Martha M. QUINTANA, on behalf of herself and all others similarly situated, Plaintiffs-Appellants, v. Patricia Roberts HARRIS, Secretary of the United States Department of Health and Human Services, Defendant-Appellee, 663 F.2d 78

McKAY, Circuit Judge. After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R. App.P. 34(a); Tenth Cir.R. 10(e). The cause is therefore ordered submitted without oral argument. Appellant seeks to compel the Secretary of the United States Department of Health and Human Services to rule on Supplemental Security Income benefit applications within sixty days. Appellant sought class certification, partly to avoid inevitable mootness problems.

The district court dismissed the complaint as moot. We reversed and remanded for a determination of when mootness arose for purposes of the relation back doctrine of Sosna v. Iowa, 419 U.S. 393, 402 n. 11, 95 S.Ct. 553, 559 n. 11, 42 L.Ed.2d 532 (1975), and, if appropriate, for a determination on the merits of plaintiff’s requested class certification. Quintana v. Califano, 623 F.2d 128 (10th Cir. 1979). On remand the district court determined that although plaintiff’s individual claim was moot, “it did not become moot until after a request for class certification.” Quintana v.

Harris, 491 F.Supp. 1044, 1045 (D.N.M.1980). Consequently, because “an action brought on behalf of a class does not become moot upon expiration of the named plaintiff’s substantive claim,” United States Parole Commission v. Geraghty, 445 U.S. 388, 404, 100 S.Ct. 1202, 1212, 63 L.Ed.2d 479 (1980), the district court reached the merits of the class certification. The court found that there existed a potential conflict of interest among members of the proposed class, and that therefore plaintiff did not raise a claim typical of the claims of the proposed class.

The conflict the district court saw was a simple one, that is, that some members of the proposed class might not wish to compel early adjudication because it may affect the quality of the Secretary’s deliberations. Accordingly, the district court denied the class certification and; because of the mootness of plaintiff’s individual claim, dismissed the action. Quintana v. Harris, 88 F.R.D. 132 (D.N.M.1980). Promptly thereafter plaintiff filed a motion pursuant to Fed.R.Civ.P. 59(

e) requesting that the court alter or amend its judgment denying class certification. The substance of plaintiff’s motion was a request that the district court, having denied the certification of the broad class, consider certification of a smaller subclass which would avoid the conflict of interest present in the original class. The district court denied the motion, and plaintiff’s appeal is from the denial of the Rule 59(

e) motion. The district court did not give any reason for denying the Rule 59(

e) motion. In its order in another matter pending before it, however, the district court did make reference to its denial in this case, indicating that its “denial of the motion to allow sub-classes in Quintana was based on considerations of timeliness of the request rather than on the appropriateness of the proposed subclasses.” Maloney v. Califano, 88 F.R.D. 293, 294 (D.N.M.1980).

The only question before us is whether, in cases where the district court’s denial of class certification because of potential conflicts within the class results in the dismissal of the underlying action, the district court must give the losing class proponent a reasonable opportunity, via Rule 59(e), to propose subclasses that he hopes will be certifiable. In United States Parole Commission v.

Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980), the Supreme Court reviewed an appeals court order requiring the district court to consider sua sponte the possibility of certifying subclasses where the district court had properly refused to certify the proposed class and had ruled against the named plaintiff on the merits. In approving the appeals court order, the Court said: We feel that the Court of Appeals’ decision here does not impose undue burdens on the district courts. Respondent had no real opportunity to request certification of subclasses after the class he proposed was rejected.

The District Court denied class certification at the same time it rendered its adverse decision on the merits. Requesting subclass certification at that time would have been a futile act. United States Parole Commission v. Geraghty, 445 U.S. at 408, 100 S.Ct. at 1214 (emphasis added). While the Court held that the trial court had no obligation to construct the subclasses, it approved the remand to permit the class proponent an opportunity to bear the burden of constructing proposed subclasses.

It seems obvious that since the district court in Geraghty was required to subsequently consider subclasses even though no such consideration was requested by the parties, the district court’s denial of plaintiff’s request to consider subclasses in this case is a fortiori an abuse of the discretion enjoyed by the district court under Rule 59(e). See Slater v. KFC Corp., 621 F.2d 932, 939 (8th Cir. 1980).

Appellee argues that the proper time to propose subclasses was when it in a memorandum indicated a concern about conflicts in the class, and not after the district court had denied the proposed class certification. The language of Geraghty is precisely opposite. It mandates a reasonable opportunity to propose subclasses after the rejection of the originally proposed class. Appellee’s notion of timeliness would require class proponents automatically to propose subclasses whenever an opposing party objects to the scope of the originally proposed class.

We believe that Geraghty requires a reasonable opportunity to propose subclasses after denial of class certification where the denial is based on the structuring of the class and where the problems in the broad class might be remedied by forming subclasses. A Rule 59(

e) motion filed promptly after the denial of class certification is an appropriate vehicle for affording a reasonable opportunity to propose subclasses where the denial results in dismissal of the underlying action. The case is therefore reversed and remanded for the district court to consider on the merits the proposed subclasses. . We do not hold that Rule 59(

e) provides the means to circumvent the rule “that orders relating to class certification are not independently appealable under [28 U.S.C.] § 1291 prior to judgment," Coopers & Lybrand v. Livesay, 437 U.S. 463, 470, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978). Our holding is limited to cases where denial of class certification results in the dismissal of the underlying action. In these cases, Rule 59(

e) provides the most efficient conduit through which the subclass proposals sanctioned by Geraghty may pass to the district court. When denial of class certification does not result in dismissal the plaintiff may have other procedural devices allowing him to present subclasses to the district court, but review of the denial must await the district court’s final decision on the merits. See United States Parole Comm’n v. Geraghty, 445 U.S. at 399 — 400, 100 S.Ct. at 1209-1210.