DONALD RUSSELL, Circuit Judge:
This is both an individual and class action, instituted under Title VII of the Civil Rights Act of 1964 to redress alleged unlawful discrimination in employment practices on the part of the defendant. The parties stipulated the issues of fact in the case and agreed initially that the issues so stipulated should be submitted to a jury. The issues, as agreed upon, it seems, related only to plaintiff's individual claim. After a jury trial had been agreed upon, the plaintiff withdrew his consent. The District Judge at this point convened an advisory jury under the terms of Rule 39(c), Federal Rules of Civil Procedure, and tried the plaintiff's claim on the basis of the issues agreed upon by the parties. After a full trial, the advisory jury found a want of discrimination against the plaintiff by the defendant. The District Court reviewed these findings and proceeded to make its own findings that the plaintiff had not been discriminated against in violation of the Act and dismissed the individual action. Having made that determination of the plaintiff's individual claim, the District Court proceeded to conclude that the plaintiff, being without any individual rights himself, was not a proper representative to maintain a class action and dismissed the class action. The plaintiff appeals the dismissal of both the individual and the class action. We affirm the dismissal of the individual action, but remand, with instructions, the class action.
The denial of the plaintiff's individual claim by the District Court is amply supported by the record and is binding on this Court. Brown v. Gaston County Dyeing Machine Company (4th Cir. 1972) 457 F.2d 1377, 1379. The plaintiff, however, complains that, in the resolution of his individual claim, the District Court improperly impaneled an advisory jury under Rule 39(c). He argues that the Act contemplates that discrimination actions are to be tried by the Court itself and not to a jury. Such has been the construction given the Act. Johnson v. Georgia Highway Express, Inc. (5th Cir. 1969) 417 F.2d 1122, 1125; Moss v. Lane Company (D.C.Va. 1970) 50 F.R.D. 122, 128.
The main thrust of plaintiff's complaint on appeal is directed at the dismissal of his class action. The District Court delayed consideration of such action until it had disposed of the plaintiff's individual claim. The plaintiff urges that the Court should have made an interim determination of the maintainability of the class action prior to any final disposition of the individual claim. In support of this position, he cites the language of Rule 23, which provides that, "[a]s soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained." It may be argued with plausibility that this language contemplates an interim determination on the standing of the plaintiff to represent the class prior to any final determination on his individual claim. Whether such interim determination, essential to the maintenance of the class action, requires a finding of a substantial possibility that the plaintiff will be able to succeed on his individual claim on the merits, as is indicated in Blecher, Is the Class Action Rule Doing the Job? 55 F.R.D. 365, 370 (1972), or merely that plaintiff's individual claim is not frivolous, as the Eighth Circuit seems to hold in Parham v. Southwestern Bell Telephone Co. (8th Cir. 1970) 433 F.2d 421, 428, is an issue that need not be determined here. The District Court has concluded that the plaintiff has no valid individual claim. That conclusion we have already found is binding on appeal. A party, such as the plaintiff, who has been finally adjudged not to be a member of the class he seeks to represent, it is urged, is hardly a proper representative to present the claims of such class. See Heard v. Mueller Company, supra, 464 F.2d at 193; Bradley v. Southern Pacific Company (D.C.Tex.1970) 51 F. R.D. 14, 15; Burney v. North American Rockwell Corporation (D.C.Cal.1969) 302 F.Supp. 86, 90-91; Note, Class Actions and Employment Discrimination Under Title VII of the Civil Rights Act of 1964, 43 Miss.L.J. 275, 283 (1972).
Affirmed in part and remanded with instructions.
See, also, Mintz v. Mathers Fund, Inc. (7th Cir. 1972) 463 F.2d 495, 499: