# Appendix — Satterwhite v. City of Greenville > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0043%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1980 - **Citation:** 445 U.S. 940 ## Text 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