GODBOLD, Circuit Judge:
The central issue in this class action is whether the trial court properly dismissed the action on the basis of a preliminary determination that the single plaintiff representing the class was not entitled to relief on the merits of his individual claim.
The plaintiff, Brisco Huff, was a black who claimed that his employer, N. D. Cass Company, laid him off and failed to recall him from racial motivations. Proceeding under Rule 23, Fed. R.Civ.P.,
The court conducted a preliminary evidentiary hearing on plaintiff's individual claim of racially motivated layoff and failure to recall, and following the hearing found that the failure of the company to recall plaintiff
We agree with the panel opinion, 468 F.2d 172, that the District Court was not plainly erroneous in its findings on the motivations for plaintiff's nonrecall and that the court did not err in limiting discovery.
Johnson and Mackey do not hold that there is no inquiry which a trial court may make before the complex and often expensive machinery of the class action moves ahead. Rule 23(c) (1) provides that "as 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." This language of the Rule, the cases, and the texts, all articulate the desirability of determining maintainability of the class action at what has been called "the earliest pragmatically wise moment." Berman v. Narragansett Racing Ass'n, 48 F.R.D. 333, 336 (D.R.I.1969). Accord, Burns v. Thiokol Chemical Corp., supra. See also, Frankel, Some Preliminary Observations Concerning Civil Rule 23, 43 F.R.D. 39 (1967). Action by the court on maintainability may be triggered by motion of the parties or on the court's own initiative.
Recognizing that preliminary inquiry may be appropriate, we turn to consideration of what the scope of that inquiry should be.
First, some background. The federal courts have a particularly vital role in cases such as this. To them alone Congress has assigned the power to enforce compliance with the strictures against racial discrimination in employment under § 703(a) of Title VII.
Hutchings v. United States Indus., Inc., 428 F.2d 303, 310 (CA5, 1970).
Id. at 311.
At the appellate level we have made clear that we give full scope to Title VII, recognizing, as we do, that employment discrimination is "one of the most deplorable forms of discrimination known to our society, for it deals not just with an individual's sharing in the `outer benefits' of being an American citizen, but rather the ability to provide decently for one's family in a job or profession for which he qualifies and chooses,"
Second, against this background some specifics. "On the merits" is an elusive term at best, not wholly suitable as a guideline in this situation. In a sense much that a plaintiff alleges with respect to his individual claim goes to the "merits" of his claim. A plaintiff who seeks to represent all employees on a claim of discriminatory denial of promotions might, if the case goes to trial, lose on his individual claim because it turns out that he was never employed by the defendant. Retrospectively one might say he lost "on the merits." Yet there is no doubt that the court could lay bare at a preliminary stage this fact concerning the plaintiff, and, having done so, conclude plaintiff was not a proper representative because he lacked the nexus with the class and its interests and claims which is embraced in the various requirements of 23(a) and (b). It is inescapable that in some cases there will be overlap between the demands of 23(a) and (b) and the question of whether plaintiff can succeed on the merits. In neither Johnson nor Mackey was the court required to address itself to such a particularized situation. In Mackey the District Court's order denying the motion to proceed as a class action stated only that it was not "presently apparent" that requirements of Rule 23 were met, without defining the respects in which compliance was lacking. On appeal this court, construing this generalized order, concluded that the District Judge "may have considered whether the petition stated a cause of action or whether [plaintiff] Miller would succeed on the merits," 452 F.2d at 427, and directed that the court should confine itself to 23(a) and (b) and not "assess the likelihood of success on the merits before approving a class action." Id. at 428.
Recognizing the tensions between two policies, one of which says find out about the plaintiff's claim at an early stage and the other of which says just don't find out too much, it seems to us that a class plaintiff who otherwise meets the demands of 23(a) and (b) should not be found to be disqualified solely by an advance determination that his claim is predictably not a winning claim and that, therefore, he cannot adequately represent the class as mandated by 23(a)(4).
Huff asks that he be allowed a de novo preliminary-stage hearing on maintainability, since the hearing conducted was not described as such. We agree with the panel that the District Court need not hear again under a new label what it has already heard. It need only review the facts developed at the original hearing, supplemented to the extent, if any, that appears to the court to be appropriate, and, applying the correct legal standard, decide whether plaintiff has the nexus required by Rule 23 to permit him to maintain the class action (omitting, of course, that plaintiff had a "losing" claim).
The order of the District Court denying relief to plaintiff on his individual claim is Affirmed. The order denying to plaintiff the right to maintain the class action and dismissing the class action is Vacated and the cause is remanded to the District Court for consideration of that issue under correct legal standards, and for such other proceedings as may be appropriate.