concurring:
The era banc majority opinion rests on two grounds: 1) a prima facie case of disparate treatment permitting an inference of racial discrimination had not been made out and 2) if made out, nevertheless, the district judge, acting under Fed.R. Civ.P. 41(b), was empowered to find, as an ultimate fact, that discrimination had not taken place, i.e., that the prima facie case had been successfully rebutted.
On that second ground I concur. However, ground no. 1 is not necessary for decision3 and, as a dictum for which I perceive the support to be questionable, should not, I submit, be relied on, especially in an era banc opinion engaging all members of the Court on regular active service.
I am authorized to say that PHILLIPS, J., joins in this opinion.
. Cf. Eastern Associated Coal Corp. v. Director, Office of Workers’ Compensation Programs, 791 F.2d 1129, 1131 (4th Cir.1986) (in circulation) (“We decline to address these issues because they do not affect the outcome of this case.”).