Holly W. BAUMAN Et Al., Petitioners, v. UNITED STATES DISTRICT COURT, Respondent, Union Oil Company, Real Party in Interest

HUFSTEDLER, Circuit Judge,

specially concurring:

On the sole ground that petitioners have an alternative remedy to their petition for an extraordinary writ by way of an interlocutory appeal, I concur in the majority’s conclusion that mandamus is inappropriate. I cannot join in the rationale of the majority opinion because, in my view, it rests upon a mischaracterization of the order which is before us.

The majority construes Judge Conti’s notice order as if it provided that class members who do not respond to the notice will not be excluded from the class and that nonresponses will not be used to decide that Fed.R.Civ.P. 23(a)(l)’s numerosity requirement has not been met. The language of the order itself, together with Judge Conti’s own explanation of his order, forbids that generous construction. Silence, or nonresponse, by members of the class means exclusion from the class. The order states, inter alia, that “. . . notice should include a provision that the member can opt out, if they so desire to opt out. If they want to stay in, then they should give a short statement of what the discrimination against them has been.” Judge Conti admits to this interpretation of his order in his own explanation of the order:

“. . . Any class member here who feels that there was even the remotest incident of sex discrimination against her by the company will simply opt in, and her claim will be litigated in this action.” (Exhibit “D”, at p. 6.)

“. . That order ... directed that such individual notice contain the following provisions ... (2) that if the class member so notified desires to remain in the class, she submit a short statement of the nature of the sex discrimination charge she believes she has against this defendant.” (Id. at p. 2.)

The unmistakable purport of Judge Con-ti’s order is to require members of the class to opt in, and the employee who does not opt in is excluded from the class as if she had affirmatively opted out of the class action. The majority also incorrectly concludes that “[njonresponses [to the notice provisions] will not be used to determine that the numerosity requirement has not been met.” But Judge Conti did not limit the use to which he intends to put the data received from the notice. Both “nonresponses” and responses will be used to determine “(a) the approximate size of the class, so that a decision regarding numerosity could be made” and “to elicit information on which this court could decide with greater certainty whether the requirements of Rule 23(a), concededly requisite to class certification, were met here.” (Exhibit “D”, at p. 4.)

The district court’s motivating purpose for ordering opt in notice is transparent: It is patently to destroy this class action, a result that cannot be squared with Rule 23 as drafted and as consistently interpreted in Title VII suits. 1

*663 If I were not convinced that an alternative remedy lies to review Judge Conti’s order, I would conclude that mandamus would be appropriate. At best, the line between those cases in which mandamus is appropriate and those in which it is not, is fuzzy. But, to borrow a phrase from the majority, where, as here, a petition stimulates more than the reviewing tribunal’s sympathy “with the purposes of the petitioners’ underlying actions,” mandamus is in order “where a district judge [has] displayed a persistent disregard of the Rules of Civil Procedure promulgated by this Court . . . .” (Will v. United States (1967) 389 U.S. 90, 96 , 88 S.Ct. 269, 274 , 19 L.Ed.2d 305 (citing LaBuy v. Howes Leather Co., Inc. (1957) 352 U.S. 249 , 77 S.Ct. 309 , 1 L.Ed.2d 290 ).)

The present suit is not the first instance of Judge Conti’s use of unacceptable readings of Fed.R.Civ.P. 23 to condemn Title VII actions to premature deaths. (See Gay v. Waiters’ and Dairy Lunchmen’s Union, supra; Roberts v. Golden Gate Disposal Co., (9th Cir. March 11, 1977). (Unpublished opinion No. 75-3114, cited not for the legal authority of the opinion, but for law of this particular district court’s record.).) Judge Conti has consistently ignored Congress’ admonishment in drafting Title VII that Rule 23 should not be restrictively interpreted to discourage the use of class actions to remedy employment discrimination. (See 118 Cong.Rec. 4942 (1972) (“In establishing the enforcement provisions under this subsection . . . it is not intended that any of the provisions contained therein are designed to affect the present use of class action lawsuits under Title VII in conjunction with Rule 23. The courts have been particularly cognizant of the fact that claims under Title VII involve the vindication of a major public interest, and that any action under the Act involves considerations beyond those raised by the individual claimant. As a consequence, the leading cases in this area to date have recognized that Title VII claims are necessarily class action complaints . . . .”) (remarks of Senator Williams). See also Gay v. Waiters’ and Dairy Lunchmen’s Union, supra at p. 1333, in which we noted that Congress specifically rejected an amendment to the Equal Employment Opportunity Act of 1972 that would have prohibited class actions in suits seeking back pay. (“ ‘. Title VII actions are by their nature class complaints and that any restrictions on such actions would greatly undermine the effectiveness of Title VII.’ ” Quoting from S.Rep.No.92-415, 92nd Cong., 1st Sess., p. 27 (1971)).) As we observed in Gay.

“in determining whether an action alleging discriminatory employment practices shall be allowed to proceed as a class action, a trial court must consider the broad, remedial purposes of Title VII and must liberally interpret and apply Rule 23 so as not to undermine the purpose and effectiveness of Title VII in eradicating class-based discrimination.” (549 F.2d at p. 1334.)

Because I am confident that petitioners have a remedy by way of an interlocutory appeal, I do not insist upon the issuance of

*664 mandamus. (See Arthur Young & Co. v. United States District Court (9th Cir. 1977) 549 F.2d 686, 691-92 .) Although I recognize that generally an order certifying a class action is a non-appealable interlocutory order (see Blackie v. Barrack (9th Cir. 1975) 524 F.2d 891 ; Arthur Young & Co., supra at p. 697), the present case falls within the purview of Price v. Lucky Stores, Inc. (9th Cir. 1974) 501 F.2d 1177 . In Price, we permitted plaintiffs to appeal from an interlocutory order, which order had the “effect . . . [of] a ‘denial of the broad injunctive relief’ . . . [sought by] the plaintiff ... on behalf of the class.” (Id. at 1179. See also Waters v. Heublein, Inc. (9th Cir. 1976) 547 F.2d 466 , cert. petition filed (April 18, 1977) 45 U.S.L.W. 3708 ; Inmates of San Diego County Jail in Cell Block 3B v. Duffy (9th Cir. 1975) 528 F.2d 954 .) Here as in Price, the district court’s order constitutes an effective denial of certification; and because that denial affects the scope of the injunctive relief sought, the order is appealable under Section 1292(a)(1) (1966). In Gay v. Waiters’ and Dairy Lunchmen’s Union, supra, we also applied the reasoning of Price v. Lucky Stores, Inc., supra, to entertain an appeal from a Title VII emasculating order issued by Judge Conti which denied class certification in a Title VII suit.

Accordingly, because Price supplies petitioners with an alternative remedy, I join in the majority’s conclusion that mandamus should not issue in this case.

. See Gay v. Waiters’ and Dairy Lunchmen’s Union (9th Cir. 1977) 549 F.2d 1330, 1333 (“[W]e believe that a trial court’s discretion to determine whether a Title VII action shall proceed as a class action is limited by the Congressional purpose expressed in the Act. Employment discrimination based on sex is by definition class discrimination. . Since the purpose of Title VII is to eliminate such class based discrimination, class actions are favored in Title VII actions for salutary policy reasons. Other circuits have considered the issue of class litigation of Title VII claims and have reached the conclusions that class actions are consistent with the broad remedial purpose of Title VII.” (footnote omitted).); Wetzel v. Liberty Mutual Ins. Co. (3d Cir. 1975) 508 F.2d 239, 254 (“Suits brought by private employees are the cutting edge of the Title VII sword which Congress has fashioned *663 to fight a major enemy to continuing progress . . . in our nation, discrimination in employment. . . . Class actions . . . are powerful stimuli to enforce Title VII. The imposition of notice and the ensuing costs often discourage such suits. . . . Therefore, we are reluctant to impose notice requirements . . . for Title VII(b)(2) actions unless Rule 23 so requires or unfairness will result to the parties.”); Manual for Complex Litigation, 1 (Pt. 2) Moore’s Federal Practice § 1.45, p. 47 (1976) (“. . . The requirement of ‘opting-in’ must, therefore, under Rule 23 aS it is presently written, be regarded as a clear abuse of discretion.”); Miller, Problems of Giving Notice in Class Actions (1973) 58 F.R.D. 313 , 325; 118 Cong.Rec. 4942 (1972) (remarks of Sen. Williams); Note, The Rule 23(b)(3) Class Action: An Empirical Study (1974) 62 Geo.L.J. 1123, 1149-50 (“. . . The opt in procedure was viewed as unfair in requiring uneducated . . or fearful class members to take affirmative action at an early stage in the litigation . . . . This partial solution would not solve another problem associated with an opt in device, described by an attorney who successfully prosecuted a Title VII action. He pointed out that whenever a class is composed of employees, members are reluctant to take affirmative action early in the suit for fear of reprisals by the employer.” (footnotes omitted).)