Satterwhite v. City of Greenville

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 decision in East Texas Motor Freight System, Inc. v. Rodriguez,-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 (5th 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 or controversy brought by a person having standing to pursue it, and at this stage 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, countenances 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 representative. 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 precluding 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 plaintiff’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 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 unless 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 weighs against the majority’s demand. In Sosna and Franks, the Court recognized that the class when certified is for some purposes treated as a separate plaintiff with grievances all its own, — 425 — apart from the claims of its individual representatives. After certification, then, if the claims of all individual plaintiffs prove meritless or become moot, the class may itself possess such a “personal stake in the outcome of the controversy”, 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 different; 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 ho 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, over 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. Satterwhite’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.1 We now fortuitously know that Mrs. Satterwhite is neither personally aggrieved nor a member of an injured class, and allowing her an attempt to rally a class around her unfortunately 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 here by a postSosna decision in a related context. In Board of School Commissioners v. Jacobs, 420 U.S. 128, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975), the Court found that the individual claims of six plaintiffs challenging school regulations were mooted before oral argument 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.2 No less in Jacobs than-i-n the case sub judice could a remand have afforded class mem — 426 — bers a chance to correct district court action which may have cost them the 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 contemplate a plaintiff who has not lost a claim due to mootness 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 control 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 aggrieved 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 correctly the class-representation question, free of undue emphasis on probability of individual success, when someone else steps forward. As I have attempted to show, until that someone else does come forth, any concern 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. Footnotes [1] For all we know, by now there may be no one sufficiently aggrieved to wish to do so—or, indeed, aggrieved at all. [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 individual 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 dismissal 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, 517 F.2d 1082, 1084-85 n.13 (8th Cir. 1975); Bradley v. Housing Authority, 512 F.2d 626, 628 (8th Cir. 1975).