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

ADAMS, GARTH, Before HUNTER and Judges. Circuit OPINION OF THE COURT GARTH, Judge. Circuit Scott, Jr., Dr. P. a former Nolvert black professor of Del- assistant at the aware, discri- contended hiring minated on the basis of race in the promotion faculty and of its He members. brought this action in the court district alleging claims under Title VII and the Rights Civil Acts of 1866 and 1871. Scott sought relief on his and on individual claims consisting prospec- the claims of a faculty might tive members who be discrim- against by University’s hiring inated practices faculty and current members sub- ject University’s discrimination renewal, promotion, contract tenure practices. court, cer- The district after action, against tifying the class found Scott on both his individual class claims. The now issues before district court are presented appeal. us prop- We conclude that the district court erly ruled on his individual Scott claims, year year of their three end of second With claims. way, candidate would In this a contract. the class action should have been hold that the event his or year’s one notice in decertified, receive thus not reach the mer- do not to be renewed. On her contract was its of the class action. 1, 1973, Sociology Department fac- May performance, ulty met reviewed Scott’s I. BACKGROUND. produced inad- had but concluded Scott Scott, only recently received Dr. who had activity per- equate evidence of research sociology, ap- degree his doctoral of his work. As thorough mit evaluation professor assistant in the Uni- pointed an asked submit consequence, Scott was versity’s Sociology Department Septem- regarding scholarly additional materials ber, previous experience 1971. His included 3, 1973, May those members activities. On eight years teaching at a Canadian Uni- Department in the versity years part-time grad- and three and, on the basis of met senior teaching Pennsylvania uate assistant record, recommended supplemented Scott’s University. During negotiations for State May his not be renewed. On contract appointment Sociology Depart- his to the 8, 1973, Department met Sociology the full ment, the requested he and received from 1, renewal 9 to with 2 voted and $15,000 University salary a commitment of Accordingly, employ- abstentions. Scott’s during year year the first of his three con- was with terminated ment the $3,000 was above rate at tract. This the expired after the 1973-74 when his contract University normally compensated which the year. academic then commenced Scott faculty Sociology new the De- members in court legal reported action. It was degrees. partment possessed doctoral argument time on this at the of oral ap- When new members faculty were 1979, 31, on Dr. had died. that March Scott pointed Sociology Department, provided with bro- mimeographed a II. INDIVIDUAL CLAIMS. SCOTT’S describing personnel policies chure of the of alleged individual claims department. brochure, originally This VII of the Civil discrimination under Title 1969, published in described the criteria 1964, et Rights 42 U.S.C. 2000e § Act of that would be considered in contract renew- Rights Acts of 42 seq., and the Civil decisions;1 al, promotion, and tenure and 42 U.S.C. U.S.C. § § The criteria fall cat- general into three respect to each of these claims Scott With egories; 1) teaching effort and effective- “dispa on proceeded in the district court a ness, 2) scholarly activity, 3) and service contending theory, rate treatment” department, University, favorably by purposefully treated less was community. catego- in all Criteria three similarly situated white than formulating ries will be a considered in the district court members. Both recommendation. proceeded parties have appeal, and The brochure thus served to inform new assumption the substantive under faculty members of the basic criteria that of scope liability of under each the Civil would be considered contract renewal Rights the same with Acts is decisions. claims of discrimination. Scott’s individual During us in sociology presented his has been discussions Since case faculty, terms, decid Scott was informed that it was the these we will assume without interpretation general practice a Department ing proper to eval- that this reflects uate candidates for of these contract renewal at statutes.2 Department procedural, jurisdictional, Sociology Policy, of Personnel have different Rail- See Johnson v. Exhibit 8. remedial characteristics. Defense Inc., way Express Agency, 421 U.S. (1975); & 2. The of B. Schlei causes action under each of the Civil S.Ct. 44 L.Ed.2d Grossman, Rights Employment independent, Law Discrimination Acts are distinct and P. parameters disparate plaintiff’s] rejection pretext.”

The of a treat was in fact Accord, theory in the context an Id. at S.Ct. at 1824. Furnco ment individual Waters, Corporation by the Construction v. Title VII action were described Su 567, 575-78, 2943, 57 Douglas L.Ed.2d preme Corpo Court McDonnell (1978).3 Green, 792, 802, ration 411 U.S. (1973) (footnote In International Brotherhood omitted): States, Teamsters v. United complainant in a Title VII trial (1977), L.Ed.2d Su carry must the initial burden under the preme expressed only what im Court was establishing prima statute of facie case plicit Douglas proof in McDonnell —that of. racial discrimination. This discriminatory required dispa in a motive (i) by showing belongs done that he to disparate rate treatment action. This (ii) minority; applied racial that he was theory treatment of discrimination ex qualified job was plained for which the as follows: employer seeking applicants; (iii) “Disparate treatment” such as is al- that, despite qualifications, he was leged in the present case is most rejected; that, (iv) rejec- after his easily type of discrimination. understood tion, position open remained and the employer simply people treats some employer applicants continued to seek favorably less because than others persons race, complainant’s qualifica- color, religion, sex, from their or national origin. discriminatory tions. Proof motive is critical, it can in some situations although plaintiff Once prima establishes such a be inferred from the mere of differ- fact case, facie burden must shift to the “[t]he See, e.g., in treatment. Village ences of employer legitimate, to articulate some Arlington Heights Metropolitan v. Hous- nondiscriminatory employee’s reason for the 252, 265-266, ing Corp., Dev. 429 U.S. [97 rejection.” produces Id. the employer If 555, 563-565, 450], 50 S.Ct. L.Ed.2d burden, evidence which satisfies this n.15, Id. at 335 97 S.Ct. plaintiff presented individual must then be with opportunity “a fair to show that Arlington Heights sug- The citation to [the employer’s] stated gests requirement dispa- reason for individual in that motive [the Also, (1976). groups per- proof); of different allocation of Flowers v. Crouch-Walker protected against sons are 1277, Corp., (7th 1977). discrimination under 552 F.2d 1281 n.3 Cir. these various statutes. See B. Schlei P.& requires prove Section 1983 that that Scott Grossman, supra, at 599-629. deprived by right of has been “secured Beazer, City Authority In New York Transit Constitution and laws” of the United [the] - U.S. -, 99 S.Ct. 59 L.Ed.2d States, 587 University deprived and that the him of (1979) upheld against a case which Title VII right acting this while “under color of equal protection challenges regulation of Brothers, Flagg of statute" Brooks, Delaware. Inc. v. Authority prohibiting employ the Transit 149, 155-56, 436 U.S. 56 users, Supreme ment of methadone Court (1978). L.Ed.2d 185 It is that conceded relationship described the and between Title VII University and its officials are state actors for 1981 as § follows: purposes only liability. §of 1983 The federal “. . . our treatment of the Title VII rights independent Scott has §of which disposes claim also claim § 1981 with- on identified are those which he Although need out for a remand. the exact possesses under 1981 and § Title VII. applicability provision of that has not been Court, liability decided theory it seems clear that it 3. This VII has been Title greater protection affords no substantive applied discharge to as well as unlawful cases -, than Title Id. VII.” 99 S.Ct. at 1364 to hire v. Santa Fe refusal cases. McDonald n.24. Transportation Trail generally Lower federal courts have concluded (1976); 49 L.Ed.2d 493 Flowers v. scope liability the substantive under (7th Corp., Crouch-Walker 552 F.2d 1277 Cir. employment § 1981 in an individual discrimina 1977); Corp., Garrett v. Mobil Oil 531 F.2d 892 congruent tion action is VII. See Sabol v. with that under Title Cir.), denied, (8th cert. Snyder, 524 F.2d (1976); Potter v. Goodwill (10th 1975); Long Cir. v. Ford Motor Industries, (6th 1975). Cir. (6th 1974) (order F.2d 505 n.11 publication professional in journals ord of pre- treatment is similar to that rate cases effectiveness, teaching despite vailing equal analysis. and that his protection Court, Term, previous teaching experience, his extensive generally Supreme faculty was both members and Harv.L.Rev. criticized students. disparate In order to establish his treat- claim, comparable he was presented Scott evidence con- Scott's claim that

ment prefer- cerning University’s faculty contract other members received renewal by evi- practices ential treatment was undermined promotion to oth- faculty indicating that those other faculty. dence er members He also teaching expe- previous his members lacked presented of individual evidence instances renewal and rience and that the contract of discrimination him members promotion employed de- criteria in other community. of the University Scott con- partments those somewhat from differed tended that this evidence demonstrated Sociology Department. More- used University’s discriminatory behavior in that over, with whom many faculty members faculty granted other members of the posi- compared accepted himself had promotions despite contract renewals or University prior tions at the performance teaching, in the areas of schol- year changed its which arship, and community service which was employment policies emphasize scholar- comparable or to his own. inferior After a hiring, ship primary faculty criterion in analysis careful this evidence and of renewal, promotions. surrounding facts the decision not renew simply members provided these contract,4 Scott’s the district court conclud- prove opportunity with an themselves ed, essentially grounds, on two that Scott criteria; they under the when failed new failed to prima had establish a case. facie so, Scott, in con- do were terminated. First, the district court found that the non- trast, apprised the relevant fully was renewal of contract was Scott’s not moti- shortly evaluation criteria after he assumed animus, by any vated racial but “resulted position University. Based at the opinion from the nine members of the the district court found this evidence Department not, Sociology [Scott] similarly to other was not situated Scott into, develop acceptable and would not an faculty and that nonrenewal members permanent professional colleague.”5 by racial of his was motivated not contract Second, the district court found that Scott general “that considerations but view similarly was not to those he situated whom soci- ‘sociologist’s kind of was not the Scott treatment, alleges received preferential and ologist’ looking for.”7 department was concerning that Scott’s evidence the Uni- versity’s faculty treatment of other mem- of the record satisfies Our review bers did not racial indicate discrimination.6 supports that the district us the evidence fact, find sociology department findings

Members of tes- court’s of and that these Kras although rating ings clearly tified at trial are not erroneous. See that Scott’s in Dinan, (3d Cir. with v. F.2d community connection service to the nov high, 1972) or review developed high (clearly was not erroneous standard had cases). non-jury We performance factfindings in civil levels in the areas of scholar- of ship judgment teaching entry and that justify would con- therefore affirm under against individual claims tract renewal. The evidence indicated that on his Scott VII, had not Title and 1983.8 satisfactory § Scott established rec- § pertaining employment 4. The facts 6. Id. at 1122-23. to Scott’s University ably in are set forth detail in the at 1121. Id. opinion court, F.Supp. district (D.Del.1978), repeated and not be here. will injunctive sought declar- and Insofar as Scott atory University compelling rein- relief F.Supp. 5. 455 at 1120-21. contract, claims these state him and renew employment. respect III. their CLASS CLAIMS. With to both subclasses, the district court concluded that A. The District Court’s Class Certifica- appropriate under class treatment Rule tion Order. 23(b)(2) injunctive declaratory because claims, In addition to his individual sought relief was to the class sought certification composed “of certified as a whole. all blacks who have been or will be discrimi- Both in the district court and now on against nated on the basis of race and color appeal, University has contested the recruitment, hiring, firing, promotion, su- correctness of the district court’s class certi- terms, pervision, wages, conditions 9 fication. This attack is concentrated privileges employment by defendants.” alleged satisfy prereq- Scott’s failure to 23(a) alleged prerequisites He the Rule uisites for class maintenance set forth in satisfied, for class certification were includ- 23(a). Scott, turn, Rule contends ing the assertion that the class was so nu- properly class certification issue is not joinder merous as to render all of members and, alternatively, before us for review impracticable. September On properly the class was certified. Accord- court, University’s objec- district over the ingly, reviewability we first turn to the tion, requested certified the Scott.10 the class certification issue. trial, purposes however, For two sub- informally recognized classes were by the Reviewability B. of Class Certification district court: “a class which includes Order. allegedly blacks who have been or will be against discriminated propriety recruitment Scott contends that hiring,” and a University class of black properly the class certification is not before faculty members who have been discrimi- us for review because the has nated in the terms and cross-appeal.12 conditions of failed to take a For several have September App. been mooted Scott’s death. We ad 10. Order of 26a-27a. conducted, discovery dress the merits of Scott’s individual claims After limited had been pay damages decertify because the claim for back moved to the action as Although compensatory ground survives his a class death. action on the that Scott had punitive identify any damages generally are failed to black members recov VII, erable Grossman, other than himself under Title see who were discriminated B. Schlei and P. against by University. Employment The district court Discrimination Law (1976), Scott, substantially prevailed 258-59 denied this motion for the same if he on his claims, granted might pay reasons that it had certifica- individual the class be entitled to back initially. tion motion See 16 FEP Hodgson until Cases the time of his death. See (D.Del.1976) (opinion denying Corrugated Ideal decertification Box 10 FEP Cases motion). (N.D.W.Va. 1974). and, Compensatory circumstances, in certain (D.Del.1975). 11. 68 F.R.D. punitive damages are available under § 1981 Railway Express and § 1983. See Johnson v. necessity cross-appeal 12. for a was de Agency, Inc., 454, 460, 1716, 421 U.S. 95 S.Ct. scribed Justice Brandeis in United States v. (1975); Weir, 44 L.Ed.2d 295 Basista v. 340 Co., 425, Railway Express American 265 U.S. (3d 1965). F.2d 74 Cir. Because neither 1981 § 435, 560, 564, (1924): 44 S.Ct. 68 L.Ed. 1087 specifies nor § 1983 whether a cause of action under plaintiff, party appeal that statute survives the death It is true of the that a who does not guidance the federal courts seek from from a final decree of the trial court cannot provided they opposition state survival acts be heard in case are not incon thereto when the brought policies appeal underlying sistent with is here of the adverse the federal words, party. appellee may Cherry, statutes. See In other not Brazier v. (5th Cir.), denied, 921, attack the decree with a view either to en- larging cert. 368 U.S. 243, rights (1961); Smith, his own 7 thereunder or of less- L.Ed.2d 136 Pritchard v. ening rights adversary, (8th 1961). of his 289 F.2d whether 153 Cir. The Delaware statute, Ann., what he seeks is to correct error or to survival an set forth at Del. Code supplement 10, Chapt. 3701-08, the decree with to a mat- permit §§ would the con ter not dealt with below. But it is likewise damages. tinuation of an action for appellee may, taking settled that without Complaint, App. 9. Amended 7a. cross-appeal, urge support a of a decree

83 reasons, unpersuaded by argu will be harmed the effect of the district we are his judgment in favor of the court’s cross-appeal ment. The failure to file a These on the merits of the class claims. power does affect our to consider the absentees, however, expected to cannot be class certification issue. See Rhoads v. represented adequately by be the Universi Co., 931, (3d Ford Motor 514 F.2d 934 Cir. assigned ty, party perforce 1975); Chicago, Burlington Quincy & R.R. challenge class certification. Nor can it Ready Co. v. Mixed Concrete 487 F.2d represented will be assumed that be 1263, 1268 (8th 1973); Hof n.5 Cir. Arnold’s effectively by the named adequately or brau, George Hyman Inc. v. Construction party sought representative —the Co., Inc., 253, U.S.App.D.C. 258, 156 480 propriety class certification —when 1145, (1973); Tug F.2d 1150 Raven v. Trex challenged the class certification ler, 536, (4th 1969), 419 F.2d 548 Cir. cert. grounds suggesting inadequate representa denied, 938, 1843, 398 90 U.S. S.Ct. 26 circumstance, remains tion. In this “there (1970); Wright, L.Ed.2d 271 15 C. A. Miller duty upon carefully to consider the court Cooper, E.& Federal Practice and Proce adequate pro requirement of fair and (1976); Moore, dure 3904 9 J. B. Ward & § consequences tection in view of the serious Lucas, ¶204.- J. Moore’s Federal Practice judicata of res in class actions.” EEOC v. (2d 1975). requirement ed. This has 11[5] 301, (6th Detroit 515 F.2d Edison practice,” Tug been as a described “rule of 1975), Cir. vacated and remanded on other Trexler, Raven v. 419 F.2d at rather grounds, 431 U.S. S.Ct. jurisdictional than a restriction on federal (1977). L.Ed.2d 267 The record here reveals appellate Although generally courts. we apparent deficiencies in the satisfaction of appellate juris restrict the exercise of our 23(a) requirements the Rule for class certi diction to occasions in which a formal cross- fication, strongly deficiencies which militate filed,13 appeal this, has been in cases such as against certification of the If the class. we are not mandated to do so. See United cross-appeal file a University’s failure to Corporation, States United States Steel permitted to control our review of the (5th 1975), 520 F.2d Cir. cert. issue, abdicating certification we would be denied, 50 L.Ed.2d memb responsibility our to absent class (1976). ers.13a case, alignment parties In this case, therefore, we follow the In this particularly makes it inappropriate that we practice in Rhoads v. Ford Mo- established deny review of Judge class certification. Company, where tor 514 F.2d Here, it is the absent class members who Aldisert wrote: Club, record, appearing although (1979); Joseph matter in the Health v. Norman’s argument may Inc., upon (8th 1976). involve an attack We 532 F.2d 88 n.2 reasoning of the lower court or an insistence think that the discussion in these cases upon ignored by discretion, matter only overlooked or it. addressed and not Washington v. Confederated Bands and power, declining of the court to consider Tribes, n.20, 463, 476, class certification issue not raised in a cross- University pre- Since the appeal. upon vailed the merits of the class claims in the court, upon district its attack the class certifi- cases, one, 13a. there such as this While enlarge rights cation on will not its own circumstances”, “just in which it is under the Rather, adversary. or lessen those of its our adjure requirement 28 U.S.C. § improperly conclusion that the class was certi- Judge cross-appeal, are not convinced fied will cause the to forfeit whatev- opinion analysis concurring is a Adams’ in his preclusion er effects it have derived from analysis salutary would one for all cases. His judgment the district court’s on the class cross-appeal benefits of a in all cases dilute the fact, party claims. This as well as the struc- sharp requirement adequate and a notice — lawsuit, appropriate ture of the makes it for us though framing appeal on of the issues —even to review the district court’s class certification strategic appellee the it is the who controls despite cross-appeal. the absence aof challenge class certi- whether to the decision of - County Davis, Angeles 13. See of Los v. appeal, fication on as it did here. U.S. -, 1379, n.3, 99 S.Ct. 59 L.Ed.2d 23(b)(2) practice have were satisfied in this case. Accord- While better would dic protective tated that Rhoads file a cross- the ingly, we will focus our attention on appeal, will in these circumstances we prerequisites for class treatment set forth appeal allow failure to file a notice of 23(a).15 that in Rule This subdivision states preclude to our review of the record. In “(1) only if the proper class certification is respect, follow we recent we the rule joinder all class is so numerous that of ly a modified once invoked in context: (2) are impracticable, is there members “ attaches, appellate jurisdiction ‘the fact the questions of law or common to power appeals of the court of should be class, (3) rep- the defenses of the claims or plenary to the extent chooses to it typical parties resentative are of the claims exercise it. A court close should not its class, (4) repre- of and the or defenses ” eyes is plainly to what there.’ parties fairly adequately and sentative will McCreary Tire & v. Rubber Co. CEAT protect the the class.” Fed.R. interests of S.p.A., 1032, (3 1974), 501 F.2d Cir. 23(a).16 Civ.Proc. quoting Moore, 9 J. Practice Federal ¶ 110.25[1], (2d 1973). ed. (a) prerequisites The subdivision mind, With these considerations we next in principal two perform class certification turn propriety to the of the district court’s of By requiring functions. the existence certifying actions in the class action and in questions law common of or fact and refusing decertify light then it in impracticability joinder, of a threshold stan developed facts at trial. as to appropriateness dard of class

C. Merits of Class Certification Or- requirements treatment The established. der. of commonality, typicality, adequacy and un protection afforded the interests of contends that Scott failed members, turn, named class all assure satisfy numerosity, commonality, and the interests absent class members typicality prerequisites to class certification be adequately represented set will 23(a).14 forth in Rule point No is made on concerning Adequate class representatives.17 the district court’s named requirements conclusion that representation, being of Rule re- in addition to scope judicial 14. The simply of review of a district court’s certification is econo- prerequisites my, determination as whether a court must be concerned with the inter- 23(a) for class treatment set forth in have Rule ests absent class members because been satisfied was described v. in Katz Carte have not received individual notice. Corp., 747, (3d Cir.) (en Blanche 496 F.2d banc), denied, 152, cert. 419 U.S. if, 16. A class action be maintained in addi- (1974), 42 L.Ed.2d 125 as follows: 23(a), prerequisites of Rule tion one The district court must determine if the categories 23(b) is also satisfied. Rule prerequisites four for a class action listed in 23(a) rule have been met. These are manda- Liberty Wetzel Mut. In v. Ins. 508 F.2d tory requirements, and our review decides (3d denied, Cir.), cert. 421 U.S. whether the mandates have met. been (1975), 44 L.Ed.2d 679 this court Accord, Liberty Wetzel Mutual Insurance adequacy representation described the doc (3d denied, Cir.), 508 F.2d cert. trine as follows: Adequate representation depends two properly ap If on the district court has plied mandatory (a) plaintiff’s attorney criteria factors: of Rule must approval must then qualified, experienced, generally determine whether able to denial of class litigation, certification constituted an proposed (b) the conduct Bogus abuse of discretion. v. American plaintiff antagonistic must not have interests Speech Hearing Ass’n, & 582 F.2d those of the class. (3d 1978); Prade, Cir. Paton v. La 524 F.2d suggestion No has made that Scott’s been (3d 1975). fully competent counsel was not to handle say litigation. argued (b) 15. This is not to case was well the subdivision ruling entirely appeal, irrelevant assess- we do not rest our hold- a court’s briefed (a) prereq- ment any way quality legal as to whether ing the subdivision on the of Scott’s uisites have been satisfied. In a subdivision representation. (b)(2) primary justification action which

85 23, ty’s hiring practices. University con- by constitutionally Rule man- quired class are to be applicant dated if absent members tends that the class which Scott judgment concerning the the class nothing bound more than sought represent Lee, 32, Hansberry v. 61 claims. hypothetical numerosity the re- that 115, (1940). According 85 L.Ed. quirement is therefore unsatisfied. University, developed the the facts at trial interests of the When the 23(a) prerequisites disclosed that the Rule representative and unnamed named class not be satisfied would certification coincide, question there is no class members (or subclass) consisting either a class but that the claims are concerned insofar as applicants seeking faculty positions or a (a) typicality requirement the of subdivision consisting of those who have obtained See, g., Sugar Industry In re is satisfied. e. faculty status.18 322, Litigation, Antitrust 73 F.R.D. (E.D.Pa.1976); v. Fire Applicant 1. Hernandez United Class. 419, (N.D.Ill. 79 F.R.D. Insurance objections Two basic are raised to Scott however, 1978). case. Nor That is not this representing consisting appli- a subclass the interests of the is our case one in which seeking faculty positions cants who chal- from, diverge representative merely named lenge University’s alleged the discriminato- with, clearly those of but do not conflict ry hiring practices. First, since was a Scott Often such a di unnamed class members. University member of the at it will vergence will harmless in that not time this lawsuit was commenced and since repre impair the incentive of the named personally complain does not of discrimi- vigorously prosecuting in all as sentative hiring, nation in his his claim pects v. Chase of the case. See Sullivan typical is not applicants of those Boston, Inc., Investment Services sought who have or who hereafter seek (N.D.Cal.1978); Dolgow F.R.D. faculty positions. Second, did not al- Anderson, (E.D.N.Y. v. 43 F.R.D. lege, evidence adduced at trial did disclose, 1968), grounds, not rev’d on other that identified individuals Moreover, (2d 1970).19 against by were discriminated when notice to Universi- Although pretation contends that the of Rule but rather concerned standing representative bring district court erred in its initial certification of of the named action, representative the class need not we resolve that issue has suf- the suit. If the named appeal. injury on this Even if we were to assume that in fact relative the class fered no claims, proper, the initial that the certification was we think representative lack the named emerged that facts in the course of standing Article III case or con- because of the adequate represen trial demonstrated that the tation and Goode, troversy requirement. But cf. Rizzo v. numerosity prerequisites not were L.Ed.2d 561 423 U.S. (1976) satisfied, accordingly and that the class should injury (standing requirement satisfied have been decertified when that came be situation Moreover, class). in East to entire Court apparent. Inc., See Weisman v. MCA suggest Freight Texas went on to Motor (D.Del.1968)(court F.R.D. 260 n.1 has obli of interests be- there was an actual conflict tween gation proceed 23(c) under Rule even plaintiffs and the class were proper motion). absence of a having represented. See 431 U.S. certified as Finally, procedural 97 S.Ct. 1891. Recently, Freight, in East Texas Motor Inc. Freight posture generis Motor was sui of East Texas 395, 403, Rodriguez, appeals had certified since the court of (1977), Supreme 52 L.Ed.2d453 Court made find- the class ings indicating district court had after the representative part stated that “a class of the class and suffer the same must be plaintiffs ‘possess the same interest and proper representatives. injury’ as class members.” factors, agree alone, Standing might language suggest “[t]he Based these rigor- permissive always inappropriate conflict between the that class certification is 23(a) prerequisites approaches divergent ous to the Rule by when there are interests between the Supreme representative Court’s treat- named was not settled and absent class mem- Note, However, 23(a) context, Rodriguez.” Antidis- bers. when read in it is ment crimination Class Rules of Civil Procedure: speak evident quite Actions Under the Federal that the Court did not intend broadly. support The Transformation so cases cited 23(b)(2), the Court’s 88 Yale L.J. statement did not concern the inter- of Rule 86 required, philosophy degree

absentees is class members with when he po- assumed his divergent strategies Moreover, claims or will premium be able sition. he received a to inform the court of their views. If nec salary normally paid over the by the Uni- essary, the designate court versity. number Understandably, in view of these representatives, of class advancing facts, not, not, each he could and does claim that ease, somewhat different theories of the against by was discriminated the Univer- and establish subclasses to sity’s facts, accommo hiring policies. Despite these date divergent views as litigation pro the challenge against Scott seeks to lead a the ceeds. Developments See in the Law — same hiring policies which re- Actions, Class 89 Harv.L.Rev. Moreover, 1475-89 sulted in employment. his in so (1976). No mere divergence doing, of interests is he disputes validity of the Uni- however, presented, complaint. Scott’s versity’s requirement degree of a doctoral Rather, the presents case before us primary a clear as a hiring criterion. He thus at- conflict of Scott, interests tacks, between class, via applicant very de- representative, named and gree possesses unnamed which he and which he as- members of applicant subclass. These seeking serts in his own favor in relief on antagonistic interests leave no doubt that disparate his individual treatment claim. failure to decertify the class action was The positions assertion of these inconsistent improper. See Wetzel v. Liberty necessarily Mutual forecloses contention that Insurance (3d Cir.), F.2d typical Scott’s are claims of the claims of denied, cert. 421 U.S. 44 those applying faculty positions. for Under (1975). L.Ed.2d 679 circumstances, these it cannot be said that adequate representative was an The record discloses that Scott was the unnamed members of a seeking em- sole representative named case, in this and ployment.20 so, being This prerequisites that his interests as a member for certification of such a were not whose subject contract was to renewal were satisfied.21 necessarily in conflict with appli- those of positions cants for on the University facul- East Texas Freight System, Motor Inc. v. ty. Scott had appointment received an to Rodriguez, faculty, and held a doctor (1977), provides of L.Ed.2d 453 strong support generally Miller, factually Of inapposite Frankenstein appeal. Monsters to Scott’s In that Shining Knights: Myth, and Reality, case, and Liberty objected Mutual to the class certi- Problem,” “Class Action 92 Harv.L.Rev. 664 ground employ- fication on the that the former ees, voluntarily “who have severed their em- ployment prior adequately rep- to suit Pennsylvania cannot Police, See Bolden v. State presently resent (3d 1978) F.2d members of the (Garth, J., class who are concur- ring employed by part company.” dissenting part) (Rule in 24(a) 508 F.2d at 247. in (emphasis supplied). permitted Liberty intervention should be ity applicant Mutual never nonminor- raised, apparently class because their interests the court never con- inadequately protected by sidered, employees Fraternal Order the issue of whether current Police, representing police officers, represent current prospective employees. can a class of seeking in modification of Certainly Consent Decree. employees the interests of the former “ present . police . . FOP and the Wetzel, officers voluntarily who had left their em- stronger have a much and more direct interest ployment, adversely would not be affected promotion in the features of the Consent De- potential competition prospective employ- from cree, hiring rather than the features with which Scott, contrast, ees. would have been in applicants primarily concerned.”). are sharp competition for contract renewal and applicants might tenure with be offered recognize 21. We Liberty that in Wetzel v. Mu faculty positions. competi- The flavor of this tual (3d Cir.), Insurance cert. suggested by having successfully tion is Scott’s denied, 44 L.Ed.2d negotiated salary higher usually for a than that (1975), permitted employ the court former paid by University, having his ar- Liberty ees of represent Mutual to a class chal gued against requirement a Ph.D. on behalf of lenging Liberty hiring promotion Mutual’s applicant having emphasized policies. class but Although agree legal we with the support own Ph.D. in of his individual adequate claims. representation standard of announced Wetzel, supra, see note 17 we find that case Moreover, for the result which reach here. The the Court noted that the named Supreme plaintiffs had Court there held that the court of failed to move class certi- court, fication in the district and that appeals certifying erred in a dis- demanding forms of relief in certain crimination action for class since treatment expressed conflict with the views mem- “it was evident the time the case they sought represent. of bers the class plain- reached that court that the named 404-05, id. at 97 1891. S.Ct. proper representatives tiffs were not class Id. at 23(a).” under Fed.Rule Civ.Proc. case, Similarly, in this concedes that Scott 97 at They proper S.Ct. 1896.22 were not personally suffered no discrimination representatives class because the district when he was hired. Since he was not in- plaintiffs court found that lacked the jured by alleged hiring any discriminatory qualifications positions to be hired for the is doubtful after East Texas practices, it they sought. “Thus, which they could have Freight Motor that he can lead a class injury suffered no as a alleged result of the challenging University’s hiring prac- discriminatory practices, were, Furthermore, tices.23 Scott’s attack on the therefore, simply eligible represent hiring not a University’s practices was in crucial persons class of allegedly respects who did suffer in conflict with his individual Id. at 403-04, injury.” 97 S.Ct. at 1897. claims. existence of this conflict Freight, Supreme merely 22. In East Texas Motor result in error if harmless there is none- recognized point Court presentation in a trial at theless a full and fair at trial of adjudicated which a class certification issue Conversely, ap- if claims of the class. it appellate will have some influence on an pears presen- there was not a full and fair court’s review of the decision on that issue. trial, might tation of the class claims at expressed understanding The Court this as fol- denied, suggested if those claims were then lows: in the error initial certification would not be Obviously, a different case would be Thus, harmless. even if we were to assume presented if the District Court had certified a proper, that the initial certification order was only appeared class and later had it that the 18, supra, see Note we would conclude that plaintiffs named were not class members or refusing decertify district court erred in inappropriate repre- were otherwise class case as a class action. This error was not case, In sentatives. such a the class claims harmless in view of the conflict between tried, and, already provided would have been appli- Scott’s individual claims and those proper the initial certification was and decer- cant class. appropriate, tification not the claims of the plain 23. Several courts have held that a named class members would not need to be mooted challenges tiff destroyed a defendant’s discriminato subsequent because events or ry promotion practices may represent proof the plaintiffs’ at trial had undermined the named See, contesting hiring prac e.g., the defendant’s individual claims. Co., insufficiently Transportation Franks v. Bowman 424 tices because these claims are Co., Inc., 752-757 S.Ct. [96 47 L.Ed.2d similar. See Hill v. Western Electric 444]; Moss (4th v. Lane 471 1979); Tempe F.2d 855- 596 F.2d 99 Cir. Chavez v. (CA4). 856 Where no class has been certi- High Union School 565 F.2d Dist. # fied, however, and the class claims remain to (9th 1977); 1094 n.10 Cir. United States v. tried, be plaintiffs the decision whether the named Suffolk, City F.Supp. of School Bd. 418 639 represent appro- should a class is (E.D.Va.1976), part part aff’d in and rev’d in priately record, including made on the full grounds nom., other sub Walston v. School Bd. developed plain- the facts at the trial of the Suffolk, City (4th 566 F.2d 1201 Cir. point, tiffs’ individual claims. At that as the Brown, 1977); F.Supp. Greene v. 1266 case, Appeals recognized Court of in this (E.D.Va.1978). See also Walker v. World Tire impondera- “there involved [are] none of the Inc., Corp., (8th 1977); Sat Cir. bles that make the [class decision so action] Greenville, City terwhite v. 578 F.2d litigation.” early difficult at F.2d 51. (5th 1978) (en banc), petition 991-92 Cir. See also Cox v. Babcock & Wilcox filed, (U.S. 9, 1979) cert. 47 U.S.L.W. 3465 Jan. (CA4). F.2d 15-16 (No. 78-1008); Douglas Tuft v. McDonnell n.12, 431 U.S. at 406 Corp., (8th 1978). But cf. 581 F.2d analysis suggests This if a district Corp., Dickerson v. United States Steel proper court’s initial certification order was (E.D.Pa.1977) (Rodriguez F.Supp. view the limited facts before the court at the preclude does not “across-the-board” class cer ruling, subsequent development time of its action). tification antidiscrimination undermining may of facts at trial order crimination class actions because there exist stronger even one than makes this case an future class members who unidentified Freight denying class East Texas Motor ignore discrimination.25 We cannot suffer treatment, impels us to hold that framing of over- possibility that “the refusing decertify erred in district court in the loss broad classes result applicant as its named which, had the claims of absent members representative ap- once this conflict became framed, might well appropriately class been parent.24 Harriss successfully been asserted.” have Inc., Airways, v. Pan American World Faculty Class. (N.D.Cal.1977). F.R.D. applicants In addition to the subclass of findings by the district The of fact made University, faculty positions for at the only small reveal that court in this case certification order in- district court’s class had been faculty members number of black faculty of all cluded a members subclass subjected University’s employment to the who have or in the future will be been respect promotions practices. With against grounds discriminated on racial tenure, district court made the follow- respect University’s with contract ing findings: renewal, promotion, policies. and tenure faculty at Of the twelve black full time contends, however, University The that de- trial, tenured and the time of two were respect required certification with was verge being two tenured. were on the 23(a) this subclass because the Rule numer- faculty remaining eight Of the black osity requirement was not satisfied. members, only had been on the fac- four numerosity requirement four, ulty years. for three Of these “ designed prevent ‘to members of a small Gregory only Bachelor’s and Miles had being unnecessarily deprived class from Washington degrees, and Farrow and had rights day their without a in court’ Thus, degrees. every black only Master’s opposing party by only a few members of faculty member with a doctorate and resorting Wright 23.” 7 Rule C. at the years with three or more of service Miller, & A. Federal Practice and Procedure University or near tenure. was tenured 1762 at 593 It § also fosters the only faculty other black members interest assuring of the court in a full and stayed University who have for exposition par fair of views all affected years past more than three in the ties practicable join when it is them in a Davis, Sociology, who Hilda a Ph.D. in single proceeding. objec These beneficial Writing special in the had function undermined, however, tives are by the fac English Department, and Center of the ile numerosity require Farrell, conclusion that only had a Master’s Mary may always degree, ment be satisfied in antidis- and who was recommended holding (1975), ground 24. Because we rest our on the this adequate representa- that Scott could not be an court held that future class members could subclass, applicant properly tive of the we do not reach certification be included the class numerosity require- (b)(2). issue of whether under subdivision Id. at 254. Future respect ment was satisfied with to that sub- expressly considered class members were not class. court, however, by the in its discussion of numerosity requirement whether of subdi- Inc., 25. See EWH v. Monarch Wine Co. Instead, (a)(1) the court vision was satisfied. (E.D.N.Y.1977); F.R.D. Piva v. Xerox persons on the who would focused number of Corp., (N.D.Cal.1975). 70 F.R.D. Cf. presently fall within Id. at the class. 246-47- Collins, Committee to Free the Fort Dix by negative implication, part At least (3d 1970) (class 429 F.2d certifica- opinion support can be read in court’s improper “[njowhere tion when in the com- position members are not that future class plaint any persons appel- are other than the upon purposes to be counted or relied specified being lants themselves within the numerosity requirement complying with affected”). (a)(1). subdivision Liberty In Wetzel v. Mutual Insurance (3d Cir.), denied, cert. tenure) satisfy numerosity promotion (though require- when she sufficient addition, University left the in 1974. In faculty ment. The class of future members attempted has to hire Doc- simply ephemeral on the facts of this tors Eubanks and Colson into tenured hypothesis case —it is constructed on the positions faculty. on its that the will hire blacks for fac- promotions sketchy

The record on is too ulty positions and then discriminate any to draw inference. All we know is refusing employment them to renew promotions that there were some of black by denying promotion contracts or or ten- faculty and that the EEOC found that solely ure on the basis of race. Scott has eligi- two of the three blacks who became sup- introduced no evidence which would promotion ble for between 1972 and 1975 port In a circum- hypothesis. such were promoted. stance, faculty think that future we do not members, possible only whose claims are F.Supp. (footnotes omitted). at 1131-32 speculative only and can be formulated in a pertaining The evidence to contract re- fashion, highly conclusory abstract suggests newals an even smaller number of provide, possibly prejudiced should persons black affected: by, membership in the class which renewals; Finally, reasons, represent. seeks to For these there is no evidence of black numerosity requirement hold that the of member other than Dr. Scott who has not 23(a) respect Rule was not satisfied with Indeed, had his contract renewed. no subclass, faculty the this that subclass faculty member other than Dr. Scott is should have been decertified when this cir- claiming identified in the record as one apparent. cumstance became any be a victim of racial discrimination in renewal, promotion or tenure at the Uni-

versity. IV. CONCLUSION. Id. at 1132. judgment The the district court final of 16,1978 August provided “judg-

In view of the that district court’s find dated ings, conclude, we must on the facts of this ment is entered for the defendants and case, that the numerosity requirement against plaintiff.” the class certification was not satisfied with We will so much of that final affirm faculty to the subclass. has Scott judgment defend- entered in favor of the single not past present identified a or facul dispa- pertains ants as individual Scott’s member, ty himself, other than who was rate treatment claims. arguably against by discriminated the Uni Because we the dis- have concluded versity’s renewal, contract promotion, and decertify refusing trict court erred in practices. Moreover, tenure the number of action, so much Scott’s class we will vacate faculty black members at the University judgment pertains of the final may who subject have been to such discrim therewith, class action. In accordance large ination is not so joinder as to make in- will remand to the district court with impracticable. Kelley v. Norfolk and structions decerti- that an order be entered Railway (4th Western dismissing with- fying class action and 1978). Furthermore, suggestion no has prejudice out all of the class action claims been made that any past or current mem Scott, thereby disposing asserted of all bers of faculty may who feel that presented in this claims action. have been against any discriminated are in way maintaining disabled from an antidis ADAMS, Judge, concurring. Circuit crimination action on their own behalf.

Against background judgment Although this I concur in the of concerning past members, Court, separately current write for two reasons. we do not I First, think the allegation necessity mere of my that future facul- I believe views on the ty against filing cross-appeal members from those set discriminated is differ Second, peal is to ‘attack the decree with a view majority opinion.

forth in the I rights enlarging I either to his own thereun- important consider it to underscore what lessening his adver- rights der or of scope to be the limited of our understand is to correct an sary, whether what seeks holding regarding class certification. supplement with re- error or to the decree ”5 spect OF FILING A to a matter not dealt with below.’ I. NECESSITY CROSS-APPEAL case, present brought by “Nolvert In the Scott, Jr., appellate triggered by process individually P. and on behalf situated,” relatively simple, final yet mandatory persons similarly mechanism all other filing judgment of a notice of for the defendants which was “entered designates order, Although judgment, part plaintiff.”6 thereof, appellant opposed seeks have certification of the had course, class, appellee, litigate overturned. The required need it was both subsequently in cross-appeal in order to individual and the class claims an extend- judgment fact, trial, defend the ultimately prevailed. in his favor. In ed at which it noted, course, as Justice pleased Cardozo it is an “inveter- was result, ate and appellee may, certain” rule that an no at the time and had occasion “ filing cross-appeal, ‘urge sup- judgment without entered to the district court port prior of a decree appearing appellate matter seek review of the interlocu- although argument class, the record tory par- in- order certified the that had upon volve an attack reasoning ticularly might jeopardize review since such lower court or an upon judicata hard-fought insistence matter the res its effect of ”1 ignored by Apart overlooked or victory. appeal, it.’ from When filed an how- practical considerations,2 ever, possi- number the University, as one of several rule reflects “the person grounds preserving judgment notion that a ble favor, satisfied with the action of a argument court should its tendered the appeal it, not have to from no improperly matter what class had been certified. Desir- Furthermore, adversary ing protect does.”3 as to from the class certification observed, commentators contrary have a appellate scrutiny pressed while he his chal- practice present could ofttime para- lenge disposition “the to the court’s district claims, doxical requiring cross-appeal situation of a the class contended that re- under circumstances which would seem not propriety view of the of the certification permit appeal.” to a direct precluded the class was because the Univer- cross-appeal sity neglected had to file a The underlying general rationale rule challenging the class certification. provides also assessing a basis for when a cross-appeal Thus, necessary. is majority for exam- concludes that the class cer- ple, here, and of relevance appel- appeal. Al- “what tification be reviewed on [an may not do in the absence cross-ap- though recognizes challenging of a it that in lee] Morley Maryland Cross-Appeal Certainty 1. Construction Co. v. Casual or Cross-Petition — ty Co., 185, 191, 325, 327, Confusion?, (1974). 300 U.S. 57 S.Ct. 87 Harv.L.Rev. 765-67 (1937) (quoting 81 L.Ed. 593 United States v. Ry. Co., Express 3. Id. at 765. American 265 U.S. (1924)). 44 S.Ct. 68 L.Ed. 1087 See also Note, (quoting Cross-appeals 4. Id. in Dandridge Williams, Maine v. 397 U.S. 475-76 Winning Litigant, Pitfalls for the 25 Maine n.6, (1973)). L.Rev. instance, ques- 2. For because the substantive Morley Maryland 5. Construction Co. Casu appellant plans gener- tions which the to raise 185, 191, alty (quot ally appeal, are not included in the notice of ing Ry. Express United States v. American appellee will often be unable to determine 425, 435, 560). cross-appeal necessary preserve whether a argument an that he intends to make on his Judgment, App. August at 6. Final 1978. Stern, generally own behalf. See When to 161a. For, already indicated peals, however.9 as class certification the does enlarge rights above, prevailing party, or lessen its own it is evident that a seek however, opinion adversary,7 here, its its those of is satisfied with such as the regard challenge as appears not not seek to have it judgment and does general qualifying under the rule that an rights its or to lessen modified to increase appellee cross-appeal need not in order to fact, adversary. In it would those of its reject- argument advance an that had been prefer judgment not to have the disturbed ignored by the trial court ed or but all, merely raises the class certifica- at and supports judgment its favor. In- protect itself in the event tion issue to stead, quite importantly, opinion ruling on the mer- the favorable it secured ordinarily assumes that a court will decline pur- Inasmuch as the its is overturned.10 to consider a class certification issue not filing appeal notice of or notice pose a by cross-appeal, proceeds raised to as- appellate jur- cross-appeal is to invoke of a ought practice” sert that this “rule of to be judgment to have isdiction to review a present overlooked in the case because oth- judgment adversary notified that abdicating erwise the Court “would be [its] re- being challenged,11 I see no reason to responsibility to absent class members.”8 quire appellee cross-appeal to file a me, is troublesome, at least Somewhat backup ground pro- preserve order to a majority that suggestion by tecting been rendered judgment a that has departure about as here comes result favor, already when has in its an true, general rule. It is as from the judgment. from that been filed matter, raising technical the class Moreover, require it seems to be unfair appellee certification issue the be seen order to cross-appeal that a be filed in requesting not an affirmance on the deci- secure review of the class certification judgment merits but rather that the sion, notwithstanding ap- fact that an trial court be vacated and the cause re- judg- final peal has been taken from the manded directions that the class action requirement would create ment. Such a claim be That should be of no dismissed. unwary consequence governing cross-ap- trap unsophisticated for the rule Supra, applicants past 7. in the their to include 82-83 n.12. failure however, oversight;” class was a “mere at 83. Id. modify judgment Supreme will not Court cross-petition error since no correct this fatal Contra, Club, Inc., Joseph v. Norman’s Health filed). 1976) (8 (no analysis 532 F.2d 88 n.2 recently provided). Supreme ap- Court majority, Contrary I do not believe pears applying to the to have been a restrictive more cross-appeal requirement rule, purpose that a of the under which it has refused to address appeal,” arguments changing sharp framing on that is “a of the issues would necessitate judgment brought supra, practice governing more of the by than is into issue at 83 n.l3a. The appeal. pertain by the initial See Strunk v. United cross-appeals the rules is controlled States, 434, 437, 2260, 3(c), 412 U.S. 93 S.Ct. under Fed.R.App.P. ing appeals; a no to (1973); L.Ed.2d 56 Lines, NLRB v. International Van designate only judg appeal “the tice of need 48, n.4, 74, 409 U.S. 52 & 93 S.Ct. ment, appealed part A from.” order or thereof (1972). L.Ed.2d 201 See also Mills v. Electric provided sample in Form 1 a is of such notice n.4, Auto-Lite 396 U.S. 90 S.Ct. Rules, Appendix no and leaves of the Under such an cross-appellant appellant the or doubt that approach, required cross-appeal would be argue. identify points to the he intends need ruling. review of a class certification These function, framing sharp That as well as a cases, however, explained recent be issues, accomplished properly the various upon different that bear the Su- considerations Stem, supra generally at note See briefs. preme process Court’s review and that limit it appeal make it briefs 756-66. The on questions importance national which University squarely abundantly clear that the Stem, granted. supra certiorari has been ruling, the class certification took issue with note at 777-79. plaintiffs ample opportunity to had and that the reply respond brief. in their Davis, County Angeles Compare of Los v. - -, n.3, 99 S.Ct. (1979) (respondents L.Ed.2d 642 contend that First,

attorney, emphasized who was assured that it should be that we do certification order would be reviewed if and not hold that the trial court committed re- judg- when an is filed from the final versible error when it certified the class at ment, immediately, rather than 23(c) as he un- litigation. the outset of the di- Rule doubtedly preferred.12 would have an Such judge rects the trial soon determine “[a]s appellee likely neglect to file a cross- practicable as after the commencement of appeal because he is satisfied with the ulti- an whether it is action” to maintained as mate outcome of the trial. action, permits judge a class but also modify his order before the decision on the Finally, apparently the course charted keeping provision, merits. In that majority unwise, would seem to be relatively early stage trial court ruled at a it introduces new uncertainty element of allegations of the lawsuit that the set forth relatively into a settled area of the law.13 complaint may in Scott’s warrant class ac- appellee It cross-ap- would force an to file a judge cognizant tion treatment. The peal whenever doubt exists as to possibility might ultimate- appeals whether a court of will consider ly satisfy numerosity adequate fail to arguments supporting judgment in his However, representation requirements. favor, and, significantly, more punish would appropriate ascertained that the course was failing addition, him for to do so. In class, subject certify to reexamina- approach may be widening criticized for developed tion if subsequently facts cast power of the judiciary engage unprin- propriety ruling.14 doubt on the of that cipled decisionmaking. This is so because it was, view, my This initial decision nei- expand would the reach of a “rule of prac- ther erroneous as a matter of law nor an tice” requiring cross-appeals and then Rather, major- abuse of discretion.15 as the would selectively waive application its when clear, ity emerged makes facts that any particular panel deems it to be in the the course of the trial demonstrated that justice. interest of numerosity adequate representa- prerequisites satisfied, II. tion were not CLASS CERTIFICATION accordingly, appropriate it was Turning to the class certification issue class be decertified when that situation be- presented case, in this I am agree- in basic apparent. came ment with the majority opinion on this sub- ject, but important Second, consider it majority to add two as I understand the caveats. opinion, represent it is not intended to long ago protective 12. It should cross-appeal,” be recalled that not too that Rhoads file a id. virtually obtaining all intending routine avenues for departure, particu- im- such a appellate certifying mediate review of an order larly focusing since the Court was not on that foreclosed, thereby deferring a class were re- issue. rulings view of class action until after a final judgment Coopers Lybrand is entered. See & Delaware, 14. Scott v. 68 F.R.D. Livesay, 437 U.S. (D.Del.1975). (1978); Westinghouse L.Ed.2d 351 Gardner v. Broadcasting Co., practice 15. The has been for courts to construe (1978). Implicit 57 ment, develop- L.Ed.2d 364 in that requirements liberally, particu of Rule 23 me, understanding at least to is the larly propriety when the determination of the record, including the rulings interlocutory entire all early being of the class action is made at an (be discovery, related to the intro- stage proceedings, modify and to evidence, duction of class), or the certification of the necessary comport order as subse with open scrutiny will be if and when an quently developed facts. Gerstle Continental appeal is taken at the end of the case. Airlines, Inc., (D.Colo.1970). 50 F.R.D. 213 majority’s 13. While the 291, Corp., reference to Rhoads v. Green v. Wolf 406 F.2d 298 & n.10 Co., (3d 1975), Ford Motor might 514 F.2d 931 Cir. (2d 1968); Cir. Cusick v. N. V. Nederlandsche suggesting be construed as Industrie, Combinatie Voor Chemische 317 Court has struck a different course from the 1022, F.Supp. (E.D.Pa.1970); 1026 7A C. controlling cross-appeals, traditional rule 1 do Miller, Wright A. Federal Proce & Practice and regard parenthetical not remark in that (1972). dure 1785 at 138 § practice case that “better would have dictated

93 consisting upon availability persons by class harmed constriction hiring charging University’s allegedly discriminatory action device in “across suits discriminatory employment not, it, practices, grounded board” I on a is as see True, practices. Supreme Court admon- representation. restrictive notion of class Freight, ished Texas Motor Inc. v. in East representative We do not hold that the class 395, 403, Rodriguez, 431 U.S. position must stand in an identical vis-á-vis (1977), 52 L.Ed.2d 153 that even members, or employer as the other class though alleging or ethnic “suits racial dis- general person allegedly that in a discrimi by very crimination are often their nature promotion against nated suits, involving wrongs[,] classwide individ may represent including not a class require- . careful attention to the aggrieved by employer’s uals who were ments of Fed.Rule Civ.Proc. 23 remains Indeed, hiring practices. in Wetzel v. Lib But, indispensable.” any nonetheless like (3d erty Mutual Insurance standards, 23(a) prereq- indefinite the Rule denied, 1975), cert. Cir. capable being ap- uisites are themselves (1976), this Court plied strictly strictly. more as well as less was not employee, held that a former who And, emerging out of an awareness that reinstatement, may nonetheless entitled to expected the class action device is to facili- allegedly discriminatory employment attack objec- tate the realization of substantive practices past of a class of and on behalf tives, molding class courts have been action we present employees. And in that case practice policies so as best to effectuate the hiring promotion prac permitted both underlying the various action.16 causes of repre challenged by the same tices to be Perhaps interrelationship nowhere has this Here, however, we are motivat sentatives. procedure between been and substance persons those by ed a conviction more visible than in the context of class by the have been discriminated challenging action suits racial discrimina- hiring make University’s practices, which employment,17 development tion in degree or its possession of a Ph.D. by was foreseen the drafters of the 1966 faculty em equivalent precondition Rule,18 amendments to the reflected ployment, adequately represented cannot opinions majority of this Court.19 As the hired he al person who was because opinion, observes in footnote 19 of its who, degree quite ready possessed that disapprobation ap- fail to detect a of this preserving is interested in probably, Nor, proach Freight. in East Texas Motor degree which that entitles him. benefits to matter, regard present for that do I majority opinion, mere quote To “[n]o heralding decision a retrenchment “a presented,” but divergence interests practice. Court in class action Scott, the of interests between clear conflict the unnamed that, representative, named determination under the cir- here, subclass.”20 represent applicant cumstances a members of the VII, Actions, prohibited generally Developments formal Title which would have 16. See —Class (1976). suits, the Senate Committee Harv.L.Rev. 1359-66 VII class action agreed that title it “with the courts stated that Miller, generally Wright 17. See & A. Fed- C. very com- are their nature class VII actions plains [sic], (1972); eral § Practice and Procedure such restriction on and that Note, Antidiscrimination Class Actions Under greatly the effective- actions would undermine Federal Rules of Civil Procedure: Cong., S.Rep.No. of title VII.” 92d ness 23(b)(2), Transformation of Rule 88 Yale L.J. (1971). 1st Sess. (1979). See, Liberty g., Mutual Ins. e. Wetzel v. Advisory 18. See Note to Committee 1975), 239, 250-51, (3d 508 F.2d reprinted Amendment to Rule in 39 F.R.D. denied, utility cert. 102. The of the class action device bringing alleging L.Ed.2d 679 as a vehicle for the of suits employment racial discrimination in was also anticipated by Congress. spearheading In Con- Supra, at 86. gress’s rejection of the House version of Title Similarly, speculative members, the conclusion may that Scott future in view of represent consisting not a class faculty the fact the interests of individual allegedly members who were discriminated may prejudiced by class members be such against by University’s contract renew action. al, not, promotion practices and tenure is challenges “Across the board” class it, rigid I read meant to introduce a rule recog- discriminatory practices have been regarding numerosity prerequisite enhancing nized as of Title the enforcement 23(a). question Rule The relevant under statutes, VII and other antidiscrimination 23(a)(1) Rule is whether “the class is so supervised but their carefully use must be joinder numerous that of all members is by pres- the courts.22 measured.and impracticable,” inquiry an obviously is Judge cient observations of Godbold of the susceptible not quantification. to absolute Circuit, specially Fifth concurred in the Moreover, above, as has been noted “suits seminal “across the board” class action deci- alleging racial or ethnic discrimination are sion, capsulize best the considerations that by suits, often their very nature class in have come to the fore in this case: volving wrongs,”21 classwide may and it generally presumed that institutionalized Over-technical classes limitation of discriminatory employment practices have district courts will drain the life out of prejudiced plain others besides the named VII, unduly scope Title as will narrow though tiff. But even plain an individual discriminatory relief once acts are found. tiff who wrong may establishes a classwide But specificity without reasonable injunctive be entitled to dismantling relief class, court cannot define the cannot de- the discriminatory practice thereby termine representation whether the is ad- benefiting similarly situated individuals as equate, employer and the does not know well, that in itself does not mean that the And, how to defend. what be most numerosity requirement 23(a) of Rule has significant, framing an over-broad of the been satisfied. This is so because a court be so unfair to the absent must consider whether the alternative to a approach, members as to if not amount joinder of the allegedly other action — to, deprivation process. of due Envision aggrieved parties impracticable, be —is hypothetical attorney single with a fore it binding risks parties those without client, filing a class action to halt all giving them the opportunity litigate racial discrimination in all the numerous Here, their individual claims. Scott failed plants and facilities one of America’s joinder demonstrate that of the other act, corporations. mammoth One or a present past members, black acts, places, few at one or a few can be less than a score very in number at charged part practice policy to be of a or most, is not the more approach sensible quickening injunction against an all ra- organizing fact, the lawsuit. In Scott made employer cial discrimination all no showing any present or former fac places. tidy, It convenient for the ulty member other than himself has been cases, fearing a courts flood of title VII against. discriminated As majority notes, dandy the employees if their under these circumstances it would be improper champion But of the cata- bootstrap an wins. what individual com plaint into a strophic consequences plaintiff class action if the los- hypothesizing a class of aggrieved him, individuals on the basis es and the class carries down Freight, 21. East Rodriguez, present Texas Motor Inc. v. action such as the Inasmuch as one. 431 U.S. at 97 S.Ct. at 1896. See also absent class members need not be notified re- Liberty Wetzel v. Mutual suit, Ins. 508 F.2d at garding pendency see Wetzel v. 254-57, Liberty Mutual Ins. 508 F.2d at they may are be unaware that their claims members, 22. Judicial solicitude for absent class being consequently may be unable decided through ensuring requirements that all the protect their own interests. bringing fulfilled, especially a class action are important 23(b)(2) type in the context of a Rule

proves only such limited facts that no found,

practice policy leaving can be sinking

him afloat but the class?23 America, Appellee,

UNITED STATES

Thomas WILSON and John

MacGregor, Appellants. 78-1829, 78-1867,

Nos.

and 79-1015. Appeals,

United Court of States

Third Circuit.

Argued April 1979.

Decided June Inc., Georgia Highway 1969). Express, Johnson v. (5th F.2d

Case Details

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

Court Name: Court of Appeals for the Third Circuit

Date Published: Jun 6, 1979

Citation: 601 F.2d 76

Docket Number: 78-2365

Court Abbreviation: 3rd Cir.