557 F.2d 414 (5th Cir. 1977), 75-3377, Satterwhite v. City of Greenville, Tex.

Docket Nº:75-3377.
Citation:557 F.2d 414
Party Name:Dec. P 7773 Minda SATTERWHITE on behalf of herself and others similarly situated, Plaintiffs-Appellants, v. CITY OF GREENVILLE, TEXAS, Defendant-Appellee.
Case Date:August 12, 1977
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 414

557 F.2d 414 (5th Cir. 1977)

Dec. P 7773

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

August 12, 1977

Rehearing Denied Granted Nov. 1, 1977.

Page 415

[Copyrighted Material Omitted]

Page 416

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

John A. Martin, Rod Phelan, Dallas, Tex., for defendant-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 prospective female employees of the city allegedly victimized by (1) a discriminatory hiring policy, (2) sexually segregated job classifications and (3) discriminatory 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 (CA5, 1973) (en banc), a case relied upon in our prior opinion. 1 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. 2

Two recent cases from the Supreme Court provide our starting point, Sosna v. Iowa, 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). 3 These cases have shifted the emphasis from whether the named plaintiff in a class action maintains the requisite "personal stake in the outcome" 4 to whether, after the named plaintiff's claim no longer 5 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 requirement 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 invoking res judicata policies 6 and requiring

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special court supervision, 7 bestowed a legal status on the class separate from that of Mrs. Sosna. As a result, certification "significantly 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 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 III to be no bar to the class action, Justice Rehnquist 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 analysis was independent 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 represent, 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 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 proceeding, we believe that the test of Rule 23(a) is met.

419 U.S. at 403, 95 S.Ct. at 559, 42 L.Ed.2d at 542-43 (footnote omitted). 8

Franks continued the emphasis on certification established in Sosna 9 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. Restating 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 contemplates 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

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obtained as to unnamed class members with respect to the underlying 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 crystal clear upon examination of the circumstances and the record of this case.

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 employment 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 pursuing 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. 10 Here, the district court denied certification of the class action. The plaintiff representatives 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, --- U.S. ----, ---- n.12, 97 S.Ct. 1891, 1898, 52 L.Ed.2d 453 (1977) ("provided the initial certification was proper") (dictum). Thus, it would appear that our first inquiry in facing the case or controversy 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. 11 We have consistently urged the district courts to follow Rule 23(c)(1)'s general instruction to determine this question "(a)s soon as practicable 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.

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 question. 12 However, lacking further evidence, we cannot answer the question

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whether on February 4 the district court abused its discretion 13 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. Satterwhite's individual claim over the airport manager position. 14

This interlocutory order, which effectively eliminated the class aspects of the litigation, was preceded by no factfinding as to the requisites of Rule 23. As we have noted before:

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, p. 131. The court may, and often does, permit discovery relating to the issues involved in maintainability, and a preliminary evidentiary hearing may be appropriate or essential as a part of the vital management role which the trial judge must exercise in class actions to assure that they are both meaningful and...

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