United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued May 7, 2024                    Decided August 2, 2024

                        No. 23-5152

 CAROL A. LEWIS AND DOUGLAS B. SARGENT, ON BEHALF OF
    THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
                     APPELLANTS

                             v.

  XAVIER BECERRA, IN HIS CAPACITY AS SECRETARY OF THE
   UNITED STATES DEPARTMENT OF HEALTH AND HUMAN
                       SERVICES,
                       APPELLEE


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:18-cv-02929)


    James Pistorino argued the cause for appellants. With him
on the briefs were David B. Goroff, Michael D. Leffel, and
Andrew C. Gresik.

    Joshua M. Koppel, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief were
Brian M. Boynton, Principal Deputy Assistant Attorney
General, Abby C. Wright, Attorney, Samuel R. Bagenstos,
General Counsel, U.S. Department of Health and Human
Services, and David Hoskins, Attorney.
                                2
    Before: KATSAS, RAO, and WALKER, Circuit Judges.

    Opinion for the Court filed by Circuit Judge KATSAS.

     KATSAS, Circuit Judge: Carol Lewis and Douglas Sargent
sued the Secretary of Health and Human Services to obtain
reimbursement for the cost of certain medical equipment. They
won. But they nevertheless appeal, seeking to challenge the
district court’s earlier denial of class certification. By itself,
their desire to serve as class representatives does not create a
cognizable Article III interest. And Lewis and Sargent do not
allege that the denial of class certification has caused them any
other, concrete individual injury. We therefore dismiss their
appeal for lack of constitutional standing.

                                I

                                A

    The Medicare program provides health insurance for the
elderly and disabled. See 

 et seq. Part B of
Medicare covers “durable medical equipment.” 42 U.S.C.
§ 1395m(a).

    Congress has provided for limited judicial review of
Medicare eligibility determinations. The Medicare Act
incorporates the judicial-review provisions of the Social
Security Act, which require a beneficiary to exhaust
administrative remedies and then to seek review within sixty
days of the final agency determination. See 42 U.S.C.
§§ 1395ii, 1395ff(b)(1)(A) (Medicare); id. § 405(g) (Social
Security); Am. Hosp. Ass’n v. Azar, 

, 825–26
(D.C. Cir. 2018). In some circumstances, courts may excuse a
beneficiary’s failure to exhaust, Bowen v. City of New York,

 (1986), and may equitably toll the sixty-day
deadline for seeking judicial review, 

.
                              3
                              B

     Diabetes is a chronic condition where the body fails to
produce or properly respond to insulin, which regulates blood-
sugar levels. A blood-sugar level too high or low can cause
serious health problems. So, diabetics must monitor their
blood-sugar levels.

     Continuous glucose monitors provide one means of doing
so. A sensor placed under the skin measures glucose levels and
transmits the measurements to an external receiver. The
Centers for Medicare & Medicaid Services, which administers
Medicare for HHS, has taken different positions on whether
these monitors are covered “durable medical equipment.” In
2017, CMS issued guidance concluding that Part B does not
generally cover these monitors. J.A. 693–95. But in 2021,
CMS promulgated a rule extending Part B coverage to
continuous glucose monitors with a dedicated receiver. 

 (Dec. 28, 2021). In 2022, CMS rescinded the 2017
guidance and instructed administrative adjudicators to apply
the rule to all outstanding reimbursement claims. J.A. 587.

                              C

    Lewis and Sargent are diabetics and Medicare
beneficiaries. They sought reimbursement for their continuous
glucose monitors and related supplies from 2015 to 2017.
After HHS denied reimbursement, Lewis and Sargent timely
pursued judicial review of the denials. They also moved to
represent a class of “[a]ll persons who submitted claims for
coverage of [continuous glucose monitor] equipment or
supplies whose claims were denied (and not later reversed on
appeal) since December 13, 2012”—regardless of whether
these individuals had exhausted administrative remedies or
timely sought judicial review. J.A. 48.
                               4
     The district court denied Lewis and Sargent’s motion for
class certification. The court noted that the claims of most
putative class members were unexhausted, untimely, or both.
J.A. 538–39. It then concluded that neither waiver of the
exhaustion requirement nor equitable tolling of the limitations
period would be appropriate. 

 at 539–45. The court
therefore excluded individuals with unexhausted or untimely
claims, which reduced the putative class to seventeen
individuals. 

. Then, the court held that this group was
too small to meet the numerosity requirement for class
certification. 

.

     After CMS issued its 2022 guidance, HHS moved for
partial judgment in Lewis and Sargent’s favor. Over their
objection, the district court granted the motion, set aside the
denials of Lewis and Sargent’s claims, declared that continuous
glucose monitors and their related supplies are durable medical
equipment, and dismissed Lewis and Sargent’s other claims as
moot. J.A. 625–26. Lewis and Sargent then appealed.

                               II

     On appeal, Lewis and Sargent do not challenge any aspect
of their favorable merits judgment. Instead, they challenge
only the denial of their motion for class certification.

     The government does not question our jurisdiction. But
“federal courts have an independent obligation to ensure that
they do not exceed the scope of their jurisdiction” and “must
raise and decide jurisdictional questions that the parties either
overlook or elect not to press.” Henderson ex rel. Henderson
v. Shinseki, 

 (2011). In particular, federal
courts of appeals lack jurisdiction if the appellant has not
shown standing to pursue the appeal. See, e.g., West Virginia
v. EPA, 

, 718 (2022); Hollingsworth v. Perry, 570
 

, 715 (2013). Considering the issue on our own, we
hold that Lewis and Sargent lack appellate standing.

                                A

     Article III limits the judicial power of the United States to
resolving “Cases” or “Controversies.” U.S. Const. Art. III, § 2.
“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. Cont’l Bank Corp., 

 (1990) (cleaned up). To this end, any party invoking
a federal court’s jurisdiction must prove its “standing.” Lujan
v. Defs. of Wildlife, 

 (1992). In a federal
district court, “a plaintiff must show (i) that he suffered an
injury in fact that is concrete, particularized, and actual or
imminent; (ii) that the injury was likely caused by the
defendant; and (iii) that the injury would likely be redressed by
judicial relief.” TransUnion LLC v. Ramirez, 

,
423 (2021). Similarly, in a federal appellate court, an appellant
must show a concrete and particularized injury “fairly traceable
to the judgment below” and likely to be redressed by a
favorable ruling on appeal. West Virginia, 597 U.S. at 718.

      In Deposit Guaranty National Bank v. Roper, 

(1980), the Supreme Court considered when prevailing
plaintiffs may appeal a denial of class certification. The Court
first acknowledged that federal appellate courts normally lack
jurisdiction to entertain appeals from litigants who obtained
favorable judgments: “A party who receives all that he has
sought generally is not aggrieved by the judgment affording the
relief and cannot appeal from it.” 

. But the Court also
explained that, in some circumstances, the victorious party
“retains a stake in the appeal satisfying the requirements of
                                   6
Art[icle] III.” 

. In those cases, it may appeal an
“adverse ruling collateral to the judgment on the merits.” Id.;
see also 

 (“Federal appellate jurisdiction is limited by
the appellant’s personal stake in the appeal.”). In short, the
Court held that prevailing plaintiffs may appeal a denial of
class certification if, but only if, they satisfy the ordinary
requirements for Article III standing.1

     In Roper, the prevailing plaintiffs alleged that the denial of
class certification caused them a pocketbook harm—an
“obvious” Article III injury, see TransUnion, 594 U.S. at 425.
They argued that a successful appeal would allow them to shift
part of their litigation costs “to those who [would] share in its
benefits if the class is certified and ultimately prevails.” Roper,

. In other words, the named plaintiffs alleged
that the denial of class certification forced them to bear all of
the “fees and expenses” incurred during the litigation, whereas

     1
        Roper framed its Article III analysis in terms of mootness,
asking whether the named plaintiffs’ success on their individual
claims mooted any ongoing controversy over the denial of class
certification. See 

. Later, the Supreme Court began
to describe the requisite personal stake of a prevailing party in terms
of standing to appeal. For example, in Arizonans for Official English
v. Arizona, 

 (1997), the Court held that the “standing”
requirement of Article III “must be met by persons seeking appellate
review, just as it must be met by persons appearing in courts of first
instance.” 

; accord West Virginia, 597 U.S. at 718;
Hollingsworth, 570 U.S. at 715. We think standing is the more
precise analytical framework, because any appellant must invoke and
establish the jurisdiction of an appellate court at the outset of any
appeal, regardless of whether the plaintiff had properly invoked the
jurisdiction of the trial court below. See, e.g., Process & Indus. Devs.
Ltd. v. Fed. Republic of Nigeria, 

, 580 (D.C. Cir. 2020).
In any event, the analysis that follows does not turn on whether the
requisite stake of a prevailing plaintiff is better framed as a question
of standing or mootness.
                                7
absent class members would have otherwise picked up part of
the tab. See 

 at 334 n.6. Based on this pocketbook injury,
the Court held that the prevailing plaintiffs had a continuing
Article III stake in their appeal. 

.

     Roper noted other “interests” of the prevailing plaintiffs,
including their “right as litigants” to invoke class-certification
rules and the duty of named plaintiffs “to represent the
collective interests of the putative class.” 

.
Roper also noted the “substantial advantages” of class actions,
such as facilitating the adjudication of small individual claims,
and it described these “policy considerations” as “not
irrelevant” to the jurisdictional question presented. 

 at 338–
40. This language from Roper—combined with the reasoning
of U.S. Parole Commission v. Geraghty, 

(1980)—has led some commentators to read Roper to authorize
prevailing plaintiffs to appeal denials of class certification
regardless of whether they have any continuing individual
interest in the appeal. See, e.g., 1 Newberg and Rubenstein on
Class Actions § 2:10 (6th ed. updated June 2024). We will
have more to say about Geraghty later. For now, we emphasize
that Roper at the outset expressly declined to hold that the
prevailing plaintiffs’ interest in securing a correct application
of Rule 23, or their interest in representing others similarly
situated, was sufficient to support continuing Article III
jurisdiction. 445 U.S. at 331–32. And in conclusion, Roper
expressly based its holding of an ongoing controversy on the
plaintiffs’ alleged pocketbook injury, i.e., their “individual
interest in the litigation—as distinguished from whatever may
be their representative responsibilities to the putative class.”
Id. at 340.

    Genesis Healthcare Corp. v. Symczyk, 

 (2013),
confirms this understanding of Roper. Genesis Healthcare
involved a Fair Labor Standards Act lawsuit filed by one
                                 8
plaintiff on behalf of herself and others “similarly situated.” 

. The Court held that the case became moot when the
defendant offered judgment to the plaintiff because, with her
individual claim satisfied, “she lacked any personal interest in
representing others.” 

. The Court explained that
Roper, “by [its] own terms,” was “inapplicable.” 

. It
stressed that “Roper’s holding”—that the plaintiffs there had
standing to appeal a denial of class certification—“turned on a
specific factual finding that the plaintiffs possessed a
continuing personal economic stake in the litigation, even after
the defendants’ offer of judgment.” 

. Likewise, the
Court attributed no significance to Roper’s broader “dicta”
about the salutary “objectives of class actions.” 

 at 77–78.
And it questioned whether even Roper’s narrow holding
remained good law after an intervening decision held that a
plaintiff’s “interest in attorney’s fees is, of course, insufficient
to create an Article III case or controversy where none exists
on the merits of the underlying claim.” 

 at 78 n.5 (quoting
Lewis, 

). Genesis Healthcare thus underscores
that Roper at most allows prevailing plaintiffs to appeal the
denial of class certification when they have a continuing
individual stake in the litigation.

                                 B

     In stark contrast to the prevailing plaintiffs in Roper,
Lewis and Sargent have alleged no continuing pocketbook or
other individual injury. At oral argument, they disavowed any
theory of standing based on the possible recovery of costs or
fees from absent class members. And they declined to press
any theory of standing based on the possible recovery of
increased fees from the government under the Equal Access to
Justice Act (EAJA), 

. Instead, they allege
only one injury—losing the asserted right to represent the
interests of absent class members. Our jurisdiction thus turns
                                  9
on whether the mere desire to serve as a class representative is
a concrete Article III injury.

     We hold that it is not. If HHS now reimbursed all absent
class members, it would benefit Lewis and Sargent “no more
directly and tangibly” than it would benefit “the public at
large.” Lujan, 

. Their continued discontent
with the denial of class certification is thus a “generally
available grievance about [the] government” that fails to
distinguish Lewis and Sargent from any other citizen. 

 at
573–74. And such a generalized grievance “does not state an
Article III case or controversy.” 

. As the Supreme
Court held in Lujan and confirmed just weeks ago: “Article III
standing screens out plaintiffs who might have only a general
legal, moral, ideological, or policy objection to a particular
government action.” FDA v. All. for Hippocratic Med., 

 (2024). This is not to question the earnestness
or intensity of Lewis and Sargent’s feelings that the
government has wrongfully denied reimbursement to other
diabetic Medicare beneficiaries. But “in order to claim ‘the
interests of others, the litigants themselves still must have
suffered an injury in fact.’” Thole v. U.S. Bank N.A., 

, 543 (2020) (quoting Hollingsworth, 570 U.S. at 708).
Even “sincere” concern about the government’s treatment of
others cannot support Article III standing. All. for Hippocratic
Med., 602 U.S. at 392–93.2



     2
        Lewis and Sargent do not claim standing as next friends of
other diabetic Medicare beneficiaries, which would require them to
show that the other beneficiaries were “unable to litigate” on their
own behalf “due to mental incapacity, lack of access to court, or other
similar disability.” Whitmore v. Arkansas, 

 (1990).
Here, nothing prevented absent putative class members from
pursuing their own claims, either in separate actions or as post-
                                10
     Nor can standing rest on any alleged misapplication of
Rule 23. For one thing, Rule 23 creates no substantive right to
serve as a class representative. It was promulgated under the
Rules Enabling Act, which permits the Supreme Court to
“prescribe general rules of practice and procedure” that do not
“abridge, enlarge or modify any substantive right.” 

(a)–(b). So, the “right of a litigant to employ Rule 23 is
a procedural right only, ancillary to the litigation of substantive
claims.” Roper, 

. Once unmoored from any
real-world consequences for Lewis and Sargent, the district
court’s alleged misapplication of Rule 23 was a “bare
procedural violation, divorced from any concrete harm” to
Lewis and Sargent—which cannot support their standing.
Spokeo, Inc. v. Robins, 

, 341 (2016); see also
Microsoft Corp. v. Baker, 

, 45 (2017) (Thomas, J.,
concurring in the judgment) (“Class allegations, without an
underlying individual claim, do not give rise to a ‘case’ or
‘controversy.’”). In any event, Article III itself requires the
plaintiff or appellant to have a “concrete” individual injury in
fact. See Lujan, 

. And just as statutes enacted
by Congress may not establish this constitutional requirement
of concreteness, see TransUnion, 594 U.S. at 426, neither may
rules promulgated by courts.

     Without any personal stake of the kind identified in Roper,
Lewis and Sargent have no concrete interest in continuing to
seek class certification. We therefore lack jurisdiction over
their appeal.




judgment intervenors in this one. See United Airlines, Inc. v.
McDonald, 

, 395–96 (1977).
                                11
                                 C

     We recognize that the Second Circuit has disagreed with
our conclusion. In Jin v. Shanghai Original, Inc., 

(2d Cir. 2021), that court held that a prevailing plaintiff could
appeal a decision to decertify regardless of whether he had any
continuing, concrete individual injury. 

 at 256–57. The
court read Roper to hold that a “narrow fee-shifting interest”
was “sufficient” to establish appellate standing, but not to hold
that such an interest was “necessary.” 

. Freed of
Roper, the court then based its decision primarily on Geraghty.
See 

 at 258–61. In that case, the Supreme Court held that a
prisoner could appeal a denial of class certification even after
his release had mooted his individual claim. Geraghty, 

. Jin reasoned that Geraghty had compared
“the right to have a class certified if the requirements of Rule
23 are met” to “the interest of ‘the private attorney general’”
and “found that type of interest sufficient to satisfy the personal
stake requirement.” Jin, 990 F.3d at 258–59 (quoting
Geraghty, 445 U.S. at 403–04) (cleaned up).

     With due respect to the considered views of our
colleagues, we are unpersuaded. Geraghty did not hold that the
interest in serving as a “private attorney general,” in order to
protect the interests of others, is a traditional Article III stake.
Quite the opposite: Geraghty acknowledged that a “legally
cognizable interest … in the traditional sense rarely ever exists
with respect to the class certification claim” and that the
“‘right’” (with scare quotes in the original) to serve as a class
representative is not analogous “to the type of interest
traditionally thought to satisfy the personal stake requirement.”
445 U.S. at 402–03 (cleaned up). In other words, Geraghty
confirms that an interest in serving as a class representative is
not a traditional Article III interest. And lawsuits “may not
proceed” when the party invoking a court’s jurisdiction has no
                               12
“harm traditionally recognized as providing a basis for a
lawsuit in American courts.” TransUnion, 594 U.S. at 427.
This aspect of Geraghty cuts against appellate standing.

     To be sure, the Supreme Court did hold that Geraghty
could appeal the denial of class certification anyway. It
reasoned that “Art[icle] III’s ‘uncertain and shifting contours’
with respect to nontraditional forms of litigation … requires
reference to the purposes of the case-or-controversy
requirement.” 445 U.S. at 402 (quoting Flast v. Cohen, 

 (1968)). It then determined that “the purpose of the
‘personal stake’ requirement is to assure that the case is in a
form capable of judicial resolution,” which requires “sharply
presented issues in a concrete factual setting and self-interested
parties vigorously advocating opposing positions.” Id. at 403.
Because Geraghty “continue[d] vigorously to advocate his
right to have a class certified,” the Court held that the question
of class certification remained a “concrete, sharply presented
issue.” Id. at 403–04. The Court described its view as
reflecting an “erosion of the strict, formalistic perception of
Art[icle] III” urged in the Flast dissent. Id. at 404 n.11.

     This aspect of Geraghty’s reasoning—reducing
constitutional standing to a functionalist concern about
adversary presentation—does not reflect current law. At every
turn, Geraghty borrowed that approach from Flast. See
Geraghty, 445 U.S. at 395–97, 401, 402, 404 n.11. But since
Geraghty, the Supreme Court has emphatically rejected Flast’s
pure functionalism. Its “later opinions have made it explicitly
clear that Flast erred in assuming that assurance of ‘serious and
adversarial treatment’ was the only value protected by
standing.” Lewis v. Casey, 

, 353 n.3 (1996)
(cleaned up). “Flast failed to recognize that this doctrine has a
separation-of-powers component, which keeps courts within
certain traditional bounds vis-à-vis the other branches, concrete
                                 13
adverseness or not.” 

 This was no minor oversight, for the
“separation of powers” is the “single basic idea” on which all
of Article III standing is built, and it often requires a “restricted
role for Article III courts.” United States v. Texas, 

 (2023) (quoting Allen v. Wright, 

 (1984), and Raines v. Byrd, 

 (1997)).
Properly understood as protecting the separation of powers,
Article III standing demands an “actual injury,” because only
“someone who has been actually injured” can appropriately
“call in the courts to examine the propriety of executive action”
(or, in this case, the judicial action of a lower court). Lewis,

 n.3. To that end, the Article III analysis of
Flast and Geraghty has been replaced by a more exacting
requirement that the party invoking a court’s jurisdiction have
suffered an injury “traditionally recognized as providing a basis
for a lawsuit in American courts.” TransUnion, 594 U.S. at
423, 427. Repudiating Flast, the Supreme Court now views
this injury requirement, together with the related elements of
traceability and redressability, as having always been “an
essential and unchanging part of the case-or-controversy
requirement of Article III.” Lujan, 

. Applying
these principles for some four decades, the Court now routinely
denies Article III standing to parties who have suffered no
concrete, particularized, and actual or imminent injury in
fact—no matter how strongly they feel, how vigorously they
advocate, or how well they develop the facts. See, e.g., All. for
Hippocratic Med., 

 (pro-life advocates); United
States v. Texas, 

 (States); TransUnion, 594 U.S.
at 417 (6,332 individuals); Raines, 

 (Members
of Congress); Lujan, 

 (environmental
organizations); Allen v. Wright, 468 U.S. at 739–40 (parents).

    To be sure, we remain bound by Geraghty’s specific
holding that a plaintiff whose individual claims became moot
can appeal a prior denial of class certification. See Rodriguez
                               14
de Quijas v. Shearson/Am. Express, Inc., 

(1989); Geraghty, 

, 401–02. But Roper—not
Geraghty—is the directly controlling precedent for assessing
whether plaintiffs who have prevailed on the merits may appeal
a denial of class certification. And as between the two
decisions, Roper is far more consistent with the Supreme
Court’s current standing jurisprudence, despite the case’s
arguable ambiguity. Ultimately, we must decide whether to
read Roper broadly (in light of Geraghty’s capacious
reasoning, rooted in Flast) or narrowly (in light of subsequent
Article III precedents, including Genesis Healthcare). With
over four decades of evidence that Geraghty is the outlier, we
find that choice straightforward.

     Jin also invoked a supposed “assumption” in pre-Roper
decisions that a proposed class representative may appeal the
denial of class certification after final judgment. 990 F.3d at
261. Neither of the two relevant cases held that a prevailing
plaintiff may appeal even absent any continuing personal stake
in the litigation. Coopers & Lybrand v. Livesay, 

(1978), held only that a denial of class certification is not
immediately appealable before final judgment. 

 at 468–77.
In part, the Court reasoned that such a denial may be effectively
reviewed after final judgment, “at the behest of the named
plaintiff or intervening class members.” 

. By
definition, intervening putative class members—who do not
benefit when named plaintiffs prevail on their individual claims
following decertification—have a continuing stake in the
litigation. So do named plaintiffs who lose on the merits or
who, like the prevailing plaintiffs in Roper, allege some
continuing interest in cost or fee shifting. Thus, effective
review after final judgment does not require relaxed standing
requirements for prevailing plaintiffs with no continuing
individual interest in the case. Likewise, United Airlines, Inc.
v. McDonald, 

 (1977), held only that if a named
                               15
plaintiff prevails on the merits, an absent putative class member
may intervene post-judgment in order to appeal the denial of
class certification. See 

. The Court in McDonald did
report a concession that the prevailing plaintiffs in that case
could have appealed. See 

 at 393–94. But that issue was
neither litigated nor essential to the Court’s holding, and a
“drive-by jurisdictional ruling[]” is entitled to “no precedential
effect.” Steel Co. v. Citizens for a Better Env’t, 

 (1998). Moreover, the Court had no occasion even to
consider whether the prevailing plaintiffs in that case—who did
not try to appeal—could have alleged a fee-shifting stake akin
to the one recognized in Roper. In sum, neither Livesay nor
McDonald advances the case for standing here.

     For their part, Lewis and Sargent offer only policy
arguments. At oral argument, they predicted dire consequences
from a dismissal of this appeal—including that lawyers will
have insufficient financial incentives to represent plaintiffs
with relatively small claims. In Livesay, the plaintiffs made a
similar argument that interlocutory appeals were necessary to
protect the “vital public interest” of class actions, yet the
Supreme Court declined to relax the jurisdictional requirement
of a final district-court decision. 437 U.S. at 469–70; see 

. So too here. We decline to relax the
jurisdictional requirements of Article III standing based on
policy arguments that post-judgment appeals are similarly
necessary. For one thing, it is “hardly this Court’s place to pick
and choose among competing policy arguments like these
along the way to selecting whatever outcome seems to us most
congenial, efficient, or fair.” Pereida v. Wilkinson, 

, 241 (2021). And the possibility that “no one would have
standing” is “not a reason to find standing.” Clapper v.
Amnesty Int’l USA, 

 (2013) (cleaned up).
                                16
     In any event, we doubt that our decision will have any
meaningful effect on the financial incentives of the class-
action-plaintiffs’ bar. For one thing, the problem Lewis and
Sargent envision will not arise in cases where the district court
grants class certification or rules against the named plaintiffs
on the merits. And even in cases where the district court denies
class certification and then rules for the named plaintiffs,
several possible avenues for appeal remain. In cases involving
damages, prevailing plaintiffs will likely retain a personal
interest in spreading costs to absent putative class members,
which Roper described as a “central concept of Rule 23.” 445
U.S. at 338 n.9. In cases like this one, involving review of
agency action denying financial benefits allegedly without
substantial justification, prevailing plaintiffs may retain a
personal interest in appealing the denial of class certification in
order to increase their expected fee award under EAJA, at least
if the additional attorney’s fees would reduce the plaintiffs’
own financial obligations. Indeed, before declining to pursue
in this Court an EAJA-based interest as the basis for appellate
standing, Lewis and Sargent themselves successfully moved
the district court to stay their pending fee motion on the ground
that “the standards for evaluating an award of attorney’s fees
will be different” depending on whether this Court were to
affirm or reverse the denial of class certification. Lewis v. Azar,
No. 18-cv-2929, ECF No. 132, at 2 (D.D.C. July 10, 2023). In
cases where neither of those options appears likely, the named
plaintiffs’ possible difficulty in pursuing a final-judgment
appeal may strengthen their case for discretionary interlocutory
review under Federal Rule of Civil Procedure 23(f). And if all
else fails, putative class counsel may seek to represent absent
class members to intervene post-judgment in order to pursue
the appeal. See McDonald, 432 U.S. at 393–94. For all of these
reasons, we think it unlikely that our decision, applying the
normal standards of Article III standing, will frustrate the
normal operation of Rule 23.
                                 17
                                 III

     Lewis and Sargent have standing to pursue this appeal only
if they show concrete, individual injuries from the district
court’s denial of class certification. Yet they allege only an
abstract interest in serving as class representatives, which is
insufficient to satisfy Article III. We therefore must dismiss
their appeal for lack of jurisdiction.3

                                                        So ordered.




     3
        Lewis and Sargent ask us to reassign their case to a different
district judge. Because we lack jurisdiction over this appeal, we may
not consider that request.