Appendix — Satterwhite v. City of Greenville

Seprame Court, U.S

FILED |

YVAN 22 1979

K, JR., CLERK

IN THE

Supreme Court of the United Dtates

OCTOBER TERM, 1978

78-1008

NO. 78-______

MINDA SATTERWHITE, ET AL.,

Petitioners

V.

CITY OF GREENVILLE, TEXAS,

Respondent

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

LARRY R. DAVES

P. O. Box 1115

Tyler, Texas 75710

Attorney for Petitioners

Alpha Law Briej Co., One Main Plaza, No. 1 Main St., Houston, Texas 77002

INDEX

Appendix A (Opinion of U. S. District Court,

N.D. Texas, dated June 18, 1975) ........

Appendix B (Opinion of U. S. Court of Ap-

peals, dated March 24, 1977) ............

Appendix C (Opinion of U. S. Court of Ap-

peals, Fifth Circuit, dated November 1, 1977)

Appendix D (Opinion of U. S. Court of Ap-

peals, Fifth Circuit, dated August 23, 1978)

Page

12

38

APPENDIX A

MINDA SATTERWHITE,

on behalf of herself and others similarly situated

v.

CITY OF GREENVILLE, TEXAS.

NO. CA 3-74-767-C.

UNITED STATES DISTRICT COURT,

N.D. Texas,

Dallas Division.

June 18, 1975.

Female applicant who was not hired as the manager

of municipal airport filed sex discrimination suit under

title VII of the Civil Rights Act of 1964. The District

Court, William M. Taylor, Jr., Chief Judge, held that

the city, in refusing to hire plaintiff, whose husband was

both a prime user and tenant of the airport, so as to

avoid violating a provision of its charter relating to con-

flicts of interest committed no sex discrimination pro-

scribed by Title VII.

Judgment for defendant.

Larry R. Daves, Tyler, Tex., for plaintiff.

John Andrew Martin, Carrington, Coleman, Sloman,

Johnson & Blumenthal, Dallas, Tex., for defendant.

2

OPINION

WILLIAM M. TAYLOR, Jr., Chief Judge.

[1] This case presents the perplexing issue of whether

a municipal employer who refuses to hire a female ap-

plicant as its airport manager to avoid violating a pro-

vision of its city charter relating to conflict of interests

has committed sexual discrimination proscribed by Title

VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. § 2000e et seq. In the context of the facts of

this case, this issue must be answered in the negative.

I. Facts

In October 1972, Minda Satterwhite, plaintiff herein,

applied to the City of Greenville, Texas, defendant

herein, for hire as the defendant’s muncipal airport man-

ager. Both prior and subsequent to this application, the

plaintiff's husband was a prime user’ of this airport

facility. During the plaintiff's interview, the defendant’s

Community Developments Manager confronted Ms. Sat-

terwhite with the potential conflict of interest posed by a

wife supervising the operation of a municipal facility of

which her husband was both a prime user and tenant.

The day following this interview, the Community De-

velopments Manager informed Ms. Satterwhite that her

application had been rejected because of her conflict of

interest” and a male applicant had been: retained in the

airport manager position.

1. Mr. John Satterwhite was the owner of a flight training schoo!

and aircraft charter and rental service, which had its operations

based at the Greenville Municipal Airport,

2. Sec. 134. Personal interest.

No member of the council or any officer or employee of the city

shall have a financial interest direct or indirect or by reason of

3

Contrary to the plaintiff's allegations, evidence ad-

duced during the trial of this cause established this male-

hiree to be at least as well qualified for the contested

position as was Ms. Satterwhite.

On October 30, 1972, the plaintiff filed a charge of

discrimination against the defendant with the Equal Em-

ployment Opportunity Commission (E.E.O.C.). The

E.E.O.C. entered a determination concluding that there

was not reasonable cause to believe that Title VJI had

been violated in the manner alleged by the plaintiff. Ms.

Satterwhite was issued a Notice of Right to Sue, where-

upon she instituted the instant lawsuit alleging Sex

discrimination. The plaintiff sought to prosecute this

action on behalf of both herself individually and a

class of present and prospective female employees of the

City of Greenville. Fed. R. Civ. P. 23(b)(2).

II. The Individual Claim

The Supreme Court clarified the proper order and

allocation of proof governing the disposition of a Title

VII action challenging employment discrimination in

ownership of stock in any corporation, in any contract with the

city, or be financially interested directly or indirectly in the sale

to the city of any land, materials, supplies, or services except on

behalf of the city as an officer or employee; provided, however,

that the provisions of this section shall only be applicable when

the stock owned by the officer or employee exceeds one per cent

(1%) of the total capital stock of the corporation. Any wilful

violation of this section shall constitute malfeasance in office and

any officer or employee guilty thereof shall thereby forfeit the

office or position. Any violation of this section with the knowledge

express or implied of the person or corporation contracting with the

governing body of the city shall render the contract voidable by

the city manager or council.

Greenville, Tex., Code § 134 (19____).

4

McDonnell Douglas Corp. v. Green, 411 US. 792, 93

S.Ct. 1817, 36 L.Ed.2d 668 (1973).

[2, 3] According to McDonnell Douglas, it is incum-

bent upon a Title VII complainant to carry the initial

burden of establishing a prima facie case of discrimina-

tion. The Supreme Court prescribed four elements which

are necessary to present a prima facie case. The plaintiff

must show (I) that she belongs to a minority; (II) that

She applied and was qualified for the job of airport mana-

ger for which the defendant was seeking applicants;

(III) that, despite her qualifications, she was rejected,

and (IV) that, after her rejection, the position remained

open and the defendant-employer continued to seek ap-

plicants from persons of the plaintiff's qualifications.

[4] When confronted with such a prima facie case

of employment discrimination, the burden then shifts to

the employer to establish some legitimate non-discrimina-

tory reason for the refusal to hire. Such a reasonable

basis for rejection suffices to rebut the prima facie case.

[5] When her prima facie case is rebutted, the plain-

tiff must be accorded an opportunity to demonstrate

by competent evidence that the presumptively valid rea-

sons for her rejection were in fact a “pretext” or a

“coverup” for a racially discriminatory decision.

[6] Applying the McDonnell Douglas standard to the

facts of the instant case, the court has a grave reservation

as to whether Ms. Satterwhite has even presented a prima

facie case. A prima facie case requires that after the

plaintiff's rejection, the position continue to remain open

and that the defendant continue to review applicants of

the plaintiff's qualifications. Here, one day after Ms.

5

Satterwhite’s interview, her application was rejected and

a qualified male applicant, whose interview preceded the

plaintiff's, was hired. While the court appreciates that

these prima facie elements are not inflexible requirements

to be applied in every case regardless of its facts,* they

nonetheless provide persuasive guidelines for ascertain-

ing whether a Title VII complainant has satisfied his

initial burden of proof.

Even if Ms. Satterwhite had presented a prima facie

case, she has failed to prove that the defendant’s reason

for refusing to hire her was a “pretext” or “coverup” for

an unlawful employment decision. The defendant con-

tended that Ms. Satterwhite’s application was rejected

because her employment would have been counter to

the City’s codified policy against hiring personnel whose

personal interests may conflict with their duties on behalf

of the City. Towards showing this reason to be a “pre-

text” the plaintiff proffered statistical evidence in the

form of the defendant’s employment rolls. This exhibit

was claimed to establish a general policy on behalf of

the City of hiring female employees primarily in clerical

or lower echelon administrative positions. This stastical

showing is unpersuasive when measured against the

City’s compelling reason for not hiring the plaintiff.

The plaintiff could have better served her case by

presenting evidence, if any existed, of male employees

who were hired by the defendant despite their having

“conflicts of interest” similar to Ms. Satterwhite’s.

Ms. Satterwhite’s employment application presented a

dilemma to the City. It could elect either to reject her

application as conflicting with its city charter and expose

3. See 411 US. at 802, N. 13, 93 S.Ct. 1817.

6

itself to a potential charge of sex discrimination, or it

could hire her and face the ramifications of violating its

own published policy. It is the court’s conclusion that the

defendant acted upon Ms. Satterwhite’s bid for employ-

ment in exactly the same manner it would have acted

upon any other application, regardless of whether it be

from a male or female. The defei:dant’s rejection of the

plaintiffs employment application was not discrimina-

torily motivated.

II. The Class Action

In her complaint, the plaintiff sought to represent a

class comprised of present and prospective female em-

ployees, who the plaintiff alleged to be victims of the

defendant’s (1) discriminatory hiring policy, (2) sexually

Segregated job classifications and departments, and (3)

discriminatory compensation scheme.

At the pretrial of this case, it appeared the plaintiff's

claim was of questionable merit since the main question

had to do with whether or not employment of plaintiff

as airport manager would create a conflict of interest.

This court is fully aware of the Fifth Court’s admonition

in Huff v. N. D. Cass Company of Alabama, 485 F.2d

710 (Sth Cir. 1973), that the standard for determining —

whether a plaintiff may maintain a class action is not

whether that plaintiff will ultimately prevail on the in-

dividual claim. There remained the question as to

whether or not the questions of law or fact were common

to the class and whether or not plaintiff's claim was

typical of the claims or defenses of the class, as well as

whether or not plaintiff would fairly and adequately

protect the interests of the class. In this case also was

the questior 1s to whether or not the City had acted or

7

refused to act insofar as plaintiff was concerned on

grounds generally applicable to the class. While the

class action rule has value, unrestricted use can produce

abuses. The defendant City in this case could well have

been exposed to needless substantial expense.

[7] The Court has refused to permit this case to proceed

as a Class action mainly upon the ground that plaintiff has

failed to establish a “nexus” because the conflict of inter-

est issue unique to this case vitiates both the commonality

of law and fact questions and the typicality of the claims

and defenses. Fed. R. Civ. P. 23(a)(2) and 23(a)(3).

Wells v. Ramsay, Scarlett and Company, Inc., et al, 506

F.2d 436 (Sth Cir. 1975).

What the Supreme Court of the United States said in

Blue Chip Stamps, et al, v. Manor Drug Stores, US.

—___., 95 S.Ct. 1917, 44 L.Ed.2d 539 on June 9, 1975,

in regard to “strike” or nuisance actions, abuse of liberal

discovery provisions of the federal rules, “representing an

in terrorem increment of the settlement value” is par-

ticularly pertinent in this case as well as in many actions

where the plaintiff seeks to represent a class.

Defendant’s attorney is requested to prepare and sub-

mit appropriate order.

8

APPENDIX B

MINDA SATTERWHITE,

on behalf of herself and others similarly situated

Plaintiffs-Appellants,

?

V.

CITY OF GREENVILLE, TEXAS,

Defendant-Appellee.

No. 75-3377.

UNITED STATES COURT OF APPEALS,

Fifth Circuit.

March 24, 1977.

Female applicant who was not hired as manager of

municipal airport filed a suit charging sex discrimination

individually and on behalf of class of present and pros-

pective female employees of city. The United States

District Court for the Northern District of Texas, at

Dallas, William M. Taylor, Jr., Chief Judge, 395 F.Supp.

698, entered judgment holding that city in refusing to

hire plaintiff because of conflict of interest committed no

sex discrimination and that she could not proceed with a

class action, and the plaintiff appealed. The Court of

Appeals, Godbold, Circuit Judge, held that the proper

holding that the denial of airport job to plaintiff because

of conflict of interest which may have been unique was

not sex discrimination did not cause the position or

plaintiff's claim to be atypical and preclude her from

maintenance of class action.

9

Larry R. Daves, Tyler, Tex., for plaintiffs-appellants.

John A. Martin, Rod Phelan, Dallas, Tex., for defen-

dant-appellee.

Appeal from the United States District Court for the

Northern District of Texas.

Before GODBOLD, SIMPSON and GEE, Circuit

Judges.

GODBOLD, Circuit Judge:

Plaintiff, a female, applied for the job as manager of

the Greenville, Texas, airport. The city denied her the job

because of a potential conflict of interest arising from her

husband’s being a tenant and the primary user of the

airport. A man was employed for the job.

Plaintiff filed this Tit. VII suit on behalf of herself

individually and a class of present and prospective female

employees of the city who are victims of its (1) dis-

criminatory hiring policy, (2) sexually segregated job

classifications, and (3) discriminatory compensation

scheme. Following a hearing on the merits, the court

found for the city on plaintiff's individual claim and

denied her the right to proceed with a class action. We

affirm the former, reverse the latter.

[1] The trial court refused to allow the class action

to proceed, “mainly upon the ground that plaintiff has

failed to etsablish a ‘nexus’ because the conflict of interest

issue unique to this case vitiates both the commonality

of law and fact questions and the typicality of the claims

and defenses.” The trial court seemed to be saying that

because the city has a valid affirmative defense to Satter-

white’s individual claim of sex discrimination she is not

10

representative of the class. The conflict of interest did

not preclude plaintiff's membership in the class. In Huff

v. N. D. Cass Company of Alabama, 485 F.2d 710

(CAS, 1973) (en banc), this court held:

. . . a Class plaintiff who otherwise meets the de-

mands of 23(a) and (b) should not be found to be

disqualified sdlely by an advance determination that

his claim is predictably not a winning claim and that,

therefore, he cannot adequately represent the class

as mandated by 23(a) (4).

Id. at 714 (footnote omitted).

[2] Rule 23(a) requires that in order for one to bring

suit on behalf of a class the following criteria be satisfied:

(1) numerosity of class, (2) common questions of law

or fact, (3) typicality of claims or defenses, and (4)

plaintiff will fairly and adequately represent the class.

The trial court singled out numbers two and three, above,

as being deficient. Plaintiff is indisputably a female who

applied for a management position with the city and

was denied. Her position is analogous to that of the

plaintiff in Long v. Sapp, 502 F.2d 34 (CAS, 1974),

wherein the court stated:

Having shown herself to be black and a former

employee, albeit lawfully discharged, she [the plain-

tiff] occupies the position of one she says is suffer-

ing from the alleged discrimination. She has dem-

onstrated the necessary nexus with the proposed

class for membership therein.

Id. at 43. See, Wright and Miller, Federal Practice and

Procedure, §§ 1763-64 (1972) (“Plaintiff has satisfied

11

Rule 23(a)(3) if the claims and defenses of the repre-

sentatives and the members of the class . . . are based

on the same legal or remedial theory.” Jd., at § 1764,

(1976, (1976 Pocket Part)). The reason for denial of

the airport job to plaintiff, adverse interest, may have

been unique, but this does not cause the position or

plaintiff's claim to be atypical. Huff v. Cass, supra.

AFFIRMED in part, REVERSED in part, and RE-

MANDED.

12

APPENDIX C

MINDA SATTERWHITE on behalf of herself and

Others similarly situated, Plaintiffs-A ppellants,

V.

CITY OF GREENVILLE, TEXAS,

Defendant-A ppellee.

NO. 75-3377.

UNITED STATES COURT OF APPEALS,

Fifth Circuit.

August 12, 1977.

Rehearing En Banc Granted

November 1, 1977.

Female applicant who was not hired as manager of

municipal airport filed sex discrimination suit individually

and on behalf of class of present and prospective female

employees of city. The United States District Court for

the Northern District of Texas, at Dallas, William M.

Taylor, Jr., Chief Judge, 395 F.Supp. 698, entered judg-

ment for city, and plaintiff appealed. The Court of Ap-

peals, 549 F.2d 347, held that although the named plain-

tiffs individual sex discrimination claim had failed, she

could proceed with her class action on behalf of present

and prospective female employees of the city allegedly

victimized by a discriminatory hiring policy, sexually

segregated job classifications, and a discriminatory com-

pensation scheme. On petition of the city for rehearing,

13

the Court of Appeals, Godbold, Circuit Judge, held that

in respect to the city’s claim that the prior decision

violated the “case or controversy” requirement of article

III of the Federal Constitution, remand of the case was

necessary for factual determinations by the District Court,

after evidentiary hearing, as to whether (1) plaintiff had

Satisfied the four requirements of class action rule 23(a)

as of the date, before trial, on which class certification

was denied, (2) if so, upon her dismissal from the case,

whether the class members retained sufficient interest to

serve as article III plaintiffs, and (3) if they did, whether

plaintiff could justify her representation of their interests.

Petition for rehearing granted, prior opinion with-

drawn; case affirmed in part, reversed in part, and re-

manded for further proceedings.

Gee, Circuit Judge, filed a dissenting opinion.

Larry R. Daves, Tyler, Tex., for plaintiffs-appellants.

John A. Martin, Rod Phelan, Dallas, Tex., for de-

fendant-appellee.

Appeal from the United States District Court for the

Northern District of Texas.

ON PETITION FOR REHEARING

Before GODBOLD, SIMPSON and GEE, Circuit

Judges.

GODBOLD, Circuit Judge.

The city of Greenville has petitioned for a rehearing

of our determination that, although the named plaintiff's

individual sex discrimination claim has failed, she can

proceed with her class action on behalf of present and

14

Prospective female employees of the city allegedly vic-

timized by (1) a discriminatory hiring policy, (2) sex-

ually segregated job classifications and (3) discrimina-

tory compensation scheme. The city now claims that

our decision violates the case or controversy requirement

of Article III of the United States Constitution. We

did not confront this question in Huff v. N.D. Cass Co.,

485 F.2d 710 (CAS, 1973) (en banc), a case relied

upon in our prior opinion.’ To resolve the troublesome

question about Article III and its relationship to the issue

of certification of a class under Rule 23, we grant the

petition and withdraw that part of our prior opinion

concerning the class question.?

Two recent cases from the Supreme Court provide our

Starting point, Sosna v. lowa, 419 U.S. 393, 95 S.Ct.

553, 42 L.Ed.2d 532 (1975), and Franks v. Bowman

Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47

L.Ed.2d 444 (1976). These cases have shifted the

emphasis from whether the named plaintiff in a class

action maintains the requisite “personal stake in the out-

come”* to whether, after the named plaintiff's claim no

1. The Huff opinion did make one reference to taking a broad

approach to “standing” in Title VII cases, stressing the public nature

of the rights enforced by private citizens. 485 F.2d at 714 & n. 12.

But Huff did not address the constitutional problems of standing

or mootness.

2. We adhere to that portion of our opinion, unchallenged here,

affirming the dismissal of Mrs, Satterwhite’s individual clam of

discrimination regarding the airport manager position.

3. Dictum in the recent case of East Texas Motor Freight

System, Inc. v. Rodriguez, US. P m. -83, OF SAA.

1891, 52 L.Ed.2d 453 (1977), reaffirms the approach taken by

Sosna and Franks.

4. Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L

2d 663, 678 (1962). 2 1, 1 L

15

longes* exists, the class has acquired such a personal

stake. Developments in the Law—Class Actions, 89

Harv. L.Rev. 1318, 1463-66 (1976).

Sosna was a challenge to a durational residency re-

quirement for divorce. The three-judge trial court had

certified the class action pursuant to F.R.Civ.P. 23(c)

(1). By the time her case reached the Supreme Court

however, the named plaintiff-representative had mooted

her case by satisfying the one-year requirement. The

Court first noted that certification of the class, by in-

voking res judicata policies® and requiring special court

supervision,’ bestowed a legal status on the class separate

from that of Mrs. Sosna. As a result, certification “signi-

ficantly affect[ed]” the case or controversy question. 419

U.S. at 399, 95 S.Ct. at 557, 42 L.Ed.2d at 540. It was

not dispositive, however, because Justice Rehnquist then

proceeded to analyze the facts of the case to determine

whether a live controversy still remained—i.e., between

5. Cf. cases where the plaintiff never had individual standing

even at the outset of the litigation. O’Shea v. Littleton, 414 USS.

488, 494-95, 94 S.Ct. 669, 675, 38 L.Ed.2d 674, 682-83 (1974);

Bailey v. Patterson, 369 U.S. 31, 32-33, 82 S.Ct. 549, 550, 7 L.Ed.

2d 512, 514 (1962) (per curiam). Compare Comment, Continuation

and Representation of Class Actions Following Dismissal of the

Class Representative, 1974 Duke L.J. 573, 578-79, 583-84, with

Developments in the Law—Class Actions, 89 Harv. L. Rev. 1318,

1466-70 (1976), and East Texas Motor Freight System, Inc. v.

Rodriguez, US. ; - , 97 S.Ct. 1891, 1896-98, 52

L.Ed.2d 453, 462-63 (1977).

6. After certification, a judgment on the merits will bind all

those who have been found to be class members at the time of

certification. F. R. Civ. P. 23(c)(3); 419 U.S. at 399 n. 8, 95 S.Ct.

at 557 n. 8, 42 L.Ed.2d at 540 n. 8.

7. Once the action is certified, settlement or dismissal requires

the court’s approval. F. R. Civ. P. 23(e); 419 U.S. at 399 n. 8,

95 S.Ct. at 557 at n. 8, 42 L.Ed.2d at 540 n. 8.

16

the class and the state of Iowa. Because, as to the class,

the constitutional infringement alleged was “capable of

repetition, yet evading review”, the Court held that the

class satisfied the case or controversy requirement even

though Mrs. Sosna no longer did. Finally, having held

Article If to be no bar to the class action, Justice Rehn-

quist in effect reevaluated the Rule 23(a)(4) adequacy

of representation issue in light of Mrs. Sosna’s departure

from the case. In doing so, he made clear that this an-

alysis was independant of the Article III issue:

This conclusion [that Article III is satisfied] does

not automatically establish that appellant is entitled

to litigate the interests of the class she seeks to rep-

resent, but it does shift the focus of examination

from the elements of justiciability to the ability of

the named representative to ‘fairly and adequately

protect the interests of the class.’ Rule 23(a). Since

it is contemplated that all members of the class will

be bound by the ultimate ruling on the merits, Rule

23(c)(3), the district court must assure itself that

the named representative will adequately protect

the interests of the class. In the present suit, where

it is unlikely that segments of the class appellant

Tepresents would have interests conflicting with

those she has sought to advance, and where the

interests of that class have been competently urged

at each level of the procefding, we believe that the

test of Rule 23¢a) is mvt.

419 US. at 403, 95 S.Ct. at 559, 42 L-Ed.2d at 542-43

(footnote omitted).*

8. One student author had earlier urged a similar bifurcation of

justiciability and representation questions. See the comment cited

in note 5 supra, at 597-98, 602-08.

17

Franks continued the emphasis on certification estab-

lished in Sosna® and stressed that “capable of repetition

yet evading review” was not an essential element of the

Article III analysis of that earlier case. Franks was a

Title VII racial discrimination suit in which the particular

subclass of truck driver applicants had sought hiring,

backpay, and a retroactive award of seniority. The sole

named representative of this subclass, however, had been

hired, given backpay, and then subsequently properly

discharged for cause. As to the sole issue of retroactive

seniority that was before the Supreme Court, his claim

was moot since he no longer had a job. However, once

again the Court found an Article III case or controversy

between the defendant and the certified subclass. Re-

stating the Sosna rule, Justice Brennan first noted that

the subclass of drivers had been certified. He then gave

guidance as to how the courts should answer the second

question of whether the class members remaining hold

a personal stake in the outcome of the controversy:

Given a properly certified class action, Sosna con-

templates that mootness turns on whether, in the

specific circumstances of the given case at the time

it is before this Court, an adversary relationship

sufficient to fulfill this function exists. In this case,

that adversary relationship obviously obtained as to

9. See also Board of School Comm’rs v. Jacobs, 420 U.S. 128,

129, 95 S.Ct. 848, 849, 43 L.Ed.2d 74, 78, (1975), a post-Sosna

case. Justice Brennan later indicated in Franks that the Court in

Jacobs had also viewed certification as a prerequisite to the existence

of a case or controversy involving the class. “As the action [in

Jacobs} had not been properly certified as a class action by the

District Court, we held it moot.” Franks, 424 U.S. at 754 n. 6,

96 S.Ct. at 1259, 47 L.Ed.2d at 455 n. 6. The recent Rodriguez

decision also suggests that certification is the appropriate starting

point in cases such as ours, U.S. at n. 12, 97 S.Ct. 1891

(dictum). See discussion infra.

18

unnamed class members with respect to the under-

lying cause of action and also continues to obtain

as respects their assertion that the relief they have

received in entitlement to consideration for hiring

and backpay is inadequate without further award of

entitlement to seniority benefits. This becomes crys-

tal clear upon examination of the circumstances and

the record of this case. 3

The unnamed members of the class involved are

identifiable individuals, individually named in the

record. Some have already availed themselves of the

hiring relief ordered by the District Court and are

presently employed as OTR drivers by Bowman.

Tr. of Oral Arg. 23. The conditions of that em-

ployment are now and so far as can be foreseen

will continue to be partially a function of their status

in the seniority system. The rights of other members

of the class to employment under the District Court’s

orders are currently the subject of further litigation

in that court. Id. at 15. No questions are raised

concerning the continuing desire of any of these

class members for the seniority relief presently in

issue. No questions are raised concerning the

tenacity and competence of their counsel in pursu-

ing that mode of legal relief before this Court. It

follows that there is no meaningful sense in which

a “live controversy” reflecting the issues before the

Court could be found to be absent.

424 U.S. at 755-57, 96 S.Ct. at 1260, 47 L.Ed.2d at

456-57 (footnotes omitted).

We apply the principles of these two cases to Mrs.

Satterwhite’s class action.’® Here, the district court denied

10. We think it irrelevant to our Article ITI analysis whether

mootness vis-a-vis the named representative is “fact-created,” as in

Sosna, or created by application of law, as in Franks and Satterwhite.

The Court did not distinguish between these sorts of situations in

19

certification of the class action. The plaintiff representa-

tives in Sosna and Franks did not face this additional

problem. See Franks, 424 U.S. at 755, 96 S.Ct. at 1260,

47 L.Ed.2d at 456 (“Given a properly certified class

action, . . .”); East Texas Motor Freight System, Inc.,

v. Rodriguez, USS. , n.12, 97 S.Ct. 1891,

1898, 52 L.Ed.2d 453 (1977) (“provided the initial

certification was proper”) (dictum). Thus, it would ap-

pear that our first inquiry in facing the case or contro-

versy issue should be whether the district court’s refusal

to certify was proper, viewed from the time at which

that court “[could] reasonably be expected to rule” on

the certification question.’' We have consistently urged

the district courts to follow Rule 23(c)(1)’s general in-

struction to determine this question “[a]s soon as prac-

ticable after the commencement of [the] action”. See, e.g.,

Huff, 485 F.2d at 712. Accordingly, we would focus

upon some time prior to Mrs. Satterwhite’s loss on her

individual claim.

i ith the general problem of class actions whose representa-

pcg, Pa for aa cae or another lost or abandoned their in-

dividual claims. See Rodriguez, US. at n. 12, 97 S.Ct.

at 1898, referring to “subsequent events or the proof at trial”. See

also Thurston v. Dekle, 531 F.2d 1264, 1270-71 & n. 10 (C.A. 5,

gy the reason why a named plaintiff's claim has been

eliminated may concurrently, though not necessarily, have an impact

on the adequacy of his further representation of the class under

Rule 23(a)(4). See Huff, 485 F.2d at 714: “It is inescapable that

in some cases there will be overlap between the demands of 23(a)

and (b) and the question of whether plaintiff can succeed on the

merits.” Accord, Long v. Sapp, 502 F.2d 34, 42 (C.A. 5, 1974).

11. ‘There may be cases in which the controversy involving the

named plaintiffs is such that it becomes moot as to them before

the district court can reasonably be expected to rule on a cer-

tification motion. . . .”

Sosna, 419 U.S. at 402 n. 11, 95 S.Ct. at 559, 42 L.Ed.2d at 542

n. 11.

AE DBI EL RAPES OPT BET SA +e.

' 20

In fact, the district court did just this. On February

4, 1975, some seven weeks before trial began, the court

denied plaintiff's motion for class action, after both

parties had submitted memoranda of law on the ques-

tion."* However, lacking further evidence, we cannot

answer the question whether on February 4 the district

court abused its discretion’* in denying certification.

There is nothing in the record in this case to guide us

in our Rule 23 (and, therefore, Article III) inquiry,

because the district court’s pretrial ruling prevented the

scope of the trial from extending beyond Mrs. Satter-

white’s individual claim over the airport manager posi-

tion."*

[1] This interlocutory order, which effectively elimi-

nated the class aspects of the litigation, was preceded by

no factfinding as to the requisites of Rule 23. As we have

noted before:

12. Plaintiff gave notice of appeal from this order but subse-

quently changed her mind, perhaps in recognition of its interlocutory

nature. See, e. g., Jones v. Diamond, 519 F.2d 1090, 1095-96 (C.A.

5, 1975).

13. See Carey v. Greyhound Bus Co., 500 F.2d 1372, 1380

(C.A. 5, 1974).

14. In seeking to prove her individual claim of sexual discrimi-

nation, Mrs. Satterwhite introduced some evidence of the city’s hiring

and promotion policies in other departments. But it is clear that

her attorney did so only ‘to prove a pattern or practice in aid of .-~

her indivdual claim, and not to prove any of the requirements of

Rule 23:

MR. DAVES: “. . . [A]s I know the Court’s aware, the Court

Court did dismiss the class action aspects of the suit but em-

ployment discrimination is by name class discrimination and

I’m entitled to put on evidence of other sexual discrimination

by the City of Greenville.

THE COURT: I will overrule the objection.

Q. Okay, Mrs. Tillitson, have you ever had occasion to apply

for any position with the City of Greenville?

21

Maintainability may be determined on the basis

of pleadings, . . . but “[t]he determination usually

should be predicated on more information than the

complaint itself affords.” 7A Federal Practice &

Procedure (Wright & Miller ed). § 1785, Pp. 131.

The court may, and often does, permit discovery

relating to the issues involved in maintainability,

and a preliminary evidentiary hearing may be ap-

propriate or essential as a part of the vital manage-

ment role which the trial judge must exercise in

class actions to assure that they are both meaningful

and manageable. .. . [W]e reject . . . the argument

that the judge is inextricably bound by the face of

the pleadings.

Huff, 485 F.2d at 713 (footnotes omitted). The peculiar,

administrative nature of class suits requires that the trial

judge assume unique supervisory responsibilities. Inde-

pendent of the efforts of the parties, he must satisfy him-

self of the class nature of the suit, at least when the

parties have placed the question in issue.”

15. We have held that a motion by one of the parties is un-

necessary to bring these duties of the trial judge under Rule 23(c) (1)

into play. See United States v. United States Steel Corp., 520 F.2d

1043, 1052 (C.A. 5, 1975), cert. denied, 429 U.S. 817, 97 S.Ct. 61,

50 L.Ed.2d 77 (1976); Rodriguez v. East Texas Motor Freight,

505 F.2d 40, 50 (C.A. 5, 1974):

“A class action may not be dismissed because the class repre-

sentatives fail to ask for a ruling on the propriety of the class

nature of the suit. That responsibility falls to the court. ‘The

court has an independent obligation to decide whether an action

brought on a class basis is to be maintained even if neither

of the parties moves for a ruling under subsection (c)(1).’

Wright & Miller, Federal Practice and Procedure, Civil § 1785

1972).

In Piste Rodriguez, the Supreme Court expressly refused to reject

this rule, although the Court’s opinion casts some doubt on its con-

tinued validity: :

“Even assuming, as a number of courts have held, that a dis-

trict judge has an obligation on his own motion to determine

whether an action shall proceed as a class action, . . . the

22

[2,3] This is especially true, as we have suggested

many times, given the public nature of Title VII actions.

These actions are sometimes said to be “perforce” class

actions, since by their very nature they challenge the

defendant’s actions towards a specific group. Jenkins v.

United Gas Corp., 400 F.2d 28, 33 (CAS, 1968); Com-

ment, supra note 5, at 601. Of course, the mere: fact

that Title VII is involved does not relieve the plaintiff

of his burden of proof as to the technical requirements

of Rule 23(a), most notably the numerosity and ade-

quacy factors. Rodriguez v. East Texas Motor Freight,

505 F.2d 40, 50 (CAS, 1974), vacated on other grounds,

US. » 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977).

No doubt there is tension between the inherently class-

based nature of racial and sexual discrimination claims

and the procedural need for devices to bring such claims

into a focus sharp enough to be manageable by the court

as well as fair to the defendant and to those who may

subsequently be bound by the litigation. The Supreme

Court’s recent opinion in Rodriguez recognizes this ten-

sion in a racial discrimination context:

We are not unaware that suits alleging racial or

ethnic discrimination are often by their very nature

named plaintiffs’ failure to protect the interests of class mem-

bers by moving for certification surely bears strongly on the

adequacy of the representation that those class members might

expect to receive.”

Ss , 97 S.Ct. at 1897 (citations omitted). In

Rodriguez, however, the Supreme Court found—contrary to the panel

of this court—that the plaintiffs never seriously put the class ques-

tion in issue. That is not true here, where the plaintiff clearly in-

voked Rule 23 in her complaint and made a formal motion for a

class action as early as December 26, 1974, with a supporting brief.

Accordingly, all we need say is that the trial court’s supervisory

responsibilities once certification is at issue include a duty to hold

an evidentiary hearing on the matter when a genuine dispute exists

about the question.

23

class suits, involving classwide wrongs. Common

questions of law or fact are typically present. But

careful attention to the requirements of Fed.Rule

Civ.Proc. 23 remains nonetheless indispensable.

The mere fact that a complaint alleges racial or

ethnic discrimination does not in itself ensure that

the party who has brought the lawsuit will be an

adequate representative of those who may have been

the real victims of that discrimination.

U.S. at__, 97 S.Ct. at 1898. All we are saying

is that the court should be hesitant in such cases to con-

clude that Rule 23 has not been satisfied without resort

to a factfinding process.

[4] As an example, in Jones v. Diamond, 519 F.2d

1090 (CAS, 1975), the district court had denied the

motion for class action on the basis that the pleadings

did not reveal enough to satisfy the Rule 23 requirements.

The plaintiffs had done little if anything by way of formal

introduction of evidence “to flesh out the Rule 23 skele-

ton.” However, as here, they were given no opportunity

to do so. Jd. at 1099 n.14. Citing the trial court’s “sub-

stantial management responsibility” in Title VII class

actions, this court held that the trial court had abused its

discretion in failing to hold an evidentiary hearing on its

own initiative. Only in allowing a hearing, in the circum-

stances of that case, could the plaintiffs’ “burden of proof”

as to Rule 23(a) have had any real meaning. See also

McArthur v. Southern Airways, Inc., 556 F.2d 298,

302 (CAS, 1977).

Perhaps we have less flesh on the skeleton here. In

Jones, this court alluded to a set of interrogatories never

introduced as evidence that could have helped in answer-

ing the Rule 23 question. Here, pretrial discovery has

24

resulted only in a computer printout listing city employees

by position and indicating their sexes. But we think that

Mrs. Satterwhite presented a genuine claim to having

satisfied Rule 23(a)’s requirements, given the existence

of this printout and the genuine dispute found in the pre-

trial briefs over the Rule 23(a) criteria. In view of the

trial court’s supervisory responsibilities under Rule 23 as

well as the almost presumptively class based nature of

Title VII suits, we hold that some evidentiary exploration

of the issues was required prior to the Court’s February

4, 1975, ruling.

We think our above analysis of the Rule 23(a) cer-

tification inquiry that Sosna and Franks require in asking

the larger case or controversy question is not affected

by the Supreme Court’s recent Rodriguez opinion. Rod-

riguez, a unanimous decision, held it error for a panel

of this court to have certified a particular class of drivers

because, among other reasons,” the district court had

already found against the named plaintiffs by virtue of

their being unqualified. Thus, on the state of the record,

the Supreme Court said, the named plaintiffs had suffered

no injury as a result of the alleged discriminatory prac-

tices, and were therefore “not members of the class of dis-

criminatees they purported to represent.” But the dis-

positive factor in Rodriguez was that the issue of certifica-

tion had been left until the end of the named plaintiffs’

two-day trial. As in Sosna and Franks, the existence or

nonexistence of prior certification became the touchstone:

16. The Court also pointed to the plaintiffs’ failure to ask for

certification and their disagreement with the union majority concern-

ing the desirability of relief as strong indications of inadequacy

under Rule 23(a) (4). U.S. at , 97 S.Ct. 1891. But the

opinion’s insistence on membership in the class makes these last two

flaws in the plaintiffs’ case unnecessary to the result.

25

Obviously, a different case would be presented if the

District Court had certified a class and only later

had it appeared that the named plaintiffs were not

class members or were otherwise inappropriate class

representatives. In such a case, the class claims

would have already been tried, and, provided the

initial certification was proper and decertification not

appropriate, the claims of the class members would

not need to be mooted or destroyed because subse-

quent events or the proof at trial had undermined

the named plaintiffs’ individual claims. See, e.g.,

Franks v. Bowman, supra, [424 U.S. 747], at 752-

757, [96 S.Ct. 1251, 1258-1261]; Moss v. Lane Co.,

471 F.2d 853, 855-856 (CA4). Where no class has

been certified, however, and the class claims remain

to be tried, the decision whether the named plaintiffs

should represent a class is appropriately made on the

full record, including the facts developed at the trial

of the plaintiffs’ individual claims. At that point, as

the Court of Appeals recognized in this case, “there

[are] involved none of the imponderables that make

the [class action] decisions so difficult early in liti-

gation.” 505 F.2d at 51. See also Cox v. Babcock

& Wilcox Co., 471 F.2d 13, 15-16 (CA4).

—___US. at —____ n.12, 97 S.Ct. at 1898. Putting Sosna

and Franks together with this dictum, we think we have

such a “different case” here. From the beginning, Mrs.

Satterwhite has consistently sought to represent a class

of female employees and applicants allegedly discrimin-

ated against by the city of Greenville. See note 15 supra.

The question we are asking at this point is whether, on

February 4, the district judge was correct in not certify-

ing the action. For if certification would have been proper,

the Rodriguez inquiry into class membership would be

inapplicable for us here. All Mrs. Satterwhite would have

to do, for Rule 23(a3 purposes, would be to demonstrate

26

now that “decertification [would] not [now be] appropri-

0 LN n.12, 97 S.Ct. at 1898; Sosna,

419 US. at 403, 95 S.Ct. at 559, 42 L.Ed.2d at 542-43.

This emphasis upon certification which we discern from

the Rodriguez dictum has support in the Sosna-Franks

line of cases, as we have observed And absent such a

distinction, cases like Huff v. N. D. Cass Co., 485 F.2d

710 (CAS, 1973) (en banc), would have to give way

to the following language in Rodriguez:

In short, the trial proceedings made clear that

Rodriguez, Perez, and Herrera were not members

of the class of discriminatees they purported to

represent. As this Court has repeatedly held, a class

representative must be part of the class and “possess

the same interest and suffer the same injury” as the

class members. . . . The District Court found upon

abundant evidence that these plaintiffs lacked the

qualifications to be hired as line drivers. Thus, they

could have suffered no injury as a result of the

alleged discriminatory practices, and they were,

therefore, simply not eligible to represent a class of

persons who did allegedly suffer injury. Furthermore,

each named plaintiff stipulated that he had not been

discriminated against with respect to his initial hire.

In the light of that stipulation they were hardly in

a position to mount a classwide attack on the no-

transfer rule and seniority system on the ground that

these practices perpetuated past discrimination and

locked minorities into the less desirable jobs to which

they had been discriminatorily assigned.

nnd ae Bt . , 97 S.Ct. at 1896-1897 (citations

omitted). We think, however, that the Court did not in-

tend to overrule Huff and like cases. Any such intention

would be inconsistent with the Court’s approving citation

27

of Moss v. Lane Co., 471 F.2d 853 (CA4, 1973), the

Fourth Circuit’s analogue to Huff.’’ Thus, we conclude

that Rodriguez reliance upon the named plaintiffs’ loss

on the merits does not apply to a situation where an

appropriate certification decision would have** preceded

the individual plaintiff's loss on the merits.

The court’s post hoc answer to this maintainability

issue on remand will determine whether, at the time Mrs.

Satterwhite lost on her individual claim, there existed a

legal entity apart from her which possibly could have

maintained a personal stake in the controversy. Even

assuming maintainability, however, Sosna and Franks

require further that, in the circumstances of this case,

17. Moss, like Huff, held that it was improper for the district

court, after it had denied a motion to dismiss the class action on

the basis that the plaintiff had met the four criteria of Rule 23(a),

to have reversed itself later “simply because it concluded that the

mere fact that on the trial of the merits the plaintiff had not

sustained his claim denied him the right to represent the class”’.

471 F.2d at 855-56.

18. One might still ask whether or not our retrospective deter-

mination of a potential certification in this case dating back to

several weeks before trial is consistent with Rodriguez. The Court

there at least impliedly sanctioned a decision denying certification

made no earlier than the conclusion of the two-day trial on the

named plaintiff’s claims. But the circumstances before us are different.

Here, there was a December 26, 1974, motion by Mrs, Satterwhite

for certification, and a February 4, 1975, pretrial denial by the trial

court. Justice Rehnquist’s instructions in Sosna are to view the

question no later than when the trial court could reasonably have

been expected to rule on it. These instructions, which we believe to

have been inspired by the mandate of Rule 23(c)(1), dictate to us

the conclusion that the district court should indeed have issued a

response as early as February 4. The district court obviously agreed.

Whether Rodriguez’ implied refusal to require a similar pretrial rul-

ing arose from the plaintiffs’ failure to ask for one, see note 15

supra, or from a view that the circumstances there did not make it

“practicable” to do so, Rule 23(c)(1), is a question we need not

answer. Neither of these problems exists here.

28

the class does in fact have such a stake as to maintain

a live controversy.

On the present state of the record, we are tempted to

Say that the class members do not. Much of our preceding

discussion regarding the Rule 23(a) question is applic-

able here. We confront a threshold problem of having

no “identifiable individuals, individually named in the

record”,’® at which to look. Plaintiff's Exhibit 1 reveals

the names of the present female employees.”° All this

computer printout shows to us is simply that there are

some employees who, by virtue of their given names,

appear to be females and who have certain kinds of jobs

and wage rates. There is no showing that any of these

persons nurse a grievance against the city. They certainly

have not “already availed themselves of . . . hiring re-

lief”, as had the class members in Franks. In sum, we can-

not point to anyone (other than perhaps Mrs. Tillitson,

see note 14 supra) in the class with a personal stake in

the outcome of this Title VII challenge. Nor has Mrs.

Satterwhite done so in her response to the petition for

rehearing.

Must we therefore dismiss this case for lack of a case

or controversy? Or should Mrs. Satterwhite be permitted

to develop the existence of interested class members on

temand to the district court? Mrs. Satterwhite urges us

to decide this question on the present state of the record,

a not very favorable position for her in view of our pre-

ceding development of the law of Article III. But we

think that dismissal would be unfairly formalistic here.

Since the district court dismissed the class aspects of the

19. Franks, 424 U.S. at 756, 96 S.Ct. at 1260, 47 L.Ed.2d at 457.

20. This list of course identifies no job applicants.

29

suit at the outset, plaintiff had no real opportunity to

develop jurisdictional facts necessary to sustain the class

nature of the action.”

[5] As Justice Rehnquist noted in Sosna, there also

remains a final question of whether, even though the

class members might proceed without offending the re-

quirements of Article III, those class members can

still be adequately represented by this particular individ-

ual. See also Rodriguez, ___U.S. at____ n.12, 97 S.Ct.

1891. We adhere to the view expressed in our prior

opinion that under Huff Mrs. Satterwhite’s mere failure

to succeed on her individual claim cannot in and of

itself negate the adequacy requirement. See also Eisen

v. Carlisle & Jacquelin, 417 U.S. 156, 177-78, 94 S.Ct.

2140, 2152, 40 L.Ed.2d 732, 748-49 (1974). This

does not end the inquiry, however. Our prior opinion

prematurely decided the difficult question of adequate

representation without benefit of any factual develop-

ment of the class nature of the suit. We leave to the dis-

trict court, informed by the facts developed on remand,

this question whether Mrs. Satterwhite should be per-

mitted to pursue the claims of the putative class.”

21. She probably had an incentive to do so, in view of her in-

tention, previously revealed, ultimately to appeal the refusal to certify.

See note 12 supra. We do not fault her, however, for acquiescing

in the district court’s view of the case at trial.

22. As noted above, we think Rodriguez does not overrule Huff.

23. Remand is consistent with our past practice in cases where

district courts have given improper consideration to the merits of

the named plaintiff’s claim. See, e. g., Huff, supra; Long v. Sapp,

$02 F.2d 34, 43 (C.A. 5, 1974); Johnson v. Georgia Highway Ex-

pres, Inc., 417 F.2d 1122, 1124-25 (C.A. 5, 1969). Cf. Rodriguez,

U.S. at , 97 S.Ct. at 1896 (“. . . [W]e do not reach

the question whether a Court of Appeals should ever certify a class

in the first instance.”’)

30

[6] In conclusion, faced with an Article III challenge

by the city to jurisdiction in this case, we withdraw that

portion of our prior opinion concerning the class ques-

tion and remand this issue for factual determinations

by the district court, after evidentiary hearing. These

determinations should include, but are not necessarily

limited to, answers to the following questions:

(1) As of February 4, 1975, did Mrs. Satterwhite

satisfy the four requirements of Rule 23(a)?

Regarding the standard for the district court’s inquiry on remand,

we have perhaps been less than clear in the past. In Huff we re-

quired the sort of “nexus” that “is embraced in the various require-

ments of 23(a) and (b).” 485 F.2d at 714. In a sense, this is

redundant, since no class action can proceed without satisfying these

requirements. In Long this court held (1) that plaintiff had “demon--

strated the necessary nexus with the proposed class for membership

therein” and yet (2) that the case should be remanded for a Rule

23(a)(4) adequacy determination, under the standard of Johnson

(competent attorney plus lack of antagonistic interest). Long thus

suggests that there are two requirements before the court can allow

the named plaintiff to represent the class. The nexus requirement

answers the question, in this particular context, whether the plaintiff

is still a member of the class. Nexus would thus turn on such con-

siderations as the plaintiff's personal associations with the situation,

and its influence upon him, and his ties with the class. Comment,

supra note 5, at 608. Adequacy is determined by the Johnson. factors.

As noted above, Justice Rehnquist made reference only to the

Johnson factors in Sosna:

“In the present suit, where it is unlikely that segments of the

class appellant represents would have interests conflicting with

those she has sought to advance, and where the interests of that

class have been competently urged at each level of the proceed-

ing, we belive that the test of Rule 23(a) is met.”

419 US. at 403, 95 S.Ct. at 559, 42 L.Ed.2d at 543. We do not

interpret Sosna to have eliminated our nexus requirement. Member-

ship in the class has always been required. 7 C. Wright & A. Miller,

Federal Practice & Procedure § 1761 (1972). Indeed, the Court

referred to the existence of a two-fold inquiry in Rodriguez in dis-

cussing our “different case’: “Obviously, a different case would be

presented if the District Court had certified a class and only later

had it appeared that the named plaintiffs were not class members

or were otherwise inappropriate class representatives.” US. at

» nh. 12, 97 S.Ct. at 1898 (emphasis supplied),

31

(2) If so, upon her dismissal from the case, did the

class members retain sufficient interest in the outcome

of this litigation to serve as Article III plaintiffs?

(3) If they did, can Mrs. Satterwhite justify her

representation of their interests?

The petition for rehearing is GRANTED and the prior

opinion, 549 F.2d 347 (CAS, 1977), is withdrawn.

The case is AFFIRMED in part, REVERSED in part,

and REMANDED for further proceedings not incon-

sistent with this opinion.

GEE, Circuit Judge (dissenting):

Prompted to further thought about Mrs. Satterwhite’s

potential status as class representative by the petition

for rehearing, by the Supreme Court’s intervening de-

cision in East Texas Motor Freight System, Inc. v. Rod-

riguez, U.S , 97 S.Ct. 1891, 52 L.Ed.2d 453

(1977), and in no small measure by the majority’s fine

and thorough opinion on rehearing, I find myself no

longer able to put aside some doubts which had arisen

in my mind before my concurrence in the original panel

opinion. I recognize—as I must, being bound by Huff

v. N. D. Cass Co., 485 F.2d 710 (Sth Cir. 1973) (en

banc)—that the patent conflict of interest which logically

seemed to foredoom Mrs. Satterwhite’s individual claim

of sex discrimination did not legally, at the pretrial stage

when the district court denied certification, preclude her

serving as class representative. But federal courts must

always remain aware that Article III of the Constitution

precludes our taking and retaining purported jurisdiction

over anything less than a case of controversy brought by

a person having standing to pursue it, and at this stage

32

we have before us more information—in the form of the

district court’s adverse determination, affirmed by this

court, of her claim of individual discrimination—than

did the district court at the pretrial stage in declining to

certify the class with her as representative. Having come

to believe that the remand ordered by the majority, a

remand on which Mrs. Satterwhite is to be permitted to

reargue the existence of a class and the propriety of her

representation of it after she has been shown to have no

personal interest in the relief sought by the class, counte-

nances a contravention of Article III, I must respectfully

dissent.

Huff and its progeny within this circuit hold that the

existence of a defense which appears likely to defeat

a named plaintiff's individual claim is not alone sufficient

to support a ruling that he is not a proper class repre-

sentative. But as the majority notes, ante at 1, the en

banc court which decided Huff was not confronted with

and did not consider the Article III implications of the

remedy, which the majority grants today, of requiring

further consideration of the named plaintiff as a class

representative after a conclusive adjudication that he

has not suffered the injury alleged to be common to

the class and thus may not receive the relief sought on

behalf of the class. There doubtless is utility in pre-

cluding an advance determination that the likelihood

of failure of an individual's own claims disqualifies him

as the individual plaintiff for a class. But this utility

vanishes when the plaintiif’s nonmembership in the class

has become the law of the case through the trial court's

adjudication, affirmed on appeal, that the would-be class

plaintiff has not suffered the injury asserted for the class.

At this point, we are no longer dealing with a plaintiff

33

who may lose, or who probably will lose, but with one

who has lost: who by virtue of our own words is divorced

from the case and no longer holds a personal interest

in the outcome of the trial of the class action. At this

point I see no particular reason to cling so tenaciously

to Mrs. Satterwhite as a potential class representative.

And especially is this so in view of the constitutional

standing question. Since she no longer has any personal

interest and thus no standing in her own behalf, it seems

to me that the case must be dismissed unl..s we have

before us some other party who does possess the requisite

personal stake in a continuing live controversy. But the

only other potential party mentioned in the record is the

asserted class, and I therefore consider its status as a

plaintiff after Mrs. Satterwhite is gone. With the majority,

I find in Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553,

42 L.Ed.2d 532 (1975), and in Franks v. Bowman

Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47

L.Ed.2d 444 (1976), a heavy emphasis on certification

of the class as the initial event in determining standing

questions in class suits, but in my view that emphasis

weights against the majority’s demand. In Sosna and

Franks, the Court recognized that the class when certi-

fied is for some purposes treated as a separate plaintiff

with grievances all its own, apart from the claims of its

individual representatives. After certification, then, if the

claims of all individual plaintiffs prove meritless or be-

come moot, the class may itself possess such a “personal

stake in the outcome of the controvérsy”, Baker v. Carr,

369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663

(1962), as to warrant continued invocation of federal

jurisdiction in its own behalf. But—and this is the crux

of my disagreement—here the situation is altogether dif-

34

ferent; since certification represents the birthdate of the

class as a jurisprudential entity, the district court’s denial

of certification, whether correct or not, means that no

class is present to carry the case after we determine

that Mrs. Satterwhite’s individual claims are meritless.

Thus, we now have before us no one who has a

continuing stake in the controversy, only a potential

lawsuit searching for a sponsor. I do not believe that

Article III permits a remand on which the district court

is to retain jurisdiction, even for the limited period of

time during which Mrs. Satterwhite is to bring forward

motions and argument in support of her representation

of the asserted class, owtr a headless lawsuit with, in

effect, no plaintiff. Such procedures smack too much of

principle and policy, too little of concrete controversy,

too much of legislation, and too little of adjudication for

me to feel comfortable with them. I think the proper

disposition would be simply to affirm as to Mrs. Satter-

white’s personal claims while expressing our disagreement

with the district court’s undue emphasis on probability

of individual success, thus providing some guidance for

a proper exploration of the representation question when

and if someone else re-institutes the litigation. We now

fortuitously know that Mrs. Satterwhite is neither per-

sonally aggrieved nor a member of an injured class, and

allowing her an attempt to rally a class around her un-

fortunately fails to assure “that concrete adverseness

which sharpens the presentation of issues”, id., which a

more careful attention to standing would assure.

The Supreme Court seems to me to have set its face

against the retention of purported jurisdiction on remand

1. For all we know, by now there may be no one sufficiently

aggrieved to wish to do so—or, indeed, aggrieved at all.

35

here by a post-Sosna decision in a related context. In

Board of School Commissioners v. Jacobs, 420 USS.

128, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975), the Court

found that the individual claims of six plaintiffs chal-

lenging school regulations were mooted before oral argu-

ment upon the graduation of all of the named plaintiffs.

Although the suit contained class allegations and the

record indicated that the district court may have been

favorably disposed toward granting representative status

to the named plaintiffs, the class action was never

properly certified because of the district court’s failure to

enter an order showing compliance with Rule 23. “Because

the class action was never properly certified nor the

class properly identified by the District Court... ,” 420

U.S. at 130, 95 S.Ct. at 850, the entire case was rendered

moot by the events which mooted the individual claims.”

No less in Jacobs than in the case sub judice could a re-

mand have afforded class members a chance to correct

district court action which may have cost them the

2. In Napier v. Gertrude, 542 F.2d 825 (10th Cir. 1976), cert.

denied, 429 U.S. 1049, 97 S.Ct. 759, 50 L.Ed.2d 765 (1977), a

case rather similar to the one before us, the district court refused

to consider certification of a class action because of its denial on

the merits of individual relief. After the judgment, the passage of

time rendered the invidiual complaint moot and precluded appellate

consideration of it; grappling with whether or not to order a remand

so that the trial court might reconsider class certification absent its

previous undue emphasis on success of individual claims, the Tenth

Circuit found such a remand improper and ordered dismissal. The

Napier court noted that we had ordered a remand under somewhat

similar circumstances in McGill v. Parsons, 532 F.2d 484 (5th Cir.

1976), but distinguished McGill—correctly, I think—on the basis

of the certification of McGill as class representative before the dis-

missal of both individual and class claims. Decisions of other courts

of appeal further emphasize the importance of the certification event

in this context. See, e. g., Cleveland v. Ciccone, $17 F.2d 1082,

1084-85 n. 13 (8th Cir. 1975); Bradley v. Housing Authority, 512

F.2d 626, 628 (8th Cir. 1975).

36

right to proceed as a class when the initial certification

decision (or lack of same) was presented. Nevertheless,

traditional notions of limited federal court jurisdiction

prevailed, as I suggest they should here, where we con-

template a plaintiff who has not Jost a claim due to moot-

ness but rather never had one.

I can perceive no practical difference between the

disposition which I suggest and the remand ordered by

the majority, save perhaps the desirable end of removing

from the pleadings the name of one who has no stake in

the outcome of the suit she retains possession and con-

trol over under the remand. The threshold question to be

decided when the class claims again come before the

district court will be whether a class exists at all. But

the same legwork which will produce evidence of the

existence of a class of women discriminatees will also

produce the names of members of that class, at least

some of whom will be proper representatives—if such

potential representatives are not already waiting in the

wings. If there is indeed a live controversy with ag-

grieved individuals sufficiently numerous to make up a

class, surely one of those proper representatives will be

willing to come forward to serve as a plaintiff, and if

no one is so willing, I see no reason to be contemplating

class relief. Although my suggested disposition would

preclude reconsideration under the correct standards of

the question of Mrs. Satterwhite’s eligibility to represent

the class, proper language in our opinion would furnish

sufficient guidance for the district court to consider cor-

rectly the class-representation question, free of undue

emphasis on probability of individual success, when some-

one else steps forward. As I have attempted to show,

until that someone else does come forth, any concern

37

about the apparent misapprehension of our law by the

district court in its treatment of the class questions is, I

believe, misplaced.

In sum, Mrs. Satterwhite should no longer be a part

of this case under the constitutional standards which we

must apply, and the majority’s opinion allowing her to

continue with class proceedings seems to me a concession

to the notion that a class suit belongs to no one so much

as to the plaintiff’s lawyer. Desiring to make no such

concession, I dissent.

38

APPENDIX D

MINDA SATTERWHITE, on behalf of herself

and others similarly situated, Plaintiffs-Appellants,

Vv.

CITY OF GREENVILLE, TEXAS,

Defendant-A ppellee.

NO. 75-3377.

UNITED STATES COURT OF APPEALS,

Fifth Circuit.

August 23, 1978.

Female applicant who was not hired as manager of

municipal airport filed sex discrimination suit individually

and on behalf of class of present and prospective female

employees of city. The United States District Court for

the Northern District of Texas, William M. Taylor, Jr.,

Chief Judge, 395 F.Supp. 698, entered judgment for city,

and plaintiff appealed. The Court of Appeals, 549 F.2d

347, held that although plaintiff's individual sex dis-

crimination claim failed, she could proceed with her

class action. On petition of city for rehearing, the

Court of Appeals, 557 F.2d 414, vacated its prior de-

cision with respect to class action issues and remanded

case for evidentiary hearing. Sitting en banc, the Court

of Appeals, Alvin B. Rubin, Circuit Judge, held that:

(1) where named plaintiff had never suffered any legal

recognizable injury either in common with class or

otherwise and where named plaintiff was not member

of class even at time suit was filed, named plaintiff was

39

not proper class representative, and (2) district court’s

failure to hold evidentiary hearing on motion for class

certification did not preclude dismissal.

Appeal dismissed, panel opinion vacated, and case

remanded with instructions.

Godbold, Circuit Judge, filed a dissenting opinion in

which Brown, Chief Judge, and Goldberg and Simpson,

Circuit Judges, joined.

Larry R. Daves, Tyler, Tex., for plaintiffs-appellants.

Paul Mirengoff, Atty., E.E.O.C., Washington, D.C.,

amicus curiae.

John A Martin, Rod Phelan, Dallas, Tex., for defen-

dant-appellee.

Douglas S. McDowell (Equal Employment Advisory

Council), Washington, D.C., amicus curiae.

Appeal from the United States District Court for the

Northern District of Texas.

Before BROWN, Chief Judge, and COLEMAN,

GOLDBERG, AINSWORTH, GODBOLD, SIMPSON,

MORGAN, CLARK, RONEY, GEE, TJOFLAT, HILL,

FAY and RUBIN, Circuit Judges,*

ALVIN B. RUBIN, Circuit Judge:

[1,2] The appeal in this case, originally filed as a class

action, raises the question whether Article III’ of the

Be. Judges Thornberry and Vance did not participate in the con-

sideration of or decision in this case.

1. We are mindful that, with respect to Civil Rights Acts, in-

cluding Title VII, 42 U.S.C. § 2000e, et seq., there is a “ ‘congres-

40

Constitution and Rule 23,? Federal Rules of Civil Pro-

cedure, permit a naraed plaintiff whose individual claim

has been properly dismissed on the merits to represent

a putative class where the district court, prior to the loss

of the individual claim, denied certification of the class

without conducting an adequate hearing.

Minda Satterwhite, the named plaintiff, applied for

the position of manager of Greenville’s municipal airport.

She was denied that office on the asserted basis that she

would have a conflict of interest because her husband’s

business was the primary user of the airport. After a male

was hired, she filed a class action on behalf of all present

and prospective female employees of the city allegedly

victimized by (1) a discriminatory hiring policy, (2)

sexually segregated job classifications, and (3) a dis-

criminatory compensation scheme, in violation of Title

VII, 42 U.S.C. § 2000e, et seq.

Mrs. Satterwhite mioved for certification of the class

without introducing any evidentiary material with respect

to its maintainability other than a computer printout of

city employees indicating their position and gender. On

February 4, 1975, without conducting an evidentiary

hearing, the district court denied certification. After the

later trial on the merits of Mrs. Satterwhite’s individual

sional intention to define standing as broadly as is permitted by

Article III of the Constitution,” Trafficante v. Metropolitan Life

Ins. Co., 1972, 409 U.S. 205, 209, 93 S.Ct. 364, 367, 34 L.Ed.2d

415, quoting Hackett v. McGuire Bros., Inc., 3 Cir. 1971, 445 F.2d

442, 446.

2. The adequacy-of-representation requirement derives from the

due process protections due process protections due those who are

not before the court but will be directly bound by its decree. Hans-

berry v. Lee, 1940, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22; Gon-

zales v. Cassidy, § Cir. 1973, 474 F.2d 67, 72; Clark v. So. Central

Bell Tel. Co., W.D. La. 1976, 419 F.Supp. 697, 701.

41

claim, the court entered judgment for the city, Satter-

white v. City of Greenvill, Tex., N.D. Tex. 1975, 395

F.Supp. 698, on the basis that a male applicant with a

similar conflict of interest would likewise have been

denied the position. A panel of this court affirmed on the

merits with respect to her individual claim, but reversed

the denial of class certification. Satterwhite vy. City of

Greenville, Tex., 5 Cir. 1977, 549 F.2d 347.

Upon rehearing, a divided panel vacated its prior de-

cision with respect to the class action issues, Satterwhite

v. City of Greenville, Tex., 5 Cir. 1977, 557 F.2d 414.

It found that the district court had failed to conduct an

adequate evidentiary hearing with respect to maintain-

ability, and that Article III and Rule 23 would permit

Mrs. Satterwhite to represent the class notwithstanding

the loss of her individual claim if: the denial of certifica-

tion was improper under the circumstances existing at the

time of the ruling;* the putative class members presently

have sufficient interest in the outcome of the litigation to

serve as Article III plaintiffs; and Mrs. Satterwhite can

still adequately represent that class, notwithstanding her

loss on her individual claim. Finding the record insuffi-

cient to permit it to decide whether these criteria were

Satisfied, the panel remanded for an evidentiary hearing.

For reasons detailed in this opinion, the panel opinion

is vacated, and we conclude that, on the record as a

whole, Mrs. Satterwhite is not a proper class representa-

tive because she neither has claims typical of the members

of the class nor has an adequate common interest or

3. The panel was concerned with the facts existing at the time

raga court could reasonably have been expected to rule which,

in this case, was February 4, 1975, the date of th uli

557 F.2d at 422 n. 18. Seabee

42

nexus with them. Therefore, the judgment of the trial

court dismissing the class claims is affirmed. Because,

under these circumstances, the class action cannot meet

the requirements of Rule 23, Federal Rules of Civil Pro-

cedure, we need not reach the issue whether the plaintiff

has the requisite standing to sue under Article III, Section

2 of the Constitution.

I.

As the panel correctly perceived, our course must be

charted by the recent Supreme Court decisions in Sosna

v. lowa, 1975, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d

532, and Franks v Bowman Transportation Co, Inc.,

1976, 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444.

Unlike the panel, however, we conclude that our des-

tination is determined by East Texas Motor Freight

System Inc. v. Rodriguez, 1977, 431 U.S. 395, 97 S.Ct.

1891, 52 L.Ed.2d 453.

In both Sosna and Franks the court considered separ-

ately each of the issues involved here, constitutional

standing to sue, and adequacy of the class representative.

In each case, a class had been properly certified by the

district court, but the claims of the individuals who sought

to represent the class had become moot during the appel-

lees process. The court reasoned that certification be-

stows upon the class a “legal status separate from the

interest asserted by [the named representative].” Sosna,

supra, 419 U.S. at 300, 95 S.Ct. at 557. Hence, if un-

named class members maintain a personal stake in the

outcome, a live controversy satisfying the requirements

of Article III exists. Franks, supra, 424 U.S. at 756-57,

96 S.Ct. at 1260; Sosna, supra, 419 U.S. at 402, 95

43

S.Ct. at 559. The court then determined that the named

representatives would “fairly and adequately protect the

interests of the class,” as required by Rule 23(a), F.R.

C.P., notwithstanding the mootness of their individual

claims.*

In Rodriguez, supra, the putative class had never been

certified, and it had been determined upon trial that the

named representative-plaintiffs’ individual claims were

without merit. This court certified the class while the

case was on appeal. The Supreme Court reversed, “for

the simple reason that it was evident by the time the case

reached [the Court of Appeals] that the named plaintiffs

were not proper class representatives under Fed. Rule

Civ. Proc. “3(a),” because they “were not members of

the class of discriminatees they purported to represent

. .. [A] class representative must be part of the class and

‘possess the same interest and suffer the same injury’ as

the class memvers.” 395 U.S. at 403, 97 S.Ct. at 1896.

Thus, in Rodriguez the court based its decision on the

failure of the clas representatives to meet the require-

ments of Rule 23 and did not consider the question of

standing.

4. Sosna, supra, 419 U.S. at 403, 95 S.Ct. at 559. In Sosna, the

claim was one “capable of repetition, yet evading review.” 419 U.S.

at 400-01, 95 S.Ct. at 558. Hence, if a representative with a moot

claim could not be deemed adequate for Rule 23 purposes, the

controversy might never be adjudicated. See also Gerstein v. Pugh,

1975, 420 U.S. 103, 110 n. 11, 95 S.Ct. 854, 861, 43 L.Ed.2d 54:

Frost v. Weinberger, 2 Cir. 1975, 515 F.2d 57, 64. However, the

court in Franks held, “nothing in cur Sosna or Board of School

Comm’rs [v. Jacobs, 1975, 420 U.S. 128, 95 S.Ct. 848, 43 L.Ed.2d

74] opinions holds or even intimates that the fact the named plain-

tiff no longer has a personal stake in the outcome of a certified class

action renders the class action moot unless there remains an issue

‘capable of repetition, yet evading review.’” 424 U.S. at 754, 96

S.Ct. at 1259.

44

[3, 4] Similarly, it is now apparent that Mrs. Satter-

white is not a member of the class of discriminatees she

seeks to represent. Unlike the individual representatives

in Sosna and Franks, who suffered the same injury as

other class members, but whose claims were mooted

before the appellate process was exhausted, Mrs. Satter-

white has never suffered any legally cognizable injury

either in common with the class or otherwise.° That Mrs.

Satterwhite’s individual claim lacks merit does not, of

course, determine that she cannot adequately represent

the class, but her lack of nexus with, and membership in,

the class is fatal. She is not an employee of the city, and

she has neither alleged in her complaint nor proved at

the trial any facts indicating that she has herself been

injured or will be injured by any of the policies that she

complains of other than those relating to her airport

manager claim now shown to be untenable. This court

has affirmed that Mrs. Satterwhite was not the victim

of discrimination on the part of the defendant. Hence,

she is not at present a member of the class, and we now

know that she was not a member even at the time that

suit was filed, see Payne v. Travenol Laboratories, Inc.,

5 Cir. 1978, 565 F.2d 895, 898, amended, March 23,

1978; Thurston v. Dekle, 5 Cir. 1976, 531 F.2d 1264,

1269-1270. It is this lack of nexus, rather than a lack

of merit to her claim of discrimination, that proves she

is not a proper class representative. See Long v. Sapp,

5 Cir. 1974, 502 F.2d 34, 42.

5. We agree with the panel that it is irrelevant whether moot-

ness is “‘fact-created,” as in Sosna, or created by application of law,

as in Franks or Satterwhite. 557 F.2d at 418 n. 10. But, as the

panel noted, “the reason why a named plaintiff’s claim has been

eliminated may concurrently, though aot necessarily, have an impact

on the adequacy of his further representation of the class under

Rule 23(a)(4).” Jd.

ne

45

There may be instances where a plaintiff whose indivi-

dual claim has been lost retains a personal stake in the

outcome of the suit, or a “sufficient homogeneity of

interests” with the class to represent it, Sosna, supra, 419

U.S. at 403 n. 13, 95 S.Ct. at 559. For example, a female

employee qualified for promotion, but passed over in

favor of a more qualified male, may complain of a policy

of not promoting females that threatens to injure her in

the foreseeable future. Compare Horn vy. Associated

Wholesale Grocers, Inc., 10 Cir. 1977, 555 F.2d 270,

276-277, and cases cited therein; Donaldson vy. Pillsbury

Co., 8 Cir. 1977, 554 F.2d 825, 831 n. 5, cert. denied,

1977, 434 U.S. 856, 98 S.Ct. 177, 54 L.Ed.2d 128, and

cases cited therein; Moss v. Lane Co., Inc., 4 Cir. 1973,

471 F.2d 853, 855 (cited with approval in Rodriguez,

supra, 97 S.Ct. at 1898 n. 12); with Rodriguez, supra,

and Walker v. World Tire Corp., Inc., 8 Cir. 1977, 563

F.2d 918, 922.° But Mrs. Satterwhite now lacks any

such tie to the class.

IT.

Mrs. Satterwhite contends that, even though it is now

known that she has never been a class member, the trial

court could not know this at the time of the initial certi-

fication decision. Thus, Mrs. Satterwhite argues that, be-

6. In McBride v. Delta Air Lines, Inc., 6 Cir. 1977, 551 F.2d

113, the Court of Appeals, without discussion of the mootness prob-

lem, remanded for the lower court to correct its error in denying

certification but affirmed the lower court’s dismissal of the representa-

tive’s individual claims. The Supreme Court, without considering the

merits of the court’s actions, vacated and remanded to the Court

of Appeals for further consideration in light of Rodriguez; 434 U.S.

916, 98 S.Ct. 387, 54 L.Ed.2d 273. For reasons indicated in this

opinion, the Court of Appeals’ decision in McBride is not necessarily

inconsistent with the Supreme Court’s decision in Rodriguez.

46

cause the failure to accord an evidentiary hearing was

error and because, on remand, she could establish that

such a hearing would have resulted in certification of the

class with her as representative, the class must now be

certified so that she can proceed to represent it as she

would have been able to had events proceeded on the

road they did not take. That alleged error must be cor-

rected. If she is shown as a result of later events (now

already known) to be an inappropriate representative, the

defendant might move to decertify on that basis. See

Guerine v. J & W Investment, Inc., 5 Cir. 1977, 544

F.2d 863, 864; Gonzales v. Cassidy, 5 Cir. 1973, 474

F.2d 67, 73.

[5] We assume, arguendo, that, had an evidentiary

hearing been held on February 4, 1975, as it should have

been, Mrs. Satterwhite would have been declared an

appropriate representative and the class would have been

certified. See, e.g., Payne v. Travenol Laboratories, Inc.,

supra, 565 F.2d at 900; Johnson v Georgia Highway Ex-

press, Inc., 5 Cir. 1969, 417 F.2d 1122, 1124. However,

this did not occur and the class was never created. At this

stage, it would be an imposition on the litigants and the

trial court to require them to engage in academic error-

correcting. The Supreme Court, in Rodriguez, specifically

stated, “Where no class has been certified . . . and the

class claims remain to be tried, the decision whether the

named plaintiffs should represent a class is appropriately

made on the full record, including the facts developed at

the trial of the plaintiffs individual claims.” Rodriguez,

supra, 431 U.S. at 406 n. 12, 97 S.Ct. at 1898 (emphasis

added). Hence, in determining whether Mrs. Satterwhite

might now represent the class, we must consider the

court’s determination that Satterwhite was not the victim

ee ee

47

of discrimination. Even if she would have appeared to

be an appropriate representative on February 4, 1975,

She is not now an appropriate representative. See note

11 infra. This defect is fatal regardless whether the issue

is raised by motion to certify, Sosna, supra; McLaughlin

v. Hoffman, 5 Cir. 1977, 547 F.2d 918, 921 n. 4, or

motion to decertify, Guerine, supra.

[6] Rodriguez cannot be distinguished on the basis

that, unlike the plaintiffs in Rodriguez, Mrs. Satterwhite

moved for certification. Whatever plausibility this sugges-

tion might have if the plaintiff had been the victim of

judicial error beyond her control, the plaintiff herself

failed even to seek an evidentiary hearing, or to make any

offer of proof as to the appropriateness of class action."

[7-9] The panel thought “that Rodriguez’ reliance upon

the named plaintiffs’ loss on the merits does not apply

to a situation where an appropriate [favorable] certifics-

tion decision would have preceded the individual plain-

tiffs loss on the merits.” 557 F.2d at 422 (footnote

omitted).* We need not speculate whether, in Rodriguez,

7. The court is required to conduct such a hearing without motion

from counsel, Gore v. Turner, 5 Cir. 1977, 563 F.2d 159, 165; U. S.

v. U. S. Steel Corp., 5 Cir. 1975, 520 F.2d 1043, 1052, cert. denied,

429 U.S. 817, 97 S.Ct. 61, 50 L.Ed.2d 77; 7A Wright & Miller,

Federal Practice & Procedure: Civil § 1785 (1972). But we must

assume that the court would have fulfilled its responsibility had it

received a request for a hearing from plaintiff.

8. We agree with the panel that Rodriguez is not contrary to

the teaching of Long v. Sapp, 5 Cir. 1974, 502 F.2d 34, and Huff

v. N. D. Cass Co. of Alabama, 5 Cir. 1973, 485 F.2d 710, 712-714

(en banc). The lack of merit of the representative’s claim is not

determinative in and of itself of the adequacy of his representation

for Rule 23 purposes. Rodriguez involved named plaintiffs who lacked

a nexus with the class as a result of the lack of merit of their in-

dividual claims. As we noted earlier in the opinion, a plaintiff with-

48

a hearing would or would not have resulted in certifica-

tion; Rodriguez was not remanded for that determination.

There, as here, the court knew through data garnered at

the trial of the individual claims that the plaintiffs had

never been appropriate representatives.°

The court in Rodriguez, supra, 431 U.S. at 406 n. 12,

97 S.Ct. at 1898 n. 12, recognized,

Obviously, a different case would be presented if the

District Court had certified a class and only later

had it appeared that the named plaintiffs were not

class members or were otherwise inappropriate class

representatives. In such a case, the class claims

would have already been tried, and, provided the

initial certification was proper and decertification

not appropriate, the claims of the class members

would not need to be mooted or destroyed because

out a viable claim may, in appropriate circumstances, act as class

representative, provided he or she is a member of the class and

maintains a sufficient homogeneity of interests at every moment of

the litigation. ;

Nor is Rodriguez or this opinion contrary to the policy favoring

“across the board” Title VII class actions. See Johnson v. Ga. High-

way Express, supra. It is not necessary that the representative suffer

discrimination in the same way as other class members, but it is

necessary that she suffer from the discrimination in some respect.

See Long v. Sapp, supra.

9. The Rodriguez plaintiffs had stipulated prior to trial that they

had not been discriminated against when first hired and contended

only that the failure to consider their line-driver applications con-

stituted discrimination. But it was not determined until trial that

they were not discriminated against with respect to their line-driver

applications, and their stipulation was sufficient to preclude their

membership in, or representation of, a class consisting of “all Negroes

and Mexican Americans who had been denied equal employment

opportunities with the company because of their race or national

origin.” The Supreme Court stated, “In short, the trial court proceed-

ings made clear that [the representatives] were not members of the

class of discriminatees they purported to represent.” 395 U.S. at 403,

97 S.Ct. at 1896 (emphasis added).

49

subsequent events or the proof at trial had under-

mined the named plaintiffs’ individual claims. See,

e.g., Franks v. Bowman... .

(Emphasis added.)

[10] Unlike the panel, we do not find present here

this different case, postulated in Rodriguez and presented

in Franks and Sosna. The putative class here was never

certified and the class claims were never tried. Where a

class is certified, and class claims tried, before the lack

of merit or mootness of the representative’s claim is

discovered, the class representative has already assidu-

ously asserted the claims of the constituents. The con-

servation of both litigants’ and judicial resources makes it

desirable not only to avoid abortion of the litigation but

also to prevent prejudice to the members of a certified

class who, in ‘fe midst of a law suit, suddenly discover

that their representative’s claim is no longer viable. Here,

no evidence concerning the claims of the putative class

members has ever been introduced; members of the class

have never relied upon the representative to try their

claims and no one is bound by a judgment in the suit.

Therefore, there is no reason for ignoring the would-be-

representative’s lack of a viable claim in determining

whether to certify the class. See Rodriguez, Id.

The courts in Sosna and Franks were concerned with

more than a metaphysical proposition when they con-

cluded that certification bestows a “legal status” upon

the class apart from the interest asserted by the repre-

sentative. See Sosna, supra, 419 U.S. at 399 n. 8, 95

S.Ct. at 557. It does not suffice that such a certification

would have been accorded but for some error; it was

not; hence, there is no reliance by class members to

50

consider. In Kremens v. Bartley, 1977, 431 U.S. 119,

132-133, 97 S.Ct. 1709, 1717, 52 L.Ed.2d 184, the

Supreme Court specifically stated, “[I]t is only a ‘prop-

erly certified’ class that may succeed to the adversary

position of a named representative whose claim becomes

moot.” In Board of School Commissioners of City of

Indianapolis v. Jacobs, 1975, 420 U.S. 128, 95 S.Ct.

848, 43 L.Ed.2d 74, where the plaintiffs’ claim had be-

come moot during the appellate process, and the district

court had neither defined nor certified the class, the

Supreme Court considered itself compelled to dismiss

the case. See Walker v. World Tire Corp., Inc., 8 Cir.

1977, 563 F.2d 918; Kuahulu v. Employers Ins. of

Wausau, 9 Cir. 1977, 557 F.2d 1334, where the courts,

faced with facts similar in all relevant respects to those

presented here, dismissed the appeals as moot. See also

Pasadena City Board of Education v. Spangler, 1976,

427 US. 424, 430, 96 S.Ct. 2697, 2702, 49 L.Ed.2d

599: Baxter v. Palmigiano, 1976, 425 U.S. 308, 310

n. 1, 96 S.Ct. 1551, 1554, 47 L.Ed.2d 810; Vun Cannon

vy. Breed, 9 Cir. 1977, 565 F.2d 1096, 1098; Winokur

v. Bell Federal Sav. & Loan Ass’n, 7 Cir. 1977, 560

F.2d 271, 277; Lasky v. Quinlan, 2 Cir. 1977, 558 F.2d

* 1153, 1137; Boyd v. Justices of Sp. Term, 2 Cir. 1976,

546 F.2d 526, 527; Napier v. Gertrude, 10 Cir. 1976,

542 F.2d 825, cert. denied, 1977, 429 U.S. 1049, 97

S.Ct. 759, 50 L.Ed.2d 765. Compare Walker v. Hughes,

6 Cir. 1977, 558 F.2d 1247, 1249 n.2; McGill v. Par-

sons, 5 Cir. 1976, 532 F.2d 484, 488.

[11, 12] The court in Kuahulu stressed, as we must

here, that its holding“is “very narrow.” The application

of the mootness doctrine in the class action context

“to a large extent, depends on the idiosyncrasies of

RA A ae Cae Mee ere sn te By

eens ane

51

each case,” Kuahulu, supra, at 1337. Accord, Franks,

supra, 424 U.S. at 755, 96 S.Ct. at 1260. Here the dis-

trict court has never adequately considered the certifica-

tion issue. Our decision here, like decisions in Jacobs,

supra; Walker v. World Tire, supra; and Kuahulu, supre,

“does not require an automatic dismissal in every case

where the district court has failed to certify the class

before the representative’s claim has become moot,”

Kuahulu, supra, at 1337. See Geraghty v. U.S. Parole

Comm., 3 Cir. March 9, 1978, 579 F.2d 238. Conversely,

dismissal may be required in some cases where certifica-

tion preceded the mootness of the individual claim. See

Kremens, supra.

[13] As the court in Sosna noted, “There may be

cases in which the controversy involving the named

plaintiffs is such that it becomes moot as to them before

the district court can reasonably be expected to rule on

a certification motion. In such instances, whether the

certification can be said to ‘relate back’ to the filing of

the complaint may depend upon the circumstances of

the particular case... .” 419 U.S. at 402 n. 11, 95 S.Ct.

at 559. See also Weinstein v. Bradford, 1975, 423 U.S.

147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350; Gerstein, supra;

Vun Cannon, supra, 565 F.2d at 1100 n. 6; Gardner

v. Westinghouse Broadcasting Co., 3 Cir. 1977, 559

F.2d 209, 215-219 (Seitz, J., concuiring), aff'd, 1978,

US. , 98 S.Ct. 2451, 57 L.Ed.2d 364; Basel

v. Knebel, 1977, 179 U.S.App.D.C. 209, 211, 551 F.2d

395, 397 n. 1; Zurak v. Regan, 2 Cir. 1977, 550 F.2d

86, 91-92, cert. denied, 1977, 433 U.S. 914, 97 S.Ct.

2988, 53 L.Ed.2d 1101; So. Bell Tel. & Tel. Co. v. U.S.,

5 Cir. 1976, 541 F.2d 1151, 1154-1155; Frost v. Wein-

berger, 2 Cir. 1975, 515 F.2d 57, 64, cert. denied. 1976,

52

424 U.S. 958, 96 S.Ct. 1435, 47 L.Ed.2d 364; Cicchetti

v. Lucey, 1 Cir. 1975, 514 F.2d 362, 367.

[14] There is a distinction, too, from the case in

which, after an appropriate certification hearing, the

court, through no fault of the plaintiff, improperly de-

nies certification and the plaintiff subsequently loses on

the merits of his individual claim.*° See Geraghty, supra;

see also Horn v. Associated Wholesaie Grocers, Inc., 10

Cir. 1977, 555 F.2d 270, 276-277; Donaldson v. Pills-

bury Co., supra, 554 F.2d at 831 n. 5, all allowing

the class action to continue. Compare Jacobs, supra; Vun

Cannon, supra; Kuahulu, supra; Walker v. World Tire,

supra; Inmates v. Owens, 4 Cir. 1977, 561 F.2d 560,

10. Where ihe representative’s claim becomes moot prior to the

appellate decision, there are several reasons for allowing the class

to continue if a hearing has been held and certification improperly

denied by a court; these reasons are not present in this case. First,

in those cases, a record has been made, hence any post hoc deter-

mination concerning the original maintainability of the class can be

made without speculation. Second, if there is a hearing, plaintiff

shares no responsibility for the court’s error; whereas his failure

to move for certification or for a hearing bears on the adequacy of

his tepresentation, Rodriguez, supra, 395 U.S. at 405, 97 S.Ct. at

1897; see also Gore v. Turner, 5 Cit. 1977, 563 F.2d 159, 166 n. 3.

Because of the restrictions on interlocutory appeals from class certi-

fication denials, see Coopers & Lybrand v. Livesay (and Livesay,)

1978, US.__, 98 S.Ct. 2454, 37 L.Ed.2d 351, and Gardner v. West-

inghouse Broadcasting Co., 1978, US. , 98 S.Ct. 2451, 57

L.Ed.2d 364, the error of law by the trial court will go uncorrected

if the case is dismissed when the representative’s claim becomes moot.

In the present case, the failure to provide a hearing may go un-

corrcted, but plaintiff had the opportunity to avoid that error by

timely seeking a hearing. Moreover, once certification was denied

without a hearing, plaintiff had a meaningful opportunity to have

the error corrected through an appropriate motion to reconsider

addressed to the trial court. For these reasons, if the representative

seeks a hearing but the court fails to provide one, the equities favor

allowing, whenever Article III permits, either an immediate appeai

from the denial of certification or belated certification, notwithstand-

ing the intervening mootness of the named representative’s claim.

53

562; Banks v. Multi-Family Management, Inc., 4 Cir.

1977, 554 F.2d 127, 128-9; Boyd v. Justices of Sp.

Term, supra, 546 F.2d at 527; Napier, supra, 542 F.2d

at 827, where no adequate hearing was held or a determi-

nation was not made at all, and the putative class was not

permitted to proceed. But see Winokur, supra, 560 F.2d

at 277, where the court suggested that the denial of

certification is fatal, even if erroneous, unless the named

party maintains an interest in the controversy.

[15, 16] Moreover, there will also be situations such as

those presented in our en banc decision in Huff v. N. D.

Cass Co. of Alabama, 5 Cir. 1973, 485 F.2d 710, where

we held that the trial court erred by determining at the

outset of the litigation that the representative’s claim was

without merit, and by denying certification on that basis.

Id. at 714-15." We required that this error be remedied

by a certification determination where plaintiff’s nexus

with the class could be assayed without regard to the lack

of merit of his individual claim. It is a different matter

to consider a valid judgment entered against the repre-

sentative’s individual claim after trial on the merits as

11. As this court noted in Miller v. Mackey International, Inc.,

5 Cir. 1971, 452 F.2d 424, 427, “The determination whether there

is a proper class does not depend on the existence of a cause of

action. A suit may be a proper class action, conforming to Rule 23,

and still be dismissed for failure to state a cause of action.” Hence,

the merits of plaintiff’s claim are irrelevant, but plaintiffs must none-

theiess “ “possess the same interest and suffer the same injury’” as

other class members. Rodriguez, supra, 395 U.S. at 403, 97 S.Ct.

at 1896, and cases cited therein.

Hence, it is error to explore the merits of plaintiff’s claim during

the maintainability determination, but obviously the merits must be

considered during the trial of plaintiff's claims, and, to the extent

that judgment bears upon the adequacy of plaintiff’s representation

or his nexus to the claims asserted by the class, it does not violate

the policy of Mackey and Huff to consider it in future certification

determinations. See Long v. Sapp, supra.

54

one factor in determining whether she has a continuing

nexus with the class. See Long v. Sapp, supra; see also

Napier v. Gertrude, supra.

Whatever decision the district court should have

reached in February, 1975, on the basis of appearances,

Mrs. Satterwhite was not then and is not now an appro-

priate representative. As no other champion has come

forward and as the uncertified class lacks the stake in the

controversy that a previously certified class might possess

under Franks and Sosna the class action must be dis-

missed.

III.

The result we reach is mandated by Rule 23(a)(4),

F.R.C.P.; neither the equities nor concern for avoiding

undue prejudice to the rights of putative class members

militate in favor of another result.

[17] Mrs. Satterwhite has had her day in court with

resp<ct to her own claim. No putative class member has

intervened for purposes of appealing the denial of certi-

fication, as she might have done even after entry of

final judgment; see United Airlines, Inc. v. McDonald,

1977, 432 U.S. 385, %7 S.Ct. 2464, 53 L.Ed.2d 423, nor

has any other class member sought to represent the class.

No unnamed member of this as yet inchoate class has

indicated that she has been aggrieved by the city’s em-

ployment practices or that she would like to challenge

those practices. See the panel opinion, 557 F.2d at 422.

[18, 19] The only basis for allowing new claims to be

asserted under the banner of this case would be to ensure

that putative members, who have never been formally

included or bound by this litigation, and who have been

Biirentrscetntrins tennis laren siete bette ah nS mt ee

55

free to intervene or file their own claims, might be pro-

tected by the assertions made in their behalf. The statute

of limitations is tolled for putative class members’ indivi-

dual claims from the date of the filing of the complaint

until class certification is denied, and remains tolled as

to those putative class members who intervene or who

file individual claims, even after the denial of certification.

American Pipe & Construction Co. v. Utah, 1974, 414

U.S. 538, 553-54, 94 S.Ct. 756, 766, 38 L.Ed.2d 713;

Eisen v. Carlisle & Jacquelin, 1974, 417 U.S. 156, 176

n. 13, 94 S.Ct. 2140, 2152, 40 L.Ed.2d 732; Haas v.

Pittsburgh National Bank, 3 Cir. 1975, 526 F.2d 1083,

1096-98. See also United Airlines, Inc. v. McDonald,

supra. Additionally, if a trial court’s decision that the

class may not be maintained is reversed on appeal, the

status of class members is to be determined from the time

that suit was instituted. Gelman v. Westinghouse Elec.

Corp., 3 Cir. 1977, 556 F.2d 699, 701; Esplin v. Hirschi,

10 Cir. 1968, 402 F.2d 94, 101 n. 12, cert. denied, 1969,

394 US. 928, 89 S.Ct. 1194, 22 L.Ed.2d 459. See

generally 3B Moore’s Federal Practice ¥ 23.90(3).

Whether putative class members may also be insulated

from a statute of limitation bar after the denial of certifi-

cation has been affirmed need not be addressed here, See

Jimeniz v. Weinberger, 7 Cir. 1975, 523 F.2d 689, 696,

cert. denied, 1976, 427 U.S. 912, 96 S.Ct. 3200, 49

L.Ed.2d 1204, suggesting the statute might be tolled.

See generally Note, 17 B.C.Ind. & Com. L. Rev. 915

(1976); Class Actions Under New Rule 23 and Federal

Statutes of Limitation: A Study of Conflicting Rationale,

13 Vill.L.Rev. 370 (1968). Should someone come for-

ward as some future date to present an individual or a

class claim against the City of Greenville, that action will

56

be an appropriate one in which to consider the effect, if

any, this suit had with respect to any plea that the statute

of limitations has run, should that plea be made.

The grievances, if any, of these putative and unknown

class members are, as far as this record is concerned,

wholly conjectural; they do not provide an adequate

basis for requiring the lower court to ponder the prob-

lems attendant on reviving a moribund suit.’* See Bradley

v. Housing Authority of Kansas City, Mo., 8 Cir. 1975,

512 F.2d 626, 628. Hence, we are constrained to decide

what the panel was “tempted” to conclude, 557 F.2d

at 422: there is no controversy between the defendant

and possible class members that may now properly be

considered in this suit.

IV.

The class action accords beneficia! results both to liti-

gants and the public. Its virtues, when properly employed,

have been the subject of extensive literature,‘* and the

——

12. If, on remand, the trial court certified the class and reached

the merits, these decisions would lead to another appeal. If the trial

court denied certification, then there might also be an appeal of that

determination, which would be final for appeal purposes because it

disposes of the case. Either route would depend upon requiring the

trial court to put itself back hypothetically more than four years,

and then having an appellate court assess the accuracy of the trial

court’s conjecture. Such speculation and such profligacy with judicial

resources in determining what. is at best suppositious is warranted

neither by Rule 23 nor by the ends of justice.

13. See, e. g., Ashe, The Class Action: Solution for the Seventies,

7 N. Eng. L. Rev. 1 (1971); Blecher, Is the Class Action Rule Doing

the Job (Plaintiffs Viewpoint), 55 F.R.D. 365 (1972); Cappelletti,

Vindicating the Public Interest through the Courts: A Comparatrist’s

Contribution, 25 Buffalo L. Rev. 643, 667-75 (1976); The Cost-

Internalization Case for Class Actions, 21 Stan. L. Rev. 383 (1969) ;

Federal Rules of Civil Procedure: Rule 23, The Class Action Device

ee ee ne ee

57

possible dangers that lurk in its misuse have also gener-

ated wide comment.”*

[20] Class actions economize time and effort and pre-

vent a multiplicity of suits, Advisory Committee’s Note to

Amended Rule 23, 1966, 39 F.R.D. 98, 102; deter mass

wrong and fraud, Parham v. Southwestern Bell Tel. Co..,

8 Cir. 1970, 433 F.2d 421, 428; preserve the constitu-

tional rights of broad classes of persons, Jones v. Dia-

mond, 5 Cir. 1975, 519 F.2d 1090, 1097; provide a

forum for the small claimant and the uninformed, Ameri-

can Pipe & Constr. Co. v. Utah, supra, 414 U.S. at 551-

552, 94 S.Ct. at 765; Samuel v. University of Pittsburgh,

3 Cir. 1976, 538 F.2d 991, 997; protect the rights of

those reluctant to file indivdual actions against defendants

with whom they have continuing necessary relationships,

Haynes v. Logan Furniture Mart, Inc., 7 Cir. 1974, 503

F.2d 1161, 1164-1165; Ste. Marie v. Eastern R. R. Ass’n,

S.D. N.Y 1976, 72 F.R.D. 443, 449; and enhance judical

focus on broader public policy issues abstracted from in-

dividual factual idiosyncracies, Watson v. Branch County

Bank, W.D. Mich. 1974, 380 F.Supp. 945, 957, rev’d on

other grounds, 6 Cir. 1975, 516 F.2d 902. They are an

essential part of the judicial arsenal for combatting racial

and sexual discrimination, Johnson v. Ga. Highway Ex-

press, Inc., supra; Pettway v. American Cast Iron Pipe

and Its Utilization, 22 U. Fla. L. Rev. 631 (1970); Ford, Federal

Rule 23: A Device for Aiding the Small Claimant, 10 B. C. Ind.

& Com. L. Rev. 501 (1969).

14. See, e. g., Becker, Introduction: Use and Abuse of Class

Actions Under Amended Rule 23, 68 Nw. U. L. Rev. 991 (1974);

Simon, Class Actions—Useful Tool or Engine of Destruction, 55

F.R.D. 375 (1972); Control of Class Action Abuses through Regula-

tion of Communications, 4 Class Action Rep. 632 (1975); Welthers,

Amended Rule 23: A Defendant’s Point of View, 10 B. C. Ind. &

Com. L. Rev. 515 (1969).

58

Co., 5 Cir. 1974, 494 F.2d 211, and, for this reason,

the courts will respond with flexibility to such claims,

[21, 22] But the continued vitality of this “effacious

jurisprudential tool,” Jones v. Diamond, id., depends upon

compliance with the procedural requirements of Rule 23

and the constitutional mandates of Article LI. If litigants

are to achieve the benefits properly to be derived from

class actions and abuse of the procedure is also to be

prevented, the institution of a class action imposes both

on counsel and the trial judge responsibilities not raised

by individual civil litigation. It is the court’s duty to

determine “as soon as practicable” whether the action

may be maintained as a class litigation. That duty, how-

ever, creates an obligation on counsel to assist by filing an

appropriate motion supported by proper evidence, Al-

though, in rare instances, maintainability may be deter-

mined on the basis of the pleadings, Huff v. N. D. Cass

Company of Alabama, supra, 485 F.2d at 713, if there

is any genuine doubt with respect to the propriety of a

class action, a preliminary evidentiary hearing is essen-

tial. See Walker, supra, 563 F.2d at 921; Jones v. Dia-

mond, supra, 519 F.2d at 1099. Because thinly manned

trial courts are beset not only with crowded dockets but

with mandates to accord conflicting priorities to innumer-

able matters,*® the final determination of a civil suit may

not be reached for months or even years. If, thereafter,

an appeal from the class action decisions is taken, there

is the difficult problem of attempting to ascertain the

facts and circumstances that existed at the time of the

original certification decision. These problems indeed

15. See Priorities for Handling Litigation in the United States

Court of Appeals (Federal Judicial Center 1977). See also Report

No. 109A, Reports with Recommendations to the House of Dele-

gates, A.B.A. 1977 Midyear Meeting 211 (1977).

59

played a large part in the second panel decision to re

mand. 557 F.2d at 418-19, 423. Affording an initial hear-

ing, even should the conclusion be that none was neces-

sary, services to lend certainty and direction to the future

course of the lawsuit.’®

[23] Counsel for the class have the primary responsi-

bility for pressing a class action claim. They do not satisfy

their responsibilities by simply affixing the class action

label to a suit and depositing it with the clerk. Counsel

for the defendants in a class action will also better serve

their clients and the court if they promptly assert ap-

propriate defenses to maintenance of the suit as a class

action, to the end not only that the trial court may have

a full picture before it in making this determination, but

also to present a complete record in the event of an

appeal on the certification issue. The expense to the liti-

gants in this case and the expenditure of judicial energy

16. Here, no hearing was held, and we have no record of the

facts existing at the time certification was denied so as to facilitate

an acurate post hoc determination. The problem presented here, and

in Jacobs, Kuahulu, and Walker v. World Tire can be avoided simply

by holding an appropriate hearing re maintainability and by issuing

a timely certification decision. Because of the death knell on inter-

locutory appeals of certification decisions, see Coopers & Lybrand

v. Livesay and Livesay, supra n. 10, and Gardner v. Westinghouse

Broadcasting Co., supra note 10, the problem presented in Horn

and Donaldson, where a hearing was held but certification erroneously

denied, can be obviated only by the timely intervention of a putative

class member, United Airlines v. McDonald, 1977, 432 US. 385,

97 S.Ct. 2464, 53 L.Ed.2d 423, or if the court allows the named

representatives to raise the maintainability issue on appeal notwith-

standing the loss on the merits, or compromise, of their individual

claims. See Geraghty, supra, and note 10, supra. But the error can-

not be corrected on appeal if there has been no certification hearing

at which the facts necessary for adequate review have been deter-

mined; nor can relief be provided by the appellate court remanding

for an evidentiary hearing when it has become apparent that the

named representatives are not members of the class, hence the class,

as proposed, may not be certified.

60

and thought devoted to the dismissal of this claim under-

line that it is critically important for both counsel and

the court to accord to the preliminary procedural issues

in class actions the uncompromising attention that they

deserve.

Accordingly, we DISMISS the appeal, VACATE the

panel opinion, and REMAND to the district court with

instructions to vacate its order and dismiss the complaint.

GODBOLD, Circuit Judge, dissenting, with whom

BROWN, Chief Judge, and GOLDBERG and SIMP-

SON, Circuit Judges, join, dissenting.

The second opinion of the panel responded to the

City’s petition for rehearing, which had raised the claim

that the first panel decision violated the case or contro-

versy requirement of Article III of the United States

Constitution. Case or controversy was the issue on which

the panel divided in its second opinion. The court en

banc has pretermitted decision on case or controversy

grounds and instead has reversed the panel on Rule 23

grounds. Thus case or controversy as a ground for

decision is out of the case.

The en banc opinion describes its holding as very nar-

row and recognizes that application of the mootness

doctrine depends to a large extent upon the idosyncrasies

of each class action. The opinion affirmatively recognizes

that this decision does not require automatic dismissal

in every case when the district court has failed to certify

the class before the representative’s claim has been

mooted. It distinguishes this case from those in which

after an appropriate certification hearing the court,

through no fault of the plaintiff, improperly denies cer-

aT

61

tification and the plaintiff subsequently loses on the merits

of his individual claim. With the decision resting upon

Rule 23, and with a clear statement of what this decision

does and does not hold, the ditference of views have been

greatly narrowed.

Viewing the case even within the narrow limits set by

the en banc court, the decision and opinion seem to me

a grudging application of class action concepts, at odds

with the protections normally accorded class members

from adverse consequences and based upon a misappli-

cation of East Texas Motor Freight System, Inc. v. Rod-

riguez, 431 U.S. 395, 97 S.Ct. 1891, 52 L.Ed.2d 453

(1977).

In a variety of contexts the courts have protected ab-

sent class members from the fallout inevitably arising

from the two-headed nature of the class action. One

type of fallout arises because the members of the putative

class, and of the class when certified, have interests which

are affected while the suit is ongoing—should they file

claims with EEOC, or protective suits; is the statute of

limitations running;' over what period can they claim

back pay in the suit or independently of the suit; should

they retain their own counsel? How does the court

protect these ongoing interests of the class when the

plaintiff's individual claim aborts, in a manner fair to

the defendant as well and without imposing undue strain

on the court system? From hindsight, we might well have

chosen a per se rule. Rather we have tried to thread our

way through varying circumstances with a balancing of

interests approach. The balance has gone badly askew

in this case.

1. The en banc opinion pretermits this issue for a future case.

62

In this connection, it is important to recall that the

panel did not hold that the case should go forward as a

class action or that Mrs. Satterwhite should remain as

class representative. Rather it remanded to the district

court, which had improperly derailed the case, for that

court to reexamine the situation and, if appropriate, set

the train back on the rails with Mrs. Satterwhite or a

successor as representative. The court en banc elects

to leave the wreckage where it is and to say “tough

luck” to the putative class members.

Approaching application of the mootness doctrine as a

case-by-case matter, the opinion in Part I seeks to bring

this case within Rodriguez. In Rodriguez plaintiffs al-

leged a ciass action but never moved for certification,

and the court made no ruling on certification. Plaintiffs

stipulated before trial that the only issue was failure of

defendants to consider plaintiffs’ applications. At trial

plaintiffs confined their evidence and argument to in-

dividual claims, and the defendants responded accord-

ingly. After trial the court dismissed the class claims

setting out the events just outlined, plus the fact that

a large segment of the putative class had recently re-

jected a bargaining proposal for a remedy sought in

the class action complaint. The court also ruled against

plaintiffs on their individual claims. On appeal this court

certified a class, designated plaintiffs as the representa-

tives and granted relief. The Supreme Court held that

the district court had not erred in dismissing the class

claims. This is not surprising.

This case cannot be fairly equated with Rodriguez.

The only resemblance is that plaintiffs in both cases lost

on their individual claims. Rodriguez was never a bona

fA te we Secs

63

fide class suit, and everything the plaintiffs did after

filing their complaint was inconsistent with the interests

of the class. The present suit was prosecuted as a class

action from the beginning until after the district court

denied certification (even including an abortive appeal

to this court).?

Also, Rodriguez must be read in the light of two

recent decisions, Coopers & Lybrand vy. Livesay, ——

US. , 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978), and

Gardner v. Westinghouse Broadcasting Co., —__U'S.

» 98 S.Ct. 2451, 57 L.Ed.2d 364 (1978). Coopers

& Lybrand holds that a district court order denying

certification is not appealable as a final order under 28

U.S.C. § 1291. The Court predicates its holding on

the fact that “an order denying class certification is sub-

ject to effective review at the behest of the named plain-

tiff or intervening class members.” Similarly, Gardner

assumes that “If after [a] judgment on the merits, the

relief granted is unsatisfactory, the question of class

status is fully reviewable.” These two cases, which fore-

close interim review of denials of certification, are

predicated upon the concept that full and effective review

is available after a final judgment on the merits. They

are inconsistent with a mechanistic extension of Rodri-

guez that uses the merits determination as a sword

against the class members who are required to wait for

the merits before getting review.

The majority assert that Mrs. Satterwhite is like the

plaintiffs in Rodriguez in that she never had any nexus

2. Mrs. Satterwhite sought to appeal from the denial of certifica-

tion, but, faced with unreviewability, withdrew the appeal. sie

or homogeneity of interest with the class.’ Mrs. Satter-

white sought to represent a class composed of all present

and prospective female employees of the city allegedly

victimized by (1) a discriminatory hiring policy, (2)

sexually segregated job classifications, and (3) a dis-

criminatory compensation scheme. She is exactly within

(1), for she is a female, a prospective employee, and a

person who claimed she didn’t get the job she applied

for because the city has a policy against hiring females.

In short, she asserts sex discrimination in hiring, job

assignment and pay, directed against females, on behalf

of applicants and of those already employed.* In Carr

y. Conoco Plastics, Inc., 423 F.2d 57 (CAS), cert,.

denied, 400 U.S. 951, 91 S.Ct. 241, 27 L.Ed.2d 257

(1970), we permitted a black job applicant to represent

black applicants and employees in seeking relief against

discrimination in hiring and in internal operation of the

plant. It is only when it is decided that her claim is

without merit—i.e., she was denied employment because

of an adverse interest and not because of a policy against

hiring females—that Mrs. Satterwhite loses her con-

nection with the class. Arguably she is also within (2).

This case falls somewhere between Rodriguez where

the case was never prosecuted as a class suit and plaintiffs’

actions after filing the complaint were antithetical to a

3. This position is necessary to the opinion because of our case-

law, recognized somewhat gingerly in the opinion, that the court

should not, early in the litigation, dismiss the class claims because

the individual plaintiffs claim lacks merit, if the plaintiff enjoys

suffcient nexus or connexity with the class apart from the lack of

merit. Huff v. N. D. Cass Co. of Alabama, 485 F.2d 710 (C.A. 5,

1973) (en banc.)

4. I would characterize this as “across-the-board” but my position

does not depend on that label.

ited a etdetttbenih

Sante

65

class suit, and the “different case” postulated in footnote

12 of Rodriguez, 431 U.S. at 406, 97 S.Ct. at 1897, 52

L.Ed.2d at 463, where a class has been certified and the

class claims tried and only then does it appear that the

plaintiff is an inappropriate class member. The Court

would not apply the mootness doctrine to this “different

case.” Here, the class has not been certified or the class

claims tried as in the “different case,” not because of lack

of assertion of a bona fide class case or failure of the

plaintiff or adverse interest of plaintiff, as in Rodriguez,

but because of trial court error.® To try to edge this case

over toward Rodriguez, the opinion emphasizes that Mrs.

Satterwhite did not ask for a hearing on the certification

issue and presented to the court no evidence on that issue

except a computer printout. This is considerably less than

all the story. After filing her class action Mrs. Satterwhite

filed searching interrogatories to the city addressed to the

handling of job applications, the numbers of female and

male employees and their duties, pay, and the like, and

other data material to the various prongs of the class

claims. The city refused to answer and tendered its rec-

ords for examination by plaintiff. Plaintiff filed a motion

to compel answers and asked for an immediate hearing.

She filed a motion for certification of the class accom-

panied by a brief, as directed by the court, on the ques-

tion whether certification should be denied on the ground

her individual claim lacked merit. The city responded

with a brief urging as one of the grounds for denial of

certification that Mrs. Satterwhite’s claim lacked merit.

The court, without setting a hearing on the motion for

certification, which it was required to do, or a hearing on

5. As I discuss below, the defendant urged that certificatio

denied on the ground that Mrs. Satterwhite’s claim lacked —

66

the motion to compel answers, denied certification.* There

was a paucity of evidence made available to the court on

the class claims, but plaintiff had unsuccessfully sought

the aid of the court to obtain more. Seven weeks before

trial the court denied certification without statement of

reasons. Plaintiff sought to appeal from the order, but

faced with the “death knell” limitation, then the law in

this circuit, withdrew the appeal.

In these circumstances neither policy of requiring dili-

gence by gee ge representative nor a neutral policy of

protecting the adjudicatory system justifies our refusing

to recognize the interests of the class. The opinion of the

court suggests that remand to the district court for it to

consider maintainability, case or controversy, and whether

Mrs. Satterwhite or some successor should be class repre-

sentative, should be denied because of inconvenience to

the district court and the litigants. In the circumstances

this is disingenuous. The court erred by acting too soon,

acting without a hearing, and, one may fairly infer, for

the wrong reasons, and the only litigant inconvenienced

is the city, which urged the wrong reason upon the court.

The consequences should not be visited upon the puta-

tive class, without an opportunity, through remand, for

the interests of the putative class to be protected.

6. The opinion, in footnote 7, recognizes that it is the duty of

the court, without a motion from plaintiff, to conduct a hearing on

certification, but nevertheless it marks up a demerit against plaintiff

for not asking the court to carry out its duty. Moreover, plaintiff

might reasonably infer that since she had pending one motion for a

hearing she need not ask for two hearings.