David Rutstein v. Avis Rent-A-Car Systems, Inc. , 211 F.3d 1228 ( 2000 )


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  •                                                                   [PUBLISH]
    
                  IN THE UNITED STATES COURT OF APPEALS
    
                          FOR THE ELEVENTH CIRCUIT                  FILED
                                                             U.S. COURT OF APPEALS
                                                               ELEVENTH CIRCUIT
                                                                   MAY 11 2000
                                                                THOMAS K. KAHN
                                    No. 99-10782                     CLERK
    
    
    
                         D. C. Docket No. 97-807-CV-ASG
    
    
    DAVID RUTSTEIN,
    
                                                                           Plaintiff,
    
    ZEREI AGUDATH ISRAEL BOOKSTORE, LEVI SUFRIN,
    
                                                               Plaintiffs-Appellees,
    
                                       versus
    
    AVIS RENT-A-CAR SYSTEMS, INC., a Delaware
    Corporation, authorized to do business in the
    State of Florida,
    
                                                              Defendant-Appellant.
    
    
    
                     Appeal from the United States District Court
                         for the Southern District of Florida
    
    
                                   (May 11, 2000)
    
    Before TJOFLAT, Circuit Judge, RONEY and FAY, Senior Circuit Judges.
    TJOFLAT, Circuit Judge:
    
             Jewish plaintiffs1 brought this civil rights lawsuit in the United States District
    
    Court for the Southern District of Florida on behalf of themselves, and all others
    
    similarly situated, against Avis Rent-A-Car System, Inc. (“Avis”). Plaintiffs alleged
    
    that Avis had denied them their right to make and enforce contracts because of their
    
    race, ancestry, and ethnic characteristics,2 in violation of 42 U.S.C. § 1981 (1994).3
    
    They sought compensatory damages, punitive damages, and injunctive relief. The
    
    district court certified the case as a class action under Federal Rule of Civil Procedure
    
    
    
    
       1
         One of the named plaintiffs in this action is the Zerei Agudath Israel Bookstore. For ease of
    discussion, we refer to all plaintiffs as persons (and, therefore, as “he or she” instead of “it”).
       2
         We refer to plaintiffs’ allegations as a complaint for discrimination on the basis of plaintiffs’
    ethnicity.
       3
           As amended, 42 U.S.C. § 1981 provides:
             (a) Statement of equal rights
             All persons within the jurisdiction of the United States shall have the same right in
             every State and Territory to make and enforce contracts, to sue, be parties, give
             evidence, and to the full and equal benefit of all laws and proceedings for the
             security of persons and property as is enjoyed by white citizens, and shall be subject
             to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and
             to no other.
             (b) “Make and enforce contracts” defined
             For purposes of this section, the term “make and enforce contracts” includes the
             making, performance, modification, and termination of contracts, and the enjoyment
             of all benefits, privileges, terms, and conditions of the contractual relationship.
             (c) Protection against impairment
             The rights protected by this section are protected against impairment by
             nongovernmental discrimination and impairment under color of State law.
    
                                                        2
    23(b)(3).4 Pursuant to Rule 23(f),5 we permitted Avis to appeal the district court’s
    
    class certification decision. We now reverse.
    
    
       4
           Federal Rule of Civil Procedure 23(a) and (b) provides:
             (a) Prerequisites to a Class Action. One or more members of a class may sue or be
             sued as representative parties on behalf of all only if (1) the class is so numerous that
             joinder of all members is impracticable, (2) there are questions of law or fact
             common to the class, (3) the claims or defenses of the representative parties are
             typical of the claims or defenses of the class, and (4) the representative parties will
             fairly and adequately protect the interests of the class.
             (b) Class Actions Maintainable. An action may be maintained as a class action if the
             prerequisites of subdivision (a) are satisfied, and in addition:
                     (1) the prosecution of separate actions by or against individual members of
             the class would create a risk of
                             (A) inconsistent or varying adjudications with respect to individual
             members of the class which would establish incompatible standards of conduct for
             the party opposing the class, or
                             (B) adjudications with respect to individual members of the class
             which would as a practical matter be dispositive of the interests of the other members
             not parties to the adjudications or substantially impair or impede their ability to
             protect their interests; or
                     (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.
       5
           Federal Rule of Civil Procedure 23(f) provides:
             A court of appeals may in its discretion permit an appeal from an order of a district
             court granting or denying class action certification under this rule if application is
             made to it within ten days after entry of the order. An appeal does not stay
             proceedings in the district court unless the district judge or the court of appeals so
             orders.
    
                                                         3
                                                    I.
    
           The procedural history of this case is somewhat complicated by the fact that the
    
    original plaintiff, David Rutstein, was apparently not all that he claimed to be. On
    
    May 6, 1997, Rutstein filed a complaint alleging that Avis, a corporation engaged in
    
    the business of renting cars, had “adopted as an official corporate policy a practice to
    
    discriminate against Jewish customers as a class of people and [had] instructed its
    
    employees to decline to open a corporate account for a business owned and/or
    
    operated by this class of people.”6 Rutstein claimed that at Avis’ World Reservations
    
    Center in Tulsa, Oklahoma (the “Reservation Center”), employees had been instructed
    
    not to open corporate accounts for “Yeshivas.” A Yeshiva was understood to be
    
    someone with a “Jewish sounding name” or “Jewish accent.”7 When a telesales
    
    representative at the Reservations Center identified a caller requesting to open a
    
    corporate account as a Yeshiva, the caller was either denied the account entirely, or
    
    was issued a “bogus” account that was not accorded the same benefits as those
    
    associated with a legitimate corporate account.
    
    
    
    
       6
         A corporate account is a vehicle rental account offered by Avis that provides account holders
    with discount car rentals, bonus plans, and other financial incentives.
       7
         Webster’s Third defines a “Yeshiva” as “a school for advanced Talmudic study.” Webster’s
    Third New International Dictionary 2651 (1993).
    
                                                    4
          Rutstein claimed that he had applied for, but was denied, a corporate account
    
    because he is Jewish. Specifically, Rutstein alleged that
    
          [c]ommencing January 1993, [he] resided in North Miami Beach, Florida
          and operated Rutstein Insurance Agency. Upon application to Avis to
          open a corporate account and advising the account representative that
          [he] formerly lived in Crown Heights, New York and that the purpose of
          the opening of the account was to permit . . . Rutstein to visit his rabbi
          in New York and to conduct ongoing business in New York, the Plaintiff
          was advised that he would not qualify for the opening of a corporate
          account.
    
    Three months later Rutstein moved the court to certify a class, under Federal Rule
    
    23(b)(2) and Rule 23(b)(3), of “all Jewish individuals and Jewish-owned businesses
    
    who have attempted to contract, have contracted, or will in the future contract with
    
    Avis to open a corporate rental account and who were or will be subjected to the
    
    policies and practices known as the ‘Yeshiva policy’.” Immediately after Rutstein
    
    filed his class certification motion, however, events occurred which made it apparent
    
    that he might not be an adequate class representative. Rutstein failed to appear at a
    
    court-ordered deposition scheduled for October 28, 1997, prompting Avis to move the
    
    court to dismiss the action, hold Rutstein in contempt, and direct him to pay expenses,
    
    
    
    
                                              5
    including attorneys’ fees, incurred by Avis as a result of his failure to appear.8
    
    Further, Avis moved the court for summary judgment, contending that
    
           [e]vidence independently obtained by Avis demonstrates that plaintiff
           does not have a valid claim against Avis. Among other things, plaintiff
           never owned and operated a “Rutstein Insurance Agency” which he
           claims had existed since January 1993 and which he claims was
           wrongfully denied a corporate account by Avis. The evidence reveals
           that it was not until November 1993 that plaintiff even obtained an
           insurance license for himself as an individual and received his first
           appointment as an insurance agent by an insurer. No Rutstein Insurance
           Agency has ever been registered with the Florida Department of
           Insurance. Plaintiff’s current business, known as Senior Allican, Inc.,
           was not incorporated until August 1997, five months after this lawsuit
           was filed.
    
           At a hearing before the district court on January 30, 1998, Rutstein’s counsel
    
    admitted that Rustein was not an appropriate representative of the class. Counsel
    
    claimed that Rutstein had become “intimidated” by Avis’s aggressive defense
    
    strategies, and that Rutstein had decided that he did not want to represent a class of
    
    “thousands” after all. Counsel assured the court that there was no cause for concern,
    
    however, and that the action could live on. On December 5, 1997, counsel had filed
    
    a motion on behalf of the Zerei Agudath Israel Bookstore (“ZAI”), located in Chicago,
    
    Illinois, to intervene in the case as a plaintiff and proposed class representative under
    
    
       8
         Rutstein’s counsel claimed that Rutstein failed to appear because he was “not feeling well.”
    On December 3, 1997, the district court issued an order requiring Rutstein to pay all costs incurred
    by Avis as a result of his failure to appear at the deposition, and to schedule a time, within 10 days,
    at which he could be deposed.
    
                                                      6
    Federal Rule of Civil Procedure 24(b).9 ZAI alleged that it was “a Jewish business
    
    which was subject to the precise discriminatory business practices which lie at the
    
    heart of [Rutstein’s] complaint. [ZAI] applied for and received Avis account status,
    
    but once Avis discovered that [ZAI] was what Avis considered a ‘Yeshiva’, it
    
    terminated [ZAI’s] account . . . .”10 On February 23, 1998, ZAI sought class
    
    certification under Rules 23(b)(2) and (3), seeking to represent a class of
    
    
       9
        Federal Rule of Civil Procedure 24(b) provides that “[u]pon timely application anyone may be
    permitted to intervene in an action . . . when an applicant’s claim or defense and the main action
    have a question of law or fact in common.”
       10
          In an amended complaint filed on February 23, 1998, ZAI detailed the circumstances of the
    alleged discrimination:
                     In early 1995, ZAI, through its employee Joshua Borenstein, applied to Avis
            for an account, so that the bookstore’s employees might get discounts when they
            rented automobiles. The bookstore uses rental cars frequently for trips to New York
            and other cities to pick up specially ordered books. ZAI’s application, made in its
            full name of Zeirei Agudath Israel, was turned down. ZAI is an ongoing business
            and should have qualified to receive an Avis account, but upon information and
            belief, ZAI was denied the account because of its obviously Jewish sounding name.
                     About a year later, ZAI applied again. The store was at a new address, and
            this application was made in the name of Z.A.I. bookstore, which is the name it is
            commonly known by, rather than Zeirei Agudath Israel bookstore, the name it used
            the first time it applied to Avis for an account. This time, the account was approved.
            Upon information and belief, ZAI was approved the second time it applied to Avis
            for an account, because the account representatives at Avis did not recognize ZAI as
            a Jewish sounding name.
                     Before ZAI started renting vehicles from Avis, however, Mr. Borenstein
            requested an application for credit. He was sent the application, filled it out, sent it
            back and waited.
                     Eventually ZAI received a perplexing letter from Avis, informing it that
            because of excessive use by drivers under the age of 25, the account was rescinded.
            No one had ever used the Avis account. Upon information and belief, Avis
            rescinded ZAI’s account because through the credit application process, Avis
            discovered that the Z.A.I. bookstore stood for Zeirei Agudath Israel bookstore, which
            it concluded was a “Yeshiva”.
    
                                                    7
           [a]ll Jewish individuals and Jewish-owned businesses who, subsequent
           to January 1, 1990, have attempted to contract, have contracted, or will
           in the future contract with Avis to open an account for use in their
           business, and who were refused an account, had their account canceled,
           or were given a less advantageous account because of their religion,
           ancestry, and/or ethnicity.
    
           On March 27, 1998, the district court granted ZAI’s Rule 24(b) motion to
    
    intervene, reasoning that because Rutstein was plainly inadequate as a class
    
    representative, intervention by ZAI would “strengthen the adequacy of class
    
    representation.” The court also denied Avis’ motion for summary judgment against
    
    Rutstein, denied Rutstein’s request to act as class representative, and concluded that
    
    Rutstein could remain in the case as a nonrepresentative class member. A month later,
    
    the court also granted Levi Suffrin’s motion to intervene as a plaintiff and proposed
    
    class representative under Rule 24(b). Suffrin had filed a complaint on February 23,
    
    1998, alleging that his corporate account had been terminated by Avis, and that the
    
    explanation Avis proffered for the termination (that he had presented a false
    
    identification when trying to rent a vehicle) was pretextual.11
    
           Finally, on February 8, 1999, the district court granted ZAI and Suffrin’s
    
    motion for class certification under Federal Rule 23(b)(3). The court also denied class
    
    
    
    
      11
        The district court initially consolidated Suffrin’s case with Rutstein’s before granting Suffrin’s
    motion to intervene under Rule 24(b).
    
                                                      8
    certification under Rule 23(b)(2). Avis sought an interlocutory appeal of the class
    
    certification decision under Rule 23(f) and we granted permission to appeal.
    
    
    
                                                   II.
    
             The initial burden of proof to establish the propriety of class certification rests
    
    with the advocate of the class. Jones v. Diamond, 
    519 F.2d 1090
    , 1099 (5th Cir.
    
    1975).12 Assuming that the district court correctly interpreted the applicable law, we
    
    review the court’s grant of class certification for an abuse of discretion. Andrews v.
    
    American Tel. & Tel. Co., 
    95 F.3d 1014
    , 1022 (11th Cir. 1996).
    
    
    
                                                   III.
    
                                                   A.
    
             “A class action may be maintained only when it satisfies all the requirements
    
    of Fed. R. Civ. P. 23(a) and at least one of the alternative requirements of Rule 23(b).”
    
    Jackson v. Motel 6 Multipurpose, Inc., 
    130 F.3d 999
    , 1005 (11th Cir. 1997) (footnote
    
    omitted). In the instant case, the district court certified a class under Rule 23(b)(3),
    
    which provides that
    
    
        12
           In Bonner v. City of Prichard, 
    661 F.2d 1206
    , 1209 (11th Cir. 1981) (en banc), this court
    adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to
    the close of business on September 30, 1981.
    
                                                    9
            [a]n action may be maintained as a class action if the prerequisites of
            subdivision (a) are satisfied, and in addition . . .
            (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.
    
    Fed. R. Civ. P. 23(b)(3). That common questions of law or fact predominate over
    
    individualized questions means that “the issues in the class action that are subject to
    
    generalized proof, and thus applicable to the class as a whole, must predominate over
    
    those issues that are subject only to individualized proof.” Kerr v. City of West Palm
    
    Beach, 
    875 F.2d 1546
    , 1558 (11th Cir. 1989) (quoting Nichols v. Mobile Bd. of
    
    Realtors, Inc., 
    675 F.2d 671
    , 676 (5th Cir. Unit B 1982)).13 “The predominance
    
    inquiry focuses on ‘the legal or factual questions that qualify each class member’s
    
    case as a genuine controversy,’ and is ‘far more demanding’ than Rule 23(a)’s
    
    commonality requirement.” Jackson, 130 F.3d at 1005 (quoting Amchem Prods., Inc.
    
    v. Windsor, 
    521 U.S. 591
    , 623-24, 
    117 S. Ct. 2231
    , 2249-50, 
    138 L. Ed. 2d 689
    
    (1997)).
    
            In order to determine whether common questions predominate, “we are called
    
    upon to examine the cause[] of action asserted in the complaint on behalf of the
    
    
    
       13
          In Stein v. Reynolds Securities, Inc., 
    667 F.2d 33
    , 34 (11th Cir. 1982), this court adopted as
    binding precedent all decisions of Unit B of the former Fifth Circuit handed down after September
    30, 1981.
    
                                                    10
    putative class.” McCarthy v. Kleindienst, 
    741 F.2d 1406
    , 1412 (D.C. Cir. 1984).
    
    Whether an issue predominates can only be determined after considering what value
    
    the resolution of the class-wide issue will have in each class member’s underlying
    
    cause of action. See Amchem Prods., Inc. v. Windsor, 
    521 U.S. 591
    , 623, 
    117 S. Ct. 2231
    , 2249 
    138 L. Ed. 2d 689
     (1997) (“[The predominance] inquiry trains on the legal
    
    or factual questions that qualify each class member’s case as a genuine controversy.”);
    
    Coopers & Lybrand v. Livesay, 
    437 U.S. 463
    , 469, 
    98 S. Ct. 2454
    , 2458, 
    57 L. Ed. 2d 351
     (1978) (“[C]lass determination generally involves considerations that are
    
    ‘enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.’
    
    ”) (quoting Mercantile Nat. Bank v. Langdeau, 
    371 U.S. 555
    , 558, 
    83 S. Ct. 520
    , 522,
    
    
    9 L. Ed. 2d 523
     (1963)); id. at 469 n.12, 98 S. Ct. at 2458 n.12 (“ ‘The more complex
    
    determinations required in Rule 23(b)(3) class actions entail even greater
    
    entanglement with the merits.’ ”) (quoting 15 C. Wright, A. Miller, & E. Cooper,
    
    Federal Practice and Procedure § 3911, p. 485 n.45 (1976)); Castano v. American
    
    Tobacco Co., 
    84 F.3d 734
    , 744 (5th Cir. 1996) (“Going beyond the pleadings is
    
    necessary, as a court must understand the claims, defenses, relevant facts, and
    
    applicable substantive law in order to make a meaningful determination of the
    
    certification issues.”); Huff v. N.D. Cass Co., 
    485 F.2d 710
    , 714 (5th Cir. 1973) (en
    
    banc) (“It is inescapable that in some cases there will be overlap between the demands
    
    
                                              11
    of [Rule] 23(a) and (b) and the question of whether plaintiff can succeed on the
    
    merits.”).
    
           In Jackson, plaintiffs sought class certification for, inter alia, a class of African-
    
    American customers who alleged that Motel 6 discriminated against its customers on
    
    the basis of race by either denying African-Americans motel accommodations
    
    altogether, or providing them with substandard accommodations. The substantive law
    
    of the underlying cause of action in Jackson required each plaintiff to establish that
    
    “(1) a Motel 6 employee denied him a room (or rented him a substandard room) on
    
    the basis of his race and either (2) that that employee had the general authority to rent
    
    motel rooms or (3) that that employee was acting in accordance with a Motel 6 policy
    
    or practice of racial discrimination.” Jackson, 130 F.3d at 1006 n.13 (emphasis
    
    omitted). Given this, we held that “the single common issue in the . . . case – whether
    
    Motel 6 has a practice or policy of discrimination – is not . . . predominant over all the
    
    other issues that will attend the Jackson plaintiffs’ claims.” Id. at 1006. We explained
    
    that
    
           [t]he Jackson plaintiffs’ claims will require distinctly case-specific
           inquiries into the facts surrounding each alleged incident of
           discrimination. The issues that must be addressed include not only
           whether a particular plaintiff was denied a room or was rented a
           substandard room, but also whether there were any rooms vacant when
           that plaintiff inquired; whether the plaintiff had reservations; whether
           unclean rooms were rented to the plaintiff for reasons having nothing to
           do with the plaintiff’s race; whether the plaintiff, at the time that he
    
                                                 12
               requested a room, exhibited any non-racial characteristics legitimately
               counseling against renting him a room; and so on . . . . These issues are
               clearly predominant over the only issue arguably common to the class –
               whether Motel 6 has a practice or policy of racial discrimination.
               Indeed, we expect that most, if not all, of the plaintiffs’ claims will stand
               or fall, not on the answer to the question whether Motel 6 has a practice
               or policy of racial discrimination, but on the resolution of these highly
               case-specific factual issues.
    
    Id.
    
               In light of our decision in Jackson, we cannot see how plaintiffs can maintain
    
    a class action under Rule 23(b)(3) in the instant case. In order to make out a prima
    
    facie case of non-employment discrimination sufficient to withstand a motion for
    
    judgement as a matter of law under section 1981, a plaintiff will have to establish that
    
    (1) he or she is a member of a racial minority; (2) the defendant had an intent to
    
    discriminate on the basis of race; and (3) the discrimination concerned one or more
    
    of the activities enumerated in the statute (in this case, the making and enforcing of
    
    a contract).14 See Bellows v. Amoco Oil Co., 
    118 F.3d 268
    , 274 (5th Cir. 1997);
    
    Morris v. Office Max, Inc., 
    89 F.3d 411
    , 413 (7th Cir. 1996); Mian v. Donaldson,
    
    
          14
            This formulation differs, somewhat, from that articulated in McDonnell Douglas Corp. v.
    Green, 
    411 U.S. 792
    , 802, 
    93 S. Ct. 1817
    , 1824, 
    36 L. Ed. 2d 668
     (1973). Under McDonnell
    Douglas, an individual complaining of disparate treatment in employment can establish a
    presumption that the individual was discriminated against on the basis of his or her race by showing
    that (i) he or she belongs to a racial minority; (ii) he or she applied and was qualified for a job for
    which the employer was seeking applicants; (iii) the applicant was rejected despite his or her
    qualifications; and (iv) after the rejection, the position remained open and the employer continued
    to seek applicants from persons of the complainant’s qualifications, or the position was filled by a
    member of an unprotected class.
    
                                                      13
    Lufkin & Jenrette Sec. Corp., 
    7 F.3d 1085
    , 1087 (2d Cir. 1993). The critical element,
    
    obviously, is the second.      Each plaintiff will have to bring forth evidence
    
    demonstrating that the defendant had an intent to treat him or her less favorably
    
    because of the plaintiff’s Jewish ethnicity. See General Bldg. Contractors Ass’n, Inc.
    
    v. Pennsylvania, 
    458 U.S. 375
    , 391, 
    102 S. Ct. 3141
    , 3150, 
    73 L. Ed. 2d 835
     (1982)
    
    (holding that Ҥ 1981, like the Equal Protection Clause, can be violated only by
    
    purposeful discrimination”); Freeman v. Motor Convoy, Inc., 
    700 F.2d 1339
    , 1350
    
    (11th Cir. 1983); Lee v. Washington County Bd. of Educ., 
    625 F.2d 1235
    , 1237 (5th
    
    Cir. 1980) (“A showing of discriminatory purpose is required to prove a prima facie
    
    case of discrimination under 42 U.S.C. [§] 1981.”). As in Jackson, plaintiffs in the
    
    instant case argue that the issue of whether Avis maintains a policy or practice of
    
    discrimination predominates over all the legal and factual questions affecting only
    
    individual members of the class. Given that each plaintiff must demonstrate that he
    
    or she suffered from intentional discrimination, however, “we expect that most, if not
    
    all, of the plaintiffs’ claims will stand or fall, not on the answer to the question
    
    whether [Avis] has a practice or policy of [ethnic] discrimination, but on the
    
    resolution of . . . highly case-specific factual issues.” Jackson, 130 F.3d at 1006.
    
          Whether Avis maintains a policy or practice of discrimination may be relevant
    
    in a given case, but it certainly cannot establish that the company intentionally
    
    
                                              14
    discriminated against every member of the putative class. The individual issues that
    
    must be addressed include not only whether Avis actually denied a particular plaintiff
    
    a corporate account, gave the plaintiff a less advantageous account, or cancelled the
    
    plaintiff’s account, but also whether the particular plaintiff was of the age required by
    
    Avis to qualify for a corporate account; whether the plaintiff met the financial criteria
    
    for a corporate account; whether the nature of the plaintiff’s expected use of Avis
    
    vehicles would make the transaction cost-justified for Avis; whether the plaintiff
    
    would be renting cars from Avis in a criminally high-risk or low-risk geographical
    
    area; whether the Avis employee who allegedly denied the plaintiff a corporate
    
    account judged the caller-applicant to be lying about his or her qualifications based
    
    on information not related to the caller’s ethnicity; and so on, and so on. All of these
    
    issues are clearly case-specific, and they will all have to be addressed in one way or
    
    another in order for each plaintiff to demonstrate a prima facie case of intentional
    
    discrimination.
    
          “[S]erious drawbacks to the maintenance of a class action are presented where
    
    initial determinations, such as the issue of liability vel non, turn upon highly
    
    individualized facts.” McCarthy, 741 F.2d at 1415; see Andrews, 95 F.3d at 1024 (in
    
    action against telephone companies’ provision of 900-number services in which
    
    plaintiffs claimed, inter alia, that companies were violating gambling laws, court held
    
    
                                               15
    that “aspects of each 900-number program will have to be individually examined to
    
    determine whether a particular program actually involves gambling or runs afoul of
    
    state gaming laws”); Allison v. Citgo Petroleum Corp., 
    151 F.3d 402
    , 420 (5th Cir.
    
    1998) (“The success of [claims for intentional discrimination] will turn ultimately on
    
    the special circumstances of each individual’s case.”). The importance of these
    
    individualized issues, relative to the one common issue of whether Avis maintains a
    
    policy or practice of discrimination, is amplified by the fact that even if plaintiffs can
    
    demonstrate that a general policy or practice of discrimination was applied in their
    
    cases, Avis can escape liability by showing that an individual plaintiff would have
    
    been denied or terminated even if no such policy or practice had existed.15 See Mabra
    
    v. United Food & Commercial Workers Local Union No. 1996, 
    176 F.3d 1357
     (11th
    
    Cir. 1999) (holding that the mixed-motive amendments to Title VII enacted in the
    
    Civil Rights Act of 1991, see Pub. L. No. 102-166, 105 Stat. 1071, 1075 (1991)
    
    (codified as amended at 42 U.S.C. §§ 2000e-2(m), 2000e-5(g)(2)(B)), do not apply
    
    to claims brought under section 1981); Village of Arlington Heights v. Metropolitan
    
    Housing Dev. Corp., 
    429 U.S. 252
    , 270-71 n.21, 
    97 S. Ct. 555
    , 566 n.21, 
    50 L. Ed. 2d 15
           The nature of plaintiffs’ allegations makes this issue especially significant, since Avis will
    apparently be able to argue in defense that an individual plaintiff does not have a “Jewish sounding
    name” or a “Jewish accent.” If Avis was unable to determine whether a caller-applicant was Jewish
    at the time that the caller applied for a corporate account, then it would have been impossible for
    Avis to have intentionally discriminated against the caller on the basis of his or her ethnicity.
    
                                                     16
    450 (1977) (in race discrimination case brought under the Fourteenth Amendment,
    
    proof by the defendant “that the same decision would have resulted even had the
    
    impermissible purpose not been considered” would establish that “the complaining
    
    party . . . no longer fairly could attribute the injury complained of to improper
    
    consideration of a discriminatory purpose”); cf. Mt. Healthy City Sch. Dist. Bd. of
    
    Educ. v. Doyle, 
    429 U.S. 274
    , 285, 
    97 S. Ct. 568
    , 575, 
    50 L. Ed. 2d 471
     (1977) (same,
    
    in case alleging violation of plaintiff’s free speech rights under the First and
    
    Fourteenth Amendments). For these reasons, we hold that the plaintiffs have failed
    
    to meet the predomination requirement of Rule 23(b)(3).
    
    
    
                                              B.
    
          Plaintiffs argue that the Supreme Court’s decision in International Brotherhood
    
    of Teamsters v. United States, 
    431 U.S. 324
    , 
    97 S. Ct. 1843
    , 
    52 L. Ed. 2d 396
     (1977),
    
    compels a different result.    Teamsters was a pattern or practice employment
    
    discrimination case in which the government proved that “racial discrimination was
    
    the company’s standard operating procedure – the regular rather than the unusual
    
    practice.” Id. at 336, 97 S. Ct. at 1855. Given this finding, the Court held that
    
          [t]he proof of the pattern or practice supports an inference that any
          particular employment decision, during the period in which the
          discriminatory policy was in force, was made in pursuit of that policy.
          [With regard to individual relief,] [t]he Government need only show that
    
                                              17
           an alleged individual discriminatee unsuccessfully applied for a job and
           therefore was a potential victim of the proved discrimination. As in
           [Franks v. Bowman Transportation Co., Inc., 
    424 U.S. 747
    , 
    96 S. Ct. 1251
    , 
    47 L. Ed. 2d 444
     (1976)], the burden then rests on the employer to
           demonstrate that the individual applicant was denied an employment
           opportunity for lawful reasons.
    
    Id. at 362, 97 S. Ct. at 1868 (footnote omitted).16 It is clear that Teamsters applies in
    
    private class actions alleging systemic disparate treatment in employment. See
    
    Franks, 424 U.S. at 772, 96 S. Ct. at 1268 (holding in class action context that a
    
    demonstration by the plaintiff class of the existence of a discriminatory pattern or
    
    practice establishes a presumption that the individual class members had been
    
    discriminated against on account of race); Cooper v. Federal Reserve Bank, 
    467 U.S. 867
    , 875-76 & n.9, 
    104 S. Ct. 2794
    , 2799 & n.9, 
    81 L. Ed. 2d 718
     (1984) (affirming
    
    Franks); Foster v. Board of School Comm’rs, 
    872 F.2d 1563
    , 1565 (11th Cir. 1989);
    
    
    
    
      16
          The importance of a finding of class-wide discrimination in subsequent individual proceedings
    in the employment context is justified by the burden imposed on the plaintiff class to bring forth
    evidence of a policy or practice of discrimination sufficient to allow a court to conclude (absent an
    employer’s rebuttal) that every member of the plaintiff class suffered illegal discrimination by the
    employer. Compare Teamsters, 431 U.S. at 342 n.23, 97 S. Ct. at 1858 n.23 (finding pattern or
    practice of discrimination where number of African-Americans and Spanish-surnamed persons hired
    for line-driver positions approached “the inexorable zero”) (citation omitted); Paradise v. Prescott,
    
    767 F.2d 1514
    , 1529 (11th Cir. 1985) (pattern or practice established where plaintiffs demonstrated
    that “in the 37 years preceding the institution of [the lawsuit] the [employer] did not have a single
    black on its . . . payroll”) with Reynolds v. Roberts, 
    202 F.3d 1303
    , 1319 n.27 (11th Cir. 2000)
    (suggesting that it would be difficult to establish that the employer was engaged in a pattern or
    practice of racial discrimination since “it is undisputed that the [employer] hired thousands of
    blacks” and promoted many of them to positions equal or superior to those to which their white
    counterparts were assigned).
    
                                                     18
    Freeman, 700 F.2d at 1356.17                 Further, Teamsters applies in employment
    
    discrimination cases brought under section 1981 to the same degree that it applies in
    
    cases brought under Title VII. As the former Fifth Circuit stated in Lee,
    
           the principles governing an individual’s right to back pay and injunctive
           relief in cases of class-based employment discrimination brought under
           42 U.S.C. §§ 1981 and 1983 are clear. Once purposeful discrimination
           against a class is proved, a presumption of an entitlement to back pay
           and individual injunctive relief arises with respect to the members of that
           class. The burden of proof then shifts to the employer to show . . . that
           the individual member of the class seeking relief would not have been
           hired absent the discrimination.
    
    Lee, 625 F.2d at 1239. Plaintiffs therefore argue that since the establishment of a
    
    policy or practice of discrimination shifts the burden to the defendant to establish that
    
    each member of the plaintiff class is not entitled to relief, the policy or practice issue
    
    must necessarily predominate under Rule 23(b)(3).
    
           The argument must fail for two reasons. First, the Teamsters rationale is
    
    particularly appropriate in employment discrimination cases because of the
    
    
    
          17
              Some of our cases have been in conflict with regard to whether, subsequent to the
    establishment of a pattern or practice of discrimination, individual plaintiffs get a presumption in
    favor of individual relief, or whether the showing of class-wide discrimination creates an inference
    that any particular employment decision was made pursuant to the employer’s discriminatory
    policies. Compare Foster, 872 F.2d at 1565 (“Because plaintiffs had already proven that the school
    board had engaged in a pattern or practice of discrimination . . . [each] member presumptively was
    entitled to relief . . . .”) with Freeman, 700 F.2d at 1356 (“[D]uring the remedial phase of [a pattern
    or practice case] an inference existed that any particular employment decision was made pursuant
    to the Company’s discriminatory employment policies.”). We need not address the issue here,
    because we find that the Teamsters rationale does not apply in the instant case.
    
                                                      19
    relationship between a finding of systemic disparate treatment by an employer, and
    
    a plaintiff’s burden under McDonnell Douglas to establish a prima facie case of
    
    individual disparate treatment. After a pattern or practice of discrimination has been
    
    proven, Teamsters mandates that in order to gain individual relief plaintiffs must come
    
    forward and “show that [they] unsuccessfully applied for a job.” Teamsters, 431 U.S.
    
    at 362, 97 S. Ct. at 1868.18 On the other hand, without a finding of class-wide
    
    discrimination, under McDonnell Douglas individual plaintiffs would have to come
    
    forward and show that (i) they belong to a racial minority; (ii) they applied and were
    
    qualified for the job at issue; (iii) they were rejected; and (iv) after the rejection, the
    
    position remained open and the employer continued to seek applicants, or the position
    
    was filled by a member of an unprotected class. See McDonnell Douglas, 411 U.S.
    
    at 802, 93 S. Ct. at 1824. By comparing these two burdens imposed on individual
    
    plaintiffs (the burden on the plaintiff who can benefit from a previous finding of class-
    
    wide discrimination (as in Teamsters), and the burden imposed on the plaintiff who
    
    does not have the benefit of such a finding (as in McDonnell Douglas)), it becomes
    
    clear that the way in which a finding of systemic disparate treatment functions in an
    
       18
          The primary relief afforded to the plaintiff class in a pattern or practice case is declaratory or
    injunctive. See Teamsters, 431 U.S. at 361, 97 S. Ct. at 1867 (holding that after a pattern or practice
    of discrimination has been established, “[w]ithout any further evidence . . . a court’s finding of a
    pattern or practice justifies an award of prospective relief. Such relief might take the form of an
    injunctive order . . . .”). Individual plaintiffs are required to come forward and show that they
    unsuccessfully applied for a job only if they want individual relief.
    
                                                      20
    individual plaintiff’s case is as a substitute for a prima facie finding that the plaintiff
    
    was qualified. The requirement that individual plaintiffs must come forward and
    
    “show that [they] unsuccessfully applied for a job,” after it is already established that
    
    the employer was engaged in a pattern or practice of discrimination, means that
    
    individual plaintiffs are never relieved of their burden of establishing that (i) they
    
    belong to a racial minority (otherwise, they would not fit within the definition of the
    
    class); (ii) they applied for the job; (iii) they were rejected; and (iv) there was a
    
    position available for which the employer was seeking applications when the plaintiff
    
    applied.19 The only McDonnell Douglas factor that individual plaintiffs are relieved
    
    from establishing in the first instance in a Teamsters case is that they were fully
    
       19
          Requiring a plaintiff to demonstrate that he or she unsuccessfully applied for a job necessarily
    implies that the plaintiff must demonstrate that there was a job available for which the employer was
    seeking applications. This is somewhat different, however, from the fourth requirement imposed
    on a plaintiff in a McDonnell Douglas case to establish that after the plaintiff was rejected, the
    position remained open and the employer continued to seek applicants, or the position was filled by
    a member of an unprotected class. See McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824. The
    fourth McDonnell Douglas requirement in part focuses on the same issue that individual plaintiffs
    are required to address in a Teamsters case – that is, whether or not there was ever a job available
    for which the employer was seeking applications. If there never was a job, it would be inappropriate
    to allow suits against the employer for wrongful rejection. Every member of every protected class
    would have a right to a job of his or her choice, regardless of whether or not there is a job to be had.
    But the fourth requirement in McDonnell Douglas asks the plaintiff to establish not only that there
    was a job available when the plaintiff applied, but also that the job was not filled by a member of
    a protected class (the job either has to have remained open, or it has to have been filled by a member
    of an unprotected class in order for the plaintiff to survive judgment as a matter of law). In a
    Teamsters case, plaintiffs have already brought forth evidence of a pattern or practice of
    discrimination sufficient to allow a court to conclude (absent an employer’s rebuttal) that every
    member of the plaintiff class suffered illegal discrimination by the employer; therefore, if the
    individual plaintiff in a Teamsters case can establish that there was a job available when the plaintiff
    applied, then the court can assume that the position was not filled by a member of a protected class.
    
                                                      21
    qualified for the job at issue. Teamsters therefore stands for the proposition that
    
    where a plaintiff class can demonstrate a policy or practice of discrimination so
    
    pervasive that a court is justified in concluding that qualifications were entirely
    
    irrelevant to the employer (because the employer would not hire, for example, an
    
    African-American, or a woman, or a Roman Catholic, no matter how well qualified),
    
    then individual plaintiffs are relieved of the prima facie burden of demonstrating that
    
    they were qualified for the job at issue in subsequent individual proceedings.
    
          To understand this point is to see why the Teamsters rationale cannot apply in
    
    the instant case. In contrast to a McDonnell Douglas case, a plaintiff in this non-
    
    employment discrimination case will have to demonstrate that (1) he or she is a
    
    member of racial minority; (2) the defendant had an intent to discriminate on the basis
    
    of race; and (3) the discrimination concerned one or more of the activities enumerated
    
    in the statute.   The second requirement is more demanding than any of the
    
    requirements imposed on plaintiffs in a McDonnell Douglas case, requiring, as it does,
    
    that the plaintiff bring forth evidence of actual intent on the part of the defendant. A
    
    finding that Avis has a policy or practice of discrimination could not possibly function
    
    as a meaningful substitute for the establishment of an actual intent to discriminate
    
    against an individual plaintiff on the basis of his or her ethnicity. This is because the
    
    legitimate reasons why Avis might have judged an individual plaintiff to be
    
    
                                               22
    “unqualified” for a corporate account are far more various and individualized than in
    
    the employment context. The requirement that an individual demonstrate that he or
    
    she is “qualified” for a job under McDonnell Douglas is not particularly rigorous; the
    
    same does not hold true in the instant case where Avis may have refused to contract
    
    with a plaintiff for any number of reasons having nothing to do with the plaintiff’s
    
    ethnicity.20 Thus, even if plaintiffs could establish a generalized policy or practice of
    
    discrimination, they still would not have established that the policy was implemented
    
    (and, thus, that Avis actually intended to discriminate) in their individual cases.
    
            Second, and more important, the relief to which individual plaintiffs were
    
    entitled after a finding of a pattern or practice of discrimination in Teamsters (and in
    
    all subsequent cases employing the Teamsters rationale) was equitable in nature.
    
    Teamsters concerned awards of seniority to members of the putative class. Back pay
    
    has also been characterized as an equitable form of relief. See Holmes, 706 F.2d at
    
    1152 (“[A] demand for back pay is not in the nature of a claim for damages, but rather
    
    is an integral part of the statutory equitable remedy.”) (quoting Johnson v. Georgia
    
    Highway Express, Inc., 
    417 F.2d 1122
    , 1125 (5th Cir. 1969)); Allison, 151 F.3d at
    
    415 (“Back pay, of course, ha[s] long been recognized as an equitable remedy under
    
    
    
       20
         See supra Part III.A., listing some of the many legitimate reasons why Avis might choose to
    deny a corporate account to a particular applicant, or terminate an existing account.
    
                                                  23
    Title VII.”). In the instant case, plaintiffs have prayed for compensatory and punitive
    
    damages under section 1981. These forms of relief are anything but equitable in
    
    nature; they are, in fact, the very definition of legal relief. The Supreme Court’s
    
    decision in Carey v. Piphus, 
    435 U.S. 247
    , 264, 
    98 S. Ct. 1042
    , 1052, 
    55 L. Ed. 2d 252
    
    (1978), makes clear that in order to receive compensatory damages, individual
    
    plaintiffs must prove that “injury actually was caused.” This is especially true since
    
    compensatory damages under section 1981 can include damages for emotional and
    
    psychological distress. See Ferrill v. The Parker Group, Inc., 
    168 F.3d 468
    , 476 (11th
    
    Cir. 1999).
    
           The Teamsters framework is, therefore, inappropriate in the instant case
    
    because the establishment of a policy or practice of discrimination cannot trigger the
    
    defendant’s liability for damages to all the plaintiffs in the putative class. To establish
    
    that they are entitled to compensation, plaintiffs will have to prove that they actually
    
    suffered some injury, whether it be emotional or otherwise. The idea that individual
    
    injury could be settled on a class-wide basis is preposterous. Plaintiffs’ claims for
    
    damages must “focus almost entirely on facts and issues specific to individuals rather
    
    than the class as a whole: what kind of discrimination was each plaintiff subjected to[,
    
    and] how did it affect each plaintiff emotionally and physically, at work and at home.”
    
    Allison, 151 F.3d at 419; see also Holmes, 706 F.2d at 1156 (“[M]oney damages are
    
    
                                                24
    directly related to the disparate merits of individual claims and are not generally
    
    applicable to the claims of the class as a whole.”) (quoting Rosen, Title VII Classes
    
    and Due Process: To (b)(2) Or Not To (b)(3), 26 Wayne L. Rev. 919, 923 (1980));
    
    Bogard v. Cook, 
    586 F.2d 399
    , 409 (5th Cir. 1978) (finding that case would probably
    
    not have been certifiable under Rule 23(b)(3) if money damages had been sought for
    
    each member of the class, because “[g]iven the lack of common questions of fact as
    
    to many of those claims, and the unmanageability of the suit had they been included,
    
    we cannot believe that the district court would have allowed the claims as part of that
    
    action if they had been recognized as potentially possible”).
    
          To understand, further, why liability for damages is a necessarily individualized
    
    inquiry, we have only to consider the disaster that would befall any class-wide
    
    settlement of this case. Suppose that the district court was called upon to approve a
    
    settlement fund to compensate all worthy plaintiffs in the class. First, what could
    
    possibly be a fair amount for such a fund? $100 thousand? $10 million? $100
    
    million? We have no idea, and neither would the district court. It would be
    
    impossible to calculate the sum of damages necessary to compensate all the class
    
    members (including a sum of damages representing the mental and emotional distress
    
    suffered by all the plaintiffs), because each plaintiff’s damages will be dependent on
    
    what kind of discrimination the plaintiff was subject to, and what harm resulted. Any
    
    
                                              25
    class-wide figure arrived at would not just be a guess at a fair settlement amount; the
    
    court might as well come up with ten numbers at random, take their average, square
    
    that amount, and add six. Whatever number the court came up with through this
    
    “method” would bear just as much a relationship to a reasonable settlement amount
    
    as a number arrived at through any other means.
    
          Moreover, how could the court identify individual members of the class who
    
    would be entitled to compensation from the fund? Is every Jewish person who has
    
    ever been denied a corporate account by Avis entitled to compensation? What if the
    
    individual was able to procure a corporate account elsewhere, and therefore suffered
    
    no actual damage? What of the Jewish applicant who does not have a “Jewish
    
    sounding name” or a “Jewish accent”? We are not even certain what a “Jewish
    
    sounding name” or a “Jewish accent” is. But apparently, if an individual plaintiff did
    
    not have one or the other, then there is no way that Avis could have identified the
    
    plaintiff as Jewish (absent some other self-identification initiative on the part of the
    
    plaintiff – there is no allegation that Avis ever actually asked anyone if they were
    
    Jewish). Should plaintiffs without a “Jewish sounding name” or a “Jewish accent,”
    
    therefore, be compensated?       All of this goes to demonstrate the profoundly
    
    individualistic nature of each plaintiff’s claim for damages, and the complete lack of
    
    judicial economy in certifying this case as a class action.
    
    
                                              26
                                                      IV.
    
            Counsel for the plaintiffs and amici predict that a denial of class certification
    
    in this case will mean the end of all disparate treatment class actions in the Eleventh
    
    Circuit.21 In response to this dire prediction, we find it appropriate to note, in
    
    conclusion, what this case is not about. This is not a case alleging employment
    
    discrimination. Nor is it a case only involving claims for injunctive and declaratory
    
    relief. This is a case in which plaintiffs have sought to represent a class of
    
    “thousands” of Jewish plaintiffs who purportedly reside throughout the United States,
    
    and who, plaintiffs allege, were all either turned down for a corporate account, given
    
    a less advantageous account, or had their account terminated because the defendant
    
    discovered their ethnic identity through its practice of monitoring customer calls to
    
    identify callers with a “Jewish sounding name” or “Jewish accent.” Every member
    
       21
           At oral argument, counsel for the plaintiffs claimed that a decision by this court to decertify
    the class in the instant case under Jackson would “eviscerate more than 100 years of civil rights
    cases.” Doubtless, counsel was warning against a return to the Supreme Court’s infamous decision
    to uphold the doctrine of “separate but equal” in Plessy v. Ferguson, 
    163 U.S. 537
    , 
    16 S. Ct. 1138
    ,
    
    41 L. Ed. 256
     (1896). We are mystified as to how our decision to require conformance with the
    requirements of Federal Rule of Civil Procedure 23 could possibly be equated with the now
    repudiated Plessy decision. Given that individual plaintiffs may be entitled to substantial
    compensatory and punitive damage recoveries should they prevail, the most compelling justification
    for a Rule 23(b)(3) class action – the possibility of negative value suits, see Amchem, 521 U.S. at
    617, 117 S. Ct. at 2246 – is absent in this case. Once one understands that the issues involved in the
    instant case are predominantly case-specific in nature, it becomes clear that there is nothing to be
    gained by certifying this case as a class action; nothing, that is, except the blackmail value of a class
    certification that can aid the plaintiffs in coercing the defendant into a settlement.
    
                                                       27
    of the putative class seeks compensatory and punitive damages. The idea that proof
    
    of a policy or practice of discrimination could establish that every member of the class
    
    is entitled to such damages is, given the substantive elements of the underlying cause
    
    of action, untenable. Similarly, given that every member of the class will have to
    
    prove actual damage in order to receive compensation for their loss, the policy or
    
    practice issue cannot possibly predominate over all the other issues in the case that are
    
    necessarily capable of only individualized resolution.
    
          Our decision today, therefore, does not represent the end of the disparate
    
    treatment class action in the Eleventh Circuit. Today we merely recognize, and not
    
    for the first time, that Rule 23 imposes certain requirements on civil rights class
    
    actions, just as it does on any other kind of class action. See Falcon, 457 U.S. at 156,
    
    102 S. Ct. at 2369-70. In the future, to determine whether class action status is
    
    appropriate, parties should look to the substantive law relating to the cause of action
    
    that is common to each class member, including whether the substantive law supports
    
    a “pattern or practice” theory of individual recovery, as well as to the type of relief
    
    sought and whether that relief is capable of class-wide resolution or is necessarily
    
    individualized.
    
    
    
                                               V.
    
    
                                               28
          For the foregoing reasons, we find that the district court abused its discretion
    
    in certifying a class under Rule 23(b)(3). We REVERSE the district court’s class
    
    certification decision, and REMAND for further proceedings not inconsistent with this
    
    opinion.
    
          SO ORDERED.
    
    
    
    
                                             29
    

Document Info

DocketNumber: 99-10782

Citation Numbers: 211 F.3d 1228

Filed Date: 5/11/2000

Precedential Status: Precedential

Modified Date: 12/21/2014

Authorities (34)

Bellows v. Amoco Oil Co, TX , 118 F.3d 268 ( 1997 )

Andrews v. AT&T , 95 F.3d 1014 ( 1996 )

Jackson v. Motel 6 Multipurpose , 130 F.3d 999 ( 1997 )

Plessy v. Ferguson , 163 U.S. 537 ( 1896 )

Mercantile Nat. Bank at Dallas v. Langdeau , 371 U.S. 555 ( 1963 )

McDonnell Douglas Corp. v. Green , 411 U.S. 792 ( 1973 )

Franks v. Bowman Transp. Co. , 424 U.S. 747 ( 1976 )

Arlington Heights v. Metropolitan Housing Development Corp. , 429 U.S. 252 ( 1977 )

Mt. Healthy City Bd. of Ed. v. Doyle , 429 U.S. 274 ( 1977 )

Teamsters v. United States , 431 U.S. 324 ( 1977 )

Carey v. Piphus , 435 U.S. 247 ( 1978 )

Coopers & Lybrand v. Livesay , 437 U.S. 463 ( 1978 )

General Building Contractors Assn., Inc. v. Pennsylvania , 458 U.S. 375 ( 1982 )

Cooper v. Federal Reserve Bank of Richmond , 467 U.S. 867 ( 1984 )

Amchem Products, Inc. v. Windsor , 521 U.S. 591 ( 1997 )

2 Fair empl.prac.cas. 231, 2 Empl. Prac. Dec. P 10,119 ... , 417 F.2d 1122 ( 1969 )

6 Fair empl.prac.cas. 400, 6 Empl. Prac. Dec. P 8800 Brisco ... , 485 F.2d 710 ( 1973 )

marvin-jones-on-his-own-behalf-and-on-behalf-of-those-similarly-situated , 519 F.2d 1090 ( 1975 )

William Hardin Bogard, Jr. v. Thomas D. Cook, Former ... , 586 F.2d 399 ( 1978 )

anthony-t-lee-united-states-of-america-plaintiff-intervenor-national , 625 F.2d 1235 ( 1980 )

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