Freddie D. ROBINSON Et Al., Plaintiffs-Appellants, v. UNION CARBIDE CORPORATION, Etc., Defendant-Appellee

544 F.2d 1258, 22 Fed. R. Serv. 2d 1161, 1977 U.S. App. LEXIS 10622, 13 Empl. Prac. Dec. (CCH) 11,386, 14 Fair Empl. Prac. Cas. (BNA) 266

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 10, 1977
• Docket: 75-1008
• Status: Published

Opinions

INGRAHAM, Circuit Judge:

The original opinion is modified by withdrawing the language following the first sentence under the section entitled “Class Action Claim” found on page 662 and continuing to the end of the opinion, substituting the following therefor.

We preface this discussion by noting that the action probably should have proceeded under Rule 23(b)(2) rather that 23(b)(3).¹⁰ The former compels inclusion and therefore promotes judicial economy, consistency of result, and binding adjudication more effectively than 23(b)(3). Mungin v. Florida East Coast Ry. Co., 318 F.Supp. 720, 730 (M.D.Fla.1970), aff’d per curiam, 441 F.2d 728 (5th Cir.), cert. denied, 404 U.S. 897, 92 S.Ct. 203, 30 L.Ed.2d 175 (1971). See also Bing v. Roadway Express, Inc., 485 F.2d 441, 447 (5th Cir. 1973). However, (b)(3) type actions do bind all persons who do not opt out of the action. Fed.R.Civ.P. 23(c)(2). Rule 23 does not require notice for (b)(2) type actions. Wetzel v. Liberty Mut. Ins. Co., 508 F.2d 239, 254-57 (3rd Cir. 1975). Rule 23(c)(2) provides for mandatory notice to class members in (b)(3) type actions, whereby each has a right to exclude himself, or opt out of, the class. This “Book-of-the-Month Club”¹¹ approach prevents “sideline sitting” by eligible class members. Compare Escott v. Barchris Construction Corp., 340 F.2d 731, 735-36 (2nd Cir. 1965) (Friendly, J., concurring).

Appellants’ attack is directed at the supplemental provision of the district court’s “Notice of Pendency of Class Action” requiring class members to opt in to obtain back pay.¹² The district court undoubtedly realized that there are some class actions where it is necessary for class members who do not opt out “to take some affirmative action as a condition of ultimate recovery.” 3B Moore’s Federal Practice ¶ 23.55 at 23-1161 (1975). The key word here is “ultimate.” This has particular relevance to Title VII actions, wherein a bifurcated procedure is utilized to determine, first, liability and then relief. Swint v. Pullman-Standard, 539 F.2d 77, 94 (5th Cir. 1976); Sagers v. Yellow Freight System, Inc., 529 F.2d 721, 733-34 (5th Cir. 1976); Baxter v. Savannah Sugar Ref. Corp., 495 F.2d 437, 443-44 (5th Cir. 1974). Although there may be some Title VII actions in which unnamed individual plaintiffs will have to come forward to establish their entitlement to portions of the recovery, such requirement should not be imposed upon them until necessary for adjudication. In this case, coming forward to establish an entitlement was futile in light of the initial determination by the district court that that defendant was not liable. Opting in was not necessary before the determination of liability. The district court apparently relied upon the language of 23(d)(2)¹³ for its opt-in requirement. Although 23(d)(2) might be read to impinge upon the preceding subsections of Rule 23, we cannot believe that it was intended to negate the clear thrust of the rule which is to minimize the requirement of active intervention by numerous members of an affected class.

Upon remand, the court should consider the claims of those class members who would have been excluded by their earlier failure to opt in for back pay purposes. It may be necessary to obtain some affirmative action before the final determination of appropriate relief. While not necessarily erroneous, the language of the supplemental provision is not especially informative as to what relief was available to the class members. The district court should inform class members that back pay is included among possible types of relief.

We REVERSE this part of the district court’s judgment.

CONCLUSION

We AFFIRM the district court on the hiring practices issue; we REVERSE and REMAND on the no-discrimination findings as to Union Carbide’s system of promotion and on the class action issue.

10 . Rule 23(b)(2) and (b)(3) provide:

An action may be maintained as a class action if

(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or

(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions;

(B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class;

(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to. be encountered in the management of a class action.

11 . See Frankel, “Some Preliminary Observations Concerning Civil Rule 23,” 43 F.R.D. 39, 44 (1967).

12 . The first portion of the district court’s notice provides:

You are hereby notified that Freddie D. Robinson and others have pending a legal action in the United States District Court for the Southern District of Alabama on behalf of all black job applicants and black employees of Union Carbide Corporation, Materials Systems Division.

The Court has by Order found and determined that this action is to be maintained as a class action for the benefit of the class.

The basis of liability claimed against the defendant is the alleged violations of federal fair employment laws.

The defendant has denied liability.

If you are black and are either an employee or have been an employee or have an outstanding job application with the defendant, Union Carbide Corporation, Materials Systems Division, you will be included in such class for injunctive relief purposes; it is not necessary for you to contact the Court pertaining to injunctive relief sought and any judgment will be binding upon you; however, if you wish to participate in this part of the litigation you have a right so to do and if you so elect you must notify the Clerk of the Court of your election by February 20th. 1974.

The supplemental provision provides:

If you are black and an employee or have an outstanding job application with defendant, Union Carbide Corporation, Materials Systems Division, and desire other appropriate relief in addition to the injunctive relief, you must notify the undersigned in writing at Post Office Box 1964, Mobile, Alabama, 36601, or at the United States Court House, Clerk’s Office, Mobile, Alabama, and said notice to be postmarked or filed not later than February 20th. 1974. If you desire to be included in the class for any such other appropriate relief and notify the undersigned or the Court of the same, you will be notified when the case is set on the merits, at which time you must appear and prove your claim in accordance with the law and be prepared to prove what efforts you have taken to mitigate your damages, if any.

A hearing is scheduled for 9:00 a. m. on February 15th. 1974 in Room 229, United States Court House, Mobile, Alabama to which you are invited to attend and at which meeting you may ask questions and receive answers as to your rights and responsibilities. As you will note, this meeting is scheduled prior to the time you must make your election.

13 . Rule 23(d)(2) provides:

In the conduct of actions to which this rule applies, the court may make appropriate orders

(2) requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action.