dissenting, with whom BROWN, Chief Judge, and GOLDBERG and SIMPSON, Circuit Judges, join, dissenting.
The second opinion of the panel responded to the City’s petition for rehearing, which had raised the claim that the first panel decision violated the case or controversy requirement of Article III of the United States Constitution. Case or controversy was the issue on which the panel divided in its second opinion. The court en banc has pretermitted decision on case or controversy grounds and instead has reversed the panel on Rule 23 grounds. Thus case or controversy as a ground for decision is out of the case.
The en banc opinion describes its holding as very narrow and recognizes that application of the mootness doctrine depends to a large extent upon the idiosyncrasies of each class action. The opinion affirmatively recognizes that this decision does not require automatic dismissal in every case when the district court has failed to certify the class before the representative’s claim has been mooted. It distinguishes this case from those in which after an appropriate certification hearing the court, through no fault of the plaintiff, improperly denies certification and the plaintiff subsequently loses on the merits of his individual claim. With the decision resting upon Rule 23, and with a clear statement of what this decision does and does not hold, the differences of views have been greatly narrowed.
Viewing the case even within the narrow limits set by the en banc court, the decision and opinion seem to me a grudging application of class action concepts, at odds with the protections normally accorded class members from adverse consequences and based upon a misapplication of East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977).
In a variety of contexts the courts have protected absent class members from the fallout inevitably arising from the two-headed nature of the class action. One type of fallout arises because the members of the putative class, and of the class when certified, have interests which are affected while the suit is ongoing — should they file claims with EEOC, or protective suits; is the statute of limitations running;1 over what period can they claim back pay in the suit or independently of the suit; should they retain their own counsel? How does the court protect these ongoing interests of the class when the plaintiff’s individual claim aborts, in a manner fair to the defendant as well and without imposing undue strain on the court system? From hindsight, we might well have chosen a per *1000se rule. Rather we have tried to thread our way through varying circumstances with a balancing of interests approach. The balance has gone badly askew in this case.
In this connection, it is important to recall that the panel did not hold that the case should go forward as a class action or that Mrs. Satterwhite should remain as class representative. Rather it remanded to the district court, which had improperly derailed the case, for that court to reexamine the situation and, if appropriate, set the train back on the rails with Mrs. Satter-white or a successor as representative. The court en banc elects to leave the wreckage where it is and to say “tough luck” to the putative class members.
Approaching application of the mootness doctrine as a case-by-case matter, the opinion in Part I seeks to bring this case within Rodriguez. In Rodriguez plaintiffs alleged a class action but never moved for certification, and the court made no ruling on certification. Plaintiffs stipulated before trial that the only issue was failure of defendants to consider plaintiffs’ applications. At trial plaintiffs confined their evidence and argument to individual claims, and the defendants responded accordingly. After trial the court dismissed the class claims setting out the events just outlined, plus the fact that a large segment of the putative class had recently rejected a bargaining proposal for a remedy sought in the class action complaint. The court also ruled against plaintiffs on their individual claims. On appeal this court certified a class, designated plaintiffs as the representatives and granted relief. The Supreme Court held that the district court had not erred in dismissing the class claims. This is not surprising.
This case cannot be fairly equated with Rodriguez. The only resemblance is that plaintiffs in both cases lost on their individual claims. Rodriguez was never a bona fide class suit, and everything the plaintiffs did after filing their complaint was inconsistent with the interests of the class. The present suit was prosecuted as a class action from the beginning until after the district court denied certification (even including an abortive appeal to this court).2
Also, Rodriguez must be read in the light of two recent decisions, Coopers & Lybrand v. Livesay,-U.S.-, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978), and Gardner v. Westinghouse Broadcasting Co.,-U.S.-, 98 S.Ct. 2451, 57 L.Ed.2d 364 (1978). Coopers & Lybrand holds that a district court order denying certification is not appealable as a final order under 28 U.S.C. § 1291. The Court predicates its holding on the fact that “an order denying class certification is subject to effective review at the behest of the named plaintiff or intervening class members.” Similarly, Gardner assumes that “If after [a] judgment on the merits, the relief granted is unsatisfactory, the question of class status is fully reviewable.” These two cases, which foreclose interim review of denials of certification, are predicated upon the concept that full and effective review is available after a final judgment on the merits. They are inconsistent with a mechanistic extension of Rodriguez that uses the merits determination as a sword against the class members who are required to wait for the merits before getting review.
The majority assert that Mrs. Satter-white is like the plaintiffs in Rodriguez in that she never had any nexus or homogeneity of interest with the class.3 Mrs. Satter-white sought to represent a class composed of all present and prospective female employees of the city allegedly victimized by (1) a discriminatory hiring policy, (2) sexually segregated job classifications, and (3) a discriminatory compensation scheme. She *1001is exactly within (1), for she is a female, a prospective employee, and a person who claimed she didn’t get the job she applied for because they city has a policy against hiring females. In short, she asserts sex discrimination in hiring, job assignment and pay, directed against females, on behalf of applicants and of those already employed.4 In Carr v. Conoco Plastics, Inc., 423 F.2d 57 (CA5), cert. denied, 400 U.S. 951, 91 S.Ct. 241, 27 L.Ed.2d 257 (1970), we permitted a black job applicant to represent black applicants and employees in seeking relief against discrimination in hiring and in internal operation of the plant. It is only when it is decided that her claim is without merit — i. e., she was denied employment because of an adverse interest and not because of a policy against hiring females— that Mrs. Satterwhite loses her connection with the class. Arguably she is also within (2).
This case falls somewhere between Rodriguez where the case was never prosecuted as a class suit and plaintiffs’ actions after filing the complaint were antithetical to a class suit, and the “different case” postulated in footnote 12 of Rodriguez, 431 U.S. at 406, 97 S.Ct. at 1897, 52 L.Ed.2d at 463, where a class has been certified and the class claims tried and only then does it appear that the plaintiff is an inappropriate class member. The Court would not apply the mootness doctrine to this “different case.” Here, the class has not been certified or the class claims tried as in the “different case,” not because of lack of assertion of a bona fide class ease or failure of the plaintiff or adverse interest of plaintiff, as in Rodriguez, but because of trial court error urged upon the court by defendant.5 To try to edge this case over toward Rodriguez, the opinion emphasizes that Mrs. Satterwhite did not ask for a hearing on the certification issue and presented to the court no evidence on that issue except a computer printout. This is considerably less than all the story. After filing her class action Mrs. Satterwhite filed searching interrogatories to the city addressed to the handling of job applications, the numbers of female and male employees and their duties, pay, and the like, and other data material to the various prongs of the class claims. The city refused to answer and tendered its records for examination by plaintiff. Plaintiff filed a motion to compel answers and asked for an immediate hearing. She filed a motion for certification of the class accompanied by a brief, as directed by the court, on the question whether certification should be denied on the ground her individual claim lacked merit. The city responded with a brief urging as one of the grounds for denial of certification that Mrs. Satterwhite’s claim lacked merit. The court, without setting a hearing on the motion for certification, which it was required to do, or a hearing on the motion to compel answers, denied certification.6 There was a paucity of evidence made available to the court on the class claims, but plaintiff had unsuccessfully sought the aid of the court to obtain more. Seven weeks before trial the court denied certification without statement of reasons. Plaintiff sought to appeal from the order, but faced with the “death knell” limitation, then the law in this circuit, withdrew the appeal.
In these circumstances neither a policy of requiring diligence by the class representative nor a neutral policy of protecting the adjudicatory system justifies our refusing to recognize the interests of the class. The opinion of the court suggests that remand to the district court for it to consider maintainability, case or controversy, and whether Mrs. Satterwhite or some successor *1002should be class representative, should be denied because of inconvenience to the district court and the litigants. In the circumstances this is disingenuous. The court erred by acting too soon, acting without a hearing, and, one may fairly infer, for the wrong reasons, and the only litigant inconvenienced is the city, which urged the wrong reason upon the court. The consequences should not be visited upon the putative class, without an opportunity, through remand, for the interests of the putative class to be protected.
. The en banc opinion pretermits this issue for a future case.
. Mrs. Satterwhite sought to appeal from the denial of certification, but, faced with unre-viewability, withdrew the appeal.
. This position is necessary to the opinion because of our caselaw, recognized somewhat gingerly in the opinion, that the court should not, early in the litigation, dismiss the class claims because the individual plaintiffs claim lacks merit, if the plaintiff enjoys sufficient nexus or connexity with the class apart from the lack of merit. Huff v. N. D. Cass Co. of Alabama, 485 F.2d 710 (CA5, 1973) (en banc).
. I would characterize this as “across-the-board” but my position does not depend on that label.
. As I discuss below, the defendant urged that certification be denied on the ground that Mrs. Satterwhite’s claim lacked merit.
. The opinion, in footnote 7, recognizes that it is the duty of the court, without a motion from plaintiff, to conduct a hearing on certification, but nevertheless it marks up a demerit against plaintiff for not asking the court to carry out its duty. Moreover, plaintiff might reasonably infer that since she had pending one motion for a hearing she need not ask for two hearings.