reverse Judge Alsop’s decision if this were a direct appeal from it. Perhaps Judge Weiner should have given more weight to Judge Alsop’s previous decisions. But he did not ignore them altogether. He simply gave them less weight than a majority of this Court would have. If Judge Alsop, on motion for reconsideration, had reversed himself and decided to certify a class after all, because he had had more time to study the law, or for any other reason commending itself to his discretion, I doubt that anyone would seriously urge that a peremptory writ issue to command Judge Alsop to adhere to his previous conclusion. I do not mean that changing one’s mind is in itself a good thing, or that it could not be reversible error, but only that it is not, at least in the context of class certification, a “usurpation of power.”
The Court, though conceding that the doctrine of “law of the case” may not be an inflexible command, invokes the doctrine to support its reasoning. To this I reply: “the law of what case?” Judge Alsop’s decision might indeed be the law of the case brought in Minnesota by Hoyt Construction Co. and Minnesota Exteriors, Inc., but hów can it be the law of the cases later brought by Western Builders, Inc., and Lagar Construction Co. in California, by Midwest Builders & Materials, Inc., in Illinois, and by Riverside Builders, the last case having been filed while this petition was pending before us? None of these later-filing plaintiffs was before Judge Alsop; none of them had a chance to argue before him that a class should be certified; yet all seem to be concluded by his ruling.
Rule 23(c)(1) provides in so many words that “[a]n order” determining whether a class should be certified “may be altered or amended before the decision on the merits.” The Notes of the Advisory Committee on Rules comment as follows: “A determination once made can be altered or amended before the decision on the merits if, upon fuller development of the facts, the original determination appears unsound.” The Court reads that comment to mean that “fuller development of the facts” is the only circumstance that can justify alteration or amendment of the order. The Rule itself does not say that, but even if the Rule is so limited, why are not the three later-filed cases, and their centralization for pre-trial proceedings by the Judicial Panel on Multidistrict Litigation, a sufficient change in circumstances to warrant a fresh look at class certification? A judge might well regard as more suitable for class treatment a situation in which four suits are pending in different parts of the country, than a case in which only one action, involving only one part of the country, has been brought. In his initial opinion denying class certification, Judge Alsop referred to the fact that the Minnesota plaintiffs, Hoyt and Exteriors, were “limited to ... the Minneapolis/St. Paul area.” Hoyt Constr. Co. v. Alside, Inc., No. 4-75 Civ. 257, slip op. p. 9 (D.Minn. August 24, 1978). He also concluded “that the stake of Hoyt and Exteriors is insufficient to insure a vigorous prosecution of [the] claims” of the proposed class. Id. at 13. Surely the view that the filing of three new actions in far-away states by four new corporate plaintiffs justifies a new look at the class question, is not so unreasonable as to be a “usurpation of power.” Cf. Zenith Labs., Inc. v. Carter-Wallace, Inc., 530 F.2d 508, 512 (3d Cir.), cert. denied, 429 U.S. 828 , 97 S.Ct. 85 , 50 L.Ed.2d 91 (1976) (class certified by one judge; decertified by another, who assumed control of ease “by normal rotation”; amendment of complaint to add four new counts is one of the changes in circumstances correctly taken into account by the second judge).
Furthermore, the Judicial Panel on Multidistrict Litigation (of which, as it happens, Judge Weiner is a member) has ruled that a transferee judge may review and revise class-action orders of the transferor courts.
In the case of class action determinations made by the transferor court prior to transfer, the provisions of Rule 23 ap *621 ply permitting the transferee court to determine the class action questions and to review and revise any class action order as in its sound judicial discretion is desirable or necessary in the interests of justice.
In re Plumbing Fixture Cases, 298 F.Supp. 484, 496 (J.P.M.D.L.1968) (6-1 decision). Compare In re The Upjohn Co. Antibiotic Cleocin Prods. Liability Litigation, 664 F.2d 114 (6th Cir.1981), holding that a transferee court may amend or vacate discovery orders made by a transferor court, despite the fact that “there is something unseemly ... in permitting one judge to overrule another in a matter in which each would seem to have stood on an equal footing.” Id. at 117 .
Perhaps it is this apparent unseemliness, more than any other factor, that leads the Court to the conclusion it reaches today. I agree that judges should not freely ignore the rulings of their predecessors in the same case. Possibly Judge Weiner should have given more consideration to Judge Alsop’s rulings, which were well reasoned and careful. I cannot conclude, however, that his failure to do so is the usurpation of power necessary to support the issuance of mandamus.
I respectfully dissent.
. A court, for example, in some sense acts without “power” whenever its decision is a clear violation of law, even though it may unquestionably have “jurisdiction” over the parties and subject-matter. In Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336 , 96 S.Ct. 584 , 46 L.Ed.2d 542 (1976), mandamus was granted to annul a district court’s order remanding a removed case to a state court. There was no question of the court’s jurisdiction to rule on the motion to remand, and 28 U.S.C. § 1447 (d) provides that remand orders shall not be reviewable by appeal or otherwise. Mandamus was nevertheless granted because the district court’s reason for the remand— docket congestion — was not a ground for remand under 28 U.S.C. § 1447 (c).