Allison v. Citgo Petro Corp ( 1998 )


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  •                      Revised August 20, 1998
    
                  IN THE UNITED STATES COURT OF APPEALS
    
                          FOR THE FIFTH CIRCUIT
    
                          _____________________
    
                               No. 96-30489
                          _____________________
    
    
    JAMES E. ALLISON; RAY ANDERSON;
    JOANNE ANDREPONT; RAYMOND ARTIS;
    JOSEPH AUSTIN; CHARLES AVERY;
    RONALD BALLOU; LEROY BALLOU; DANIEL
    BARRON; ARNOLD BATISTE; REGINALD BILBO;
    DAVID L. BLANEY; ALEX BROUSSARD;
    CALVIN BROUSSARD; NORTHERN BROWN;
    SANDRA BROWN; SOLOMON BUTLER; JESSE L.
    CARMEN; CHARLES CARRIER; JUNIUS CARTER;
    DONALD CEASAR; AUDREY T. CELESTINE;
    ANTHONY CHAMPAGE; REID CHAMPMAN; JAQUELINE
    CLEMONS; LEONARD COLE; GLENNETH COLEMAN;
    LESTER COLEMAN; CLEVELAND J. COLLINS;
    LARRY A. COMBEST; LYNETTE CORMIER; GEORGE
    DARBONNE; PATRICIA DARBONNE; XAVIER DARBONNE;
    WILLIE DEJEAN; LOUIS A DUDLEY; JOSEPH DUGAR;
    LONEY M. DUGAR; CHARLES ELLIS; PETER EVANS;
    CLYDE FELIX; CHARLES FOBB, JR.; CLINTON
    FOBBS, JR; GILBERT FOOTE; HOWARD DEE FOREMAN;
    VELMA M. GALLIEN; RAY A. GARLAND; MCARTHUR
    GILLIAM; PAUL GOODWIN; MARION R. GREENE;
    SHELTON GUILLORY; WILTON GUILLORY; WILLIE RAY
    HAMILTON; DONALD HARRIS; EDWINA M. HARRIS;
    SILVER RAY HARRIS; RAY HARRIS; DONALD HARRISON;
    HENRY G. HAWKINS; HELEN G. HENRY; WILLIE IRVING;
    DONALD D. JACKSON; JACK JOHNSON; SAMUEL JOHNSON;
    LAWRENCE JONES; EDWARD JORDAN; HORACE J. LAMBERT;
    ANGEL LEBLANC; ALBERT LEDAY, JR.; CLIFFORD LEDAY;
    ARTHUR K. LEE; EARL J. LEMELL; JOSEPH LEMELL, JR.;
    WILBERT J. LEWIS; HAROLD J. LOCKETT; KATHLEEN V.
    MANUEAL; PAUL D. MATTHEWS; AUBREY MATTHEWS;
    CHARLET L. MCCAIN; LOUIS E. METOYER; WESLEY J.
    MONROE; MELVIN MOREAU; MARK A. MOTT; WILLIE MOUTON;
    JOSEPH LARRY NELSON; MOSES NELSON; HERBERT L.
    OLIVER; EDWARD OLIVER; MARK H. PAPPION;
    CORNELIUS PAPPION; FREDERICK PERRODIN; JOSEPH
    PERRON, JR.; AUGUST PETE; DARRELL PETE; GUSSIE
    PITRE; PATRICIA PITRE; GEORGE POLK, JR; LINTON
    POULLARD, JR.; JOSEPH PRUDHOMME; LARRY
    PRUDHOMME, JR.; HARVEY C. PULLARD; CHARLES W.
    RAWL; FREDERICK RIDEAUX; JOSEPH A. RILEY;
    VIRGINIA RILEY; NANCY RYAN; NATHANIEL H. SAPP;
    LOUIS SEMIEN, JR.; CHESTER SENEGAL; JOSEPH
    SENIEN, JR.; JESSIE L. SHAW; HOWARD W. SHERMAN;
    WANDA F. SMITH; GEORGE STENSON; GERALD STERLING;
    RICHARD STERLING; CHARLES A. TALBERT; PATRICIA
    TAYLOR; GEORGE E. TAYLOR; MARTIN THOMAS;
    WARREN G. THOMAS; DONALD THOMPSON; HUEY P.
    TOLSTON; ELRAY VICTORIAN; SHEILA WARD; CYNTHIA
    WASHINGTON; VICTOR WASHINGTON; WARREN
    WASHINGTON; WILSON WASHINGTON; HUEY WILLIAM;
    WILBERT WILLIAMS; ERROL WILSON; ARMOND WYATT,
    
                                                     Plaintiffs-Appellants,
    
    JONATHAN ANDERSON; DANIEL COX; RUSSELL
    METOYER; HILLERY RANDELL; LEO P. REEDER,
    
                                      Intervenors Plaintiffs-Appellants,
    
                                    versus
    
    CITGO PETROLEUM CORP.,
    
                                                  Defendant-Appellee.
    _________________________________________________________________
    
          Appeal from the United States District Court for the
                      Western District of Louisiana
    
    _________________________________________________________________
                             August 18, 1998
    
    
    Before JOLLY, SMITH, and DENNIS, Circuit Judges.
    
    E. GRADY JOLLY, Circuit Judge:
    
         This interlocutory appeal presents the question whether the
    
    district   court   properly   refused    to   certify   a   class   action
    
    challenging employment practices by the Citgo Petroleum Corporation
    
    
    
    
                                       2
    _____________________
    
         On May 15, 1998, the panel issued its opinion in this case.
    The earlier opinion is withdrawn and this opinion is substituted
    therefor. The primary modifications from the previous opinion
    appear in Part VII of this substituted opinion.
    
    (“Citgo”) under Title VII (as amended in 1991) and the Civil Rights
    
    Act of 1866, 42 U.S.C. § 1981.        The plaintiffs, Allison and over
    
    130 other named plaintiffs and intervenors, filed suit on behalf of
    
    black employees and applicants for employment alleging that Citgo
    
    engaged in class-wide racial discrimination with respect to general
    
    hiring, promotion, compensation, and training policies at its
    
    manufacturing    facilities   in     Lake    Charles,   Louisiana.      The
    
    plaintiffs challenged these policies under disparate impact and
    
    systemic disparate treatment theories of discrimination.             Seeking
    
    injunctive, declaratory, and monetary relief, the plaintiffs moved
    
    for class certification under Rule 23 of the Federal Rules of Civil
    
    Procedure, which Citgo opposed.          The district court denied the
    
    motion.   On appeal, the plaintiffs contend that the district
    
    court’s denial of class certification was an abuse of discretion.
    
    Before the passage of the Civil Rights Act of 1991, which for the
    
    first time provided plaintiffs with a right to compensatory and
    
    punitive damages as well as a jury trial (each demanded here),
    
    aspects of   this   case   clearly   would    have   qualified   for   class
    
    certification.      As we shall explain, however, the plaintiffs’
    
    claims for money damages and the constitutional right of both
    
    
    
    
                                         3
    parties to a jury trial, with all its substantive rights and
    
    procedural complications, ultimately render this case unsuitable
    
    for class certification under Rule 23.   We therefore affirm and
    
    hold that the district court did not abuse its discretion in
    
    denying class certification.
    
    
    
    
                                   4
                                          I
    
           This race discrimination case involves a potentially huge and
    
    wide-ranging class action lawsuit concerning employment practices
    
    at Citgo’s Lake Charles manufacturing complex.          Specifically, the
    
    plaintiffs      identified   the   following     employment    practices    as
    
    resulting in unlawful race discrimination: (1) failure to post or
    
    announce job vacancies; (2) use of an informal word-of-mouth
    
    announcement process for filling job vacancies; (3) use of racially
    
    biased tests to evaluate candidates for hire or promotion; and (4)
    
    use of a subjective decision-making process by a predominantly
    
    white supervisory staff in reviewing applicants for hire and
    
    employees for promotion.       The plaintiffs challenged each of these
    
    policies under both the disparate impact and systemic disparate
    
    treatment theories of Title VII.
    
           In September 1993, the plaintiffs filed a motion for the
    
    certification of a class estimated to contain more than 1000
    
    potential members.        The class was identified as “[a]ll African-
    
    American employees and applicants of Citgo Petroleum Corporation
    
    (Citgo) from April 11, 1979 until the present.”            Its members are
    
    current   and    former   employees   and   unsuccessful      applicants   for
    
    employment in “hourly” positions at Citgo’s Lake Charles complex.
    
    They   are   spread   across   two    separate    facilities.      They    are
    
    represented by six different unions, come from five different skill
    
    
    
    
                                          5
    groups, and      work   in   seven   different    functional      areas   at   the
    
    complex. Nevertheless, the plaintiffs maintain that a class action
    
    is   appropriate    because     they   are   challenging    general       hiring,
    
    training, and promotional policies applied uniformly throughout the
    
    complex.
    
          To remedy the alleged discrimination, the plaintiffs seek
    
    every available form of injunctive, declaratory, and monetary
    
    relief.    In terms of affirmative injunctive relief, the plaintiffs
    
    seek restructuring of offending policies, instatement into existing
    
    jobs, and retroactive seniority and benefits.                   As for monetary
    
    relief traditionally available under Title VII, the plaintiffs
    
    request back pay, front pay, pre-judgment interest, and attorneys’
    
    fees.   Furthermore, invoking the provisions added to Title VII by
    
    the Civil Rights Act of 1991, the plaintiffs seek compensatory and
    
    punitive damages to the maximum amount permissible under the law.
    
    Finally, the plaintiffs demand a jury trial on their claims of
    
    intentional discrimination, to which they are now also entitled
    
    under the 1991 amendments.
    
          The district court referred the plaintiffs’ motion for class
    
    certification to a magistrate judge, who conducted an evidentiary
    
    hearing    and   subsequently    entered     a   report   and    recommendation
    
    denying class certification. The magistrate judge determined that,
    
    although the proposed class met the requirements of Rule 23(a) of
    
    
    
    
                                           6
    the Federal Rules of Civil Procedure, it could not be certified
    
    under any of the alternatives provided in 23(b).         The plaintiffs
    
    sought certification primarily under subsection (b)(2), but the
    
    magistrate judge found certification under (b)(2) inappropriate
    
    because money damages were the “predominant” form of relief sought.
    
    Focusing on the individualized nature of the damages claims and the
    
    consequent need for significant individualized proof, he reasoned
    
    that they were not sufficiently incidental to the injunctive relief
    
    to warrant class certification under 23(b)(2).           The magistrate
    
    judge also considered class certification under Rule 23(b)(3), but
    
    found that the need for individualized damages determinations
    
    caused individual issues to predominate over common ones and that
    
    a class action would not be a superior method for fair and
    
    efficient adjudication of the controversy.
    
         Finally, the magistrate judge contemplated bifurcating the
    
    trial into liability and damages stages and certifying a class on
    
    only the claims for injunctive relief.          He expressed concern,
    
    however,   over   Seventh   Amendment   complications   arising   out   of
    
    bifurcated proceedings with multiple juries and the difficulty in
    
    separating liability and damages issues in discrimination cases.
    
    The magistrate judge suggested that the proper use of consolidation
    
    under Rule 42 of the Federal Rules of Civil Procedure would permit
    
    
    
    
                                       7
    the court to avoid the problems presented by a class action in this
    
    case while still achieving some degree of efficiency.
    
         The district court adopted the report and recommendation in
    
    its entirety and denied class certification.    On petition by the
    
    plaintiffs, the court certified the question for interlocutory
    
    appeal under 28 U.S.C. § 1292(b), which we granted in May 1996.
    
    This appeal followed.
    
                                     II
    
         We note at the outset that the district court maintains
    
    substantial discretion in determining whether to certify a class
    
    action, a decision we review only for abuse.       See Jenkins v.
    
    Raymark Indus., 
    782 F.2d 468
    , 471-72 (5th Cir. 1986).   Implicit in
    
    this deferential standard is a recognition of the essentially
    
    factual basis of the certification inquiry and of the district
    
    court’s inherent power to manage and control pending litigation.
    
    See Pegues v. Mississippi State Employment Serv., 
    699 F.2d 760
    , 763
    
    (5th Cir.), cert. denied, 
    464 U.S. 991
     (1983).          Whether the
    
    district court applied the correct legal standard in reaching its
    
    decision on class certification, however, is a legal question that
    
    we review de novo.   See Forbush v. J.C. Penney Co., 
    994 F.2d 1101
    ,
    
    1104 (5th Cir. 1993).
    
                                    III
    
    
    
    
                                     8
          Perhaps it is best at the beginning of this rather extended
    
    opinion to say a preliminary word about the task before us.                The
    
    breadth and complexity of the issues relating to the plaintiffs’
    
    broad claims for monetary relief and demand for a jury trial,
    
    raised in the context of multiple alternative arguments, make it
    
    necessary for us to examine the nature of class actions under Rule
    
    23 and its subparts, as they relate specifically to this case.             The
    
    plaintiffs urge primarily that the entire case is certifiable as a
    
    class action under Rule 23(b)(2). Because they argue that the wide
    
    array of monetary remedies they seek does not predominate over
    
    requested injunctive or declaratory relief, we must dwell at some
    
    length on what “predomination” means for the purposes of Rule
    
    23(b)(2) and how it applies here.
    
          Next, we consider the plaintiffs’ argument that, if this case
    
    cannot be certified in a (b)(2) class action, it may nevertheless
    
    be certified under Rule 23(b)(3).           In addressing this argument, we
    
    consider whether issues common to the class predominate over issues
    
    relating solely to individuals, and whether a (b)(3) class action
    
    would be an efficient and manageable means of resolving this case
    
    in   the   light   of   the   plaintiffs’    claims   for   compensatory   and
    
    punitive damages and their demand for a jury trial.
    
          Finally, given that the plaintiffs ultimately resort to a
    
    request for a class action on any available basis (but without
    
    
    
    
                                          9
    foregoing any of their class claims for monetary relief), we
    
    consider whether this case can be severed in such a way as to make
    
    class certification appropriate for any of the plaintiffs’ claims,
    
    while reserving the question whether to certify the remaining
    
    claims for subsequent proceedings.            Because of the plaintiffs’
    
    demand for a jury trial, resolving this issue requires us to
    
    consider the Seventh Amendment implications of severing claims that
    
    share common factual issues with the remainder of the case.
    
                                        IV
    
         Class actions brought under Title VII typically proceed under
    
    two theories, disparate impact and systemic disparate treatment,
    
    both of which are advanced in this case.            The disparate impact
    
    theory is used to challenge a facially neutral employment policy
    
    that falls more harshly on a protected class of employees.           Pouncy
    
    v. Prudential Ins. Co. of Am., 
    668 F.2d 795
    , 799 (5th Cir. 1982).
    
    The systemic disparate treatment theory focuses on whether the
    
    employer   engaged   in   a   “pattern   or    practice”   of   intentional
    
    discrimination, that is, whether discrimination was the employer’s
    
    standard operating procedure rather than a sporadic occurrence.
    
    See International Bhd. of Teamsters v. United States, 
    431 U.S. 324
    ,
    
    336 (1977).   In years past, we have routinely upheld certification
    
    of class actions to resolve Title VII cases involving disparate
    
    impact and pattern or practice claims of discrimination.               See,
    
    
    
    
                                        10
    e.g., Richardson v. Byrd, 
    709 F.2d 1016
     (5th Cir.), cert. denied,
    
    
    464 U.S. 1009
     (1983); Robinson v. Union Carbide Corp., 
    538 F.2d 652
    
    (5th Cir. 1976), cert. denied, 
    434 U.S. 822
     (1977); Pettway v.
    
    American Cast Iron Pipe Co., 
    494 F.2d 211
     (5th Cir. 1974).
    
          In doing so, we have recognized that the class action device
    
    could   be    implemented     effectively   to   eradicate     widespread    or
    
    institutional-scale discrimination.            See Jenkins v. United Gas
    
    Corp., 
    400 F.2d 28
    , 34 & n.14 (5th Cir. 1968); see also Wright,
    
    Miller & Kane, 7A Federal Practice and Procedure § 1776, at 495-96
    
    (2d   ed.    1986)   (civil   rights   cases     frequently    involve   group
    
    discrimination).       Disparate impact cases in particular, which
    
    challenge     specific,     facially-neutral     policies     with   proof   of
    
    statistical disparities resulting from their uniform application to
    
    an employer’s workforce, by their very nature implicate class-based
    
    claims.      We also have molded class actions to accommodate claims
    
    that an employer engaged in a pattern or practice of intentional
    
    discrimination.      Ordinarily, such cases are handled in bifurcated
    
    proceedings imposing on the plaintiffs different burdens of proof.
    
    See Shipes v. Trinity Indus., 
    987 F.2d 311
    , 318 (5th Cir.), cert.
    
    denied, 
    510 U.S. 991
     (1993).           During the first or “liability”
    
    stage, the plaintiffs seek to prove a pattern or practice of
    
    invidious class-based discrimination.             See id.     If successful,
    
    individual class members benefit from a presumption of back pay,
    
    
    
    
                                           11
    their   entitlement     to   which   is     determined   at   the   second   or
    
    “remedial” stage.       To obtain back pay, class members need only
    
    prove that they were denied employment opportunities and the extent
    
    of their loss, while the burden then shifts to the employer to
    
    demonstrate     that   those   class   members    were    denied    employment
    
    opportunities for legitimate reasons.           See Richardson, 709 F.2d at
    
    1021; see also Teamsters, 431 U.S. at 362.               Although this final
    
    determination      typically   involves      separate    hearings     for   each
    
    individual, see Johnson v. Goodyear Tire & Rubber Co., 
    491 F.2d 1364
    , 1375 (5th Cir. 1974), courts, without the need to consider
    
    the implications of a jury trial, developed techniques such as the
    
    use of special masters to streamline the process, see Newberg &
    
    Conte, Newberg on Class Actions §§ 24.119-24.121 (3d ed. 1992).
    
         The Civil Rights Act of 1991, however, made fundamental
    
    changes in both the procedures and remedies available to Title VII
    
    litigants.      Among other things, the Act now permits plaintiffs to
    
    recover compensatory and punitive damages from an employer who
    
    engaged    in    unlawful    intentional      discrimination    (to     include
    
    individual disparate treatment and pattern or practice cases). See
    
    42 U.S.C. § 1981a(a)(1).       Compensatory damages include relief for
    
    “future pecuniary losses, emotional pain, suffering, inconvenience,
    
    mental anguish, loss of enjoyment of life, and other nonpecuniary
    
    losses.”   § 1981a(b)(3).      The Act also allows punitive damages if
    
    
    
    
                                           12
    the   employer       discriminated   “with    malice   or      with   reckless
    
    indifference to the federally protected rights of an aggrieved
    
    individual,”     §    1981a(b)(1)(2),     with   the   total     recovery   of
    
    compensatory and punitive damages capped at a maximum of $300,000
    
    per plaintiff, see § 1981a(b)(3).         Finally, in all cases where the
    
    plaintiff seeks compensatory and punitive damages, either party is
    
    entitled to demand a trial by jury.          See § 1981a(c).
    
          In the class action context, the changes to Title VII are not
    
    inconsequential.1        It is important to remember that the class
    
    action device exists primarily, if not solely, to achieve a measure
    
    of judicial economy, which benefits the parties as well as the
    
    entire judicial system.        It preserves the resources of both the
    
    courts and the parties by permitting issues affecting all class
    
    members to be litigated in an efficient, expedited, and manageable
    
    fashion.   See Jenkins v. Raymark Indus., 
    782 F.2d 468
    , 471 (5th
    
    Cir. 1986) (citing General Tel. Co. of the Southwest v. Falcon, 
    457 U.S. 147
    , 155 (1982)).       Before passage of the Civil Rights Act of
    
          1
          To the extent this appeal requires us to examine the effects
    of the Civil Rights Act of 1991 on class certification in Title VII
    cases, it is a case of first impression at the appellate level.
    District courts addressing this and related issues have reached
    varying conclusions. See, e.g., EEOC v. McDonnell Douglas Corp.,
    
    960 F. Supp. 203
     (E.D. Mo. 1996); Morgan v. United Parcel Serv. of
    Am., Inc., 
    169 F.R.D. 349
     (E.D. Mo. 1996); Griffin v. Home Depot,
    Inc., 
    168 F.R.D. 187
     (E.D. La. 1996); Zapata v. IBP, Inc., 
    167 F.R.D. 147
     (D. Kan. 1996); Bremiller v. Cleveland Psychiatric
    Inst., 
    898 F. Supp. 572
     (N.D. Ohio 1995); Arnold v. United Artists
    Theatre Circuit, Inc., 
    158 F.R.D. 439
     (N.D. Cal. 1994).
    
    
    
    
                                         13
    1991, liability and the appropriate remedies in all Title VII cases
    
    were determined in bench trials.      Monetary relief was limited to
    
    back pay and other equitable remedies.       By bringing additional
    
    monetary claims within the scope of intentional discrimination
    
    cases, the Civil Rights Act of 1991 added to the complexity and
    
    diversity of the issues to be tried and decided.   By injecting jury
    
    trials into the Title VII mix, the 1991 Act introduced, in the
    
    context of class actions, potential manageability problems with
    
    both practical and legal, indeed constitutional, implications. The
    
    broad question we consider here is whether and to what extent these
    
    factors affect a class action in this case.
    
                                     V
    
         The plaintiffs’ principal argument is that the district court
    
    erred in refusing to certify the entire case as a class action
    
    under Rule 23(b)(2).   The district court determined that a primary
    
    limitation on the (b)(2) class action is the requirement that
    
    injunctive or declaratory relief be the predominant relief sought
    
    for the class.   Provided this requirement were met, claims for
    
    related monetary relief could be entertained in the class action.
    
    To ascertain the predominant form of relief sought, the district
    
    court considered whether: (1) the request for money damages was
    
    integral to and flowed directly from the injunctive or declaratory
    
    relief; (2) the request for money damages affected the cohesiveness
    
    
    
    
                                     14
    of the class and the homogeneity of interests; (3) issues common to
    
    the claims for injunctive or declaratory relief predominated; and
    
    (4) the money damages arose out of conduct based on policies
    
    generally applicable to all plaintiffs.        Applying these factors,
    
    the court concluded that the plaintiffs’ claims for money damages
    
    predominated over their claims for nonmonetary relief, making
    
    certification of the class inappropriate under (b)(2).
    
         The plaintiffs argue that the district court committed legal
    
    error in this respect.       They first contend that Rule 23(b)(2)
    
    contains no predomination requirement.         Next, assuming that it
    
    does, the plaintiffs argue that the district court erred in its
    
    formulation of the (b)(2) predomination requirement as well as in
    
    its application of that requirement to deny class certification.
    
                                       A
    
         We   consider   first   whether   the   district   court   erred   in
    
    determining that the primary limitation on a Rule 23(b)(2) class
    
    action is the requirement that injunctive or declaratory relief be
    
    the predominant relief sought for the class.       Naturally, we begin
    
    by looking at the plain language of the rule.             Rule 23(b)(2)
    
    
    
    
                                      15
    permits   cases     meeting    the   requirements     of   Rule   23(a)2   to   be
    
    certified as class actions if:
    
          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.
    
    The rule is clear that claims seeking injunctive or declaratory
    
    relief are appropriate for (b)(2) class certification.                 Thus, if
    
    the plaintiffs sought only injunctive and declaratory relief, this
    
    case could readily be certified as a class action under Rule
    
    23(b)(2).
    
          The plaintiffs, however, also seek monetary relief.                   Rule
    
    23(b)(2) is silent as to whether monetary remedies may be sought in
    
    conjunction with injunctive or declaratory relief.                The Advisory
    
    Committee Notes on Rule 23 state that class certification under
    
    (b)(2) “does not extend to cases in which the appropriate final
    
    relief relates exclusively or predominantly to money damages.”
    
    Fed. R. Civ. P. 23 (advisory committee notes) (emphasis added).
    
    This commentary implies that the drafters of Rule 23 believed that
    
    at   least   some    form     or   amount    of   monetary   relief   would     be
    
    
    
    
         2
         Citgo does not seriously challenge whether the district court
    was correct in finding that the plaintiff class satisfied the
    requirements of Rule 23(a), and we assume it does for purposes of
    this appeal.
    
    
    
    
                                            16
    permissible in a (b)(2) class action. See Pettway v. American Cast
    
    Iron Pipe Co., 
    494 F.2d 211
    , 257 (5th Cir. 1974).
    
         In addressing what monetary relief is permissible in a (b)(2)
    
    class action, this circuit has chosen an intermediate approach,
    
    neither allowing certification without regard to the monetary
    
    remedies being sought, nor restricting certification to classes
    
    seeking exclusively injunctive or declaratory relief.   See Johnson
    
    v. General Motors Corp., 
    598 F.2d 432
    , 437 (5th Cir. 1979).    We,
    
    like nearly every other circuit, have adopted the position taken by
    
    the advisory committee that monetary relief may be obtained in a
    
    (b)(2) class action so long as the predominant relief sought is
    
    injunctive or declaratory.3   See Jenkins, 400 F.2d at 34 n.14; see
    
    also, e.g., Eubanks v. Billington, 
    110 F.3d 87
    , 92 (D.C. Cir.
    
    1997); Boughton v. Cotter Corp., 
    65 F.3d 823
    , 827 (10th Cir. 1995);
    
    Zimmerman v. Bell, 
    800 F.2d 386
    , 389-90 (4th Cir. 1986); In re
    
    School Asbestos Litigation, 
    789 F.2d 996
    , 1008 (3d Cir.), cert.
    
    
        3
          We recognize that the Supreme Court’s decision in Ticor Title
    Ins. Co. v. Brown, 
    114 S. Ct. 1359
     (1994), casts doubt on the
    proposition that class actions seeking money damages can be
    certified under Rule 23(b)(2). See id. at 1361 (noting existence
    of “at least a substantial possibility” that actions seeking money
    damages are certifiable only under Rule 23(b)(3)). Were we writing
    on a clean slate, we might give further consideration to the extent
    to which monetary relief is available at all in 23(b)(2) class
    actions. However, in the absence of a clearer statement by the
    Supreme Court or en banc reconsideration of the issue, this panel
    is bound by circuit precedent.     See Texaco v. Louisiana Land &
    Exploration Co., 
    995 F.2d 43
    , 44 (5th Cir. 1993).
    
    
    
    
                                     17
    denied, 
    479 U.S. 852
     (1986); Holmes v. Continental Can Co., 
    706 F.2d 1144
    , 1155 (11th Cir. 1983); Simer v. Rios, 
    661 F.2d 655
    , 668
    
    n.24 (7th Cir. 1981), cert. denied, 
    456 U.S. 917
     (1982); Eisen v.
    
    Carlisle & Jacquelin, 
    391 F.2d 555
    , 564 (2d Cir. 1968).                The
    
    district court’s decision to impose a predomination requirement for
    
    (b)(2) class certification is fully consistent with these cases
    
    and, therefore, was not error.
    
                                          B
    
         We consider next the substantially more difficult question
    
    whether the district court’s formulation of (b)(2)’s predomination
    
    requirement was correct.       As the district court noted, there is
    
    little discussion by appellate courts as to what it means for a
    
    particular form of relief to be “predominant.”             The Advisory
    
    Committee Notes make no effort to define or explain the concept.
    
    Interpreting the term literally, predominant means “controlling,
    
    dominating, [or] prevailing.”         Webster’s Third New International
    
    Dictionary 1786 (1993).      But how that translates into a workable
    
    formula for comparing different types of remedies is not at all
    
    clear.     Commentators have taken the position that determining
    
    whether    one   form   of   relief    actually   predominates   in   some
    
    quantifiable sense is a wasteful and impossible task that should be
    
    avoided.    See, e.g., Wright, Miller & Kane, supra, at § 1775;
    
    Newberg, supra, at § 4.14.        Nevertheless, the requirement that
    
    
    
    
                                          18
    injunctive or declaratory relief predominate in a (b)(2) class
    
    action is the standard our cases have adopted and which we are
    
    bound to apply here.    We must determine, therefore, what the
    
    concept of predomination means in the context of Rule 23(b)(2).
    
    
    
    
                                   19
                                   (1)
    
         In the absence of clear guidance from the Rule or our cases,
    
    we turn to the principles and assumptions underlying the (b)(2)
    
    class and class actions in general to ascertain whether they add
    
    substance to the concept of predomination under Rule 23(b)(2). Cf.
    
    United Savings Ass’n v. Timbers of Inwood Forest Assoc., Ltd., 
    484 U.S. 365
    , 371 (1988) (Scalia, J.) (explaining that statutory
    
    construction is a “holistic endeavor” because provisions that seem
    
    ambiguous in isolation are often clarified by the remainder of the
    
    statutory scheme).
    
                                   (a)
    
         Under Rule 23, the different categories of class actions, with
    
    their different requirements, represent a balance struck in each
    
    case between the need and efficiency of a class action and the
    
    interests of class members to pursue their claims separately or not
    
    at all.   See Amchem Prod., Inc. v. Windsor, 
    117 S. Ct. 2231
    , 2246
    
    (1997); United States Parole Comm’n v. Geraghty, 
    445 U.S. 388
    ,
    
    402-03 (1980); Rutherglen, Title VII Class Actions, 47 U. Chi. L.
    
    Rev. 688, 697-98 (1980) (citing Kaplan, Continuing Work of the
    
    Civil Committee: 1966 Amendments of the Federal Rules of Civil
    
    Procedure, 81 Harv. L. Rev. 356, 387-92 (1967)).     The different
    
    types of class actions are categorized according to the nature or
    
    effect of the relief being sought.       The (b)(1) class action
    
    
    
    
                                    20
    encompasses cases in which the defendant is obliged to treat class
    
    members alike or where class members are making claims against a
    
    fund insufficient to satisfy all of the claims.          See Amchem, 117
    
    S.Ct. at 2245.    The (b)(2) class action, on the other hand, was
    
    intended to focus on cases where broad, class-wide injunctive or
    
    declaratory relief is necessary.         See Holmes v. Continental Can
    
    Co., 
    706 F.2d 1144
    , 1155 n.8 (11th Cir. 1983).     Finally, the (b)(3)
    
    class action was intended to dispose of all other cases in which a
    
    class action would be “convenient and desirable,” including those
    
    involving large-scale, complex litigation for money damages.          See
    
    Amchem, 117 S.Ct. at 2245; see also Penson v. Terminal Transp. Co.,
    
    
    634 F.2d 989
    , 993 (5th Cir. Unit B Jan. 1981) (citing Fed. R. Civ.
    
    P.   23   (advisory   committee   notes)).    Limiting    the   different
    
    categories of class actions to specific kinds of relief clearly
    
    reflects a concern for how the interests of class members will
    
    vary, depending upon the nature of the class injury alleged and the
    
    nature of the relief sought.
    
          First, different presumptions with respect to the cohesiveness
    
    and homogeneity of interests among members of (b)(1), (b)(2), and
    
    (b)(3) classes are reflected in the different procedural safeguards
    
    provided for each potential class.           See Holmes, 706 F.2d at
    
    1155-56. For example, the drafters of Rule 23 found it unnecessary
    
    to provide (b)(1) and (b)(2) class members with the absolute right
    
    
    
    
                                        21
    to notice or to opt-out of the class--procedural safeguards made
    
    mandatory under (b)(3) for class members who might wish to pursue
    
    their claims for money damages in individual lawsuits and to not be
    
    bound by membership in a class action.       See Fed. R. Civ. P.
    
    23(c)(2).4   Providing these rights exclusively to (b)(3) classes
    
    demonstrates concern for the effect of monetary claims on class
    
    cohesiveness.   See Fed. R. Civ. P. 23 (advisory committee notes)
    
    (“[i]n the degree there is cohesiveness or unity in the class and
    
    the representation is effective, the need for notice to the class
    
    will tend toward a minimum”).    Monetary remedies are more often
    
    related directly to the disparate merits of individual claims. See
    
    Holmes, 706 F.2d at 1155-56 (citing Rosen, Title VII Classes and
    
    Due Process: To (b)(2) Or Not To (b)(3), 26 Wayne L. Rev. 919, 923
    
    (1980); Note, Antidiscrimination Class Actions Under the Federal
    
    Rules of Civil Procedure: the Transformation of Rule 23(b)(2), 88
    
    Yale L.J. 868, 875-76 (1979)).       As a result, a class seeking
    
    
    
         4
          We have held that the absolute right to notice is a minimum
    requirement of due process in actions involving claims for monetary
    relief. See Johnson v. General Motors Corp., 
    598 F.2d 432
    , 436-38
    (5th Cir. 1979).    In at least some circumstances, due process
    implicates the right to opt-out as well. See Phillips Petroleum
    Co. v. Shutts, 
    472 U.S. 797
    , 811-12 (1985) (in actions
    predominantly for money damages and seeking to bind absent
    plaintiffs in forum with which plaintiffs do not have minimum
    contacts); Brown v. Ticor Title Ins. Co., 
    982 F.2d 386
    , 392 (9th
    Cir. 1992) (in actions predominantly for money damages regardless
    of forum), cert. dismissed, 
    114 S. Ct. 1359
     (1994).
    
    
    
    
                                    22
    substantial monetary remedies will more likely consist of members
    
    with divergent interests.
    
         In contrast, because of the group nature of the harm alleged
    
    and the broad character of the relief sought, the (b)(2) class is,
    
    by its very nature, assumed to be a homogenous and cohesive group
    
    with few conflicting interests among its members.5        See Penson, 634
    
    F.2d at 994; Holmes, 706 F.2d at 1155.     The underlying premise of
    
    the (b)(2) class--that its members suffer from a common injury
    
    properly addressed by class-wide relief--“begins to break down when
    
    the class seeks to recover back pay or other forms of monetary
    
    relief to be allocated based on individual injuries.”         Eubanks v.
    
    Billington, 
    110 F.3d 87
    , 95 (D.C. Cir. 1997).         Thus, as claims for
    
    individually   based   money   damages   begin   to    predominate,   the
    
    presumption of cohesiveness decreases while the need for enhanced
    
    procedural safeguards to protect the individual rights of class
    
    members increases, see id.; Johnson v. General Motors Corp., 598
    
    
    
    
          5
          These assumptions have not escaped criticism. See, e.g.,
    Rutherglen, Better Late Than Never: Notice and Opt Out at the
    Settlement Stage of Class Actions, 71 N.Y.U. L. Rev. 258, 272-76
    (1996); Weber, Preclusion and Procedural Due Process in Rule
    23(b)(2) Class Actions, 21 U. Mich. J.L. Reform 347 (1988); Grant,
    Comment, The Right Not To Sue: A First Amendment Rationale for
    Opting Out of Mandatory Class Actions, 63 U. Chi. L. Rev. 239
    (1996).
    
    
    
    
                                      
    23 F.2d 432
    ,   437-38   (5th   Cir.        1979),   thereby   making   class
    
    certification under (b)(2) less appropriate.6
    
           We know, then, that monetary relief “predominates” under Rule
    
    23(b)(2) when its presence in the litigation suggests that the
    
    procedural safeguards of notice and opt-out are necessary, that is,
    
    when the monetary relief being sought is less of a group remedy and
    
    instead depends more on the varying circumstances and merits of
    
    each potential class member’s case.           Cf. Sosna v. Iowa, 
    419 U.S. 393
    , 398 n.4 (1975) (“[T]he absence of a claim for monetary relief
    
    and the nature of the claim asserted disclose that a Rule 23(b)(2)
    
    class action was contemplated.    Therefore, the problems [of notice
    
    and opt-out] associated with a Rule 23(b)(3) class action . . . are
    
    not present in this case.”). Because it automatically provides the
    
    right of notice and opt-out to individuals who do not want their
    
    monetary claims decided in a class action, Rule 23(b)(3) is the
    
    appropriate means of class certification when monetary relief is
    
           6
           The Advisory Committee Notes do suggest that civil rights
    cases are examples of the types of cases generally appropriate for
    (b)(2) certification. As at least one commentator has persuasively
    demonstrated, however, the Committee’s suggestion must not be
    interpreted as evidencing an intent to give special treatment to
    civil rights cases. See Rutherglen, supra, 47 U. Chi. L. Rev. at
    701-02. To do so would cast doubt on the validity of Rule 23 under
    the Rules Enabling Act, id., which provides that the Federal Rules
    of Civil Procedure “shall not abridge, enlarge or modify any
    substantive right,” 28 U.S.C. § 2072(b).     See also Amchem, 117
    S.Ct. at 2244 (“Rule 23's requirements must be interpreted in
    keeping with Article III constraints, and with the Rules Enabling
    Act”).
    
    
    
    
                                          24
    the predominant form of relief sought and the monetary interests of
    
    class members require enhanced procedural safeguards.7
    
                                      (b)
    
            The fact that the predomination requirement serves to protect
    
    the rights of class members regarding their monetary interests does
    
    not imply, however, that the availability of monetary relief in a
    
    (b)(2) class action depends solely or directly on whether class
    
    
        7
         The plaintiffs argue that because our cases have already held
    that members of a (b)(2) class need no absolute right to opt-out
    even when monetary relief is sought and made available, see Penson,
    634 F.2d at 994; Kincade v. General Tire & Rubber Co., 
    635 F.2d 501
    , 507 (5th Cir. Jan. 1981), this class action should be
    certified under Rule 23(b)(2), notwithstanding any claims for money
    damages.   We cannot agree.     When we determined in Penson and
    Kincade that class members have no absolute right to opt-out of a
    (b)(2) class, we did not imply that any form of monetary relief
    could therefore be sought in a (b)(2) class action. The issue in
    those cases was whether, given a properly certified (b)(2) class,
    claims for monetary relief entitled class members to an absolute
    right to opt-out, not whether a class seeking monetary relief could
    be certified under (b)(2) without regard to the monetary relief
    being sought. See Penson, 634 F.2d at 993; Kincade, 635 F.2d at
    506-07.   Indeed, we all but expressly rejected the plaintiffs’
    argument in Nix v. Grand Lodge of the Int’l Ass’n of Machinists &
    Aerospace Workers, 
    479 F.2d 382
     (5th Cir. 1973), cert. denied, 
    414 U.S. 1024
     (1974). There, a plaintiff class suing under the Labor-
    Management Reporting and Disclosure Act sought injunctive and
    declaratory relief as well as compensatory damages. The district
    court certified the class under Rule 23(b)(2), but only with
    respect to the nonmonetary claims. On appeal, we concluded that
    the recovery of class-wide money damages would be highly
    speculative without proof of individual injury. See id. at 386.
    Given the differing nature of each plaintiff’s claim for money
    damages and the problems involved with proving separate damages for
    each class member, we held that “the district court wisely used its
    discretion to limit the class aspects to the declaratory action.”
    Id.
    
    
    
    
                                      25
    members are entitled to notice or opt-out rights.              Such a narrow
    
    focus would ignore the other half of the balance struck by the
    
    different categories of Rule 23(b)--the need and efficiency of a
    
    class action.        As we have earlier observed, the chief purpose
    
    behind the class action device is to achieve a significant measure
    
    of judicial economy, see Jenkins, 782 F.2d at 471, an interest for
    
    which (b)(2)’s predomination requirement must also account.                By
    
    requiring the predomination of injunctive or declaratory remedies,
    
    (b)(2)      was   intended   to   serve      this   purpose   by   inherently
    
    concentrating the litigation on common questions of law and fact.
    
    See Holmes, 706 F.2d at 1156; Antidiscrimination Class Actions,
    
    supra, at 875-76.
    
           Actions for class-wide injunctive or declaratory relief are
    
    intended for (b)(2) certification precisely because they involve
    
    uniform group remedies.       Such relief may often be awarded without
    
    requiring a specific or time-consuming inquiry into the varying
    
    circumstances and merits of each class member’s individual case.
    
    When   it    does,   the   relatively     complex   calculations   typically
    
    required in class actions for money damages are unnecessary.              For
    
    these reasons, proposed (b)(2) classes need not withstand a court’s
    
    independent probe into the superiority of the class action over
    
    other available methods of adjudication or the degree to which
    
    common issues predominate over those affecting only individual
    
    
    
    
                                            26
    class members, as (b)(3) classes must.   See Amchem, 117 S.Ct. at
    
    2245-46; Forbush v. J.C. Penney Co., 
    994 F.2d 1101
    , 1105 (5th Cir.
    
    1993); Johnson v. American Credit Co. of Am., 
    581 F.2d 526
    , 531 n.9
    
    (5th Cir. 1978); Manual for Complex Litigation § 33.52, at 348-49
    
    (3d ed. 1995).8
    
                                   (c)
    
         In sum, the predomination requirement of Rule 23(b)(2) serves
    
    essentially the same functions as the procedural safeguards and
    
    efficiency and manageability standards mandated in (b)(3) class
    
    actions. In balancing the competing interests underlying the class
    
    action device, (b)(2)’s predomination requirement serves two basic
    
         8
          In Forbush, we held that inquiry into the manageability or
    superiority of a class action and whether common issues predominate
    over individual ones has “no place in determining whether a class
    should be certified under 23(b)(2).” 994 F.2d at 1105; see also
    Johnson, 581 F.2d at 531 n.9 (“The defendants argue that the class
    [certified under Rule 23(b)(2)] is unmanageable because it is too
    large and too diversified. This argument would be relevant only if
    Johnson had sought class certification under Rule 23(b)(3).”).
    Given that judicial economy is a fundamental purpose of a class
    action, the rule announced in Forbush may seem counterproductive.
    See Simer v. Rios, 
    661 F.2d 655
    , 668 n.24 (7th Cir. 1981), cert.
    denied, 
    456 U.S. 917
     (1982).       Forbush, however, is entirely
    consistent with the language and structure of Rule 23. The rule
    expressly and specifically directs district courts to consider the
    predomination of common issues and the manageability of a class
    action under 23(b)(3). Rule 23(b)(2) contains no such restriction
    on class certification.       Thus, Forbush merely applies the
    time-honored maxim of statutory construction, expressio unius est
    exclusio alterius.    Clearly, the drafters of Rule 23 found it
    unnecessary to place these restrictions expressly on (b)(1) and
    (b)(2) class actions because they believed that the nature of the
    relief permissible in such actions would inherently account for the
    interests served by the restrictions.
    
    
    
    
                                    27
    purposes: first, it protects the legitimate interests of potential
    
    class members who might wish to pursue their monetary claims
    
    individually; and, second, it preserves the legal system’s interest
    
    in judicial economy.
    
                                   (2)
    
         Consistent with this analysis, we reach the following holding:
    
    monetary relief predominates in (b)(2) class actions unless it is
    
    incidental to requested injunctive or declaratory relief.   Accord
    
    Williams v. Owens-Illinois, Inc., 
    665 F.2d 918
    , 928-29 (9th Cir.),
    
    cert. denied, 
    459 U.S. 971
     (1982).   By incidental, we mean damages
    
    that flow directly from liability to the class as a whole on the
    
    claims forming the basis of the injunctive or declaratory relief.
    
    See Fed. R. Civ. P. 23(b)(2) (referring only to relief appropriate
    
    “with respect to the class as a whole”).       Ideally, incidental
    
    damages should be only those to which class members automatically
    
    would be entitled once liability to the class (or subclass) as a
    
    whole is established. See Manual for Complex Litigation, supra, at
    
    348 (citing Simer v. Rios, 
    661 F.2d 655
     (7th Cir. 1981)); see also,
    
    e.g., Arnold v. United Artists Theatre Circuit, Inc., 
    158 F.R.D. 439
     (N.D. Cal. 1994) (defendant’s liability entitled class to a
    
    statutorily mandated damage award).     That is, the recovery of
    
    incidental damages should typically be concomitant with, not merely
    
    consequential to, class-wide injunctive or declaratory relief.
    
    
    
    
                                    28
    Moreover, such damages should at least be capable of computation by
    
    means of objective standards and not dependent in any significant
    
    way    on   the   intangible,     subjective    differences   of   each   class
    
    member’s circumstances.           Liability for incidental damages should
    
    not require additional hearings to resolve the disparate merits of
    
    each    individual’s      case;   it   should   neither   introduce    new   and
    
    substantial       legal    or     factual    issues,   nor    entail   complex
    
    individualized determinations.           Thus, incidental damages will, by
    
    definition, be more in the nature of a group remedy, consistent
    
    with the forms of relief intended for (b)(2) class actions.
    
           Our holding in this respect is not inconsistent with our cases
    
    permitting back pay under Title VII in (b)(2) class actions.                  In
    
    Pettway, for example, we noted that Rule 23(b)(2), by its own
    
    terms, does not preclude all claims for monetary relief.               See 494
    
    F.2d at 257.      We construed (b)(2) to permit monetary relief when it
    
    was an equitable remedy, and the defendant’s conduct made equitable
    
    remedies appropriate.        See id.    Back pay, of course, had long been
    
    recognized as an equitable remedy under Title VII.             See Johnson v.
    
    Georgia Highway Express, Inc., 
    417 F.2d 1122
    , 1125 (5th Cir. 1969)
    
    (“[a] demand for back pay is not in the nature of damages, but
    
    rather is an integral part of the statutory equitable remedy”).
    
    Thus, the Pettway court reasoned:
    
           This is a case in which final injunctive relief is
           appropriate and the defendant’s liability for back pay is
    
    
    
    
                                            29
         rooted in grounds applicable to all members of the
         defined class. Under these circumstances the award of
         back pay, as one element of the equitable remedy,
         conflicts in no way with the limitations of Rule
         23(b)(2).
    
    494 F.2d at 257 (emphasis added).     In short, Pettway held that back
    
    pay could be sought in a (b)(2) class action because, as an
    
    equitable remedy similar to other forms of affirmative injunctive
    
    relief permitted in (b)(2) class actions, it was an integral
    
    component of Title VII’s “make whole” remedial scheme.     See id.   at
    
    252, 257.9   If the instant case involved only claims for equitable
    
    monetary relief, Pettway would control.     Pettway, however, did not
    
    address the availability in (b)(2) class actions of other forms of
    
    monetary relief, such as compensatory and punitive damages, nor did
    
    it have any occasion to do so.
    
         As the plaintiffs correctly point out, Pettway stated that the
    
    (b)(2) inquiry into whether one form of relief predominates over
    
    
         9
         Although, as the dissent notes, the Pettway opinion included
    some broad language regarding the potential availability of
    monetary relief in (b)(2) class actions, our subsequent cases have
    not construed Pettway so broadly. As discussed previously, our
    cases have adopted the position taken by the Rule 23 advisory
    committee that monetary relief may not be sought in a (b)(2) class
    action if it predominates over the requested injunctive or
    declaratory relief. We do not attempt to say how Pettway is to be
    interpreted in the light of these subsequent opinions. Cf., e.g.,
    Rutherglen, Notice, Scope, and Preclusion in Title VII Class
    Actions, 
    69 Va. L
    . Rev. 11, 24-26 (1983) (suggesting that
    classification of monetary remedies as legal or equitable may be
    unhelpful in understanding what types of monetary relief should be
    permitted in a (b)(2) class action).
    
    
    
    
                                     30
    another involves consideration of the “pragmatic ramifications of
    
    adjudication” and the effect of the relief sought, rather than any
    
    special attributes of the class involved.           See id. at 256 (citing
    
    3B Moore’s Federal Practice § 23.45[1] at 703 (2d ed. 1969)).            The
    
    incidental damages standard actually takes these considerations
    
    into account.   We recognize that, as a matter of degree, whether a
    
    given monetary remedy qualifies as incidental damages will not
    
    always be a precise determination.           Nor is it intended to be.
    
    “[C]omplex cases cannot be run from the tower of the appellate
    
    court given its distinct institutional role and that it has before
    
    it printed words rather than people.” Richardson v. Byrd, 
    709 F.2d 1016
    , 1019 (5th Cir.), cert. denied, 
    464 U.S. 1009
     (1983).               The
    
    district courts, in the exercise of their discretion, are in the
    
    best position to assess whether a monetary remedy is sufficiently
    
    incidental to a claim for injunctive or declaratory relief to be
    
    appropriate in a (b)(2) class action.
    
                                      (3)
    
         Returning to the district court’s decision in the instant
    
    case, we conclude that it applied the correct legal standard in
    
    determining   whether   to   certify    a   class   under   Rule   23(b)(2).
    
    Although it was inappropriate for (b)(2) certification to consider
    
    whether issues common to the class predominated over other issues,
    
    see Forbush, 994 F.2d at 1105, the district court’s analysis in
    
    
    
    
                                       31
    this respect was separate from and in addition to its application
    
    of the proper predomination inquiry. It is clear that the district
    
    court concentrated its analysis on the extent to which the various
    
    forms of requested monetary relief would flow directly from a
    
    finding of liability on the plaintiffs’ claims for class-wide
    
    injunctive and declaratory relief.             With respect to applying the
    
    correct legal standard for predomination under Rule 23(b)(2),
    
    therefore, we cannot say that the district court erred in any way
    
    requiring reversal.
    
                                          C
    
         Having determined that the district court adopted the correct
    
    legal standard in assessing the plaintiffs’ monetary claims, we
    
    must now resolve whether it abused its discretion in applying that
    
    standard to   deny    certification       of   a   class   action   under   Rule
    
    23(b)(2).   The plaintiffs’ claims for monetary relief include back
    
    pay, front pay, compensatory damages, punitive damages, prejudgment
    
    interest, attorneys’ fees, and retroactive benefits. Examining the
    
    different forms of monetary relief, the district court concluded
    
    that they did not flow directly from proof of liability on the
    
    aspects of the plaintiffs’ disparate impact or pattern or practice
    
    claims that entitled them to injunctive or declaratory relief.
    
    Entitlement to back pay and other equitable monetary remedies, it
    
    explained, still required separate hearings in which each class
    
    
    
    
                                      32
    member would have to show that the discrimination caused a loss.
    
    Similarly, recovery of compensatory and punitive damages required
    
    particularly individualized proof of injury, including how each
    
    class member was personally affected by the discriminatory conduct.
    
    Thus, the district court held that the claims for money damages
    
    were not sufficiently incidental to the injunctive and declaratory
    
    relief being sought to permit certification under (b)(2).10
    
         We have little trouble affirming the district court’s finding
    
    that the plaintiffs’ claims for compensatory and punitive damages
    
    are not sufficiently incidental to the injunctive and declaratory
    
    relief being sought to permit them in a (b)(2) class action.                 We
    
    start with the premise that, in this circuit, compensatory damages
    
    for emotional distress and other forms of intangible injury will
    
    not be presumed from mere violation of constitutional or statutory
    
    rights.        See Patterson v. P.H.P Healthcare Corp., 
    90 F.3d 927
    ,
    
    938-40 (5th        Cir.   1996),   cert.   denied,   
    117 S. Ct. 767
       (1997).
    
    Specific individualized proof is necessary, and testimony from the
    
    plaintiff alone is not ordinarily sufficient.                See id. at 940;
    
    Price v. City of Charlotte, N.C., 
    93 F.3d 1241
    , 1250-54 (4th Cir.
    
    1996).        Compensatory damages may be awarded only if the plaintiff
    
             10
            Of course, to the extent the district court applied an
    incidental damages standard to the plaintiffs’ claims for back pay,
    its analysis was flawed. See Pettway, 494 F.2d at 256-57. As we
    shall explain, however, see infra Part VII, the district court’s
    error in this respect has no effect on the outcome of this appeal.
    
    
    
    
                                           33
    submits proof of actual injury, often in the form of psychological
    
    or medical evidence, or other corroborating testimony from a third
    
    party.   See Patterson, 90 F.3d at 940 (citing Carey v. Piphus, 
    435 U.S. 247
    , 264 (1978)); Brady v. Fort Bend County, No. 96-20886,
    
    
    1998 WL 353861
    , *25-28 (5th Cir. July 2, 1998).       The very nature of
    
    these damages, compensating plaintiffs for emotional and other
    
    intangible    injuries,   necessarily    implicates     the   subjective
    
    differences   of   each   plaintiff’s   circumstances;    they   are   an
    
    individual, not class-wide, remedy.11     The amount of compensatory
    
    damages to which any individual class member might be entitled
    
    cannot be calculated by objective standards.            Furthermore, by
    
    requiring individualized proof of discrimination and actual injury
    
    to each class member, compensatory damages introduce new and
    
    substantial legal and factual issues.      Clearly, after Patterson,
    
    compensatory damages under Title VII and 42 U.S.C. § 1981 are not
    
    incidental to class-wide injunctive or declaratory relief for
    
    discrimination.
    
        11
          For example, in Bogard v. Cook, 
    586 F.2d 399
     (5th Cir. 1978),
    a civil rights case under section 1983, we pointed out that
    “[c]laims for individual damage relief . . . would have required
    separate mini-trials for each prisoner,” and for that reason, a
    (b)(3) class action, and not a (b)(1) or (b)(2) class action,
    “would have been the proper classification” for such a case. Id.
    at 409. Even so, we opined, “[g]iven the lack of common questions
    of fact as to many of those claims, and the unmanageability of the
    suit had they been included, we cannot believe that the district
    court would have allowed the claims as part of that action if they
    had been recognized as potentially possible.” Id.
    
    
    
    
                                      34
         The plaintiffs’ claims for punitive damages are similarly non-
    
    incidental. Although the plain language of the Civil Rights Act of
    
    1991 could be interpreted to preclude class-wide punitive damages
    
    awards in any case without individualized proof of injury, see 42
    
    U.S.C. § 1981a(b)(1) (punitive damages available if employer acted
    
    with malice or reckless indifference to rights of “aggrieved
    
    individual”),   we   need   not    determine   today   whether   it   is   so
    
    limiting. Assuming punitive damages may be awarded on a class-wide
    
    basis, without individualized proof of injury, where the entire
    
    class or subclass is subjected to the same discriminatory act or
    
    series of acts, no such discrimination is alleged in this case.
    
    The plaintiffs challenge broad policies and practices, but they do
    
    not contend that each plaintiff was affected by these policies and
    
    practices in the same way.        Indeed, the plaintiffs seek to certify
    
    a class of a thousand potential plaintiffs spread across two
    
    separate facilities, represented by six different unions, working
    
    in seven different departments, challenging various policies and
    
    practices over a period of nearly twenty years.           Some plaintiffs
    
    may have been subjected to more virile discrimination than others:
    
    with greater public humiliation, for longer periods of time, or
    
    based on more unjustifiable practices, for example.              Particular
    
    discriminatory practices may have been gradually ameliorated year
    
    by year over the twenty-year period.       Some discriminatory policies
    
    
    
    
                                          35
    may have been implemented more--or less--harshly depending on the
    
    department or facility involved.
    
         Punitive damages cannot be assessed merely upon a finding that
    
    the defendant engaged in a pattern or practice of discrimination.
    
    Such a finding establishes only that there has been general harm to
    
    the group and that injunctive relief is appropriate.                     See Price
    
    Waterhouse v. Hopkins, 
    490 U.S. 228
    , 266 (1989) (O’Connor, J.,
    
    concurring in the judgment).          Actual liability to individual class
    
    members,    and   their   entitlement        to   monetary    relief,      are    not
    
    determined until the second stage of the trial.               See id.; Dillon v.
    
    Coles, 
    746 F.2d 998
    , 1004 (3d Cir. 1984).               And because punitive
    
    damages must be reasonably related to the reprehensibility of the
    
    defendant’s conduct and to the compensatory damages awarded to the
    
    plaintiffs, see Patterson, 90 F.3d at 943-44 (citing BMW v. Gore,
    
    
    116 S. Ct. 1589
    , 1598-99 (1996)), recovery of punitive damages must
    
    necessarily turn on the recovery of compensatory damages.                       Thus,
    
    punitive damages must be determined after proof of liability to
    
    individual plaintiffs at the second stage of a pattern or practice
    
    case, not upon the mere finding of general liability to the class
    
    at the first stage.       Moreover, being dependent on non-incidental
    
    compensatory damages, punitive damages are also non-incidental--
    
    requiring    proof   of   how    discrimination      was     inflicted     on    each
    
    plaintiff,   introducing        new   and    substantial     legal   and   factual
    
    
    
    
                                            36
    issues, and not being capable of computation by reference to
    
    objective standards.
    
         Given   the   degree   to   which   recovery   of   compensatory   and
    
    punitive damages requires individualized proof and determinations,
    
    they clearly do not qualify as incidental damages in this case.12
    
    Such damages, awarded on the basis of intangible injuries and
    
    interests, are uniquely dependent on the subjective and intangible
    
    differences of each class member’s individual circumstances.             We
    
        12
          The plaintiffs’ reliance on Parker v. Local Union No. 1466,
    United Steelworkers of Am., AFL-CIO, 
    642 F.2d 104
     (5th Cir. Unit B
    April 1981) (per curiam), for the proposition that claims for
    compensatory and punitive damages are properly certified under Rule
    23(b)(2) is misplaced. First and foremost, the Parker court was
    operating under the assumption that compensatory and punitive
    damages could be presumed from violation of the plaintiffs’ rights,
    see Gore v. Turner, 
    563 F.2d 159
    , 164 (5th Cir. 1977), a rule
    adopted before Carey and Patterson. Second, under the abuse of
    discretion standard, we are required to defer to the judgments of
    the district courts as to whether certain monetary relief
    predominates over injunctive or declaratory relief in any given
    case. See Nix v. Grand Lodge of the Int’l Ass’n of Machinists &
    Aerospace Workers, 
    479 F.2d 382
    , 386 (5th Cir. 1973) (refusal to
    certify class action under Rule 23(b)(2) on claims for compensatory
    damages was not an abuse of discretion), cert. denied, 
    414 U.S. 1024
     (1974).    Reasonable differences in judgment are part and
    parcel of the substantial discretion district courts maintain over
    certification of class actions.     See, e.g., Boughton v. Cotter
    Corp., 
    65 F.3d 823
    , 827 (10th Cir. 1995) (no abuse of discretion in
    refusing to certify class seeking predominantly money damages).
    Finally, to the extent Parker is inconsistent with Nix, a case also
    decided under the Labor Management Reporting and Disclosure Act, we
    are bound to follow Nix, the earlier of the two decisions. See
    Texaco v. Louisiana Land & Exploration Co., 
    995 F.2d 43
    , 44 (5th
    Cir. 1993) (“[i]n the event of conflicting panel opinions, the
    earlier one controls”). We do so by affirming the district court’s
    decision that claims for compensatory and punitive damages were not
    properly certifiable in a (b)(2) class action.
    
    
    
    
                                        37
    cannot, therefore, detect an abuse of discretion in the district
    
    court’s finding that the plaintiffs’ claims for compensatory and
    
    punitive damages were inappropriate for (b)(2) certification.13
    
                                        VI
    
                                        A
    
         Given that the district court acted within its discretion in
    
    denying    class   certification   of    the   entire   action   under   Rule
    
    23(b)(2) because of the predomination of money damages in this
    
    case, we next consider the plaintiffs’ argument that the district
    
    court erred in refusing to certify a “hybrid” class action, whereby
    
    the plaintiffs’ claims for compensatory and punitive damages would
    
    
          13
           The plaintiffs are apprehensive that such a holding will
    preclude (b)(2) class actions in civil rights cases. They suggest
    that class representatives may no longer be adequate under Rule
    23(a)(4) because they would not be able to seek for the class the
    full (monetary) recovery otherwise available to its members on an
    individual basis. In the first place, we are not certain that an
    adequacy of representation problem would exist under these
    circumstances. But even if it would, this concern might well be
    addressed, it seems to us, through the use of the notice and opt-
    out mechanisms under Rule 23(d), see, e.g., Penson, 634 F.2d at
    994; Eubanks, 110 F.3d at 93, 96, provided the other criteria for
    class certification have been met. Those members of the putative
    class who ultimately did not wish to participate in the class
    action could simply opt out. Indeed, we have long-required notice
    in (b)(2) class actions in which equitable monetary claims are at
    stake. See Johnson, 598 F.2d at 438. By providing (b)(2) class
    members with the procedural safeguards of notice and opt-out, the
    district court can permit civil rights class actions to proceed
    under 23(b)(2) without requiring that such actions meet the stiffer
    substantive requirements of 23(b)(3), yet still ensure that the
    class representatives adequately represent the interests of unnamed
    class members.
    
    
    
    
                                        38
    be certified under Rule 23(b)(3), and the rest of the class action
    
    certified under Rule 23(b)(2). Rule 23(b)(3) permits certification
    
    of a class action otherwise meeting the requirements of Rule 23(a)
    
    when:
    
         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 the
         class action is superior to other methods for a fair and
         efficient adjudication of the controversy. The matters
         pertinent to the findings include: (A) the interests of
         the members of the class in individually controlling
         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) concentrating the litigation of the claims
         in a particular forum; (D) the difficulties likely to be
         encountered in management of a class action.
    
    The plaintiffs argue that these requirements are clearly satisfied
    
    in this case.     They contend that the (b)(3) predominance standard
    
    focuses on the issue of liability, and if the liability issues are
    
    common to the class, common questions predominate over individual
    
    ones, citing In re Kirschner Med. Corp. Sec. Litig., 
    139 F.R.D. 74
    
    (D. Md. 1991).    The plaintiffs insist further that, here, a class
    
    action is plainly superior to hundreds of individual lawsuits.
    
         The district court disagreed. It concluded that, class action
    
    or not, Citgo’s liability for compensatory and punitive damages
    
    could be established only through examination of each plaintiff’s
    
    individual circumstances. Individual issues therefore predominated
    
    the litigation.    Furthermore, the district court expressed concern
    
    
    
    
                                      39
    that individualized monetary damages determinations for more than
    
    a thousand potential plaintiffs would require multiple juries.
    
    This concern, as well as the potential overlap of issues that would
    
    be   decided    in   bifurcated   proceedings,    implicated     significant
    
    Seventh Amendment, efficiency, and manageability problems.
    
                                         B
    
          In assessing whether the district court abused its discretion
    
    in refusing to certify a (b)(3) class action, we begin with this
    
    circuit’s most recent case on Rule 23(b)(3) analysis, Castano v.
    
    American Tobacco Co., 
    84 F.3d 734
     (5th Cir. 1996).             Castano makes
    
    clear that deciding whether common issues predominate and whether
    
    the class action is a superior method to resolve the controversy
    
    requires an understanding of the relevant claims, defenses, facts,
    
    and substantive law presented in the case.        Id. at 744.     As we have
    
    discussed      previously,   Patterson    holds   that   the    recovery   of
    
    compensatory and punitive damages in Title VII cases requires
    
    individualized and independent proof of injury to, and the means by
    
    which discrimination was inflicted upon, each class member. See 90
    
    F.3d at 938-44.        The plaintiffs’ claims for compensatory and
    
    punitive damages must therefore focus almost entirely on facts and
    
    issues specific to individuals rather than the class as a whole:
    
    what kind of discrimination was each plaintiff subjected to; how
    
    did it affect each plaintiff emotionally and physically, at work
    
    
    
    
                                         40
    and at home; what medical treatment did each plaintiff receive and
    
    at what expense; and so on and so on.      Under such circumstances, an
    
    action conducted nominally as a class action would “degenerate in
    
    practice into multiple lawsuits separately tried.”               Castano, 84
    
    F.3d at 745 n.19 (citing Fed. R. Civ. P. 23 (advisory committee
    
    notes)).
    
         The predominance of individual-specific issues relating to the
    
    plaintiffs’ claims for compensatory and punitive damages in turn
    
    detracts from   the   superiority    of   the   class   action    device   in
    
    resolving these claims.    See id. (explaining that the greater the
    
    number of individual issues, the less likely superiority can be
    
    established); see also Andrews v. AT&T, 
    95 F.3d 1014
    , 1023 (11th
    
    Cir. 1996).   These manageability problems are exacerbated by the
    
    fact that this action must be tried to a jury and involves more
    
    than a thousand potential plaintiffs spread across two separate
    
    facilities, represented by six different unions, working in seven
    
    different departments, and alleging discrimination over a period of
    
    nearly twenty years.    See, e.g., In re Chevron U.S.A., Inc., 
    109 F.3d 1016
    , 1018 (5th Cir. 1997) (considering the use of bellwether
    
    trials to resolve mass torts with widely diverse issues).           In order
    
    to manage the case, the district court faced the likelihood of
    
    bifurcated proceedings before multiple juries. This result in turn
    
    increased the probability that successive juries would pass on
    
    
    
    
                                        41
    issues    decided   by   prior     ones,      introducing      potential      Seventh
    
    Amendment problems and further decreasing the superiority of the
    
    class action device.        See Castano, 84 F.3d at 750-51; In re Rhone-
    
    Poulenc Rorer,      Inc.,    
    51 F.3d 1293
    ,     1302-03   (7th    Cir.    1995).
    
    Finally, the “most compelling rationale for finding superiority in
    
    a class action--the existence of a negative value suit,” is missing
    
    in this case.   Castano, 84 F.3d at 748; see also Amchem, 117 S.Ct.
    
    at 2246. The relatively substantial value of these claims (for the
    
    statutory maximum of $300,000 per plaintiff) and the availability
    
    of attorneys’ fees eliminate financial barriers that might make
    
    individual lawsuits unlikely or infeasible.                See Castano, 84 F.3d
    
    at 748.    Thus, the principles underlying the (b)(3) class action
    
    counsel against (b)(3) certification in this case.
    
         The plaintiffs attempt to avoid this result by arguing that
    
    the common, overarching issue regarding the existence of plant-wide
    
    racially    discriminatory        practices     or     policies   at    the     Citgo
    
    manufacturing complex justifies (b)(3) class certification.                      This
    
    argument, however, fails to appreciate the overwhelming number of
    
    individual-specific issues in this case.                  The Eleventh Circuit
    
    recently encountered this situation in rejecting (b)(3) class
    
    certification in a race discrimination suit similar to this one.
    
    In Jackson v. Motel 6 Multipurpose, Inc., 
    130 F.3d 999
     (11th Cir.
    
    1997), plaintiffs alleged that Motel 6 engaged in a nationwide
    
    
    
    
                                             42
    practice of racial discrimination in renting vacant rooms and
    
    providing housekeeping services.               The district court certified a
    
    class action under Rule 23(b)(3).              The Eleventh Circuit reversed,
    
    holding that class certification was an abuse of discretion.14                        The
    
    court       reasoned     that   the    plaintiffs’          claims     would    require
    
    “distinctly case-specific inquiries into the facts surrounding each
    
    alleged incident of discrimination.”                   Id. at 1006.            It found
    
    dispositive the fact that “most, if not all, of the plaintiffs’
    
    claims [would] stand or fall, not on the answer to the question
    
    whether Motel 6 has a practice or policy of discrimination, but on
    
    the resolution of these highly case-specific issues.” Id. We find
    
    the     same     logic    applicable     to    the     plaintiffs’          claims    for
    
    compensatory and punitive damages in the instant case. The success
    
    of these claims will turn ultimately on the special circumstances
    
    of each individual’s case.            Accordingly, we hold that the district
    
    court did not abuse its discretion in refusing to certify these
    
    claims in a class action under Rule 23(b)(3).                  See, e.g., Howard v.
    
    City    of     Greenwood,   
    783 F.2d 1311
    ,      1313    n.2     (5th   Cir.     1986)
    
    (rejecting certification of a (b)(3) class action because the
    
    
    
           14
          The court dismissed, without analysis, the possibility that
    the case could be certified as a (b)(2) class action. See id. at
    1005 (“[t]he only one of Rule 23's alternatives that is arguably
    fulfilled by the Jackson plaintiffs’ claims is that found in Rule
    23(b)(3)”).
    
    
    
    
                                              43
    plaintiffs’   claims   of    systemic     police   brutality   involved   a
    
    predomination of individualized issues).15
    
                                        VII
    
         Finally, the plaintiffs argue that, in the event their claims
    
    for compensatory and punitive damages cannot be certified in a
    
    class action at this initial stage of the litigation, they are
    
    entitled to have some part of this case certified now and tried as
    
    a class action to whatever extent permissible under Rule 23.          More
    
    specifically, as we understand the plaintiffs’ argument, they
    
    suggest that the court should certify a class action on the
    
    disparate impact claim and the first stage of the pattern or
    
    practice   claim--under     Rule   23(b)(2)   or   23(b)(3)--and   reserve
    
    judgment on whether to certify under 23(b)(3) the other claims--
    
    including the claims for compensatory and punitive damages--until
    
    these initial issues have been resolved.              The record is not
    
    
          15
            The plaintiffs argue that we could break the class into
    subclasses to avoid manageability problems, yet they have never
    offered us or the district court any workable plan for doing so.
    As the district court expressly observed: “[T]he plaintiffs have
    failed to present the court with a practical plan for handling this
    action as a class action despite the request from the court to do
    so. Other than a generalized claim that bifurcating the trial into
    liability and damages stages would be helpful, the plaintiffs have
    offered no specific methods for handling the various issues and
    theories alleged in this action.” Celestine v. Citgo Petroleum
    Corp., 
    165 F.R.D. 463
    , 471 (W.D. La. 1995). Without any help from
    the plaintiffs, the district court certainly did not abuse its
    discretion in not attempting to devise a workable subclassing plan
    of its own.
    
    
    
    
                                         44
    entirely clear as to whether the plaintiffs advanced this same
    
    position below. Nevertheless, they did consistently maintain that,
    
    if the district court certified a class action, it could always
    
    modify or limit certification under Rule 23(c)(1), depending on the
    
    facts and issues developed in discovery. In response, the district
    
    court expressly considered severing particular claims for class
    
    action treatment--for example, certifying a class action on only
    
    the claims for injunctive relief.            It declined to do so, however,
    
    based     on   concerns   for   the   Seventh   Amendment   as   well   as   the
    
    efficiency and manageability implications of the plaintiffs’ jury
    
    demand. We will therefore consider the possibility of severing the
    
    first stage of the pattern or practice claim for certification
    
    under (b)(2) or (b)(3), and allowing the district court to try it
    
    and the disparate impact claim together to a jury--the court
    
    reserving its equitable determinations until after the jury submits
    
    its findings.16
    
         16
          The plaintiffs briefly raise the possibility that this case
    could be certified as a class action under Rule 23(b)(1) because
    the prosecution of separate actions would create the risk of
    inconsistent adjudications with respect to individual class members
    and incompatible standards of conduct for Citgo. See Fed. R. Civ.
    P. 23(b)(1)(A).    Given the individual-specific nature of the
    plaintiffs’ claims for compensatory and punitive damages, we
    perceive no risk of inconsistent adjudications or incompatible
    standards of conduct in having those claims adjudicated separately.
    Separate adjudication of the plaintiffs’ claims for injunctive or
    equitable relief, however, may present such a risk. But we have
    already noted that these claims meet the requirements of Rule
    23(b)(2), and because the Seventh Amendment ultimately precludes a
    
    
    
    
                                            45
                                          A
    
                                      (1)
    
         We should make clear from the outset that in asserting this
    
    partial certification argument, the plaintiffs have not agreed to
    
    drop their claims for compensatory and punitive damages as a class
    
    action issue.     In making their argument for a tentative, “partial
    
    certification,”    the   plaintiffs       are   relying   presumably   on   the
    
    possibility that class-wide discovery and the resolution of the
    
    disparate impact claim and first stage of the pattern or practice
    
    claim may narrow the issues in the case, which in turn may make
    
    later certification of the remaining claims in a (b)(3) class
    
    action appropriate. Cf., e.g., Butler v. Home Depot, 70 Fair Empl.
    
    Prac. Cas. (BNA) 51 (N.D. Cal. 1996) (certifying class action on
    
    the first stage of a pattern or practice case and reserving
    
    judgment on certification of the second stage).              The plaintiffs’
    
    choice to preserve the claims for compensatory and punitive damages
    
    as a class action issue, however, has significant implications for
    
    certification of the remaining issues.
    
          First, we fail to see how certifying the first stage of the
    
    pattern or practice claim significantly increases the likelihood
    
    
    
    class action in this case regardless of the Rule 23(b) provision
    under which the action could be certified, we need not consider
    whether the plaintiffs’ equitable claims could also be certified
    under Rule 23(b)(1).
    
    
    
    
                                          46
    that later certification of the second stage of the pattern or
    
    practice claim, including the claims for compensatory and punitive
    
    damages, would be possible.          The second stage of a pattern or
    
    practice claim is essentially a series of individual lawsuits,
    
    except that there is a shift of the burden of proof in the
    
    plaintiff’s favor.     As the Supreme Court has made clear, there are
    
    no common issues between the first stage of a pattern or practice
    
    claim and an individual discrimination lawsuit.                See Cooper v.
    
    Federal Reserve Bank, 
    467 U.S. 867
    , 877-80 (1984).          As a result, we
    
    see no legal basis for the district court to certify a class action
    
    on the first stage of the plaintiffs’ pattern or practice claim
    
    when there   is   no   foreseeable      likelihood   that   the   claims   for
    
    compensatory and punitive damages could be certified in the class
    
    action sought by the plaintiffs.           Thus, we cannot say that the
    
    district court’s refusal to grant a partial certification of the
    
    first stage of the plaintiffs’ pattern or practice claim was an
    
    abuse of discretion.
    
         Second, certifying the first stage of the pattern or practice
    
    claim under (b)(3) is foreclosed by Castano.          We have already held
    
    that, when considered as a whole, the plaintiffs’ pattern or
    
    practice claim in this case implicates predominantly individual-
    
    specific issues.       We based this holding on the wide array of
    
    individual   issues    attendant   to     the   compensatory   and   punitive
    
    
    
    
                                         47
    damages claims.    Thus, under the plaintiffs’ theory, certification
    
    of the first stage of the pattern or practice claim would be
    
    appropriate presumably because individual-specific issues would be
    
    “severed”--but only temporarily--under Rule 23(c)(4), making issues
    
    common to the class predominant (at least theoretically) for the
    
    purposes of meeting the (b)(3) requirements.        But such an attempt
    
    to “manufacture predominance through the nimble use of subdivision
    
    (c)(4)” is precisely what Castano forbade.          See 84 F.3d at 745
    
    n.21. As the court explained, “[r]eading rule 23(c)(4) as allowing
    
    a   court   to   sever   issues   until   the   remaining   common   issue
    
    predominates over the remaining individual issues would eviscerate
    
    the predominance requirement of rule 23(b)(3); the result would be
    
    automatic certification in every case where there is a common
    
    issue, a result that could not have been intended.”          Id.17
    
                                        (2)
    
    
    
          17
           We further note that the plaintiffs’ attempts at piecemeal
    certification of a class action, which they refuse to limit
    voluntarily, distorts the certification process and ultimately
    results in unfairness to all because of the increased uncertainties
    in what is at stake in the litigation and in whether the litigation
    will ever resolve any significant part of the dispute.          The
    plaintiffs   have   emphasized   that   class  certification   will
    “facilitate” settlement. We are not sure of such a result. In any
    event, we should not condone a certification-at-all-costs approach
    to this case for the simple purpose of forcing a settlement.
    Settlements should reflect the relative merits of the parties’
    claims, not a surrender to the vageries of an utterly unpredictable
    and burdensome litigation procedure.
    
    
    
    
                                        48
         Consequently, the plaintiffs are left with the possibility of
    
    certifying a class action only on the disparate impact claim--
    
    again, holding in abeyance the decision whether to certify the
    
    pattern or practice claim at a later time.             As noted previously,
    
    injunctive, declaratory, and other forms of equitable relief such
    
    as back pay are available to a disparate impact claimant and in
    
    class actions certified under Rule 23(b)(2).             Indeed, our cases
    
    have held that failure to certify a class action on such claims may
    
    amount to an abuse of discretion.           See, e.g., Johnson, 491 F.2d at
    
    1375. Furthermore, resolution of the entire disparate impact claim
    
    could conceivably narrow the issues to be tried in the pattern or
    
    practice claim.    It is arguable that the court would have a better
    
    understanding     of   Citgo’s        employment    policies--e.g.,        which
    
    plaintiffs were subjected to which policies in which department or
    
    facility, when and for how long.            And it may be likely that class
    
    members without colorable claims could be identified, which would
    
    decrease the size of the class and the number of individual-
    
    specific   issues.     This,     in    turn,   could   make   the   case   more
    
    manageable as a jury trial and make the class action device a
    
    superior method for adjudicating the controversy.               Thus, in the
    
    context of the plaintiffs’ partial certification argument, we will
    
    consider the possibility of certifying a class action on the
    
    disparate impact claim, with the district court reserving judgment
    
    
    
    
                                           49
    on whether to certify the pattern or practice claim under Rule
    
    23(b)(3) until the disparate impact claim has been resolved.18
    
         The    standards    of    Rule    23,   however,   are    not     the    only
    
    limitations on the availability of a class action in this case.                As
    
    the district court recognized, the right to a jury trial provided
    
    by the Civil Rights Act of 1991, and demanded by the plaintiffs,
    
    implicates the Seventh Amendment.            We therefore consider whether
    
    Seventh    Amendment    concerns      preclude   a   class    action     on   the
    
    plaintiffs’ disparate impact claim, severed from their pattern or
    
    practice claim.
    
                                            B
    
         The Seventh Amendment preserves the right to a jury trial “in
    
    Suits at common law.”           U.S. Const. amend. VII.              This right
    
    encompasses all actions in which legal rights are to be determined,
    
    as opposed to those in which only equitable rights and remedies are
    
    involved.   Cox v. C.H. Masland & Sons, Inc., 
    607 F.2d 138
    , 142 (5th
    
    Cir. 1979) (citing Ross v. Bernhard, 
    396 U.S. 531
     (1970)).                     Of
    
    course, application of the Seventh Amendment is not limited to
    
    actions at common law.        Legal rights, to which the right to a jury
    
    trial attaches, may be statutorily created as well.                   Curtis v.
    
    Loether, 
    415 U.S. 189
    , 194 (1974).             Section 1981a of the Civil
    
         18
          Of course, in speaking of a disparate impact claim, we are
    referring to the entire claim, for all forms of available relief--
    including individual monetary relief such as back pay.
    
    
    
    
                                           50
    Rights Act of 1991 is such a statute.   It grants both parties the
    
    right to demand a jury trial when compensatory and punitive damages
    
    are sought in intentional discrimination claims under Title VII.
    
    See 42 U.S.C. § 1981a(c).
    
         Because the statute expressly provides that compensatory and
    
    punitive damages are not available in disparate impact claims, see
    
    § 1981a(a)(1), the right to a jury trial under Title VII extends
    
    only to the plaintiffs’ pattern or practice claim, see § 1981a(c).19
    
    Once the right to a jury trial attaches to a claim, however, it
    
    extends to all factual issues necessary to resolving that claim.
    
    See Beacon Theatres, Inc. v. Westover, 
    359 U.S. 500
    , 510-11 (1959).
    
    Thus, under section 1981a, the right to a jury trial extends to all
    
    factual issues necessary to determine liability on the plaintiffs’
    
    pattern or practice claim and the recovery of compensatory and
    
    punitive damages.
    
           19
            Of course, even in pattern or practice cases involving
    requests for compensatory and punitive damages, the right to a jury
    trial provided by section 1981a(c) does not include the power to
    determine the availability of back pay or front pay.         See §
    1981a(b)(2) (“Compensatory damages awarded under this section shall
    not include backpay, interest on backpay, or any other type of
    relief authorized under [42 U.S.C. § 2000e-5(g)].”). These are
    equitable remedies to which no right to jury trial attaches. See
    Wilson v. Belmont Homes, Inc., 
    970 F.2d 53
    , 55-56 (5th Cir. 1992)
    (no right to have a jury determine back pay because it is an
    equitable remedy under Title VII); Johnson v. Chapel Hill Indep.
    Sch. Dist., 
    853 F.2d 375
    , 383 (5th Cir. 1986) (front pay is
    equitable remedy like back pay under Title VII). Nevertheless, a
    district court may empanel an advisory jury on such issues in
    accordance with Rule 39(c) of the Federal Rules of Civil Procedure.
    
    
    
    
                                    51
         The Federal Rules of Civil Procedure also act to protect the
    
    parties’ right to a jury trial, once one is demanded, on the claims
    
    for compensatory and punitive damages.      Rule 38(d) provides that
    
    once a party has demanded a jury trial, the demand cannot be
    
    withdrawn without the consent of both parties.20         Moreover, a
    
    general demand will be deemed to extend to all issues in the case
    
    triable to a jury.    Fed. R. Civ. P. 38(c).   Thus, the jury demand
    
    in this case extends to all issues that materially relate to
    
    liability on the pattern or practice claims and the recovery of
    
    compensatory or punitive damages; on the other hand, the jury
    
    demand itself does not reach the disparate impact claim or any
    
    equitable relief.
    
         Resolution of the disparate impact claim and of equitable
    
    remedies must nevertheless take into account the Seventh Amendment.
    
    When claims involving both legal and equitable rights are properly
    
    joined in a single case, the Seventh Amendment requires that all
    
    factual issues common to these claims be submitted to a jury for
    
    decision on the legal claims before final court determination of
    
    the equitable claims. Roscello v. Southwest Airlines Co., 
    726 F.2d 217
    , 221 (5th Cir. 1984) (citing Dairy Queen, Inc. v. Wood, 
    369 U.S. 469
    , 479 (1962)); see also Ross, 396 U.S. at 537-38.    In this
    
    
        20
            Neither party has consented to withdrawing the demand in this
    case.
    
    
    
    
                                      52
    case, both parties have a Seventh Amendment right to have a jury
    
    determine all factual issues necessary to establish the plaintiffs’
    
    pattern or practice claim, a claim for legal damages that they have
    
    properly joined in the same action with a disparate impact claim
    
    for equitable relief.   As a result, each factual issue common to
    
    these claims,21 if any, must be decided by the jury before the
    
    district court considers the merits of the disparate impact claim
    
    and whether the plaintiffs are entitled to any equitable relief.
    
    See Ward v. Texas Employment Comm’n, 
    823 F.2d 907
    , 908-09 (5th Cir.
    
    1987).
    
                                    C
    
         In deciding whether the district court should have temporarily
    
    severed the disparate impact claim for class treatment, we must
    
    ascertain whether this claim shares any factual issues with the
    
    pattern or practice claim, which both parties are entitled to have
    
    decided first by a jury.
    
    
    
    
        21
         The existence of common factual issues is to be distinguished
    from the existence of overlapping evidence. For purposes of the
    Seventh Amendment, the question is whether factual issues overlap,
    thus requiring one trier-of-fact to decide a disputed issue that
    must be decided by a subsequent jury, not whether the two fact-
    finders will merely have to consider similar evidence in deciding
    distinct issues. See Alabama v. Blue Bird Body Co., 
    573 F.2d 309
    ,
    318-19 (5th Cir. 1978).
    
    
    
    
                                    53
         Because       the    same   employment   policies   and   practices   are
    
    challenged under both claims,22 it is clear that there are over-
    
    lapping issues.          First and foremost, an essential factual element
    
    of both claims is a finding that the challenged employment practice
    
    caused each individual class member to suffer an adverse employment
    
    action    (e.g.,    whether      each   individual   class   member   failed   a
    
    challenged employment test and was not hired because of that
    
    failure).    Indeed, in resolving either claim, the trier of fact
    
    must determine whether each class member was even in a position to
    
    be affected by the challenged employment practice (e.g., whether
    
    each class member applied for an open job).            Furthermore, as Judge
    
    Skelly Wright explained in Segar v. Smith, significant overlap of
    
    factual issues is almost inevitable whenever disparate impact and
    
    pattern or practice claims are joined in the same action:
    
         [T]he employer’s effort to rebut the pattern or practice
         claim by articulating a legitimate nondiscriminatory
         explanation may have the effect of putting before the
         court all of the elements of a traditional disparate
         impact case. By its explanation of an observed disparity
         the employer will typically pinpoint an employment
         practice (or practices) having a disparate impact on a
    
    
         22
          Recall that the plaintiffs identified the following employ-
    ment practices as resulting in unlawful race discrimination: (1)
    failure to post or announce job vacancies; (2) use of an informal
    word-of-mouth announcement process for filling job vacancies; (3)
    use of racially biased tests to evaluate candidates for hire or
    promotion; and (4) use of a subjective decision-making process by
    a predominantly white supervisory staff in reviewing applicants for
    hire and employees for promotion.
    
    
    
    
                                             54
         protected class.    And to rebut plaintiffs’ case the
         employer will typically be required to introduce evidence
         showing that the employment practice in fact caused the
         observed disparity.    In this situation, between the
         plaintiffs’ prima facie showing of disparity and the
         defendant’s rebuttal explanation of the disparity, the
         essential elements of a disparate impact case will have
         been placed before the trier of fact.
    
    
    738 F.2d 1249
    , 1268-70 (D.C. Cir. 1984), cert. denied, 
    471 U.S. 1115
     (1985); see also Fentonmiller, Damages, Jury Trials and the
    
    Class Action under the Civil Rights Act of 1991, 12 Lab. Law. 421,
    
    438-46 (1997).
    
         Similarly, the business necessity defense to disparate impact
    
    claims and the legitimate nondiscriminatory reason defense to
    
    disparate treatment claims are not “so distinct and separable” from
    
    one another that they may be considered separately by multiple
    
    factfinders without violating the Seventh Amendment.          See Gasoline
    
    Prod. Co. v. Champlin Refining Co., 
    283 U.S. 494
    , 500 (1931).          To
    
    rebut the plaintiffs’ claim that any one of Citgo’s challenged
    
    employment practices resulted in a disparate impact, Citgo would
    
    have to establish that the “challenged practice is job-related for
    
    the position in question and consistent with business necessity.”
    
    42 U.S.C. § 2000e-2(k)(1)(A)(I).         It is the rare case indeed in
    
    which   a   challenged   practice   is    job-related   and   a   business
    
    necessity, yet not a legitimate nondiscriminatory reason for an
    
    adverse employment action taken pursuant to that practice.          Thus,
    
    a finding that a challenged practice is job related and a business
    
    
    
    
                                        55
    necessity in response to a disparate impact claim strongly, if not
    
    wholly, implicates a finding that the same practice is a legitimate
    
    nondiscriminatory reason for the employer’s actions in a pattern or
    
    practice claim. These issues are questions of fact, see, e.g., St.
    
    Mary’s Honor Ctr. v. Hicks, 
    509 U.S. 502
    , 524 (1993); Wards Cove
    
    Packing Co. v. Atonio, 
    490 U.S. 642
    , 660 (1989), common to the
    
    plaintiffs’ disparate impact and pattern or practice claims.23
    
    
         23
           The plaintiffs have argued that Cooper v. Federal Reserve
    Bank, 
    467 U.S. 867
     (1984), stands for the proposition that there is
    no overlap of factual issues among their claims. We disagree. In
    Cooper, the Supreme Court held that an adverse judgment at the
    liability stage of a pattern or practice class action does not
    automatically preclude--by virtue of res judicata or collateral
    estoppel--individual discrimination lawsuits by class members. See
    id. at 880. The Court reasoned that “the existence of a valid
    individual claim does not necessarily warrant the conclusion that
    the individual plaintiff may successfully maintain a class action
    [while] [i]t is equally clear that a class plaintiff’s attempt to
    prove the existence of a companywide policy . . . may fail even
    though discrimination against one or two individuals has been
    proved.”   Id. at 877-78. At the first or liability stage of a
    pattern or practice case, the plaintiffs seek to prove that
    discrimination was the defendant’s standard operating procedure.
    See id. at 876.     The focus will be not on individual hiring
    decisions, but on the existence of a pattern or practice of
    discriminatory decision-making. Id. In other words, the liability
    stage of a pattern or practice class action does not necessarily
    implicate the same factual issues as an individual discrimination
    lawsuit brought separately by a class member.      See id. at 881.
    However, the same cannot be said of the plaintiffs’ disparate
    impact and pattern or practice claims in this case.       The same
    policies and practices are challenged under both claims.       As a
    result, overlap of factual issues between the two claims is
    inevitable. Because Cooper did not consider the issues presented
    by this case, it is inapposite.
    
    
    
    
                                    56
         In sum, the existence of factual issues common between the
    
    plaintiffs’         disparate   impact   and   pattern   or   practice   claims
    
    precludes trial of the disparate impact claim in a class action
    
    severed from the remaining nonequitable claims in the case.                 The
    
    claims for injunctive relief, declaratory relief, and any equitable
    
    or incidental monetary relief cannot be litigated in a class action
    
    bench trial (in the same case prior to certification of any aspects
    
    of the pattern or practice claim) without running afoul of the
    
    Seventh Amendment.        See Roscello, 726 F.2d at 221.       Nor may they be
    
    advanced in a subsequent class action without being barred by res
    
    judicata and collateral estoppel, see Montana v. United States, 
    440 U.S. 147
    , 153 (1979); Nilson v. City of Moss Point, 
    701 F.2d 556
    ,
    
    559-64 (5th Cir. 1983) (en banc), because all of the common factual
    
    issues will already have been decided, or could have been decided,
    
    in the prior litigation.             The district court, therefore, did not
    
    abuse        its   discretion   in   denying   partial   certification    in   a
    
    temporarily severed class action nor in denying class certification
    
    on any or all aspects of this case.24
    
            24
           We end by saying that neither the holdings of the district
    court nor this court have denied any of the plaintiffs a right to
    trial on the merits of his or her claims.      The district court
    suggested that it would go forward resolving the claims in this
    case through the use of consolidated actions. See Celestine, 165
    F.R.D. at 471-72.    We have encouraged district courts to use
    consolidation under Fed. R. Civ. P. 42(a) to deal with these types
    of situations, see, e.g., Woolen v. Surtran Taxicabs, Inc., 
    684 F.2d 324
    , 334 (5th Cir. 1982); see also generally In re Fibreboard
    
    
    
    
                                             57
                                       VIII
    
         In summary, we hold that nonequitable monetary relief may be
    
    obtained in a class action certified under Rule 23(b)(2) only if
    
    the predominant relief sought is injunctive or declaratory. Claims
    
    for such monetary relief predominate unless they are incidental to
    
    related claims for injunctive or declaratory relief.           Incidental
    
    damages are damages that flow directly from liability to the class
    
    as a whole on claims forming the basis of the injunctive or
    
    declaratory relief. Because the district court adopted the correct
    
    standard for certifying class actions under Rule 23(b)(2), and
    
    correctly applied that standard in finding that the plaintiffs’
    
    claims for compensatory and punitive damages are not incidental
    
    damages in this case, it did not abuse its discretion in denying
    
    (b)(2) class certification of these claims.         Furthermore, because
    
    these claims require individualized proof and determinations, the
    
    district court did not err in finding that issues common to the
    
    proposed   class   do   not   predominate   over   those   affecting   only
    
    individual plaintiffs and that a class action would not be a fair
    
    and efficient method for adjudicating these claims.          The district
    
    
    
    Corp., 
    893 F.2d 706
     (5th Cir. 1990), and we approve of the district
    court’s attempt to do so here. We cannot help but observe that,
    even if Rule 23 was somehow appropriate to address this complex,
    multi-faceted action, it would hardly serve to provide a more
    efficient resolution of this case than a series of consolidated
    actions.
    
    
    
    
                                        58
    court did not, therefore, abuse its discretion in denying class
    
    certification of these claims under Rule 23(b)(3).   Finally, we
    
    hold that the Seventh Amendment precludes a partial certification
    
    of a class action on the plaintiffs’ claims for equitable relief,
    
    with the court reserving judgment on whether to certify a class
    
    action on the remaining claims until later proceedings.
    
         In accordance with the above-stated reasons, the judgment of
    
    the district court is
    
                                                     A F F I R M E D.
    
    
    
    
    ENDRECORD
    
    
    
    
                                   59
    DENNIS, J., Circuit Judge, dissenting:
    
    
    
         I respectfully dissent.
    
         The majority incorrectly holds that African Americans who
    
    claim to have been harmed by Citgo’s alleged unlawful racially
    
    discriminatory employment policies and practices cannot bring a
    
    class action under Federal Rule of Civil Procedure 23(b)(2) to
    
    enforce collectively their rights and remedies afforded for such
    
    violations under both the 1991 Civil Rights Act and Title VII of
    
    the 1964 Civil Rights Act.
    
        The primary purposes of Title VII are to deter and abolish
    
    racial   and     other    discrimination     in   employment     and   to   make
    
    discriminatees whole.         By the 1991 Civil Rights Act, Congress
    
    expressly intended to further these goals more effectively by
    
    affording in a Title VII action limited compensatory and punitive
    
    damage remedies to disparate treatment victims.                  The majority
    
    concludes, however, that the legislative intent of the 1991 Civil
    
    Rights Act cannot be effectuated in a Rule 23(b)(2) class action.
    
         The   majority        reaches   this     conclusion    by     erroneously
    
    interpreting Rule 23(b)(2) as disallowing certification of a class
    
    action   under     that    subdivision     whenever   the   plaintiffs      seek
    
    compensatory or punitive damages for individual members of the
    
    class in addition to injunctive and declaratory relief.                     The
    
    
    
    
                                          60
    majority’s preclusive interpretation is built on nothing more than
    
    its own assertion that, in effect, the prayer for such damages
    
    gives rise to a conclusive or irrebuttable presumption that the
    
    final relief sought by the plaintiffs relates exclusively or
    
    predominantly to money damages, rather than to the final injunctive
    
    relief or corresponding declaratory relief with respect to the
    
    class as a whole.
    
         The majority’s decision rests on a conception of Rule 23(b)(2)
    
    that is irreconcilable with the basic purposes of Rule 23, the text
    
    of Rule 23(b)(2), the Advisory Committee Notes on Rule 23(b)(2),
    
    the exercise of informed and sound discretion by the district court
    
    in deciding whether to certify a class, and Rule 23(b)(2)’s proven
    
    effectiveness and unique appropriateness in civil rights cases,
    
    especially Title VII actions.   Rule 23 plainly limits this court’s
    
    judicial inventiveness; we have no authority to require a district
    
    court to automatically disallow (b)(2) certification simply because
    
    a member of the class seeks compensatory or punitive damages in
    
    addition to final injunctive relief.   Rather, Rule 23 obliges the
    
    trial court to conduct a rigorous analysis, often necessarily
    
    probing behind the pleadings, before exercising its own broad
    
    discretion within the framework of the rule to decide whether to
    
    certify a class.
    
                                     I.
    
    
    
    
                                     61
         The majority opinion introduces a new interpretation of Rule
    
    23 (b)(2) which provides, in effect, that a class action cannot be
    
    certified    under     that      subdivision    when     the   plaintiffs    seek
    
    individual       compensatory     or     punitive    damages   in    addition   to
    
    injunctive       or   declaratory      relief    under      Title   VII.     That
    
    interpretation is based on a circuitous rationale: (i) a claim for
    
    monetary     relief       automatically         predominates        and    defeats
    
    certification of a (b)(2) class unless it is “incidental” to
    
    requested injunctive or declaratory relief; (ii)                     “incidental”
    
    damages    are    those   that    flow    directly    and   automatically    from
    
    liability to the class as a whole on the claims forming the basis
    
    of the injunctive or declaratory relief; (iii) “incidental” damages
    
    are those that do not require additional hearings to resolve the
    
    merits of each individual’s case and that do not introduce new and
    
    substantial legal or factual issues or complex individualized
    
    determinations; (iv) except that, a request for individualized back
    
    pay awards under Title VII may be included without defeating
    
    certification of a (b)(2) class.*
    
    
         *
              The majority is forced to create an exception to its
    “incidental” damages rule in order to preserve our case law
    permitting (b)(2) certifications when both injunctive and monetary
    relief (back pay) were sought under Title VII. See, e.g., Pettway
    v. American Cast Iron Pipe Co., 
    494 F.2d 211
     (5th Cir. 1974).
    Although back pay has often been characterized as an equitable
    remedy for practical purposes, functionally there is little to
    distinguish back pay awards from compensatory damages.        Both
    
    
    
    
                                              62
         The majority states that under its rule the district courts
    
    have discretion to decide whether monetary damages sought are
    
    “incidental.”   However, the majority’s definition of “incidental
    
    damages” unquestionably excludes all individual compensatory and
    
    punitive damages.    Consequently, under the majority’s rule a
    
    district court cannot certify a (b)(2) class action suit seeking
    
    any such damages without committing an abuse of discretion or an
    
    error of law. Therefore, the trial court’s discretion to determine
    
    whether damages are “incidental” is illusory. Because of this
    
    formulation, trial courts in this circuit will, in fact, have no
    
    
    
    
    require complex individualized determinations, Johnson v. Goodyear
    Tire and Rubber Co., 
    491 F.2d 1364
    , 1375 (5th Cir. 1974) (“There
    should be a separate determination on an individual basis as to who
    is entitled to recover[] [back pay] and the amount of such
    recovery.”); Shipes v. Trinity Indust., 
    987 F.2d 311
    , 317 (5th
    Cir.) (“[F]ashioning a class-wide back pay award is exceedingly
    complex and difficult . . . .”), cert. denied, 
    510 U.S. 991
     (1993),
    of t he sort eschewed by the majority’s new “incidental” damages
    test. Moreover, the equitable characterization of back pay as the
    only basis for allowing back pay award in a (b)(2) case was
    explicitly rejected by the court in Frank v. Bowman Transp., 
    495 F.2d 398
    , 422 (5th Cir. 1974) (“Even if back pay is considered as
    equivalent to damages [and not equitable] under Rule 23, in this
    case back pay is not the exclusive or predominant remedy sought.”).
    Even with the back pay exception, the majority’s formulation runs
    afoul of our precedent which has held that compensatory and
    punitive damages may be recovered in a (b)(2) class action in
    situations where they would not be “incidental” as so defined by
    the majority. See, e.g., Parker v. Local Union No. 1466, 
    642 F.2d 104
    , 107 (5th Cir. 1981).
    
    
    
    
                                    63
    discretion to certify a (b)(2) class where individual compensatory
    
    and punitive damage claims are sought.**
    
                                      A.
    
         The majority’s rule absolutely precluding compensatory and
    
    punitive damages claims in (b)(2) class actions patently conflicts
    
    with or does not demonstrably further the basic purposes served by
    
    class action suits.   The fundamental aims of class actions are (1)
    
    “to promote judicial economy and efficiency by obviating the need
    
    for multiple adjudications of the same issues[,]” 5 JAMES WM. MOORE,
    
    MOORE’S FEDERAL PRACTICE § 23.02 (3d ed. 1998) (citing General Tel. Co.
    
    Of Southwest v. Falcon, 
    457 U.S. 147
    , 156 (1982) and American Pipe
    
    & Constr. Co. v. Utah, 
    414 U.S. 538
    , 553 (1974)),      (2) “to afford
    
    aggrieved persons a remedy if it is not economically feasible to
    
    obtain relief through . . . multiple individual damage actions[,]”
    
    id. (citing Deposit Guar. Nat. Bank v. Roper, 
    445 U.S. 326
    , 339
    
    (1980); Amchem Prods., Inc. v. Windsor, --U.S.--, 
    117 S. Ct. 2231
    ,
    
    2246 (1997)(“the very core of the class action mechanism is to
    
    overcome the problem that small recoveries do not provide the
    
    incentive for any individual to bring a solo action prosecuting his
    
    
         **
            For example, the majority opinion states: “Clearly, after
    Patterson, compensatory damages under Title VII and 42 U.S.C. §
    1981 are not incidental to class-wide injunctive or declaratory
    relief for discrimination.” slip op. at 29. “[B]eing dependent on
    non-incidental compensatory damages, punitive damages are also non-
    incidental[.]”
    
    
    
    
                                      64
    or her rights.    A class action solves this problem by aggregating
    
    the relatively paltry potential recoveries into something worth
    
    someone’s (usually an attorney’s) labor.”)(quoting              Mace v. Van Ru
    
    Credit   Corp.,   
    109 F.3d 338
    ,   344    (7th   Cir.    1997));    Phillips
    
    Petroleum Co. v. Shutts, 
    472 U.S. 797
    , 809 (1985)), (3) to enhance
    
    access to the courts “by spreading litigation costs among numerous
    
    litigants with similar claims[,]” id. (citing United States Parole
    
    Comm’n v.     Geraghty,   
    445 U.S. 388
    ,    402-403      (1980)),    (4)   “[to
    
    protect] the defendant from inconsistent adjudications[,]” id., and
    
    (5) “to ensure . . . that the interests of absentee class members
    
    are considered fairly and adequately,” id. (citing Hansberry v.
    
    Lee, 
    311 U.S. 32
    , 42-43 (1940) and Baby Neal ex rel. Kanter v.
    
    Casey, 
    43 F.3d 48
    , 55 (3rd Cir. 1994)).
    
         Rule 23's requirements for class action suits should be
    
    interpreted in light of the basic purposes of the rule.                In re A.H.
    
    Robins Co., 
    880 F.2d 709
    , 740 (4th Cir.), cert. denied, 
    493 U.S. 959
     (1989);    see also Mace, 109 F.3d at 344;         Andrews v. Amer. Tel.
    
    & Tel. Co., 
    95 F.3d 1014
    , 1025 (11th Cir. 1996); 5 MOORE, supra, at
    
    § 23.04.
    
         The majority fails to demonstrate that its rigid bright-line
    
    rule will further the basic purposes of Rule 23 class action suits.
    
    On the contrary, it is self-evident that the application of such an
    
    
    
    
                                           65
    inflexible, arbitrary rule frequently will disallow (b)(2) class
    
    action suits seeking predominantly final injunctive relief and
    
    only secondarily damages, and thus derogate from the class action
    
    goals of judicial economy and efficiency; affording aggrieved
    
    persons a remedy not otherwise economically feasible; enhancing
    
    access to courts by spreading costs; and protecting defendants from
    
    inconsistent adjudications.
    
                                       B.
    
         The majority’s rule sharply conflicts with the text, advisory
    
    notes and underlying policies of Rule 23(b)(2) in several important
    
    respects.
    
         Rule 23(b)(2) provides, in pertinent part, that “[a]n action
    
    may be maintained as a class action if the prerequisites of
    
    subdivision (a) are satisfied, and in addition . . . 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[.]”      The rule plainly does not say that a
    
    class (b)(2) may not be certified if the parties seeking injunctive
    
    relief or corresponding declaratory relief also pray for individual
    
    compensatory or punitive damages.       See Parker v. Local Union No.
    
    1466, 
    642 F.2d 104
    , 107 (5th Cir. 1981)(“Class certification under
    
    Rule 23(b)(2) does not automatically preclude an award of monetary
    
    
    
    
                                       66
    damages     when    the    primary     relief        sought    is    injunctive       or
    
    declaratory.         The    rule     pointedly        refers    to   injunctive       or
    
    declaratory relief but does not, in terms, preclude monetary
    
    relief.”)
    
         The Advisory Committee Notes on Rule 23(b)(2), in pertinent
    
    part,   state      that    “[t]his    subdivision        is    intended      to   reach
    
    situations where a party has taken action or refused to take action
    
    with respect to a class, and final relief of an injunctive nature
    
    or of a corresponding declaratory nature, settling the legality of
    
    the behavior with respect to the class as a whole, is appropriate
    
    . . . .     The subdivision does not extend to cases in which the
    
    appropriate final relief relates exclusively or predominantly to
    
    money   damages.”     FED. R. CIV. P.          23    advisory    committee’s        note
    
    (discussing     Subdivision        (b)(2)     under    1996    Amendments).         The
    
    advisory note does not state that a Rule (b)(2) class may not
    
    extend to cases in which a plaintiff seeks money damages.                           The
    
    advisory    exclusion      applies     only     to    cases    in    which    (i)    the
    
    appropriate final relief (ii) relates exclusively or predominantly
    
    (iii) to money damages.            In other words, if the plaintiffs seek
    
    relief of an injunctive nature temporarily or not as the final
    
    relief for the whole class but instead seek a final relief relating
    
    exclusively or predominantly to money damages, a (b)(2) class would
    
    not be appropriate.        In fact, a plain reading of the advisory note
    
    
    
    
                                             67
    clearly indicates that money damages may be sought in a (b)(2)
    
    class action along with final injunctive relief so long as money
    
    damages are not be the exclusive or predominant relief sought.
    
         Even if one disregards the text of Rule 23 (b)(2) and focuses
    
    only on the Advisory Committee Note, the majority’s extrapolation
    
    of a rule therefrom, arbitrarily barring (b)(2) certification if
    
    the plaintiffs seek any compensatory damages to make individual
    
    members of the class whole, is unwarranted.         The plain language of
    
    the note does not support the formulation of such a rule and its
    
    sweeping   preclusion    of   certification   of    all   cases   involving
    
    compensatory or punitive damages conflicts with the specifications
    
    and the clear intent and concerns of the drafters of the rule.
    
         The Advisory Committee pointed to, as the outstandingly clear
    
    or typical example or archetype of a case eligible for (b)(2)
    
    certification, “actions in the civil-rights field where a party is
    
    charged with discriminating unlawfully against a class, usually one
    
    whose   members   are   incapable   of   specific    enumeration.”     Id.
    
    (collecting civil rights cases including Potts v. Flax, 
    313 F.2d 284
     (5th Cir. 1963) and Bailey v. Patterson, 
    323 F.2d 201
     (5th Cir.
    
    1963), cert. denied, 
    376 U.S. 910
     (1964)).         In fact, “Rule 23(b)(2)
    
    was promulgated . . . essentially as a tool for facilitating civil
    
    rights actions.” 5 MOORE, supra, § 23.43[1][a], at 23-191.           Under
    
    the majority’s bright-line rule, however, no consideration is given
    
    
    
    
                                        68
    or importance attached to the fact that the case not only qualifies
    
    under the text of Rule 23(b)(2), but also is a civil rights action
    
    seeking to permanently enjoin unlawful discrimination. Cf. Jenkins
    
    v. United Gas Corp., 
    400 F.2d 28
    , 32-33 (5th Cir. 1968) (“[The
    
    claim to remedy class-wide discriminatory employment practices] has
    
    extreme importance with heavy overtones of public interest.”);
    
    Young v. Pierce, 
    544 F. Supp. 1010
    , 1028 (E.D. Tex. 1982)(“[W]hen
    
    the relief sought is injunctive relief, the benefits . . . would
    
    inure not only to known class, but also to a future class of
    
    indefinite size.”); Note, Antidiscrimination Class Actions Under
    
    the Federal Rules of Civil Procedure: The Transformation of Rule
    
    23(b)(2), 88 Yale L. J. 868, 873 n.32 (“The desirability of an
    
    injunction to shield all putative class members against whom the
    
    discrimination was by its ‘very nature’ directed, provided the
    
    ‘most important’ reason for upholding class treatment in the (b)(2)
    
    situation.”)(citing Potts v. Flax, 
    313 F.2d 284
    , 289 (5th Cir.
    
    1963) and Bailey v. Patterson, 
    323 F.2d 201
    , 206-07 (5th Cir.
    
    1963)).    Instead, the majority decrees that if compensatory or
    
    punitive   damages   are   prayed   for,   the   case   is    automatically
    
    classified   as   “predominantly”    related     to   money    damages   and
    
    therefore not certifiable under (b)(2).          By the same token, the
    
    majority’s hard and fast rule distorts the meaning of Rule 23(b)(2)
    
    
    
    
                                        69
    and the Advisory Committee Note so as to reclassify such a civil
    
    rights   action        as   a    (b)(3)   situation,     in   which   “class-action
    
    treatment is not as clearly called for as in” (b)(1) or (b)(2)
    
    situations. FED. R. CIV. P. 23 advisory committee’s note (discussing
    
    Subdivision (b)(3)).              If civil rights plaintiffs combine their
    
    otherwise (b)(2) class-worthy claim for injunctive relief with
    
    claims for compensatory or punitive damages, even if the damage
    
    claims are small and do not predominate, the rule formulated by the
    
    majority would deny (b)(2) class certification.
    
          The Advisory Committee, in stating that the (b)(2) class “does
    
    not extend to cases in which the appropriate final relief relates
    
    exclusively or predominantly to money damages,” most certainly did
    
    not   have   in    mind         the   incongruous   meaning    derived      from   the
    
    commentary by the majority, i.e. an absolute, inflexible rule
    
    precluding (b)(2) certification when the plaintiffs seek to recover
    
    compensatory or punitive damages regardless of the nature or
    
    significance of the class-wide final injunctive relief sought.                      In
    
    referring to a case in which “the appropriate final relief relates
    
    exclusively       or    predominantly       to   money   damages”     the   Advisory
    
    Committee may have intended to exclude situations in which the
    
    plaintiffs either do not seek final injunctive relief for the whole
    
    class or do so only as a sham to obtain easier certification for
    
    what is truly only an action for money damages.                  Or the committee
    
    
    
    
                                                70
    may have meant for the court to compare the quantity and quality of
    
    the injunctive and monetary remedies in the particular case to see
    
    which was predominant, a consideration that has been at least
    
    suggested   by   this   court,   see    Jenkins,   400   F.2d   at   32-33.
    
    (“Considering that in this immediate field of labor relations what
    
    is small in principal is often larger in principle, [the claim to
    
    remedy class-wide discriminatory employment practices] has extreme
    
    importance with heavy overtones of public interest.”), and yet,
    
    would be precluded by the majority’s strict no plenary damages
    
    rule.***
    
    
         ***
              The latter interpretation of the Advisory Committee’s
    note is also suggested by a court’s approach in considering the
    propriety of its certification of a (b)(2) class action in
    evaluating an objection to settlement. In Stewart v. Rubin, 
    948 F. Supp. 1077
     (D. D.C. 1996), aff’d, No. 96-5377, slip. op. (D.C.
    Cir. May 22, 1997) (unpublished), involving a class of Treasury
    Department Special Agents, the court concluded that the equitable
    relief predominated. It elaborated:
         Although the compensatory damage award is substantial,
         $4,025,000, it constitutes an average of less than
         $16,500 for each member of the class, and no class member
         is guaranteed any award form the Backpay or Compensatory
         Damage Funds unless he or she provides evidence of
         discrimination and resulting damage. Weighed against the
         possible receipt of $16,500 is each class member’s right
         to participate in the individualized equitable relief
         procedure, receive promotions, reinstatement, new or
         adjusted performance evaluations, adjusted personnel
         records,   including    awards,   lateral    changes   of
         assignments, correction or removal of disciplinary
         action, and a host of other equitable measures. Any one
         of these equitable remedies could be worth more than
         $16,500 to a Special Agent for the life of his or her
         career. Cumulatively, they can make or break a Special
    
    
    
    
                                       71
           The assessment of the value of each remedy sought in a
    
    particular    class    action     suit   is    problematic.         However,    the
    
    majority’s no-damage-claim-or-no-certification rule precludes even
    
    ballpark estimates of equitable and money damage remedies for
    
    purposes of determining whether potential damages predominate or
    
    rather are so small individually as to make the final injunctive
    
    relief sought more important, valuable, and predominant.
    
                                             C.
    
          The   majority’s     rule    improperly     prevents    the    exercise    of
    
    informed, sound judicial discretion by a trial court to determine
    
    that in a particular Title VII class action suit the positive
    
    weight or value of the injunctive or declaratory relief sought is
    
    predominant even though compensatory or punitive damages are also
    
    claimed.     The majority’s judicially invented limitation upon the
    
    district court’s power is contrary to Rule 23, the congressional
    
    drafters’     and    reviewers’      intent,     and    the   well-established
    
    precedents of the Supreme Court and this court.
    
          Rule 23(b)(2) provides that “[a]n action may be maintained as
    
    a   class   action    if   the    prerequisites    of   subdivision      (a)    are
    
    satisfied, and in addition [] the party opposing the class has
    
    acted or refused to act on grounds generally applicable to the
    
    
    
         Agent’s career.
    Id. at 1092.
    
    
    
    
                                             72
    class,   thereby      making    appropriate   final    injunctive     relief   or
    
    corresponding declaratory relief with respect to the class as a
    
    whole[.]” The text of the rule does not contain a predominance
    
    requirement or purport to grant a district court the discretion to
    
    deny certification if the prerequisites of (a) and (b)(2) are
    
    satisfied.    The Advisory Committee Note that subdivision (b)(2)
    
    “does not extend to cases in which the appropriate final relief
    
    relates exclusively or predominantly to money damages” implies an
    
    intention to vest the trial court with the discretion to deny
    
    certification in such cases.           Rule 23(c)(1) provides that “[a]s
    
    soon as practicable after the commencement of an action brought as
    
    a class action, the court shall determine by order whether it is to
    
    be so maintained.”             Thus, the discretion to determine whether
    
    money damages predominate in a particular case, requiring that it
    
    not be maintained as a (b)(2) class action,                 is clearly delegated
    
    to the district court as part of its certification function. There
    
    is simply no justification for an appellate court to use the
    
    Advisory Committee Note as a pretext for formulating a judicial
    
    rule that nullifies the district court’s legislatively granted
    
    authority or discretion in this respect.              Cf.    1 HEBERT B. NEWBERG &
    
    ALBA CONTE, NEWBERG   ON   CLASS ACTIONS §4.14, at 4-49 (3d ed. 1992) (“No
    
    clear standards have or could be developed . . . in this area so
    
    pregnant with judicial discretion.”) (emphasis added).
    
    
    
    
                                           73
          The Supreme Court, in Amchem Products, Inc. v. Windsor, --
    
    U.S. -- , 
    117 S. Ct. 2231
    , 2235 (1997), held that federal courts
    
    “lack authority to substitute for Rule 23's certification criteria
    
    a standard never adopted by the rulemakers--that if a settlement is
    
    ‘fair,’ then certification is proper.”                Thus, the majority exceeds
    
    the   limits       of    its   judicial     power     by    substituting      for   the
    
    certification criteria a rule based on its own definition of terms
    
    in the Advisory Committee Note that in effect usurps the district
    
    court’s legislated authority to perform its certification function.
    
    For, as the Supreme Court admonished:
    
              And, of overriding importance, courts must be mindful
          that the rule as now composed sets the requirements they
          are bound to enforce. Federal Rules take effect after an
          extensive deliberative process involving many reviewers:
          a   Rules     Advisory       Committee,    public      commenters,      the
          Judicial Conference, this Court, the Congress.                      See 28
          USC §§ 2073, 2074. The text of a rule thus proposed and
          reviewed limits judicial inventiveness. Courts are not
          free    to    amend      a   rule   outside     the   process   Congress
          ordered, a process properly tuned to the instruction that
          rules    of       procedure    “shall     not    abridge   .    .   .   any
          substantive right.” § 2072(b).
    Id.
          Our decisions and those of the Supreme Court have held that
    
    the district court, within the bounds of the Federal Rules, has
    
    broad discretion to decide whether to allow the maintenance of a
    
    
    
    
                                               74
    class action; that inherent in that discretion is the district
    
    court’s duty to rigorously analyze each case to determine whether
    
    the certification prerequisites have been satisfied; and that the
    
    district court, when necessary, must probe behind the pleadings
    
    before coming to rest on the certification question.        General Tel.
    
    Co. of S. W. v. Falcon, 
    457 U.S. 147
    , 160-161 (1982); Gulf Oil Co.
    
    v.. Bernard, 
    452 U.S. 89
    , 100 (1981).      As this court, in Castano v.
    
    American Tobacco Co., 
    84 F.3d 734
    , 740 (5th Cir. 1996), recently
    
    held:
    
            A district court must conduct a rigorous analysis of
         the rule 23 prerequisites before certifying a class.
         General Tel. Co. v. Falcon, 
    457 U.S. 147
    , 161, 
    102 S. Ct. 2364
    ,   2372,    
    72 L. Ed. 2d 740
       (1982);   Applewhite    v.
         Reichhold Chems., 
    67 F.3d 571
    , 573 (5th Cir. 1995).          The
         decision to certify is within the broad discretion of the
         court, but that discretion must be exercised within the
         framework of rule 23. Gulf Oil Co. v. Bernard, 
    452 U.S. 89
    , 100, 
    101 S. Ct. 2193
    , 2200, 
    68 L. Ed. 2d 693
     (1981).
         We have found no other circuit court that has adopted a
    
    jurisprudential rule completely barring (b)(2) certification when
    
    compensatory damages are sought as well as final injunctive relief.
    
    The majority cites Williams v. Owens-Illinois, Inc., 
    665 F.2d 918
    
    (9th Cir.), cert. denied, 
    459 U.S. 971
     (1982), as being in accord
    
    with its position.    But the Ninth Circuit did not adopt such a rule
    
    in that case.        Rather, it merely affirmed the trial court’s
    
    
    
    
                                         75
    exercise of discretion in limiting the issues in a class action to
    
    claims for injunctive relief, although the plaintiffs had also
    
    prayed for compensatory damages.          Id. at 928-29.      In fact, if the
    
    textual prerequisite of Rule 23 (a) and (b)(2) have been satisfied,
    
    many courts and leading commentators favor either leaving the trial
    
    court’s discretion untrammeled or using a variety of flexible and
    
    practical approaches that encourage the certification of some type
    
    of class even when money damages are sought along with final
    
    injunctive relief.**** 1 NEWBERG, supra, § 4.14 (discussing these
    
    approaches with approval and collecting cases therein); 7A CHARLES
    
    A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE   AND   PROCEDURE § 1775, at 470
    
    (2d ed. 1986) (“If the Rule 23(a) prerequisites have been met and
    
    injunctive or declaratory relief has been requested, the action
    
    usually should be allowed to proceed under subdivision (b)(2).
    
    
    
    
         ****
               For a sensible approach to certification of civil rights
    class actions under Subsection (b)(2) when claims for injunctive
    relief are coupled with individual claims for damages see Thomas v.
    Albright, --- F.3d ---, 
    1998 WL 135494
     (D.C. Cir. 1998). See also
    1 NEWBERG, supra, §4.41, at 4-51 to 52(noting that courts have
    employed one of four options either (1) limiting the certification
    to certain issues, (2) certifying the claims for injunctive relief
    under Subsection(b)(2) and the damage claims under Subsection
    (b)(3); (3) certifying the entire class under Subsection (b)(2) and
    reconsidering the certification category if the class is successful
    at the liability stage; or (4) certifying certain issues and
    treating other issues as incidental ones to be determined
    separately after liability to the class has been decided.).
    
    
    
    
                                         76
    Those aspects of the case not falling within Rule 23(b)(2) should
    
    be treated as incidental.”).
    
          The rule adopted by the majority in the present case exceeds
    
    the bounds of its authority because it usurps the district courts’
    
    authority granted by Rule 23 (when a member of a class seeks to
    
    maintain a class action under (b)(2) for both final injunctive
    
    relief and compensatory or punitive damages) to rigorously analyze
    
    the case, probe behind the pleadings if necessary, and exercise its
    
    own discretion within the framework of the rules in determining
    
    whether the action is to be so maintained.
    
                                      D.
    
         By adopting an absolute rule against compensatory or punitive
    
    damages claims in (b)(2) class actions, the majority ignores the
    
    intent of the drafters of Rule 23 that class actions against
    
    discriminatory   employment   practices   would   be   maintained   under
    
    (b)(2).   The majority’s rule, contrary to the intent of the
    
    drafters and Congress, threatens a drastic curtailment of the use
    
    of (b)(2) class actions in the enforcement of Title VII and other
    
    civil rights acts.
    
         Courts routinely have certified Title VII class actions under
    
    Rule 23(b)(2) on the theory that such suits, by their very nature,
    
    are directed at eliminating class-based discrimination. See, e.g.,
    
    Kincade v. General Tire and General Motors Corp., 
    635 F.2d 501
    , 506
    
    
    
    
                                      77
    & n.6 (5th Cir. 1981).      As the Third Circuit in Wetzel v. Liberty
    
    Mutual Insurance Company, 
    508 F.2d 239
    , 250 (3d. Cir.)(emphasis
    
    added), cert. denied, 
    421 U.S. 1011
     (1975), observed:
    
               [A] Title VII suit against discriminatory hiring and
    
         promotion   policies     is    necessarily      a   suit    to   end
    
         discrimination because of a common class characteristic,
    
         [such as race].    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 usually
    
         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).        Advisory
    
         Committee, supra at 102.
    
         This court and others have held that a (b)(2) class is
    
    appropriate in a Title VII suit where both final injunctive and
    
    monetary relief are granted.       See Franks v. Bowman Transp. Co., 495
    
    
    
    
                                         
    78 F.2d 398
    , 422 (5th Cir. 1974);           Pettway v. American Cast Iron Pipe
    
    Co., 
    494 F.2d 211
    , 257 (5th Cir. 1974);               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);                   Bowe, 416
    
    F.2d at 720.     The basic nature of a Title VII suit has not been
    
    altered merely because the plaintiff may also pray for compensatory
    
    or punitive damages, if money damages are not the exclusive or
    
    dominant relief sought.
    
         After the 1991 Civil Rights Act the thrust of a Title VII
    
    action    continues     to    be   society’s        interest       in   eliminating
    
    discrimination and the individual’s interest in being made whole.
    
    H.R. Rep. No. 102-40(I), at 64-65, reprinted in 1991 U.S.C.C.A.N.
    
    602-03.     Title     VII    plaintiffs       may   still   seek    extensive   and
    
    systematic injunctive relief for claims that arise from a system of
    
    employment action that has been uniformly imposed based on a
    
    characteristic      common    to   all    class      members,      such   as   race.
    
    Therefore, “[t]he conduct of the employer is still answerable ‘on
    
    grounds generally applicable to the class,’ and the primary relief
    
    sought is still ‘relief with respect to the class as a whole,’”
    
    Wetzel, 508 F.2d at 251, even when nonpredominant money damages are
    
    sought. Cf. Thomas v. Albright, --- F.3d ---, 
    1998 WL 135494
    , at *8
    
    (D.C. Cir. March 27, 1998) (assumption of cohesiveness underlying
    
    certification of a (b)(2) class is not necessarily destroyed when
    
    
    
    
                                             79
    claims for injunctive relief are coupled with individual claims for
    
    monetary damages).
    
           As this court 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[.]
    
    Citgo’s employment practices and policies were alleged to be such
    
    that final injunctive relief was appropriate.          The text of Rule 23
    
    (b)(2) requires nothing more. The nature of those alleged racially
    
    discriminatory policies, and the nature of the class opposing those
    
    policies does not change merely because the plaintiffs also seek
    
    monetary damages if they are not the exclusive or predominant
    
    relief sought. Cf. Wetzel, 508 F.2d at 251.
    
                                         II.
    
           Because I disagree fundamentally with the path followed by the
    
    majority and the district court in interpreting and applying Rule
    
    23(b)(2), I see no need to address the particular Seventh Amendment
    
    problems that might arise under the application of their erroneous
    
    interpretation of the rule.         If, upon remand, the district court
    
    were   to    certify   a   class   action   after   applying   the   correct
    
    
    
    
                                          80
    principles of law, care must be taken to accommodate the parties’
    
    rights to a jury trial of the compensatory and punitive damages
    
    issues with the court’s trial of the injunctive and declaratory
    
    relief issues.      Under the circumstances of a particular case, this
    
    task may be difficult, but it is by no means impossible in every
    
    instance when proper safeguards are used.
    
         Title    VII     class      actions        for     disparate     treatment      have
    
    traditionally been conducted in two stages.                     In Baxter v. Savannah
    
    Sugar Refining Corp., 
    495 F.2d 437
    , 443-44 (5th Cir. 1974), this
    
    court explained the bifurcation of a Title VII class action as
    
    follows:
    
         A Title VII class action presents a bifurcated burden of
    
         proof problem.        Initially, it is incumbent on the class
    
         to establish that an employer’s employment practices have
    
         resulted in cognizable deprivations to it as a class. At
    
         that juncture of the litigation, it is unnecessarily
    
         complicating and cumbersome to compel any particular
    
         discriminatee to prove class coverage by showing personal
    
         monetary loss.        What is necessary to establish liability
    
         is    evidence    that   the    class        of    black    employees    has
    
         suffered       from   the     policies           and   practices    of   the
    
         particular      employer.       Assuming           that    the   class   does
    
         establish invidious treatment, the court should then
    
    
    
    
                                               81
          properly proceed to resolve whether a particular employee
    
          is in fact a member of the covered class, has suffered
    
          financial loss, and thus entitled to back pay or other
    
          appropriate relief.
    
    Id. at 443-44. See International Brotherhood of Teamsters v. United
    
    States, 
    431 U.S. 324
    , 360 (1977);       Franks v. Bowman Transp., 
    424 U.S. 747
    , 772 (1976).
    
          This approach allows the court and the jury to focus on the
    
    employment practices of the employer as they affect the defendant’s
    
    liability to the class during the liability stage. Cf. 6 NEWBERG,
    
    supra, § 24.122, n. 1000 (citing Swint v. Pullman-Standard, 
    539 F.2d 77
     (5th Cir. 1976);      United States v. United States Steel
    
    Corp., 
    520 F.2d 1043
     (5th Cir. 1976)).       If the class does establish
    
    to the satisfaction of the jury that policies or practices of
    
    discrimination exist, the jury may then resolve in a stage II
    
    proceeding whether individual class members are entitled to receive
    
    compensatory or punitive damages and the quantum of any award. Cf.
    
    Id.
    
          Because equitable relief and legal claims may depend on common
    
    issues of fact, the court must allow the jury to determine in stage
    
    I the issue of legal liability to the class before the court
    
    determines   whether    the   class    is   entitled   to   injunctive   or
    
    declaratory relief. See Dairy Queen v. Wood, 
    369 U.S. 469
    , 479-480
    
    
    
    
                                      82
    (1962).     Also, in stage II, the court must clearly instruct the
    
    jury that it is not to revisit the issues decided by the jury in
    
    the first phase as to whether the defendant had an employment
    
    policy of unlawful discrimination but must decide only the issues
    
    of whether individual plaintiffs are entitled to compensatory or
    
    punitive damages.         See Gasoline Products Co., Inc. v. Champlin
    
    Refining Co., 
    283 U.S. 494
     (1931)
    
         Because the issue of whether an individual employee has been
    
    damaged by the employer’s intentional disciminatory conduct is
    
    separate and distinct from the issue of whether the employer had an
    
    unlawful discriminatory practice or policy so that, with adequate
    
    instructions and guidance by the court, a trial of it alone may be
    
    had without injustice, the Seventh Amendment does not prohibit the
    
    separate jury trials of those issues. See id.           That is, the issues
    
    may be divided between separate trials if done “in such a way that
    
    the same issue is [not] reexamined by different juries.”                 In re
    
    Rhone-Poulenc, 
    51 F.3d 1293
    , 1303 (7th Cir. 1995);                    see also
    
    Castano v. American Tobacco Co., 
    84 F.3d 734
    , 750 (5th Cir.
    
    1996)(“Thus, Constitution allows bifurcation of issues that are so
    
    separable    that   the    second   jury   will   not   be   called   upon   to
    
    reconsider findings of fact by the first.”); Alabama v. Blue Bird
    
    Body Co., 
    573 F.2d 309
    , 318 (5th Cir. 1978) (“[I]nherent in the
    
    Seventh Amendment guarantee of a trial by jury is the general right
    
    
    
    
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    of a litigant to have only one jury pass on a common issue . . .
    
    ”).
    
            In other words, the bifurcated phases of a Title VII class
    
    action contemplate separate and distinct issues.                      The first stage
    
    of a Title VII class action focuses exclusively on class-wide
    
    claims, Price Waterhouse v. Hopkins, 
    490 U.S. 228
    , 245 n.10 (The
    
    focus in Stage I is “‘not [] on [the] individual hiring decisions,
    
    but on a pattern of discriminatory descisionmaking.’”) (quoting
    
    Cooper v. Federal Reserve Bank of Richmond, 
    467 U.S. 867
    , 876
    
    (1984)), whereas the second stage focuses on individual claims.
    
            At   the    first   stage      the    class     must         establish   “that
    
    discrimination       against    a    protected     group   was       essentially    the
    
    employer’s ‘standard practice,’ there has been harm to the group
    
    and injunctive relief is appropriate.”                Id. at 266 (O’Connor, J.,
    
    concurring);       see also United States Steel Corp., 520 F.2d at 1053;
    
    6 NEWBERG, supra, § 24.123.             Once it has been shown that the
    
    employer     maintained     a       policy    or   practice          that   unlawfully
    
    discriminates in the first stage, that issue will not be revisited
    
    in the second stage.        See International Brotherhood of Teamsters,
    
    431 U.S. at 361-62.         Rather, at the second stage the issue is
    
    whether individual employment decisions were made pursuant to any
    
    such procedure or policy.            Id. at 362;      MANUAL   FOR   COMPLEX LITIGATION,
    
    THIRD   §33.54 (1995)(“Individual [class members] . . . are permitted
    
    
    
    
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    to present their individual claims of injury.”).           Therefore, the
    
    issues to be decided in the two stages -- class-wide liability at
    
    Stage I and individual claims at Stage II -- are separate and
    
    distinct and the second jury will not reexamine issues decided by
    
    the first jury.      Nor does the fact that some of the same evidence
    
    may   be     presented     in    both    phases   make   the   bifurcation
    
    unconstitutional, for the “prohibition is not against having two
    
    juries review the same evidence, but rather against having two
    
    juries     decide   the   same   essential   issues.”    In    re   Innotron
    
    Diagnostics, 
    800 F.2d 1077
    , 1086 (Fed. Cir. 1986); see also In re
    
    Paoli R.R. Yard, 
    113 F.3d 444
    , 452-53 n.5 (3d Cir. 1997).
    
          In summary, I respectfully dissent from the majority opinion
    
    because it adopts an unauthorized and erroneous interpretation of
    
    Rule 23(b)(2), affirms the district court decision based on the
    
    same error of law, and raises constitutional questions that would
    
    not be encountered under a correct interpretation and application
    
    of the rule.
    
    
    
    
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