author: ROSENN, Circuit Judge.

text:
    Sandra WETZEL and Mari Ross, on behalf of themselves and all others similarly situated, Equal Opportunity Commission as amicus curiae v. LIBERTY MUTUAL INSURANCE COMPANY, a corporation, Appellant.
    No. 74-1515.
    United States Court of Appeals, Third Circuit.
    Argued Oct. 30, 1974.
    Decided Jan. 23, 1975.
    As Amended Feb. 25, 1975.

      Kalvin M. Grove, Paul J. Cherner, Lederer, Fox & Grove, Chicago, 111., Robert A. Penney, Boston, Mass., Clem R. Kyle, Pittsburgh, Pa., for appellant.
    Howard A. Specter, Litman, Litman, Harris & Specter, P.A., Robert F. Stone, Fine, Perlow & Stone, Pittsburgh, Pa., for appellees.
    Before STALEY, ALDISERT and RO-SENN, Circuit Judges.
   OPINION OF THE COURT

ROSENN, Circuit Judge.

This appeal raises significant questions concerning the management of class actions brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1970), as amended, Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e et seq. (Supp. II, 1972).

Appellant, Liberty Mutual Insurance Company (Liberty Mutual), is a casualty insurance company with offices throughout the country. Both men and women are employed in the claims department of these offices in what the appellant terms a “technical” capacity. Within its claims department are adjusters and representatives, each of whose basic function is the application of the necessary technical skills to investigate and bring about the proper disposition of claims against the company. While each is an entry level position open to college graduates, the salary of a claims adjuster is considerably higher than that of a claims representative. The possibilities for promotion are unlimited for the claims adjuster; they are severely limited for the claims representative. Before the filing of charges in this case by the appellees, Sandra Wetzel and Mari Ross, the position of claims adjuster was staffed predominantly by males; the position of claims representatives was staffed predominantly by females.

Wetzel and Ross were employed as claims representatives in the Pittsburgh office of the company. Both desired the higher paying adjuster’s position but were informed by the Company that it was not open to women. Dissatisfied with the Company’s policies, they filed charges of sex discrimination with the Pennsylvania Human Relations Commission (PHRC) on May 11, and with the Equal Employment Opportunity Commission (EEOC) on May 14, 1971.

The filing of these charges apparently led the Company to reassess its policies concerning these positions. In August, 1971, the Company decided to recruit women to become claims adjusters and reviewed its roster of claims representatives to ascertain if any such representatives were interested in, and qualified for, the position of claims adjuster. This decision eventually led to the hiring of approximately 10% of the claims representatives as claims adjusters.

After the filing of the charges with PHRC, the Company offered Wetzel and Ross positions as claims adjusters. Because of information which they had received from PHRC concerning back pay, and because of their belief that the job offer was accompanied by unacceptable conditions, they rejected the offer. Since PHRC had failed to conciliate the parties, Wetzel and Ross were issued right to sue letters by the EEOC. On February 28, 1972, Wetzel and Ross commenced a class action alleging that the Company’s hiring and promotion policies and its pregnancy related policies as to the female technical employees in its claims department violated Title VII. They further alleged that the Company’s policy of paying higher salaries to claims adjusters than to claims representatives violated the Equal Pay Act of 1963, 29 U.S.C. § 206(d) (1970).

In response to Wetzel’s and Ross’ motions, the district court, on August 16, 1972, ordered that the suit was maintainable as a class action under Rule 23(b)(2) and that the class would include “all present and future female technical employees in the defendant’s claim department without limitation to territory in the entire geographical area where defendant does business.” On September 14, 1972, the court refused to require notices to be sent to the proposed nation-' wide class and declined to maintain the class under Rule 23(b)(3). In its final order of December 6, 1973, the court amended the class to include former, as well as present and future female technical employees, and reaffirmed its determination to maintain the class under Rule 23(b)(2), rather than Rule 23(b)(3). The court acknowledged, however, that the class was maintainable under either subsection. It also saw “no immediate necessity of the class action notice required of actions proceeding under Fed. R.Civ.P. 23(b)(3).” No notice had been sent to any members of the class as of the date of this appeal.

On March 26, 1973, Wetzel and Ross moved for partial summary judgment. Counsel for both sides agreed that the equal pay claim was not susceptible to summary judgment treatment because disputed issues of fact existed as to whether the work performed by claims representatives was equivalent to that performed by claims adjusters. On January 9, 1974, the court entered an interlocutory order that the pregnancy-related policies of the Company violate Title VII, “are continuing violations and are the proper subject of injunctive relief.” On February 20, 1974, the district court rendered final the interlocutory order. A notice of appeal was filed and was docketed at No.- 74 — 1233. That appeal is presently before another panel of this court and the issues in that appeal do not concern us here.

The district court in its interlocutory order of January 9, 1974, also ruled that the hiring and promotion policies of the Company violated Title VII, but denied injunctive relief “[bjecause the eviden-tiary materials show that at certain times subsequent to the filing of the administrative charge or the within Complaint the Defendant has ceased or discontinued the discriminatory practice[s].” In an unsuccessful attempt to avoid piecemeal appeals, the court, on March 19, 1974, rendered final this part of the interlocutory order. In this appeal, Liberty Mutual has asked us to review the district court’s management of the class action and its granting of summary judgment against the chai-lenged hiring and promotion policies.

I

A. Jurisdiction

Preliminarily, we note that, despite Wetzel’s and Ross’ contentions, we have jurisdiction to review the class action aspects of this case. The district court, purusant to Rule 54(b), rendered final the partial summary judgment as to the Company’s hiring and promotion policies on March 19, 1974. The determination of the class became final for the purposes of 28 U.S.C. § 1291 at that time. The notice of appeal, filed April 15, 1974, was timely as to all aspects of that judgment, including the determination of the affected class.

B. Scope of Review

Before examining Liberty Mutual’s contentions, we must first decide the appropriate scope of review of the district court’s actions. The extent of the scope of review is of the utmost importance for, in some instances, it effectively determines whether the actions of the district court will be sustained. Lengthy deliberations on the subject are not necessary, however, because the question is settled in this circuit by the recent case of Katz v. Carte Blanche Corp., 496 F.2d 747 (3d Cir.) (en banc), cert. denied, 419 U.S. 885, 95 S.Ct. 152, 42 L.Ed.2d 125 (1974), in which Judge Gibbons wrote:

[The scope of review] will depend to some extent upon which facet of the multi-faceted determination is challenged on appeal. The district court must determine if the four prerequisites for a class action listed in rule 23(a) have been met. These are mandatory requirements, and our review decides whether the mandates have been met. The district court must also determine whether the -«lass action is maintainable under rule 23(b)(1) or (2) so that it may proceed without notice to or identification of the class members. Our review will determine whether the court properly classified the type of class action in reaching its decision as to class action treatment.

Id. at 756 (citations omitted). Inasmuch as the district court appropriately applied the criteria of Rule 23(a), the scope of our review is whether the trial court did abuse its broad discretion.

II

The mandatory requirements of Rule 23(a) must first be met to maintain a class action. Liberty Mutual has made numerous attacks on the determination made by the district court that the requirements of 23(a) had been met. After careful consideration of its contentions, we need to discuss only two.

First, Liberty Mutual contends that it was error to include in the class all female technical employees who had been employed since July 1, 1965. It contends that employees whose claims are time barred by the statute of limitations contained in them section 706(d) of Title VII, 42 U.S.C. § 2000e-5(d) (1970), should be excludéd from the class.

We agree with Liberty Mutual that such individuals should have been excluded. At the time charges were filed with the EEOC, section 706(d) provided that where, as here, a charging party had instituted proceedings with a state agency which has jurisdiction over discriminatory employment practices, a charge must be filed with the EEOC within 210 days of the occurrence of the alleged unfair practice.

As stated in Macklin v. Spector Freight Systems, Inc., 156 U.S.App.D.C. 69, 478 F.2d 979, 986 (1973):

Since a suit in court depends on an agency notice to sue letter and since the agency cannot take the case initially unless the timely filing requirements are met, the timely filing requirements with respect to EEOC appears to be a jurisdictional prerequisite to court action under Title VII.

A plaintiff may bring a class action on behalf of those who have not filed charges with the EEOC. Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 719— 720 (7th Cir. 1969); Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 499 (5th Cir. 1968). This tolls the statute of limitations for all members of the class. American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974). But Wetzel and Ross cannot represent those who could not have filed a charge witlj the EEOC at the time they filed their charges. CWA v. New York Telephone Co., 8 F.E.P. 509, 513 (S.D.N.Y.1974); Culbert v. General Electric Co., 5 F.E.P. 969, 993 (E.D.Va.1973); Garneau v. Raytheon Co., 3 F.E.P. 1315 (D.Mass.1971).

This conclusion does not mean, ¡'however, as Liberty Mutual contends, ¡¡¡that the numerosity requirement of 23(a)(1) has not been met. Wetzel’s and Ross’ charges alleged the maintenance of discriminatory hiring and promotion policies up to the time of the filing of their complaint. Such policies are continuing violations of Title VII and would allow a filing of a charge at any time by a present employee. Macklin v. Spector Freight Systems, Inc., supra, 478 F.2d at 987 — 988. The only employees barred from the class are those who left the employ of the Company more than 210 days before the filing of the charges with the EEOC by Wetzel and Ross. The class will be larger than the approximately seven hundred female technical employees presently employed by Liberty Mutual, meeting the numerosity requirement of 23(a)(1). Of course, in the determination of the relief to which members of the class will be entitled, the district court should take into account the modification of the class required by section 706(d).

The second attack on the district court’s determination that the conditions of Rule 23(a) have been met is the contention that Wetzel and Ross were not adequate representatives of the class as required by Rule 23(a)(4).

Adequate representation pends on two factors: (a) the plaintiff’s;, attorney must be qualified, experienced,1 and generally able to conduct the proposed litigation, and (b) the plaintiff must not have interests antagonistic to those of the class. Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir. 1968).

Liberty Mutual does not dispute the district court’s finding as to the competency of counsel but it does object to the court’s finding of “no conflict or antagonism between Wetzel’s and Ross’ claims and the claims of the class.” Liberty Mutual contends that employees, such as Wetzel and Ross, who have voluntarily ,! severed their employment prior to suit cannot adequately represent members of ' the class who are presently employed by the company. We note the existence of a dispute as to whether Wetzel’s and Ross’ termination of employment was , in fact, voluntary, but we will assume,; arguendo, that they voluntarily severed their employment.

We believe that a former employee, who is not entitled to reinstatement, may still be an adequate representative of a class of past and present employees alleging discriminatory em-1 ployment practices. Whether a party ', adequately represents a class depends on all the circumstances of the particular/ case. 3B J. Moore, Federal Practice t 23.07 [1] (2d ed. 1974) [hereinafter cited as Moore]. That a person is no longer employed with a company and is not entitled to reinstatement is but one of the circumstances to be considered in the determination of whether Rule 23(a)(4) has been met. In fact, as the court observed in Mack v. General Electric Co., 329 F.Supp. 72, 76 (E.D.Pa.1971), with respect to plaintiffs who were former employees of the company, “being familiar with [the company’s] employment practices and being free from any possible coercive influence of [the company’s] management, [the plaintiffs] are better situated than either job applicants present employees to present an intelli-,; gent and strongly adverse case against" [the company’s] alleged discriminatory practices.” Moreover, were the position advanced by Liberty Mutual adopted, employers would be encouraged to discharge those employees suspected as most likely to initiate a Title YII suit in the expectation that such employees would thereby be rendered incapable of bringing the suit as a class action. Reed v. Arlington Hotel Co., 476 F.2d 721 (8th Cir.), cert. denied, 414 U.S. 854, 94 S.Ct. 153, 38 L.Ed.2d 103 (1973).

In the present case, the district court specifically found that the requirements of Rule 23(a)(4) have been met. The interests of Wetzel and Ross in batting the sexually discriminatory policies of the Company surely are coextensive with all female technical employees, whether formerly or presently employed. We do not perceive any interests of the former employees antagonistic to those of the present employees. The relief to be granted by the district court, whether it takes the form of back pay, mandatory hiring of female claims adjusters, or increased promotional opportunities for women will benefit all members of the class. We see no other factors revealing that the plaintiffs were not adequate representatives of the class. The district court did not abuse its discretion in holding that Wetzel and Ross adequately represented the class.

Ill

A. Characteristics of (b)(2) and (b)(3) actions

In addition to meeting the mandatory requirements of Rule 23(a), the class must be maintainable under either subsection 23(b)(1), (b)(2), or (b)(3). In the usual class action, the determination of whether the action should proceed as a 23(b)(2) or as a 23(b)(3) action offers little difficulty. In the present case, however, the order of the district court finding injunctive relief unnecessary as to Liberty Mutual’s hiring and promotional practices in its claims department, because the Company’s practices as to these issues _have ceased, presents complications. (^Whether (b)(2) or not (b)(2) is indeed the question^

In the instant case, the district court found that the class could be maintained under either 23(b)(2) or 23(b)(3), but exercising its discretion decided to maintain the class under 23(b)(2). Liberty Mutual vigorously contends that the class could only be maintained under (b)(3), and that the procedural prerequisites for maintaining a (b)(3) suit have not been met. We find no error in the district court’s determination that the class was properly maintainable under (b)(2).

In reviewing Liberty Mutual’s contentions, it is necessary to understand the basic nature of (b)(2) and (b)(3) suits and the res judicata effects of judgments upon members of the respective classes.

A (b)(2) suit is permitted when the opposing party has acted or refused to act on grounds generally applicable to the class. Advisory Committee’s Note to Proposed Amendments to Rule 23, 39 F.R.D. 69, 102 (1966) [hereinafter cited as Advisory Committee]. By its very nature, a (b)(2) class must be cohesive as to those claims tried in the class action. Note, Managing the Large Class Action: Eisen v. Carlisle & Jacquelin, 87 Harv.L. Rev. 426, 441 (1973). The rule recognizes that the res judicata effect of a judgment may only be tested in a subsequent action. Advisory Committee, supra at 106, citing Restatement of Judgments § 86, comment (h), § 116 (1942). Because of the cohesive nature of the class, Rule 23(c)(3) contemplates that all members of the class will be bound. Advisory Committee, supra at 106; C. Wright, Federal Courts § 72, at 314 (2d ed. 1970) [hereinafter cited as Wright]. Any resultant unfairness to the members of the class was thought to be outweighed by the purposes behind class actions: eliminating the possibility of repetitious litigation and providing small claimants with a means of obtaining redress for claims too small to justify individual litigation.

Rule 23(b)(3) permits a class action where the questions of law or fact common to the class predominate over questions only affecting individual members and the “class action is superior to other available methods for the fair and efficient adjudication of the controversy.” While not a true successor to the “spurious” class action which existed prior to the 1966 amendments, Wright, supra at 312, the (b)(3) class action developed therefrom. In the spurious class action, members of the class would be bound by the judgment only if they intervened in ¡ the action. Moore, supra at 702. Various courts of appeals permitted intervention after a judgment favorable to the class. Many commentators objected that such one-way intervention resulted in binding the members of the class only when the class had won. To eliminate the unfairness of this one-way intervention, the Advisory Committee concluded that class members should be brought in prior to the final determination of a defendant’s liability, thus making the estop-pel mutual. See Katz v. Carte Blanche Corp., supra, 496 F.2d at 759; Advisory Committee, supra at 105.

Binding all members of a (b)(3) class, however, was not thought by the Advisory Committee to be as fair ag. binding all members of a (b)(2) class. \By the very nature of a heterogeneous (b)(3) class, there would be many instances where a particular individual would not want to be included as a member of the class. To respect these individual interests, Rule 23(c)(2) was written to afford an opportunity to every potential member to opt out of the class. See Katz v. Carte Blanche Corp., supra at 759; Advisory Committee, supra at 104-105. For the opt out procedure to be effective, 23(c)(2) also provides for notice to be sent to all potential members prior to the final determination of the class. Ei-sen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974).

With the potential unfairness to members of the (b)(3) class eliminated by the opt out procedure, 23(c)(3) contemplates that all members of the (b)(3) class, as well as members of the (b)(2) class, will be bound by the res judicata effect of the judgment. Wright, supra at 314.

B. Appropriateness of (b)(2) for this action

Liberty Mutual contends that this suit could not have been maintained as a class action under (b)(2) because such class actions are limited to only those suits in which final injunctive relief is found to be appropriate. In support of this position, Liberty Mutual relies on the language of (b)(2), the comments of the drafters of the rule, and the case of Air Line Stewards & Stewardesses Association, Local 550 v. American Airlines, Inc., supra.

The district court, after discovery and extensive briefing, considered whether the action here was properly maintained under (b)(2) three separate times. In its last memorandum order of December 6, 1973, the court indicated that maintenance under (b)(2) was proper because Liberty Mutual had “ ‘acted or refused to act on grounds generally applicable to the class’ and the representative plaintiffs seek among other remedies, ‘final injunctive relief or corresponding declaratory relief.’ ” In his opinion of January 9, 1974, Judge Weber noted:

Because the evidentiary materials show that at certain times subsequent to the filing of the administrative charge or the within Complaint the Defendant has ceased or discontinued the discriminatory practices, injunctive relief is not appropriate as to those practices.

372 F.Supp. at 1163.

The precise issue before us then is whether a district court, having determined that a Title VII suit brought in good faith for injunctive relief may be maintained under (b)(2), is required to redetermine that the suit be maintained under (b)(3) and comply with its procedural requirements once it concludes on a motion for summary judgment that changed conditions make injunctive relief no longer appropriate. We decline to so hold.

First, a Title VII suit against discriminatory hiring and promotion policies is necessarily a suit to end discrimination because of a common class characteristic, in this case sex. Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 719 (7th Cir. 1969); Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 499 (5th Cir. 1968). The conduct of the employer is actionable “on grounds generally applicable to the class,” and the relief sought is “relief with respect to the class as a whole.” The class, all sharing a common characteristic subjected to discrimination, is cohesive as to the claims alleged in the complaint. ^Thus, a Title VII action is particularly fit for (b)(2) treatment, and the drafters of Rule 23 specifically contemplated that suits against discriminatory hiring and promotion policies would be appropriately maintained under (b)(2).j Advisory Committee, supra at 102. Since a Title VII suit is essentially equitable in nature, it cannot be characterized as one seeking exclusively or predominantly money damages. Franks v. Bowman Transp. Co., 495 F.2d 398 (5th Cir. 1974).

The basic nature of a Title VII suit is not altered merely because the employer’s change of discriminatory policy prior to the motion for summary judgment has obviated the need for injunctive relief. The conduct of the employer is still answerable “on grounds generally applicable to the class,” and the relief sought is still “relief with respect to the class as a whole.” The cohesive characteristics of the class are the vital core of a (b)(2) action. Functionally, these characteristics of the class are still intact in the suit. Nothing has changed to require the procedural protections of (b)(3) to determine the presence or absence of liability. The class is still appropriately maintained under (b)(2).

Second, the language of (b)(2) does not support the contention that (b)(2) actions are limited to final injunc- S tive relief or declaratory judgments only. Rather, the language describes the type of conduct by the party opposing the class which is subject to equitable relief by class action under (b)(2). As recently stated in Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 257 (5th Cir. 1974),

All that need be determined is that conduct of the party opposing the class is such as makes such equitable relief appropriate. This is no limitation on the power of the court to grant other ' relief to the established class, especially where it is required by Title VII

Liberty Mutual’s policies at the time these charges were made were such that final injunctive relief was appropriate. This satisfies the language of the rule. The nature of these policies, and the nature of the class opposing these policies, does not change merely because subsequent action by Liberty Mutual eliminates the need for final injunctive relief.

Moreover, although the court found that injunctive relief was unnecessary, it did determine the presence of liability on the part of Liberty Mutual. The court did not preclude the possibility of directing affirmative action, in addition to back pay, to remedy conditions caused by the offensive discriminatory practices. Such affirmative action ultimately would, in effect, constitute final injunctive or declaratory relief. “No one has suggested that this [relief] violates the dictates of subdivision (b)(2).” Pettway v. American Cast Iron Pipe Co., supra at 257.

Courts have held that a (b)(2) class is appropriate in a Title VII suit where both final injunctive and monetary relief< are granted. Franks v. Bowman Transp. Co., supra, 495 F.2d at 422; Pettway v. American Cast Iron Pipe Co., supra, 494 F.2d at 257; Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364, 1375 (5th Cir. 1974); Robinson v. Lorillard Corp., 444 F.2d 791, 801-802 (4th Cir. 1971), petition for cert. dismissed, 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655 (1972); Bowe v. Colgate-Palmolive Co., supra, 416 F.2d at 720. Maintenance of a class action under (b)(2) in a Title VII action has also been held to be appropriate when the actions of the defendant after the complaint had been filed had obviated the need for final injunctive relief. Arkansas Education Ass’n v. Board of Education, 446 F.2d 763 (8th Cir. 1971).

Additionally, only with the benefit of hindsight do we now know that injunc-tive relief against the Company’s hiring and promotion practices was not necessary in this case. At the (c)(1) hearing, the district court specifically found that the conduct of Liberty Mutual made appropriate final injunctive relief. Requiring the court to reconsider and possibly redetermine the class at the time of the summary judgment application and redirect the course of the litigation with notice and other procedural requirements would inevitably complicate a type of litigation which by its nature is complex at its best. For this court to compel a re-determination of the class at that point probably would require the district court to consider the merits of the case, and ultimately would lead to a practice of holding a preliminary hearing on the merits at the time of the initial (c)(1) class determination. This, of course, the. Supreme Court has made clear the district court may not do:

We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into; the merits of a suit in order to determine whether it may be maintained as a class action. Indeed, such a procedure contravenes tbe Rule .... [It] is directly contrary to the command of subdivision (c)(1) that the court determine whether a suit denominated a class action may be maintained as such “as soon as practicable after the commencement of [the] action . . ..”

Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-178, 94 S.Ct. 2140, 2152, 40 L.Ed.2d 732 (1974). It is at the (c)(1) hearing that the class must be shown to possess the characteristics required by (b)(2). Of course, the district court may amend its determination at a later date. See 23(c)(1). But we decline to hold that a court must reconsider its determination when, at the decision for summary judgment, it finds injunctive relief to be inappropriate.

Finally, we have reviewed the (b)(2) issue on this appeal as if the action in the district court involved only the hiring and promotion policies of Liberty Mutual. Wetzel and Ross, however, also attacked in the district court Liberty Mutual’s pregnancy related policies, and its policy of paying higher salaries to claims adjusters than to claims representatives. Due to the piecemeal nature of the appeals from the district court, the only substantive issue before us involves the hiring and promotion policies, but in the absence of the argument by Liberty Mutual that different classes should have been created for different issues, we must consider the propriety of the class determination in the light of all the substantive issues raised in the district court. Liberty Mutual has changed, as a result of the charges brought by Wetzel and Ross, neither its pregnancy related policies, nor its higher salary policy to claims adjusters. In the event these policies are found to be vio-lative of Title VII, final injunctive relief will be necessary as redress. The (b)(2) nature of the class, while visible as to the promotion and hiring issues, becomes translucent when viewed in the light of the multifaceted attack upon Liberty Mutual’s policies.

Liberty Mutual also contends that if' the requirements of both (b)(2) and (b)(3) are met, the court should certify the class under (b)(3) to provide the procedural protections, namely notice and opting out, which (b)(3) affords members of the class, rvirtually every class action meeting the requirements of 23(b)(2) will also meet the less severe requirements of 23(b)(3). Van Gemert v. Boeing Company, 259 F.Supp. 125, 130 (S.D.N.Y.1966). If the actions are classified under (b)(3), members of the class could elect to opt out and thereby not be bound by the judgment. This would permit the institution of separate litigation and would defeat the fundamental objective of (b)(2), to bind the members of the class with one conclusive adjudication. Van Gemert v. Boeing Company, supra at 130 — 131. As discussed above, the procedural protections of (b)(3), opting out and notice, are necessary because of the heterogeneity of the (b)(3) class. They are unnecessary for the homogeneous (b)(2) class.

The recent Supreme Court decision in Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974), does not support the Company’s contention. Eisen does not extend the (b)(3) notice requirement to (b)(2) actions, nor to actions maintainable under either (b)(2) or (b)(3). We therefore agree with the Van Gemert principle that an action maintainable under both (b)(2) and (b)(3) should be treated under (b)(2) to enjoy its superior res judicata effect and to eliminate the procedural) complications of (b)(3) which serve no useful purpose under (b)(2). This principle has been widely adopted in the federal courts. See Moore, supra II 23.31[3] and cases cited therein.

C. Inclusion of former and future employees

Liberty Mutual asserts that the inclusion of former employees in the (b)(2) class was an abuse of discretion because such employees, even at the time of the filing of the complaint, could only have been interested in monetary relief. It again relies on Air Line Stewards & Stewardesses Association, Local 550 v. American Airlines, Inc., supra.

A short answer to this contention is that former employees may well be interested in" the. eradication of the Company’s discriminatory policies and their effect. Employees who had ■ despaired of becoming claims adjusters, or of receiving promotions to positions higher than those of claims representative supervisor, may desire to renew their employment with Liberty Mutual if the discriminatory practices are terminated.

Moreover, even if the former employees were interested in only monetary relief, Rule 23(c)(4)(B) permits, but does not require, the district court to. divide the class into appropriate subclasses. Such subdivision is required where

the class includes . . . subclasses, with divergent interests, or where certain representatives adequately represent only one group and other representatives represent another group.

Moore, supra, 123.65, at 1251, and cases cited therein. Here, as we have observed, the interests of the former and present employees in this class action are congruent: the elmination of, and relief from, Liberty Mutual’s discriminatory policies. We do not perceive any interests of the two groups which are mutually antagonistic. We also believe that the former employees can adequately represent the interests of the present employees. The district court did not abuse its discretion by failing to create subclasses.

Liberty Mutual additionally contends that inclusion of future employees in the class is improper because injunctive relief has been found to be unnecessary by the district court. As noted above, the district court may well conclude that affirmative relief is necessary to completely dissipate the effects of the Company’s discriminatory policies. If it so finds, the inclusion of future employees in the class may be useful. However, if the court should find that such affirmative relief is unnecessary, inclusion of future employees would appear to be improper.

IV

Liberty Mutual contends that if the action is maintainable under (b)(2), we should hold that notice should have been given prior to determination of liability to all members of the class, either under our supervisory powers over the circuit district courts or under the requirements of due process.

Suits brought by private employees are the cutting edge of the Title VII sword which Congress has fashioned to fight a major enemy to continuing progress, strength, and solidarity in our nation, discrimination in employment.

What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.

Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971). Class actions, which allow attorneys to receive fees commensurate with time and effort expended on what often are complex and difficult litigations, are powerful stimuli to enforce Title VII. The imposition of notice and the ensuing costs often discourage such suits. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 179, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). Therefore, we are reluctant to impose notice requirements under our supervisory power for Title VII (b)(2) actions unless Rule 23 so requires or unfairness will result to the parties.

Rule 23 definitely does not require mandatory notice for (b)(2) actions. By its terms, the mandatory notice requirement of (c)(2) applies only to actions maintained under (b)(3).

Whether the court should require notice to be given to members of the class to make a determination [of whether a class should be maintained under (b)(2)] or of the order embodying it, is left to the court’s discretion under subdivision (d)(2).

Advisory Committee, supra at 104. We will not presume to exercise supervisory powers, as urged upon us by counsel for Liberty Mutual, to mandate notice which the Federal Rules of Civil Procedure, promulgated by the Supreme' Court under authority from Congress, 28 U.S.C. § 2072, specifically do not require.

Moreover, in Eisen v. Carlisle & Jac-quelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974), the Supreme Court held that there should be strict adherence to the notice requirements of Rule 23(c)(2). In the light of Eisen, deviation from the literal requirements of the rule would be incongruous and, at the same time, would also fly in the face of its spirit. As discussed supra, mandatory notice is required in (b)(3) actions for the effective operation of the “opt out” provision, which is essential to protect the interests of individuals in the heterogeneous group,^ The “opt out” procedure, however, is not necessary for the protection of interests of individuals in the homogeneous (b)(2) class. In the instant case, determination of liability on the part of Liberty Mutual to each member of the class depends on whether it discriminated on the basis of sex. This question is common to the claims of all members of the class. “In the degree that there is cohesiveness or unity in the class . the need for notice to the class will tend toward a minimum.” Advisory Committee, supra, at 106. In this proceeding, the claims of each member of the class rest squarely on the same issue and the need for individual notice is superfluous.

The due process argument presents a more difficult question. Liberty Mutual primarily relies on dictum in Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 564-565 (2d Cir. 1968), that

notice is required as a matter of due process in all representative actions, and 23(c)(2) merely requires a particular form of notice in 23(b)(3) actions. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950).

Several courts of appeals and district courts have followed this dictum. Wet-zel and Ross counter with the following dictum of this circuit in Katz v. Carte Blanche Corp., 496 F.2d 747, supra at 756:

The district court must also determine whether the class action is maintainable under rule 23(b)(1) or (2) so that it may proceed without notice to or identification of the class members.

We believe that this battle of the dicta lends scant assistance to either party. We believe it preferable to analyze the problem in light of the policies underlying the constitutional requirement of due process.

The due process problem surfaces because the class action judgment binds all members of a (b)(2) class. The Second Circuit in requiring notice relied solely on Mullane v. Central Hanover & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), which concerned the judicial settlement of accounts by the trustee of a trust fund created under state banking law. The Court held that the State could not assert jurisdiction over the trust beneficiaries unless notice were mailed to all whose names and addresses were known, and notice by publication given to those beneficiaries who were unknown or contingent. Mullane, however, denied that individual notice was required in every action.

The Supreme Court plainly stated that it had not committed itself to any formula in achieving a balance between the interests of the State and the interests of the individual parties in the litigation or in “determining when constructive notice may be utilized or what test it must meet. Personal notice has not in all circumstances been regarded as indispensable to the process due to residents, and it has more often been held unnecessary as to nonresidents.” Id. at 314, 70 S.Ct. at 657. Because the Court linked the requirement of notice to the particular circumstances of each case, it is important to note that the situation in Mullane is significantly different from the situation in a (b)(2) class action. First, Mullane dealt with the established interests of individuals in specific property, a common trust fund. Second, the interests of all the beneficiaries in that fund were not identical; some were entitled to interest income, while others were concerned with capital growth. These interests were represented by different guardians; but the personal interests of the guardians functionally differed from the interests of the beneficiaries. Therefore, a significant possibility existed that they did not adequately represent the beneficiaries in the action. Third, the beneficiaries had a resident fiduciary as a caretaker of their interest in the trust “[b]ut it is their caretaker who in the accounting becomes their adversary.” Id. at 316, 70 S.Ct. at 658. Under these circumstances, the possibility that parties having conflicting interests in specific property could be bound by an action which they had no actual notice and brought by parties who possibly represented those interests inadequately does violate due process. This possibility could not occur in a (b)(2) action.

The very nature of a (b)(2) class is that it is homogeneous without any conflicting interests between the members of the class. Since the class is cohesive, its members would be bound either by the. collateral estoppel or the stare decisis effect of a suit brought by an individual plaintiff. Thus, as long as the representation is adequate and faithful, there is no unfairness in giving res judicata effect to a judgment against all members of the class even if they have not received notice. Adequacy of representation of the class is a mandatory requirement for the maintenance of a class action under Rule 23(a). If the representation proves inadequate, members of the class would not be bound. Hansberry v. Lee, 311 U.S. 32, 44-46, 61 S.Ct. 115, 85 L.Ed. 22 (1940); Gonzales v. Cassidy, 474 F.2d 67 (5th Cir. 1973). Of course, there may be circumstances when the court, in its discretion, believes that notice to the absent members of the class is necessary for the fair conduct of the action. Rule 23(d)(2) anticipates such situations and permits the court to then require such notice. In most cases, however, “[njotice would add little or nothing.” Moore, supra at 1152. We decline, therefore, to hold that due process ineluctably requires notice in all (b)(2) class actions.

We do not believe that Mullane over-ruled sub silentio the case of Hansberry v. Lee, supra, in which the Court was faced with the question of the res judica-ta effect to be given to a state class action. The Court wrote:

It is a principle of general application . . . that one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process.
******
To these general rules there is a recognized exception that, to an extent not precisely defined by judicial opinion, the judgment in a “class” or “representative” suit, to which some members of the class are parties, may bind members of the class or those represented who were not made parties to it.
******
[TJhis Court is justified in saying that there has been a failure of due process only in those cases where it cannot be said that the procedure adopted, fairly insures the protection of the interests of absent parties who are to be bound by it.

311 U.S. at 40-42, 61 S.Ct. at 117-118.

We believe that if there is truly adequate representation, the interests of absent parties to a (b)(2) class are protected. We thus agree with the framers of the rule, several district courts that have expressly considered the question, and several of the commentators that notice to absent members of a (b)(2) class is not an absolute requisite of due process. For the foregoing reasons, we have concluded that there was no denial of due process in this case.

V

Almost anticlimactically, we turn to the question of whether the district court properly granted Wetzel’s and Ross’ motion for summary judgment. To fully consider this question, we must review the evidence in some detail.

The Company historically had employed claims adjusters but the position of claims representatives was not created until sometime in 1965. Of the 3,129 claims adjusters hired between July 1, 1965, and March 17, 1972, only two were women; they were hired after Wetzel and Ross filed their administrative charges. During that same period, 2,329 persons were hired as claims representatives of which 2,302, or 98.84% were women. During each year between 1965 — 1969, an average of 1,441 adjusters worked for the Company; in none of those years were more than two adjusters women. In 1970, the number of women female adjusters increased to 5 or 0.31% of the 1,645 adjusters employed that year. In 1971, that percentage increased slightly to 2.8%.

It does not appear that women were any less qualified to become claims adjusters than men. When the Company decided to recruit women claims adjusters in 1971, it found that of its then existing claims representative force of 600 women, approximately lh were considered qualified to become claims adjusters. Approximately' 10% of the claims representatives were offered and accepted the claims adjusters’ position.

This statistical evidence is buttressed by additional documentary evidence. The Company’s recruitment brochure describes the position of claims representative as “Fit for a Queen.” In contrast, the brochures entitled “A Management Career in Liberty Mutual’s Claims Department,” challenge the applicant with the inquiry, “Are you the right man?”

Liberty Mutual’s training manual, copyright 1970, is replete with references to pronouns of the female gender.

The evidence with respect to the Company’s promotion policy is just as impressive. Promotions available to female claims representatives were only to positions of supervising claims representative and claims representative supervisor. Claims adjusters, however, could be promoted to those positions and to numerous other positions which could not be achieved without first being an adjuster.

Between July 1, 1965, and January 18, 1973, the Company had not employed one woman as a branch office claims manager but had employed in the same position between 121 and 142 men annually. During the same period, no more than 9 or 1.65% of all persons employed on an annual basis as claims supervisors were women. Not one woman was promoted to claims supervisor from the ranks of claims representative between July 1965 until the end of 1969. Of the 97 persons promoted to claims supervisor in 1970, only one was a woman. Again in 1971, only one woman was promoted. This statistical evidence is also corroborated by the Company’s recruiting brochures. The brochures for claims representatives describe the only advancement opportunities as supervising claims representative and claims representative supervisor. The brochure for claims adjusters refers to the glowing advancement opportunities available to the claims adjuster.

Rule 56(c) provides that summary judgment shall be granted when there is no genuine issue of material fact and when the moving party is entitled to judgment as a matter of law. Rule 56(e) provides that the adverse party must by affidavit set forth specific facts demonstrating the existence of a genuine issue for trial.

We are aware of the admonition that “[i]n the area of employment, with its complexities and variables, statistics must be analyzed with careful attention both to supportive and opposing facts.” Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 230-231 n. 44 (5th Cir. 1974). But we also recognize the oft cited rule that “statistics often tell much and Courts listen.” Alabama v. United States, 304 F.2d 583, 586 (5th Cir.), aff’d per curiam, 371 U.S. 37, 83 S.Ct. 145, 9 L.Ed.2d 112 (1962). In fact, statistics are particularly appropriate in Title VII class actions where it is the aggregate effect of a company’s policy on the class which is important.

Under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), once the plaintiff has established a prima facie case of discrimination, the burden shifts to the employer to provide non-discriminatory reasons to rebut the prima facie case. The statistics in this case established the existence of a prima facie case of sex discrimination. The burden thereupon shifted to Liberty Mutual to establish that these statistics were misleading or to establish non-discriminatory reasons for its policies. Despite its assurances that “good and sufficient reasons for the existence of these statistics, together with a full explanation, will be offered in due course at the proper time,” the district court found that Liberty Mutual’s response to plaintiffs’ motion “failed to address this burden at all, let alone rebut the Plaintiffs’ evidence.” The time for explanation has come and gone. We believe the evidence established as a matter of law the existence of sexual discrimination in violation of Title VII.

The Company also raises eight disputed issues of material fact which it claims the district court either declared immaterial or improperly resolved. We have carefully examined each and find no merit in any of them.

The judgment of the district court as to the maintenance of the class action will be affirmed. The part of its order which includes in the class past employees whose claims are time barred will be vacated. The district court’s granting of summary judgment will be affirmed.

      . The differences in Liberty Mutual’s hiring and promotional practices as to claims representatives are set out in greater detail, infra at pp. 257-258.

      . All references to rules are references to the Federal Rules of Civil Procedure.

      . Only the question of liability was to be decided at that time. Determination of the relief to be granted was left for further proceedings.

      . The opinion of the district court is reported at 372 F.Supp. 1146 (W.D.Pa.1974).

      . Id. at 1163.

      . The scope of review is summarized by Professor Moore:
      In determining whether an action brought as a class action is to be so maintained the trial court should carefully apply the criteria, set forth in Rule 23 . . . , to the facts in the case; and if it fails to do so its determination is subject to reversal by the appellate court when the issue is properly before the latter court. On the other hand, where the trial court does apply the Rule’s criteria to the facts of the1 case, the trial court has [a] broad discretion in determining~vftIBtiiei Uie-aCtion may Be maintained as a class action_an.d_its_..deter-minatiori should be giverTgreat respect by a reviewing comí.
      3B J Moore, Federal Practice Í! 23,50, at 1104-05 (2d ed. 1974), quoted with approval in Katz v. Carte Blanche Corp., 496 F.2d at 757.

      . Rule 23(a) 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.

      . Since the filing of a charge with the EEOC is a jurisdictional requirement, we may consider the issue here although Liberty Mutual did not raise it in the district court.

      . The Equal Employment Opportunity Act of 1972, Pub.L.No. 92-261, § 4, 86 Stat. 104 (March 24, 1972), extended the time for filing in such cases to 300 days and renumbered § 706(d) as § 706(e). The effective date of the amendment was March 24, 1972, after the filing of the complaint in the district court.

      . A former employee has standing to bring such a suit. Hackett v. McGuire Bros., Inc., 445 F.2d 442 (3d Cir. 1971).
      We are aware that, in a similar situation, the Sixth Circuit has reached the opposite conclusion. Heard v. Mueller Co., 464 F.2d 190 (6th Cir. 1972). However, in Heard the former employee attempted to represent a class of present and prospective employees only. Here the class includes past employees as well. Further, the court in Heard decided that the company’s employment practices were not discriminatory before deciding the class action issue. Here, of course, no such determination was made. Finally, the only support for the holding in Heard was Huff v. N. D. Cass Co., 468 F.2d 172 (5th Cir. 1972), which was subsequently reversed in Huff v. N. D. Cass Co., 485 F.2d 710 (5th Cir. 1973) (en banc).

      . We intimate no opinion as to what relief, if any, is appropriate.

      . We believe that Air Line Stewards & Stewardesses Ass’n, Local 550 v. American Airlines, Inc., 490 F.2d 636 (7th Cir. 1973), cert. denied, 416 U.S. 993, 94 S.Ct. 2406, 40 L.Ed.2d 773 (1974), upon which Liberty Mutual relies, is distinguishable because there the relief to former stewardesses (reinstatement with no loss of seniority) would have been antagonistic to the interests of stewardesses presently employed with less seniority. Here, the only group whose interests are hostile to those of the class are the male claims adjusters, and they, of course, are not members of the class.

      . Rule 23(b) provides:
      (b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
      (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 the 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 tip be encountered in the management of a class action.

      . Rule 23(c)(3) provides:
      (3) The judgment in an action maintained as a class action under subdivision (b)(1) or (b)(2), whether or not favorable to the class, shall include and describe those whom the court finds to be members of the class. The judgment in an action maintained as a class action under subdivision (b)(3), whether or not favorable to the class, shall include and specify or describe those to whom the notice provided in subdivision (c)(2) was directed, and who have not requested exclusion, and whom the court finds to be members of the class.

      . See Katz v. Carte Blanche Corp., supra, 496 F.2d at 759; Wright, supra at 306.

      . An excellent example is the situation found in Katz v. Carte Blanche Corp., supra, in which it was alleged that Carte Blanche violated the Truth in Lending Act in its disclosure of finance charges. Assume, contrary to the decision, that a (b)(3) class was allowed to be maintained. Carte Blanche might have counterclaimed against the members of the class for amounts owing from use of the credit card. A delinquent account debtor might have decided that a judgment for amounts owing would outweigh any benefits he might obtain from a favorable judgment resulting from the Truth in Lending Act violation.

      . Rule 23(c)(2) provides:
      (2) In any class action maintained under subdivision (b)(3), the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall advise each member that (A) the court will exclude him from the class if he so requests by a specified date; (B) the judgment, whether favorable or not, will include all members who do not request exclusion; and (C) any member who does not request exclusion may, if he desires, enter an appearance through his counsel.

      . See note 13 supra.

      . “[Subdivision (b)(2)] does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages.” Advisory Committee, supra at 102. See Moore, supra at 654.

      . Airline stewardesses had brought suit seeking injunctive relief against the airlines’ policy of permanently discharging pregnant stewardesses. After the institution of the suit, the airlines eliminated the practice. The court noted:
      When the airlines ended their discharge policy, the actions became virtually moot as far as the currently employed stewardesses were concerned, and purely prospective relief against the practice became of little moment. The (b)(3) character of the actions, while always present as to the discharged stewardesses, became even more obvious.
      490 F.2d at 643. For a further discussion of the case, see note 30 infra.

      . “Thus, the action and the relief authorized are essentially equitable in nature. This is true not only of traditional injunctive relief which may be granted, but also of the back pay award.” Franks v. Bowman Transp. Co., 495 F.2d 398, 406 (5th Cir.), cert. denied, 419 U.S. 1050, 95 S.Ct. 625, 42 L.Ed.2d 644, 43 U.S.L.W. 3328 (1974).

      . The district court in its first class action order dated August 16, 1972, stated:
      [W]e find that the defendant has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final declaratory or injunctive relief with respect to the class as a whole. Claims of sexual discrimination are particularly appropriate for such determination.

      . 372 F.Supp. at 1163. We do not suggest what relief, if any, may be appropriate.

      . See note 22 supra.

      . Rule 23(c)(4)(A) permits an action to be brought or maintained as a class action as to particular issues only. See note 28 infra. From our review of the record, it does not appear that Liberty Mutual had requested the district court to maintain the class under (b)(3) as to its hiring and promotion policies, while maintaining the class under (b)(2) for the other issues. In this court, Liberty Mutual has attacked only the maintenance of the class as a whole.

      . See pp. 248-250 supra.

      . See note 20 supra.

      . Rule 23(c)(4) provides:
      (4) When appropriate (A) an action may be brought or maintained as a class action with respect to particular issues, or (B) a class may be divided into subclasses and each subclass treated as a class, and the provisions of this rule shall then be construed and applied accordingly.

      . See pp. 247-249, supra.

      . The congruence of interests and absence of antagonism between the two groups distinguish this case from Air Line Stewards & Stewardesses Association, Local 550 v. American Airlines, Inc., supra, both as to this issue of subclasses and the issue of whether the class was properly maintained under (b)(2). See p. 250-252, supra. In Air Line Stewards, American Airlines and TWA had permanently discharged stewardesses who became pregnant. The Association, certified bargaining representative for airline cabin attendants, brought suit to enjoin the practice, and after the companies terminated the practices, negotiated a settlement. Objecting stewardesses appealed approval of the settlement by the district court. The appellate court noted that the Association, which was composed of active airline attendants, could not adequately represent the former attendants because-the two groups had conflicting interests. The former stewardesses would desire reinstatement with no loss of seniority, leapfrogging them over less senior active stewardesses. Seniority had an important effect on promotions, trip assignments, and other aspects of employment. The court, desirous of allowing the former stewardesses to opt out of the settlement, held that a (b)(3) subclass should have been created. Here, we perceive no need for former employees to opt out.

      . See p. 251 supra.

      . There is a serious question whether Liberty Mutual, during a colloquy with Judge Aldi-sert, abandoned its due process contention at oral argument. We consider the contention, found in the written brief, because the colloquy is not altogether clear and because of the Company’s reliance on Eisen v. Carlisle & Jacquelin, 391 F.2d 555 (2d Cir. 1968). Ei-sen’s requirement of notice in (b)(2) actions was predicated on due process not, as Liberty Mutual contended at oral argument, on the supervisory power of the court.

      . Rule 23(c)(2) in pertinent part provides:
      In any class action maintained under subdivision (b)(3), the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.

      . See pp. 249-250 supra.

      . Schrader v. Selective Serv. Sys. Local Bd. No. 76, 470 F.2d 73 (7th Cir.), cert. denied, 409 U.S. 1085, 93 S.Ct. 689, 34 L.Ed.2d 672 (1972); McCarthy v. Director of Selective Serv. Sys., 322 F.Supp. 1032 (E.D.Wis.1970), aff’d per curiam on other grounds, 460 F.2d 1089 (7th Cir. 1972); Zeilstra v. Tarr, 466 F.2d 111 (6th Cir. 1972); Pasquier v. Tarr, 318 F.Supp. 1350 (E.D.La.1970), aff'd per curiam on other grounds, 444 F.2d 116 (5th Cir. 1971); Newman v. Avco Corp., 380 F.Supp. 1282 (M.D.Tenn.1974).

      . With the exception of Newman v. Avco Corp., supra, the cases in the preceding footnote are suspect in their precedential value on the notice issue because of their confused procedural history.
      In Gregory v. Hershey, 311 F.Supp. 1 (E.D.Mich.1969), the district court rendered a declaratory judgment that the class before it was entitled to fatherhood deferments from Selective Service. The Gregory court had not provided members of the class with notice. Plaintiffs in the cases upon which Liberty Mutual relies claimed to be members of the class in Gregory.

      Schrader v. Selective Serv. Sys. Local Bd. No. 76, 329 F.Supp. 966 (W.D.Wis.1971), held the judgment binding despite the lack of notice. Pasquier v. Tarr, 318 F.Supp. 1350 (E.D.La.1970), and McCarthy v. Director of Selective Serv. Sys., 322 F.Supp. 1032 (E.D.Wis.1970), rejected plaintiffs res judicata claims by relying on the dicta in Eisen.

      Following the decisions in the preceding paragraph, Gregory was reversed. The reversal of Gregory on the ground that the court had lacked subject matter jurisdiction, 436 F.2d 513 (6th Cir.), cert. denied, 403 U.S. 922, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971), sent these cases back to court and produced several new ones. Pasquier and McCarthy were affirmed on appeal but on the ground that Gregory was void for lack of subject matter jurisdiction. See McCarthy v. Director of Selective Serv. Sys., 460 F.2d 1089 (7th Cir. 1972); Pasquier v. Tarr, 444 F.2d 116 (5th Cir. 1971). Schrader was reversed because “the absolute failure to give any indicia of notice to absent members render[ed] the purported class in Gregory futile.” Schrader v. Selective Serv. Sys. Local Bd. No. 76, 470 F.2d 73, 75 (7th Cir.), cert. denied, 409 U.S. 1085, 93 S.Ct. 689, 34 L.Ed.2d 672 (1972). Zeilstra v. Tarr, 466 F.2d 111 (6th Cir. 1972), reversed another district court decision holding Gregory binding on the grounds that Gregory had been void, for lack of both notice and subject matter jurisdiction.

        See Note, Collateral Attack on the Binding Effect of Class Action Judgments, 87 Harv.L. Rev. 596-597 (1974), upon which the foregoing analysis is predicated.

        We are inclined to believe that the courts in the above cases reached for the notice requirement as an answer to the complex res judicata effect of the class action rather than carefully considering whether due process actually requires notice to absent members of the class.

      . See Comment, Adequate Representation, Notice and the New Class Action Rule; Effectuating Remedies Provided by the Securities Laws, 116 U.Pa.L.Rev. 889, 912-913 (1968).

      . There is a strong presumption that the rule is valid. See Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965).

      . Northern Natural Gas Co. v. Grounds, 292 F.Supp. 619, 636 (D.Kan.1968) (“the essential requisite of due process as to absent members of the class is not notice, but the adequacy of representation of their interests by named parties”); Dolgow v. Anderson, 43 F.R.D. 472 (S.D.N.Y.1968) (“adequacy of representation, not form of notice, is the crucial consideration”); see Woodward v. Rogers, 344 F.Supp. 974, 980 (D.D.C.1972), aff’d, 159 U.S.App.D.C. 57, 486 F.2d 1317 (1973) (“where the adequacy of the representation of the class interests by the named parties is clear, where no apparent purpose would be served by notice to this wide-ranging class and where, indeed, judgment is in favor of the class, the essential requisites of due process have been met without further notice”).

      . Moore, supra 11 23.55; Note, Constitutional & Statutory Requirements of Notice Under Rule 23(c)(2), 10 B.C. Ind. & Comm.L.Rev. 571 (1969); Comment, Adequate Representation, Notice and the New Class Action Rule; Effectuating Remedies Provided by the Securities Laws, 116 U.Pa.L.Rev. 889 (1968).'

      . Typical are the following general instructions (emphasis supplied):'
      This course consists of four text books and a Form Book, plus supplementary materials, designed to help you train your new Claims Representative. The first two text books “'covered A, AP & SA Claims — when your C.R. finishes Books 1 and 2 she will be able to process an automobile claim from first report to closing. Book 3 will equip her to handle L & SI. cases. Book 4 will teach her to handle X and SX cases ....
      4: ♦ ♦ sf! sf:
      To get the most out of this training program, you should:
      ******
      b. Supply the trainee with required materials before she starts to work through any volume
      * * * * >H *
      e. Ask the trainee to complete the chapter on which she is working before going to change of pace activity.
      ******
      Use this program patiently. Let your C.R. take, within suggested limits, the time she needs to complete the course.

      . Rule 56(c) provides in pertinent part:
      The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and the admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. .

      . Rule 56(e) provides in pertinent part:
      When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits, or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

      . Numerous courts have relied on evidence of numerical disparity among classes of employees to prove discrimination under Title VII. See, e. g., Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir. 1972); United States v. Ironworkers Local 86, 443 F.2d 544 (9th Cir.), cert. denied, 404 U.S. 984, 92 S.Ct. 447, 30 L.Ed.2d 367 (1971); Parham v. Southwestern Bell Telephone Co., 433 F.2d 421 (8th Cir. 1970); Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245 (10th Cir. 1970), cert. denied, 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d 237 (1971). Although all of these cases were decided after full trial, we see no reason why statistical evidence is less appropriate at a hearing on a motion for summary judgment.


source: Caselaw Access Project

author: GODBOLD, Circuit Judge:

license: Public Domain

text:
    John H. BUCHANAN, Jr., et al., Plaintiffs-Appellees, v. UNITED STATES POSTAL SERVICE, etc., et al., Defendants-Appellants.
    Nos. 74-2851 and 74-3214.
    United States Court of Appeals, Fifth Circuit.
    Feb. 19, 1975.

      Wayman G. Sherrer, U. S. Atty., Henry I. Frohsin, Asst. U. S. Atty., Birmingham, Ala., Roger Craig, Deputy Gen. Counsel, Law Dept., Washington, D. C., Neil H. Koslowe, Robert E. Kopp, App. Section, Civ. Div., U. S. Dept, of Justice, Washington, D. C., for defendants-appellants.
    William G. Somerville, Jr., John E. Grenier, Birmingham, Ala., for plaintiffs-appellees.
    Before THORNBERRY, GOLDBERG and GODBOLD, Circuit Judges.
   GODBOLD, Circuit Judge:

This first impression case was brought by three Congressmen who sue on behalf of a class composed of numerous users, located throughout the United States, of the United States Postal Service. The Postal Service was created as an independent establishment of the executive branch of the government by the Postal Reorganization Act of 1970, 39 U.S.C. §§ 101-5605, and generally performs functions formerly carried out by the Post Office Department. The controversy centers upon previously uninterpreted language of 39 U.S.C. § 3661:

(a) The Postal Service shall develop and promote adequate and efficient postal services.
(b) When the Postal Service determines that there should be a change in the nature of postal services which will generally affect service on a nationwide or substantially nationwide basis, it shall submit a proposal, within a reasonable time prior to the effective date of such proposal, to the Postal Rate Commission requesting an advisory opinion on the change.
(c) The Commission shall not issue its opinion on any proposal until an opportunity for hearing on the record under sections 556 and 557 of title 5 has been accorded to the Postal Service, users of the mail, and an officer of the Commission who shall be required to represent the interests of the general public. The opinion shall be in writing and shall include a certification by each Commissioner agreeing with the opinion that in his judgment the opinion conforms to the policies established under this title.

Suit was filed April 30, 1974. The complaint, as amended, asked that pending hearings before the Postal Rate Commission and advisory opinions by that body the court enjoin implementation of three Postal Service programs.

The Postal Service is in the process of implementing three programs which plaintiffs contend are “change[s] in the nature of postal services which will generally affect service on a nationwide or substantially nationwide basis” within the meaning of subsection (b) and thus required to be submitted to the Postal Rate Commission for hearings and advisory opinions as required by (b) and (c). Opinions of the Rate Commission are, as the statute states, advisory only. The Postal Service is not required to follow them. The Postal Service has not submitted the programs to the Rate Commission. The programs are: (1) a plan to consolidate and eliminate “district offices” throughout the United States; (2) the retail analysis program (“RAP”); and (3) the “national bulk mail system” program.

Discovery commenced promptly after suit was filed. Following a hearing on May 11 the court issued a temporary injunction on May 14 finding with respect to RAP and consolidation of district offices that plaintiffs probably would prevail in demonstrating that they were “change[s] in the nature of postal services” within the meaning of § 3661 and that plaintiffs would suffer irreparable injury if the preliminary injunction were not issued. With respect to the national bulk mail system program the court found § 3661 inapplicable because “in all likelihood” the decision to implement it had been made before July 1, 1971, the date the Postal Reorganization Act became effective. Defendants appeal from these grants of relief and from the order of the District Court denying their motion for summary judgment.

I. § 3661: “changes in the nature of postal services”

The central issue is the meaning of “change in the nature of postal services which will generally affect service on a nationwide or substantially nationwide basis.” We examine that language in the light of the purposes and legislative history of § 3661.

Two of the basic policies underlying the Postal Reorganization Act pull in different directions. The Postal Service emphasizes the goal of vesting in management the freedom to make decisions without external constraints. The plaintiffs counter with the goal of providing to the American people a public service which is sensitive and responsive to their needs. Although these policies conflict to some extent, we think a balance may be struck whereby management is given the freedom to manage without unnecessary limitations and the public is given an opportunity to present their views on decisions of the Postal Service which affect them.

The language of the statute, the legislative history, and the existence of alternative remedies indicate that Congress intended § 3661 to apply to only a specified class of decisions. Postal management was left with broad decision-making power, subject to § 3661 requirements for specified decisions.

The language of § 3661 indicates the limited scope of application. All changes within the Service will probably affect postal service to some extent. For example, a decision to combine two high management positions could ultimately have an effect on a nationwide or substantially nationwide basis. The language of the statute, however, indicates that three factors must coexist before § 3661 applies. First, there must be a “change.” This implies that a quantitative determination is necessary. There must be some meaningful impact on service. Minor alterations which have a minimal effect on the general class of postal users do not fall within § 3661. Second, the change must be “in the nature of postal services.” This involves a qualitative examination of the manner in which postal services available to the user will be altered. Third, the change must affect service “on a nationwide or substantially nationwide basis.” A broad geographical area must be involved. These three factors combine to demonstrate that Congress intended the safeguards of § 3661 to apply only when changes of significance were contemplated.

There is much in the legislative history of the Act to indicate that Congress intended to increase the ability of the Postal Service management to make the decisions necessary to the efficient and effective operation of the postal system. For example, the Kappel Commission emphasized the need for increased management authority:

What the Post Office needs is management leadership. It needs a management free to manage with all that entails; authorities matched with responsibilities . . .

Similarly the House Committee, recommending the passage of an earlier version of the Act stated:

Top management must be given authority, consistent with its responsibilities, to provide an efficient and economical postal system. Postal management has been severely and unjustly hampered in its efforts to administer the Department in a businesslike way.

A policy of broad authority in postal management is further supported by modifications made by the Senate-House Conference Committee. An early House version had included provisions which made the opinion of the Postal Rate Commission binding on the Postal Service, established an administrative procedure for changes of less than a nationwide impact, and provided for judicial review. In the Act as agreed upon by the Conference Committee and passed by the Congress, these three provisions were eliminated. These deletions demonstrate congressional concern with minimizing the hurdles in the path of a postal management decision. To place a broad and expansive interpretation on the reach of § 3661 would be inconsistent with this expression of congressional will.

The third factor supporting a policy of broad management power and an unex-pansive interpretation of § 3661 is the existence of § 3662. This provides that, any “[interested parties who believe that they are not receiving postal service in accordance with the policies of this title” may lodge a complaint and obtain a hearing with the Postal Rate Commission if the Commission feels it is warranted. Section 3662 complements § 3661, and together they form a harmonious scheme. For those “changes” which do not fall within § 3661, the postal user may turn to § 3662 if the change does in fact affect his postal service. Although § 3662 is a more limited remedy, it insures that an unexpansive interpretation of § 3661 will not leave remediless the postal user dissatisfied by changes that do not rise to the level of those covered by § 3661.

The plaintiffs urge that Postal Service management intends to construe its managerial powers so expansively as to swallow up § 3661 or reduce it to impotence,' pointing out that in the four years the Act has been in effect the Service has never invoked § 3661. Our unwillingness to accept the very broad interpretation urged by plaintiffs should not be construed as foreclosing a significant and viable scope of operation for § 3661.

II. The denial of summary judgment

We agree with plaintiffs that substantial factual disputes exist which must be resolved before it is possible to determine whether any of the three programs is in fact a “change in the nature of postal services which will generally affect service on a nationwide or substantially nationwide basis.” Summary judgment in favor of defendants was properly denied. We discuss each program separately.

A. The consolidation of district offices

The Postal Service in July 1971 was organized in the following manner:

Office of Postmaster General
5 regional offices
86 district offices
36,632 local post offices -’ 552 sectional centers

The regional and district offices move no mail and provide no services to postal customers. By comparison the sectional centers are terminals for the distribution and receipt of mail. The Postal Service in 1972 determined that more management authority should be vested in the sectional centers. As this is done, the number of district offices will be reduced through consolidation and eventually all district offices may be eliminated. Plaintiffs and the Postal Service disgree as to whether this program to eliminate and consolidate district offices is a “change in the nature of postal services.”

The Postal Service contends that the district offices are solely managerial and that their elimination and consolidation in no way changes the nature of services received by postal customers. It points out that a district office is generally composed of four or five management employees and that rearranging the location and organization of such employees is a classic management decision. Plaintiffs, however, argue that the function of district offices is not clear and that they have significant direct responsibility for postal services, so that the consolidation of district offices is a change in the nature of postal services. The exact functions of the employees in district offices are the subject of dispute, and the effect upon the nature of postal services by moving a district office from one place to another is unclear.

B. The retail analysis program

The Postal Service describes RAP as simply a program whereby a particular geographical area is analyzed to determine whether present postal stations and branches exist in the best number and arrangement to provide effective service to the postal users within that geographic area. The Postal Service emphasizes that this program for providing information is used only at the request of the local postmaster, who may or may not consider any information provided by RAP in making decisions regarding the number, location and types of facilities to be provided in his area. Consequently, the Postal Service says, there is no change in the nature of postal services since RAP changes nothing and only provides information.

Plaintiffs, however, refer to RAP as the “postal facilities deployment” program. They contend that more than information gathering is involved, that the “postal facilities deployment” program includes a decision- making process whereby postal facilities are relocated and altered. Testimony indicating the existence of two programs supports plaintiffs’ position. The District Judge in his May 14 memorandum of decision stated that he was unable to determine whether one or two programs existed.

C. The bulk mail system program

The District Judge found on the record available to him that the decision to implement the bulk mail system program was made before July 1, 1971, the effective date of the Postal Reorganization Act (i.e., § 3661), but he pointed out that “after a full record is developed the national bulk mail system could likewise be viewed as a change.” Plaintiffs point to testimony that indicates that implementation of the program was approved after the effective date of the Act.

Bearing in mind the factual disputes and uncertainties which we have described, the District Judge correctly denied summary judgment.

III. The preliminary injunction

The District Judge correctly stated the four factors to be considered prior to the award of a preliminary injunction:

(1) Is there a substantial likelihood that plaintiffs will prevail on the merits?
(2) Is there a substantial threat that plaintiffs will suffer irreparable injury if interlocutory injunctive relief is not granted?
(3) Does the threatened injury to plaintiffs outweigh the threatened harm the injunction may do to defendants?
(4) Will the granting of a preliminary injunction disserve the public interest?

See Allison v. Froehlke, 470 F.2d 1123, 1126 (CA5, 1972); Wright and Miller, Federal Practice and Procedure, § 2948. Applying this formulation, the District Court granted preliminary injunctive relief with respect to the consolidation of district offices and RAP and denied such relief with respect to the national bulk mail system program. The applicable standard of review is that the district court’s grant or denial of preliminary in-junctive relief will only be reviewed for an “abuse of discretion”. Bayless v. Martine, 430 F.2d 873 (CA5, 1970); United States v. Edwards, 333 F.2d 575 (CA5, 1964); 7 Moore’s Federal Practice, H65.04[2], 65-47-49.

With respect to both RAP and the consolidation of districts, we think the District Court was correct in its determinations that plaintiffs had properly established that there was a substantial threat of irreparable injury to plaintiffs, that the threatened injury to plaintiffs outweighed the harm the injunction may inflict on the defendants, and that the grant of a preliminary injunction would serve the public interest. As to RAP, there was also sufficient showing of substantial likelihood that plaintiffs would prevail on the merits. With respect to the consolidation of districts, however, plaintiffs failed to carry their burden of demonstrating substantial likelihood of prevailing on the merits. There was little evidence indicating that this program might have some effect on the nature of postal service. By comparison, there was extensive testimony indicating that the consolidation and elimination of districts simply amounted to a reorganization of the management structure which would have no impact on the service available to users.

The order of the District Court granting the preliminary injunction must be vacated insofar as it relates to the program to consolidate districts; in all other respects it must be affirmed.

Vacated in part, affirmed in part, and remanded for further proceedings.

      . The Postal Rate Commission consists of five commissioners appointed by the President. 39 U.S.C. § 3601. The principal functions of the Commission are to submit recommendations to the Postal Service concerning changes in rates and fees, 39 U.S.C. § 3622, and in the mail classification schedule, 39 U.S.C. § 3623. ,

      . Also referred to as thif “postal facilities deployment” program. There is testimony implying that there are in fact two programs and that these are not simply two labels for the same program. See discussion infra.

      . The grant of temporary injunctive relief is, of course, appealable under 28 U.S.C. § 1292(a)(1). The District Court certified the denial of summary judgment for interlocutory appeal under 28 U.S.C. § 1292(b), and we accepted the appeal.

      . The presidentially appointed commission which investigated the Post Office Department and made recommendations on the basis of that investigation. See The President’s Commission on Postal Organization, Towards Postal Excellence (1968) [hereinafter “Kappel Commission Report”].

      . Kappel Commission Report at 63.

      . H.R.Rep. No. 91-1104, 91st Cong., 2d Sess. (1970) at 5, 1970 U.S.Code Cong. & Admin. News at 3653. We recognize that nothing in § 3661 prevents the Postal Service from making any decision which it deems best. However, the procedures mandated by § 3661 are sufficiently elaborate to amount to a significant impediment in the path of the decision making process of the Postal Service. We therefore find these expressions of congressional intent relevant to our interpretation of § 3661.

      . The Commission’s decision could, however, be overruled by the presidentially appointed Board of Directors of the Postal Service.

      . See H.R. 11750, 91st Cong., 1st Sess. (1969) (proposed 39 U.S.C. §§ 1255, 1257). These provisions, with only minor modifications, were retained in H.R. 17070, 91st Cong., 2d Sess. (1970).

      . The Committee also made public hearings mandatory as opposed to optional (at the Board’s discretion) as proposed in the House bill. Although this change indicates a concern with broad public input, it does not alter our overall analysis of the changes adopted by the Committee.
      The House bill provided for public notice and opportunity for public comment when the Postal Service proposed a “change in the type, quality, terms or conditions of any services provided by the Postal Service which substantially affects a postal service provided to users on a nationwide or nearly nationwide basis.” H.R. 11750, 91st Cong., 1st Sess. (1969) (proposed 39 U.S.C. § 1255). The Postal Service finds significance in the Conference Committee’s change from this language to the present language of § 3661. We find nothing in this change to indicate support for either plaintiffs’ or the Postal Service’s position. The new language was essentially the equivalent of the language abandoned and therei is nothing to indicate that the Committee attached significance to the change.

      . 39 U.S.C. § 3662 provides:
      “Interested parties who believe the Postal Service is charging rates which do not conform to the policies set out in this title or who believe that they are not receiving postal service in accordance with the policies of this title may lodge a complaint with the Postal Rate Commission in such form and in such manner as it may prescribe. The Commission may in its discretion hold hearings on such complaint. If the Commission, in a matter covered by subchapter II of this chapter, determines the complaint to be justified, it shall, after proceedings in conformity with section 3624 of this title, issue a recommended decision which shall be acted upon in accordance with the provisions of section 3625 of this title and subject to review in accordance with the provisions of section 3628 of $is title. If a matter not covered by subchapter II of this chapter is involved, and the Commission after hearing finds the complaint to be justified, it shall render a public report thereon to the Postal Service which shall take such action as it deems appropriate.”

      . This is not to indicate, of course, that a change is necessary in order to invoke § 3662. That section is available whenever a user believes that service is not being provided in accordance with the policies of Title 39.

      . The number of post offices and sectional centers does not appear from the record. The Postal Service has supplied the above figures in their brief and we accept them for purposes of discussion.

      . It is not clear whether the goal is to eliminate all district offices, but whether it is or not is unimportant here since there is a nationwide program of substantial elimination and consolidation of district offices.

      . There is no dispute that this program is nationwide.

      . For example, defendants point to the testimony of Edward V. Dorsey, Senior Assistant Postmaster General for Operations, who stated:
      “[T]here was a need for an intermediate level of management, between the region and the sectional center. So, the districts were organized to act as that kind of an administrative entity, not an operation entity, because the district doesn’t operate anything. The district doesn’t move any mail, other than mail somebody sends to it to answer. It doesn’t do anything else. It’s a policy, an administrative level kind of management.”

      . A district manager, a mail processing representative, a customer service representative, a support representative, and an employee and labor relations representative (and some^ times one representative for field operations).

      . Francis A. Sutton, a Postal Service management employee who had been an assistant district manager (customer service representative), testified
      Q. You have a lot to do with mail delivery? A. The customer service, ADM [assistant district manager], has all to do with the delivery of mail.

      . The Postal Service makes no argument that RAP is not a “nationwide or substantially nationwide” program.

      . The Postal Service presented evidence that the two names are merely labels for what is in fact one program, but there is some evidence that there may be two programs, Edward V. Dorsey, Senior Assistant Postmaster General for Operations, stated:
      “Q. Do you know if the retail facilities program ... is the same program as the postal facilities deployment program .?
      A. I don’t know that they are the same program. I would doubt that they are the same program. I would think one would be an adjunct of the other.
      The retail analysis program, and I say this on my own knowledge, would seem to me that any deployment program would be based on retail analysis of what you should deploy, and where you should deploy it.

        ******
      A. I would say the deployment program is the one that deploys the facilities. But, the retail analysis, based on logic and deductions, that’s a part of it.”

      . Carl C. Ulsaker, the Regional Postmaster General for the Southern Region, testified:
      “Q. Was the final decision on the bulk mail program made by Mr. Klassen?
      A. Well, yes.
      Q. This would have been the knowledge that you got from him in 1972?
      A. Yes. Yes. It’s my personal knowledge that Mr. Klassen made the decision to go with the bulk mail system.
      Q. And that was in 1972, as well as you recall?
      A. Right. And he was then the Postmaster General.

      . If the District Judge determined summary judgment inappropriate with respect to any one or more programs, he was not required to grant partial summary judgment with respect to programs where there were no disputed issues of fact. See Powell v. Radkins, 506 F.2d 763, p. 765 [CA5, 1975]; 6 J. Moore, Federal Practice 1! 56.15[6], at 2427.

      . Plaintiffs do not cross-appeal the denial of preliminary injunctive relief with respect to the national bulk mail system program. Consequently we review only the award of relief with respect to the first two programs.

      . We have concluded that there exist genuine issues as to material facts and that defendants’ motion for summary judgment was properly denied. This does not, however, require a conclusion that there is a substantial likelihood that plaintiffs will prevail on the merits.

      . The four factors considered prior to the award of preliminary injunctive relief are mixed questions of fact and law. On review the district court’s findings of fact are to be upheld unless “clearly erroneous”. F.R.Civ.P. 52(a). The district court’s conclusions of law are subject to broad review and will be reversed if incorrect. See Wright and Miller, Federal Practice and Procedure § 2962, p. 636-37 (1973); Delaware & Hudson Ry. Co. v. United Transportation Union, 146 U.S.App. D.C. 142, 450 F.2d 603, 620, cert. denied, 403 U.S. 911, 91 S.Ct. 2209, 29 L.Ed.2d 689 (1971). It is unclear whether the District Judge’s determination of the likelihood of plaintiffs’ success was based on a clearly erroneous factual determination of the impact on postal users of the program to consolidate districts or an incorrect interpretation of § 3661. Whichever the basis for the incorrect conclusion that plaintiffs would likely succeed on the merits, the preliminary injunction with respect to this program must be' vacated.

      . See fn. 17, supra.

      . See e.g., fn. 15, supra.


author: PER CURIAM:

text:
    J. Elbert PETERS et al., Plaintiffs-Appellants, v. Dudley CLARK et al., Defendants-Appellees.
    No. 72-1093.
    United States Court of Appeals, Fifth Circuit.
    Feb. 13, 1975.
    Dieter J. Schrader, Huntsville, Ala., for plaintiffs-appellants.
    Ralph H. Ford, Huntsville, Ala., James F. Trucks, Jr., Reid B. Barnes, Birmingham, Ala., for defendants-appellees.

      Before WISDOM, GOLDBERG and CLARK, Circuit Judges.
   PER CURIAM:

In this action the plaintiffs-appellants contend that the districting plan for elections to the County Commission of Madison County, Alabama, as set forth in Act No. 1739 of 1971 General session of the Legislature of Alabama, violates the equal protection clause of the fourteenth amendment. The statute divides the county into five districts and provides for a county commission composed of one representative from each district. The commissioners are elected by the voters of the county at large, but each commissioner must reside in the district he represents. In Reese v. Dallas County, Alabama, 5 Cir. 1974, 505 F.2d 879, this Court held that a similar county commission plan for Dallas County, Alabama, was constitutionally impermissible.

The district court found that the registered voters in Madison County, as of August 1, 1971, were as follows:

District 1 - 3,358
District 2 - 2,907
District 3 - 3,739
District 4 - 4,519
District 5 - 58,836
Total for County - 73,359

The City of Huntsville is in District 5. The population of Huntsville on December 31, 1970, was 137,802; the population of the county was 186,540.

This Court said in Reese: “Dilution [of voting strength] is established if a dis-tricting scheme works an invidious effect on an identifiable group.” 505 F.2d at 883. In that case “Selma, the urban community, [was] outvoted three to one by rural areas, even though its population [was] virtually equal to their population”. In this case Huntsville, the urban community, could be outvoted four to one by rural areas, even though the city’s population was almost 74 percent of the total population of Madison County. In each case, instead of excluding a group of voters outright, the ability of the urban voters to participate in the county’s activities was diluted by the restrictions on their opportunity to elect candidates from their own area.

We hold that the statutory plan for the election of the County Commission of Madison County, Alabama, violates the equal protection clause of the Fourteenth Amendment.

The judgment of the district court is reversed and the case is remanded for proceedings consistent with this opinion and the Court’s opinion in Reese v. Dallas County, Alabama.


text:
    John T. STEEN and Nell D. Steen, Plaintiffs-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Defendant-Appellee.
    No. 74-2185.
    United States Court of Appeals, Fifth Circuit.
    Feb. 19, 1975.
    Rehearing Denied March 25, 1975.

      John W. Davidson, Richard W. Wolf, Joe C. Elliott, San Antonio, Tex., for plaintiff s-appellants.
    Scott P. Crampton, Asst. Atty. Gen., Tax Div., Dept, of Justice, Chris J. Ray, Atty., Meade Whitaker, Chief Counsel, Internal Revenue Service, Meyer Roth-wacks, Chief, App. Sec., Tax. Div., Dept, of Justice, Ernest J. Brown, Gary R. Allen, Donald H. Olson, Attys., Tax. Div., Dept, of Justice, Gilbert E. Andrews, Acting Chief, App. Sec., Dennis M. Dono-hue, Atty., Tax Div., Dept, of Justice, Washington, D. C., for defendant-appel-lee.
    Before DYER, MORGAN and GEE, Circuit Judges.
   PER CURIAM:

Treating the main house, pool house and guest house on his River ranch as farm buildings, Steen claimed a deduction for depreciation in the years 1968 and 1969. The Commissioner disallowed the deduction, the Tax Court upheld the Commissioner, 61 T.C. 298, and Steen appealed. We affirm.

The houses were on the ranch at the time of its purchase by Steen. The main house was put to three uses: Steen and his foreman would sometimes meet briefly on Steen’s weekend visits to the ranch; Steen and his wife would occasionally stay overnight on his weekend visits; and Steen entertained business and social friends on 26 days during the two year period. The house was otherwise never lived in, rented or occupied.

The thrust of Steen’s argument is that he purchased the River ranch to make his other two ranches more profitable, and since the houses were on the farm at the time of purchase they must be considered farm buildings and depre-ciable. We disagree.

Treas.Reg. § 1.167(a)-6(b) provides, inter alia, that “[a] reasonable allowance for depreciation may be claimed on farm buildings (except a dwelling occupied by the owner), farm machinery, and other physical property but not including land.” However, this regulation must be read in light of its underlying statute, Int.Rev.Code of 1954, § 167(a)(1), which in the factual context of this case limits a depreciation deduction to property “used in the trade or business.” Reading the statute and regulation together, and in such a manner as to avoid a construction which brings the validity .of the regulation into question, Northern Natural Gas Co. v. O’Malley, 8 Cir. 1960, 277 F.2d 128, we conclude that the term “farm buildings” must be interpreted to mean buildings used in the business of farming and not merely buildings located on a farm.

Steen’s alternative argument is that the main house was principally used as the headquarters for his ranching operations, and was therefore, in any event, used in his trade or business. We agree with the Tax Court that since the main house was only used for occasional discussions of brief duration between Steen and his foreman, “[t]o say that this rather large residence with a swimming pool, pool house, and guest house were a part of and used in the ranching operation stretches the imagination.”

Finally, Steen asserts that the Tax Court was in error for failing to allocate a portion of the house to business use. The short answer to this is that Steen failed to raise the question of use allocation below. The Tax Court was inclined, sua sponte, “to allow petitioners a deduction for depreciation on a small part of the main house on the theory that it was used in the business as a ranch office,” but was unable to do so because there was no evidence upon which it “could base even a guess on that part of the entire allocated cost of the main house that might be attributed to business use.”

Finding no error in the Tax Court’s disposition of the case, its decision is

Affirmed.