Nolvert P. SCOTT, Jr., Appellant, Etc. v. the UNIVERSITY OF DELAWARE Et Al.

ADAMS, Circuit Judge,

concurring.

Although I concur in the judgment of the Court, I write separately for two reasons. First, I believe my views on the necessity of filing a cross-appeal differ from those set *90 forth in the majority opinion. Second, I consider it important to underscore what I understand to be the limited scope of our holding regarding class certification.

I. NECESSITY OF FILING A CROSS-APPEAL

The appellate process is triggered by the relatively simple, yet mandatory mechanism of the filing of a notice of appeal which designates the judgment, order, or part thereof, that the appellant seeks to have overturned. The appellee, of course, need not subsequently cross-appeal in order to defend the judgment in his favor. In fact, as Justice Cardozo noted, it is an “inveterate and certain” rule that an appellee may, without filing a cross-appeal, “ ‘urge in support of a decree any matter appearing in the record although his argument may involve an attack upon the reasoning of the lower court or an insistence upon matter overlooked or ignored by it.’ ” 1 Apart from a number of practical considerations, 2 this rule reflects “the notion that a person who is satisfied with the action of a court should not have to appeal from it, no matter what his adversary does.” 3 Furthermore, as commentators have observed, a contrary practice could ofttime present “the paradoxical situation of requiring a cross-appeal under circumstances which would seem not to permit a direct appeal.” 4

The rationale underlying the general rule also provides a basis for assessing when a cross-appeal is necessary. Thus, for example, and of relevance here, “what [an appel-lee] may not do in the absence of a cross-appeal is to ‘attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary, whether what he seeks is to correct an error or to supplement the decree with respect to a matter not dealt with below.’ ” 5

In the present case, brought by “Nolvert P. Scott, Jr., individually and on behalf of all other persons similarly situated,” final judgment was “entered for the defendants and against the plaintiff.” 6 Although the University had opposed certification of the class, it was required to litigate both the individual and the class claims in an extended trial, at which it ultimately prevailed. The University of course, was pleased with this result, and had no occasion at the time the district court judgment was entered to seek appellate review of the prior interlocutory order that had certified the class, particularly since such review might jeopardize the res judicata effect of its hard-fought victory. When Scott filed an appeal, however, the University, as one of several possible grounds for preserving the judgment in its favor, tendered the argument that the class had been improperly certified. Desiring to protect the class certification from appellate scrutiny while he pressed his challenge to the district court’s disposition of the class claims, Scott contended that review of the propriety of the certification of the class was precluded because the University had neglected to file a cross-appeal challenging the class certification.

The majority concludes that the class certification may be reviewed on appeal. Although it recognizes that in challenging the *91 class certification the University does not seek to enlarge its own rights or lessen those of its adversary, 7 however, its opinion appears not to regard this challenge as qualifying under the general rule that an appellee need not cross-appeal in order to advance an argument that had been rejected or ignored by the trial court but that supports the judgment in its favor. Instead, and quite importantly, the opinion assumes that ordinarily a court will decline to consider a class certification issue not raised by cross-appeal, and proceeds to assert that this “rule of practice” ought to be overlooked in the present case because otherwise the Court “would be abdicating [its] responsibility to absent class members.” 8 Somewhat troublesome, at least to me, is the suggestion by the majority that the result here comes about as a departure from the general rule. It is true, as a technical matter, that in raising the class certification issue the appellee may be seen as requesting not an affirmance on the merits but rather that the judgment of the trial court be vacated and the cause remanded with directions that the class action claim be dismissed. That should be of no consequence to the rule governing cross-appeals, however. 9 For, as already indicated above, it is evident that a prevailing party, such as the University here, is satisfied with the judgment and does not seek to have it modified to increase its rights or to lessen those of its adversary. In fact, it would prefer not to have the judgment disturbed at all, and merely raises the class certification issue to protect itself in the event that the favorable ruling it secured on the merits is overturned. 10 Inasmuch as the purpose for filing a notice of appeal or notice of a cross-appeal is to invoke appellate jurisdiction to review a judgment and to have the adversary notified that the judgment is being challenged, 11 I see no reason to require the appellee to file a cross-appeal in order to preserve a backup ground for protecting a judgment that has been rendered in its favor, when an appeal has already been filed from that judgment.

Moreover, it seems to be unfair to require that a cross-appeal be filed in order to secure review of the class certification decision, notwithstanding the fact that an appeal has been taken from the final judgment. Such a requirement would create a trap for the unsophisticated and unwary *92 attorney, who was assured that the class certification order would be reviewed if and when an appeal is filed from the final judgment, rather than immediately, as he undoubtedly would have preferred. 12 Such an appellee is likely to neglect to file a cross-appeal because he is satisfied with the ultimate outcome of the trial.

Finally, the course apparently charted by the majority would seem to be unwise, for it introduces a new element of uncertainty into a relatively settled area of the law. 13 It would force an appellee to file a cross-appeal whenever any doubt exists as to whether a court of appeals will consider arguments supporting the judgment in his favor, and, more significantly, would punish him for failing to do so. In addition, this approach may be criticized for widening the power of the judiciary to engage in unprincipled decisionmaking. This is so because it would expand the reach of a “rule of practice” requiring cross-appeals and then would selectively waive its application when any particular panel deems it to be in the interest of justice.

II. CLASS CERTIFICATION

Turning to the class certification issue presented in this case, I am in basic agreement with the majority opinion on this subject, but consider it important to add two caveats.

First, it should be emphasized that we do not hold that the trial court committed reversible error when it certified the class at the outset of the litigation. Rule 23(c) directs the trial judge to determine “[a]s soon as practicable after the commencement of an action” whether it is to be maintained as a class action, but also permits the judge to modify his order before the decision on the merits. In keeping with that provision, the trial court ruled at a relatively early stage of the lawsuit that the allegations set forth in Scott’s complaint may warrant class action treatment. The judge was cognizant of the possibility that Scott might ultimately fail to satisfy the numerosity or adequate representation requirements. However, he ascertained that the appropriate course was to certify the class, subject to reexamination if subsequently developed facts cast doubt on the propriety of that ruling. 14 This initial decision was, in my view, neither erroneous as a matter of law nor an abuse of discretion. 15 Rather, as the majority makes clear, the facts that emerged in the course of the trial demonstrated that the numerosity and adequate representation prerequisites were not satisfied, and accordingly, it was appropriate that the class be decertified when that situation became apparent.

Second, as I understand the majority opinion, it is not intended to represent a *93 constriction upon the availability of the class action device in suits charging “across the board” discriminatory employment practices. True, the Supreme Court admonished in East Texas Motor Freight, Inc. v. Rodriguez, 431 U.S. 395, 403 , 97 S.Ct. 1891, 1898 , 52 L.Ed.2d 153 (1977), that even though “suits alleging racial or ethnic discrimination are often by their very nature class suits, involving classwide wrongs[,] . careful attention to the requirements of Fed.Rule Civ.Proc. 23 remains nonetheless indispensable.” But, like any indefinite standards, the Rule 23(a) prerequisites are themselves capable of being applied more strictly as well as less strictly. And, out of an emerging awareness that the class action device is expected to facilitate the realization of substantive objectives, courts have been molding class action practice so as best to effectuate the policies underlying the various causes of action. 16 Perhaps nowhere has this interrelationship between procedure and substance been more visible than in the context of class action suits challenging racial discrimination in employment, 17 a development that was foreseen by the drafters of the 1966 amendments to the Rule, 18 and is reflected in opinions of this Court. 19 As the majority observes in footnote 19 of its opinion, we fail to detect a disapprobation of this approach in East Texas Motor Freight. Nor, for that matter, do I regard the present decision as heralding a retrenchment by this Court in class action practice.

The determination that, under the circumstances here, Scott may not represent a class consisting of persons harmed by the University’s allegedly discriminatory hiring practices, is not, as I see it, grounded on a restrictive notion of class representation. We do not hold that the class representative must stand in an identical position vis-á-vis his employer as the other class members, or that in general a person allegedly discriminated against with respect to promotion may not represent a class including individuals who were aggrieved by the employer’s hiring practices. Indeed, in Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239 (3d Cir. 1975), cert. denied, 421 U.S. 1011 , 95 S.Ct. 2415 , 44 L.Ed.2d 679 (1976), this Court held that a former employee, who was not entitled to reinstatement, may nonetheless attack allegedly discriminatory employment practices on behalf of a class of past and present employees. And in that case we permitted both hiring and promotion practices to be challenged by the same representatives. Here, however, we are motivated by a conviction that those persons who may have been discriminated against by the University’s hiring practices, which make the possession of a Ph.D. degree or its equivalent a precondition to faculty employment, cannot be adequately represented by a person who was hired because he already possessed that degree and who, quite probably, is interested in preserving the benefits to which that degree entitles him. To quote the majority opinion, “[n]o mere divergence of interests is presented,” but “a clear conflict of interests between Scott, the named representative, and the unnamed members of the applicant subclass.” 20

*94 Similarly, the conclusion that Scott may not represent a class consisting of faculty members who allegedly were discriminated against by the University’s contract renewal, promotion and tenure practices is not, as I read it, meant to introduce a rigid rule regarding the numerosity prerequisite of Rule 23(a). The relevant question under Rule 23(a)(1) is whether “the class is so numerous that joinder of all members is impracticable,” an inquiry that obviously is not susceptible to absolute quantification. Moreover, as has been noted above, “suits alleging racial or ethnic discrimination are often by their very nature class suits, involving classwide wrongs,” 21 and it may generally be presumed that institutionalized discriminatory employment practices have prejudiced others besides the named plaintiff. But even though an individual plaintiff who establishes a classwide wrong may be entitled to injunctive relief dismantling the discriminatory practice and thereby benefiting similarly situated individuals as well, that in itself does not mean that the numerosity requirement of Rule 23(a) has been satisfied. This is so because a court must consider whether the alternative to a class action — joinder of the other allegedly aggrieved parties — is not impracticable, before it risks binding those parties without giving them the opportunity to litigate their individual claims. Here, Scott failed to demonstrate that joinder of the other present and past black faculty members, less than a score in number at the very most, is not the more sensible approach to organizing the lawsuit. In fact, Scott made no showing that any present or former faculty member other than himself has been discriminated against. As the majority notes, under these circumstances it would be improper to bootstrap an individual complaint into a class action by hypothesizing a class of aggrieved individuals on the basis of speculative future members, in view of the fact that the interests of individual class members may be prejudiced by such action.

“Across the board” class challenges to discriminatory practices have been recognized as enhancing the enforcement of Title VII and other antidiscrimination statutes, but their use must be carefully supervised by the courts. 22 The measured.and prescient observations of Judge Godbold of the Fifth Circuit, who specially concurred in the seminal “across the board” class action decision, best capsulize the considerations that have come to the fore in this case:

Over-technical limitation of classes by the district courts will drain the life out of Title VII, as will unduly narrow scope of relief once discriminatory acts are found. But without reasonable specificity the court cannot define the class, cannot determine whether the representation is adequate, and the employer does not know how to defend. And, what may be most significant, an over-broad framing of the class may be so unfair to the absent members as to approach, if not amount to, deprivation of due process. Envision the hypothetical attorney with a single client, filing a class action to halt all racial discrimination in all the numerous plants and facilities of one of America’s mammoth corporations. One act, or a few acts, at one or a few places, can be charged to be part of a practice or policy quickening an injunction against all racial discrimination by the employer at all places. It is tidy, convenient for the courts fearing a flood of title VII cases, and dandy for the employees if their champion wins. But what of the catastrophic consequences if the plaintiff loses and carries the class down with him, or *95 proves only such limited facts that no practice or policy can be found, leaving him afloat but sinking the class? 23

. Morley Construction Co. v. Maryland Casualty Co., 300 U.S. 185, 191 , 57 S.Ct. 325, 327, 328 , 81 L.Ed. 593 (1937) (quoting United States v. American Ry. Express Co., 265 U.S. 425, 435 , 44 S.Ct. 560 , 68 L.Ed. 1087 (1924)). See also Dandridge v. Williams, 397 U.S. 471 , 475-76 n.6, 90 S.Ct. 1153 , 25 L.Ed.2d 491 (1970).

. For instance, because the substantive questions which the appellant plans to raise generally are not included in the notice of appeal, the appellee will often be unable to determine whether a cross-appeal is necessary to preserve an argument that he intends to make on his own behalf. See generally Stern, When to Cross-Appeal or Cross-Petition — Certainty or Confusion?, 87 Harv.L.Rev. 763, 765-67 (1974).

. Id. at 765.

. Id. (quoting Note, Cross-appeals in Maine Pitfalls for the Winning Litigant, 25 Maine L.Rev. 105, 113-14 (1973)).

. Morley Construction Co. v. Maryland Casualty Co., 300 U.S. 185, 191 , 57 S.Ct. 325 (quoting United States v. American Ry. Express Co., 265 U.S. 425, 435 , 44 S.Ct. 560 ).

. Final Judgment, August 16, 1978. App. at 161a.

. Supra, at 82-83 n.12.

. Id. at 83.

. Contra, Joseph v. Norman’s Health Club, Inc., 532 F.2d 86 , 88 n.2 (8 Cir. 1976) (no analysis provided). The Supreme Court recently appears to have been applying a more restrictive rule, under which it has refused to address arguments that would necessitate changing more of the judgment than is brought into issue by the initial appeal. See Strunk v. United States, 412 U.S. 434, 437 , 93 S.Ct. 2260 , 37 L.Ed.2d 56 (1973); NLRB v. International Van Lines, 409 U.S. 48 , 52 & n.4, 93 S.Ct. 74 , 34 L.Ed.2d 201 (1972). See also Mills v. Electric Auto-Lite Co., 396 U.S. 375 , 381 n.4, 90 S.Ct. 616 , 24 L.Ed.2d 593 (1970). Under such an approach, a cross-appeal would be required for review of a class certification ruling. These recent cases, however, may be explained by the different considerations that bear upon the Supreme Court’s review process and that limit it to questions of national importance on which certiorari has been granted. See Stem, supra note 2, at 777-79.

. Compare County of Los Angeles v. Davis, - U.S. -, 99 S.Ct. 1379 , 1382 n.3, 59 L.Ed.2d 642 (1979) (respondents contend that their failure to include past applicants in the class was a “mere oversight;” however, the Supreme Court will not modify judgment to correct this fatal error since no cross-petition was filed).

. Contrary to the majority, I do not believe that a purpose of the cross-appeal requirement is “a sharp framing of the issues on appeal,” supra, at 83 n.l3a. The practice governing cross-appeals is controlled by the rules pertaining to appeals; under Fed.R.App.P. 3(c), a notice of appeal need designate only “the judgment, order or part thereof appealed from.” A sample of such a notice is provided in Form 1 of the Appendix to the Rules, and leaves no doubt that the appellant or cross-appellant need not identify the points he intends to argue. That function, as well as a sharp framing of the issues, is properly accomplished by the various briefs. See generally Stem, supra note 2, at 756-66. The briefs on this appeal make it abundantly clear that the University squarely took issue with the class certification ruling, and that the plaintiffs had ample opportunity to respond in their reply brief.

. It should be recalled that not too long ago virtually all routine avenues for obtaining immediate appellate review of an order certifying a class were foreclosed, thereby deferring review of class action rulings until after a final judgment is entered. See Coopers & Lybrand v. Livesay, 437 U.S. 463 , 98 S.Ct. 2454 , 57 L.Ed.2d 351 (1978); Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478 , 98 S.Ct. 2451 , 57 L.Ed.2d 364 (1978). Implicit in that development, at least to me, is the understanding that the entire record, including all interlocutory rulings (be they related to discovery, the introduction of evidence, or the certification of the class), will be open to scrutiny if and when an appeal is taken at the end of the case.

. While the majority’s reference to Rhoads v. Ford Motor Co., 514 F.2d 931 (3d Cir. 1975), might be construed as suggesting that this Court has struck a different course from the traditional rule controlling cross-appeals, 1 do not regard the parenthetical remark in that case that “better practice would have dictated that Rhoads file a protective cross-appeal,” id. at 934 , as intending such a departure, particularly since the Court was not focusing on that issue.

. Scott v. University of Delaware, 68 F.R.D. 606 (D.Del.1975).

. The practice has been for courts to construe the requirements of Rule 23 liberally, particularly when the determination of the propriety of the class action is being made at an early stage of the proceedings, and to modify the order as necessary to comport with subsequently developed facts. Gerstle v. Continental Airlines, Inc., 50 F.R.D. 213 (D.Colo.1970). See Green v. Wolf Corp., 406 F.2d 291 , 298 & n.10 (2d Cir. 1968); Cusick v. N. V. Nederlandsche Combinatie Voor Chemische Industrie, 317 F.Supp. 1022, 1026 (E.D.Pa.1970); 7A C. Wright & A. Miller, Federal Practice and Procedure § 1785 at 138 (1972).

. See generally Developments — Class Actions, 89 Harv.L.Rev. 1318, 1359-66 (1976).

. See generally 7 C. Wright & A. Miller, Federal Practice and Procedure § 1771 (1972); Note, Antidiscrimination Class Actions Under the Federal Rules of Civil Procedure: The Transformation of Rule 23(b)(2), 88 Yale L.J. 868 (1979).

. See Advisory Committee Note to the 1966 Amendment to Rule 23, reprinted in 39 F.R.D. 98 , 102. The utility of the class action device as a vehicle for the bringing of suits alleging racial discrimination in employment was also anticipated by Congress. In spearheading Congress’s rejection of the House version of Title VII, which would have prohibited formal Title VII class action suits, the Senate Committee stated that it agreed “with the courts that title VII actions are by their very nature class complains [sic], and that any restriction on such actions would greatly undermine the effectiveness of title VII.” S.Rep.No. 415, 92d Cong., 1st Sess. 27 (1971).

. See, e. g., Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239, 250-51, 254-55 (3d Cir. 1975), cert. denied, 421 U.S. 1011 , 95 S.Ct. 2415 , 44 L.Ed.2d 679 (1976).

. Supra, at 86.

. East Texas Motor Freight, Inc. v. Rodriguez, 431 U.S. at 403 , 97 S.Ct. at 1896 . See also Wetzel v. Liberty Mutual Ins. Co., 508 F.2d at 250 .

. Judicial solicitude for absent class members, through ensuring that all the requirements for bringing a class action are fulfilled, is especially important in the context of a Rule 23(b)(2) type action such as the present one. Inasmuch as absent class members need not be notified regarding the pendency of the suit, see Wetzel v. Liberty Mutual Ins. Co., 508 F.2d at 254-57 , they may be unaware that their claims are being decided and consequently may be unable to protect their own interests.

. Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1126 (5th Cir. 1969).