Judge, dissenting:
I respectfully dissent. Appellants have appealed to this court from an interlocutory order of the district court certifying a class entered on October 30, 1980, after a four day trial of a class action for injunctive relief and for monetary damages for racial discrimination in the rental of apartment units. The court adopted findings of fact and conclusions of law in a memorandum opinion and which certified the class and an interlocutory appeal and entered final judgment thereon from which order certifying the class the appeal was'taken.
The class was certified under Rules 23(a) and 23(bX2) as follows:
3. Because the requirements of Rule 23(a) and 23(b)(2) are met by the plaintiffs, this action shall be certified as a class action. The class consists of all *596black persons who have been, or will be, denied housing at the Dellway Villa Apartments, 2533 Dickerson Road, Nashville, Tennessee, because of their race.
On January 3, 1980, the court entered the following order:
It appearing to the Court as evidenced by the signatures of counsel for the parties that vacant apartments at Dellway Villa Apartments should be filled and that the tenants for existing vacancies should be chosen from the attached lists, IT IS THEREFORE ORDERED that the Defendants and their agents shall fill vacant apartments at Dellway Villa Apartments in chronological order from the names on the attached lists. Contact with applicants may be made by telephone and/or mail. When an applicant cannot be reached, counsel for Plaintiffs shall be notified and counsel for Plaintiffs will be given a reasonable amount of time not to exceed one week to make a search for the applicant.
IT IS FURTHER ORDERED that all records and files of tenants and applicants may be returned to the office of Dellway Villa Apartments.
IT IS FURTHER ORDERED that the Defendants and their agents shall not be required to take applications from prospective tenants at Dellway Villa Apartments until further Orders from this Court.
All other matters are hereby reserved.
This order was stipulated by counsel for the parties.
The complaint filed in the district court sought not only injunctive relief but also monetary damages on behalf of a class of black persons who claimed racial discrimination in the rental of the apartment units. Only 100 of the 244 units to be constructed had been completed for occupancy at the time the complaint was filed.1
The district court entered an injunction against any future discrimination in the rental of the units.
The issue on appeal is whether the limitation on the class embodied in the order of the district court certifying the class should have been extended so as to include 1000 or more additional black persons who had made application to rent the apartments. They obviously could not all be accommodated because there were not enough apartments to go around. Furthermore, these additional persons were not on the list stipulated by the parties.
According to the findings of the trial judge, there were 1151 applications filed by black and 473 by white families or a total of 1624 applications for the rental of only 244 units of the apartments.2 As of June' 5, 1979, 103 of the 160 apartments rented, were rented to white tenants and 59 to black tenants.
Even if there initially had been some discrimination as found by the district court, it would have been impossible for the owners of the apartments to have accommodated all of the 1151 black applications and certainly not 4000 in 244 apartment units and there were 473 white applicants who were not without rights.
From a procedural standpoint alone, such class on its face was obviously unmanageable and the district court on that ground alone, in its discretion, had the right to limit the class. Weathers v. Peters Realty Corp., 449 F.2d 1197 (6th Cir. 1974). The district court chose to limit the class on substantive grounds and it is submitted that there was no abuse of discretion on the part of the *597court in so doing. The individual members of such a large class in actions for damages would no doubt be asserting a multitude of conflicting divergent claims all of which would have to be tried in separate lawsuits and by a jury.
The plaintiffs filed a motion in the district court for reconsideration of the class certification which the court denied in the following memorandum and an order entered there.
The plaintiffs’ attorneys have again requested the court to reconsider its previous determination of the class. The limitation of the court was that only that number of qualified black applicants who would have received apartments but for defendants’ actions can recover. Plaintiffs assert that all blacks who filed applications and were denied apartments suffered discriminatory treatment and are entitled to recover damages.
To illustrate the reasoning of the court in this case, hypothetical situations may be helpful. At the inception, Congress has not created a cause of action for solely intellectual discrimination. There must be action resulting in damages. In other words, racial bias alone is not enough. Suppose we have a person who has 50 apartments for rent. He is biased against blacks and does not intend to lease to them. He receives applicants numbered 1 to 100. Numbers 1 to 47 are black and 48 to 100 are white. He leases to numbers 1 to 47. He has not been guilty of discrimination in housing.
In the case sub judice a great many, if not most, of the applications for renting were made prior to the completion of the construction. The number of the applications far exceeded the supply. The applicants had no knowledge of any discrimination practiced by defendants. The credible proof clearly supports this finding. Except for their disappointment in failing to obtain housing in this unique experiment, they had no actual knowledge of the number, identity, race or qualification of those individuals whose applications predated their own. Thus they could not have suffered any damages, emotional or otherwise, from the discriminatory acts of defendants unless they were actually deprived of housing. It thus appears logical that only those who would otherwise have received housing but for the discriminatory actions of defendants can recover damages in this case. To hold otherwise would enable all black citizens to recover damages from all individuals who harbored secret racial bias (without action thereon) against blacks.
An appropriate order will be entered overruling plaintiff's motion.
The final judgment entered by the court adopted the previous order detailed above.
The district court did not abuse its discretion in limiting the class to manageable portions and if 4000 persons decide to file separate suits for damages triable by a jury because they were not able to rent the 244 available apartments, there is nothing to prohibit them from filing such suits. It is not believed that the apartment owners owe any duty or are under any obligation to construct additional apartment units to accommodate all of the 4000 applicants.
The findings of fact adopted by the district court were supported by substantial evidence and are not clearly erroneous. Its conclusions of law were correct.
The judgment of the district court certifying the class should be affirmed.
. Three of the units had been reserved for housing of the management. Some units had already been rented to white families before any black applications had been received.
. There was hearsay evidence that as many as 4000 black persons were interested in renting the apartments, but aside from the unmanageability of such a large class, it was impossible to provide for them in only 244 units of which only 100 were ready for occupancy at the time the complaint was filed.