concurring in part, and dissenting in part:
I would affirm the judgment of the district court holding all of Woodson’s claims barred by res judicata.
We agree that Woodson was a member of the Richmond Black Police Officers’ class, as certified. He had adequate notice of the class litigation; he personally contributed toward its legal fees. Yet he candidly admitted in his deposition that when offered his share of the class action settlement, he would await the outcome of his own concurrent lawsuit before deciding whether to accept the offer.
Woodson’s complaint alleged a “vast number” of discriminatory administrative actions touching on different aspects of his employment, including promotional opportunities, transfer, off-duty work, sick leave, discipline and discharge. The Richmond Black Police Officers’ suit similarly alleged discrimination in virtually every aspect of department personnel policy, expressly including discipline and discharge.
Judge Warriner’s order limiting the Black Police Officers’ class did not expressly exclude discriminatory discharge claims. • The allegedly unconstitutional disciplinary procedures by which Woodson was discharged were unquestionably a subject of the consent decree. Woodson’s counsel conceded in oral argument that the class action suit remained broad enough throughout to encompass all of Woodson’s claims.
The record shows that Woodson was a member of the class, had ample notice, and was ready and willing to use the class action to obtain his recovery in the event his personal action failed. I think we ignore important policies underlying class actions when we allow a plaintiff, in effect, to present his claim in two simultaneous lawsuits and choose the one yielding the better result. Moreover, the majority opinion goes beyond what the plaintiff sought, or could have hoped for. Woodson brought this appeal to extricate himself from the class action or otherwise avoid the effect of the consent decree. Instead, the majority gives him full recovery as a class member and a private suit over the same subject matter as well.
I respectfully dissent.