Johnny REYNOLDS, individually on behalf of himself and as representative of a class of black
employees of the Highway Department, State of Alabama, similarly situated, Plaintiff-Appellee-Cross-
Appellant,

                        Cecil Parker, et al., Intervenors-Appellees-Cross-Appellants,

                                                        v.

  G.M. ROBERTS, in his official capacity as Director for the Alabama Department of Transportation, et
al., Defendants-Appellants.

                                                No. 97-6349.

                                       United States Court of Appeals,

                                              Eleventh Circuit.

                                                Feb. 2, 2000.

Appeal from the United States District Court for the Middle District of Alabama.(No. 85-00665-CV-T-N),
Myron H. Thompson, Judge.

Before TJOFLAT and DUBINA, Circuit Judges, and STORY*, District Judge.

         TJOFLAT, Circuit Judge:

         This appeal arises out of a long-standing racial discrimination class action brought by job applicants

and two groups of employees and former employees against the Alabama Department of Transportation.

After the parties entered into a race-neutral consent decree providing for prospective relief relating to job

qualifications and promotion criteria, the district court, sua sponte, entered a judgment awarding the members

of one of the employee groups (of current and former employees) back pay in the sum of $17,450,077, plus

interest in the sum of $17,282,410.         Reynolds v. Alabama Dep't of Transp., 

(M.D.Ala.1998). The Department of Transportation appeals. We vacate the judgment and remand the case

for further proceedings consistent with this opinion.

                                                        I.

         The named plaintiffs brought this suit against the Department of Transportation (the "Department")

in May 1985 on behalf of all black "merit" and "non-merit" employees and former employees of the


     *
     Honorable Richard W. Story, U.S. District Judge for the Northern District of Georgia, sitting by
designation.
Department and all unsuccessful black applicants for positions within the Department.1 Alleging violations

of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17, 42 U.S.C. § 1981, and the Equal

Protection Clause of the Fourteenth Amendment, plaintiffs sought monetary and injunctive relief under those

statutes and under 42 U.S.C. § 1983. According to the plaintiffs, the Department was discriminating against

all black employees and job applicants on account of their race, and had been doing so since an unspecified

point in time prior to May 21, 1979. The discrimination consisted of (1) using non-job related criteria that

had the effect of precluding blacks from being hired or promoted, (2) prohibiting black employees from

gaining the job experience necessary for promotion, and (3) granting promotions and pay increases to white

employees who were less qualified than their black counterparts. The Department, in its answer, denied the

plaintiffs' allegations.2

           In October 1986, the court certified three plaintiff classes. The first class consisted of any black

person who unsuccessfully applied for a merit position in the Department at any time after May 21, 1979.

The second class included all blacks employed by the Department at any time after May 21, 1979 who were

permanent employees under the Department's merit system (the "merit" employees) and therefore eligible for



   1
    In addition to the Department, the plaintiffs sued various state officials. The lawsuit was styled initially
as Reynolds v. King. It became Reynolds v. Roberts, then Reynolds v. Alabama Department of Transportation.
Its present style is Reynolds v. Butts; Butts was the director of the Department when the Department took
this appeal. He has been replaced by G.M. Roberts. We refer to the defendants in this case collectively as
the Department.

                     The instant lawsuit has become intertwined with a racial discrimination suit brought by the
           United States against the Alabama State Personnel Board and various state agencies. United States
           v. Frazer, 

(M.D.Ala.1970). After a bench trial, the district court found that the
           Board and the defendant agencies had systematically discriminated against blacks and ordered
           injunctive relief. See 

subsequent proceeding in that case, the court found that the Department
           of Transportation was using employment registers to maintain an all-white workforce and to
           circumvent the court's injunction; it therefore entered additional injunctive relief. See United States
           v. Frazer, No. 2709-N (M.D.Ala. Aug. 20, 1976). In their complaint in the instant case, the plaintiffs
           alleged that the Department was not complying with the injunctions in Frazer. In July 1992, the
           district court consolidated the still-pending Frazer suit, now styled United States v. Ballard, with the
           instant case.
   2
       The Department's answer also presented affirmative defenses not relevant here.

                                                         2
promotion. The third class consisted of a portion of the blacks employed by the Department at any time after

May 21, 1979 as temporary employees (the "non-merit" employees). During their employment in the

Department, these employees had applied for merit positions, but the Department allegedly had rejected their

applications on account of their race. Each class sought injunctive relief in the form of an order directing the

Department to discontinue its current hiring and promotion policies and practices and requiring it to

implement an affirmative action program.          In addition, each class member sought injunctive and

compensatory relief. The members of the first class sought the positions they would have received but for

the Department's discriminatory hiring policies, together with the pay they would have earned. Each member

of the second class contended that he or she had been denied promotion(s) on account of race, and therefore

sought an order granting the promotion(s) and/or back pay. Each member of the third class contended that,

while employed in the Department, he or she had applied for, but had been denied, merit-employee status on

account of race, and therefore sought instatement in such status and/or back pay.

        After the parties joined issue, and engaged in discovery, they entered into settlement negotiations.

In 1988, and again in 1991, they presented a proposed consent decree to the district court for approval. On

each occasion, some members of the plaintiff classes objected to the entry of the decree; the district court

sustained their objections and refused to enter the decree.

        In June 1992, the case proceeded to trial before the court. Near the end of the plaintiffs' case, the

parties asked the court to recess the proceeding indefinitely so that they could engage in further settlement

negotiations. The court granted their request. In November 1993, they reached a partial settlement, in the

form of a proposed consent decree. The proposed decree provided a range of prospective class-wide

injunctive relief. Among other things, it set hiring and promotion quotas for blacks—33% of the positions

in each job classification in the Department would be set aside for blacks. To ensure an adequate pool for

this set-aside program, the decree directed the Department to mount an aggressive recruiting campaign at




                                                       3
historically black colleges and universities. Finally, the decree required the Department to establish a

grievance procedure for its employees.

        The parties presented the proposed decree to the district court, which, in turn, scheduled a hearing

for January 19, 1994 to entertain any objections members of the plaintiff classes, or others likely to be

affected (like white employees of the Department), might have to the terms of the proposed decree. On

January 13, a group of white Department employees (the "Adams Intervenors") moved the court for leave to

intervene on behalf of the Department's non-black employees in order to challenge the race-conscious

provisions of the proposed decree—specifically, the 33% quota requirement for all job classifications in the

Department. The court granted the motion, Reynolds v. Roberts, 

, 953-54 (M.D.Ala.1994),

and subsequently certified an additional class, consisting of the Department's non-black employees.

        The January 19 hearing was held as scheduled. Over 200 people attended the hearing, including

many non-black employees of the Department. The objections to the race-conscious aspects of the proposed

consent decree were such that the parties withdrew it and, with leave of court, went back to the drawing

board. By late February 1994, the plaintiffs and the Department decided to divide the previously proposed

decree into three parts, called Consent Decrees I, II, and III. Consent Decree I contained the provisions that

all sides agreed provided only race-neutral prospective relief. Consent Decrees II and III contained provisions

that were acceptable to the plaintiffs and the Department, but opposed as race-conscious by the Adams

Intervenors.

        The parties submitted Consent Decree I to the district court for approval, and, on March 7, the court

held a hearing on the fairness of the proposal. No one other than the parties' attorneys appeared at the

hearing, and no one objected to the entry of the decree. The court approved the decree and, by order entered

March 16, 1994, adopted it in full.3

  3
   Although it is not clear from the record, it appears that, after the entry of Consent Decree I, the plaintiffs
and the Department presented Consent Decrees II and III to the district court for approval. On January 23,
1998, after the filing of this appeal, the court, over the Adams Intervenors' objection, entered an order
adopting one paragraph of Consent Decree II. See Reynolds v. Alabama Dep't of Transp., 

                                                       4
          Consent Decree I is composed of a series of "Articles" which revamped the process by which the

Department hires, promotes, classifies, and pays its employees. The decree abolished the system of

"employment registers" from which positions were filled and promotions were granted, and created new

qualifications and procedures for hiring and promotion. It also created new procedures for, among other

things, rotation of job duties, recruitment, and training.

          The provisions of the decree at issue in this appeal are portions of the Preamble, Article 19 and

Article 20.4 They address the race-discrimination claims of the individual members of the three plaintiff

classes—the merit employees, the non-merit employees, and the unsuccessful job applicants—and provide

for the trial of those claims before the court in the event they are not settled.5

          The Preamble to the Consent Decree states:

          The following terms and provisions of this Consent Decree are accordingly agreed to in final and
          complete resolution of all class issues which have been asserted in the case, subject to the provisions
          of this Decree providing for further proceedings, including but not limited to Article[ ] 20....

          Similar language is repeated in Article 19, titled "General":

          Subject to the provisions of this Decree permitting or requiring further proceedings, including but
          not limited to, Article[ ] 20 ..., this Decree constitutes full and complete relief on all claims, causes
          of action, and allegations which have been asserted in this action.

          Article 20 explains how the members of the three plaintiff classes and the Department are to proceed

with the individual claims of race discrimination. Because this article is at the heart of the dispute in this case,

we reprint the article in its entirety:

                                                  ARTICLE 20



(M.D.Ala.1998). The Adams Intervenors have challenged this action in a separate appeal to this court, No.
98-6102. That appeal is still in the briefing stage.
  4
    The Articles of the decree are designated with Roman numbers. The texts of the Articles, however, refer
to the Articles in Arabic numbers. For simplicity, we employ the latter.
      5
     The Preamble and the relevant portions of Articles 19 and 20 in referring to the "trials" of the class
members' claims "by the Court" are silent, as are the parties' briefs on appeal, as to whether such claims are
to be tried to the district court or to a jury.

                                                         5
                    FURTHER PROCEEDINGS REGARDING CLASS MEMBERS

        1. Further negotiations and proceedings are required to resolve the claims for monetary and
        non-monetary remedies for individual members of the class[es] (including the named plaintiffs and
        intervenors), provided however, that this Decree does not in and of itself entitled [sic] any such class
        member to such remedies. Such claims shall be resolved first by settlement negotiations and then,
        to the extent not resolved by settlement negotiations, by the Court.

        2. The parties will make all reasonable efforts to resolve all such claims of the members of the class
        (including the named plaintiffs and intervenors) according to a schedule to be mutually agreed upon
        within 10 days after preliminary approval of this Decree by the Court or, in the event the parties
        cannot mutually agree on such schedule within such 10 day period, the Court will enter an Order
        embodying a schedule. Regardless of whether the schedule is mutually agreed upon by the parties
        or embodied in an Order entered by the Court, such schedule shall contain specific deadlines for the
        exchange of information and for offers and counter-offers to enable settlement negotiations on such
        claims to take place within 90 days after the effective date of this Consent Decree and, in the event
        such settlement cannot be achieved, for trial on that phase of the case to commence no later than 180
        days after the effective date of this Decree.

        3. Such schedule shall be presented to the Court for approval or modification, and once finalized shall
        be entered as an Order of the Court. In the absence of agreement on such schedule within 10 days
        of the preliminary approval of this Decree, the Court will enter its own schedule aimed at settlement
        negotiations taking place within 90 days after the effective date of this Decree and scheduling that
        phase of the trial of this case to commence no later than 180 days after the effective date of this
        Decree.6

        For reasons not appearing in the record, the parties could not agree on a schedule "for the exchange

of information and for offers and counter-offers," as required by Article 20; nor did the district court enter

"its own schedule aimed at settlement negotiation ... and scheduling that phase of the trial of this case,"

involving the claims of the individual class members, as contemplated. Further, neither counsel nor the court

were able to adhere to the time table prescribed by Article 20. Rather, counsel for the plaintiffs and the

Department undertook to establish a means to identify the members of the merit-employee class (both current

and former employees) who might have meritorious claims that the Department, on account of their race, (1)

either refused to assign them work that would qualify them for promotion to a higher job classification or

(although they were qualified for such promotion) refused to promote them, or (2) treated them as if they had

  6
   In providing for the disposition through settlement or trial of the claims of the individual class members,
Article 20 parenthetically includes the claims of the "intervenors," meaning the individual members of the
Adams Intervenor class. Because the members of that class have asserted no claims of race discrimination,
we are at a loss as to why they were included in Article 20.

                                                      6
been promoted to a higher job classification by assigning them work in such classification, but refused to pay

them the wage called for by that classification. Counsel were unsuccessful in this endeavor.

        When counsel for the plaintiffs and the Department were unable to arrive at a means to identify the

meritorious claims, plaintiffs' counsel, in January 1995, filed a "Motion to Set Hearing to Determine Method

of Back-Pay Calculation." In that motion, plaintiffs' counsel asserted for the first time that Consent Decree

I had resolved that the Department had discriminated against each member of the three plaintiff classes as

alleged. In other words, in addition to conceding that its policies and practices for hiring, job assignment,

and promotion were racially discriminatory and should be struck down, the Department had admitted that it

had discriminated against the individual members of the plaintiff classes on account of their race when it

denied them employment or promotion(s) and the wages they would have earned. In light of such an

admission of liability, plaintiffs' counsel contended, the litigation should proceed to the next step: a

determination of the amount of back pay due the unsuccessful job applicants (for merit positions), the merit

employees, and the non-merit employees. In short, everyone would recover something.

        The plaintiffs moved the court to determine a method for calculating back pay in an effort to avoid

a separate trial on the damages element of each individual class member's claim. If required to try each claim

separately, plaintiffs suggested, the "process would degenerate into [a] quagmire of hypothetical judgments."

One of the methods plaintiffs proposed was

        "a formula of comparability or representative employee earnings formula." With that method,
        "approximations are based on a group of employees, not injured by the discrimination, comparable
        in size, ability and length of employment—such as 'adjacent persons on the seniority list or the
        average progress of persons with similar seniority'—to the class of plaintiffs."7

        The Department's immediate response to the plaintiffs' motion was to deny that Consent Decree I

determined that it was liable to the individual class members as plaintiffs contended. Without deciding

whether Consent Decree I had adjudicated the Department's liability to the individual class members for back

  7
   The plaintiffs took this language from the former Fifth Circuit's decision in Pettway v. American Cast Iron
Pipe Co., 

, 262 (5th Cir.1974) (Pettway III ). Neither the plaintiffs' motion nor the record
indicates precisely what the quoted language was supposed to mean in the context of the instant case.

                                                      7
pay, the district court ordered the parties to begin negotiations on a class-wide formula for determining back

pay—as if the Department were liable to each class member for back pay. The Department complied with

the court's order, but continued to assert that, if the case did not settle, the trial, which had been interrupted

in 1992, should resume. In the Department's view, absent a global settlement, the parties would have to return

to the courtroom and litigate (1) whether the Department had discriminated against all black employees and

job applicants on account of their race, as alleged in the plaintiffs' complaint, and, if the Department had done

so, (2) whether it had discriminated against the individual members of the three plaintiff classes, as alleged.

        The parties began their negotiations by focusing on the class consisting of the merit employees (both

current and former) who had been denied promotion(s). They deferred to another day discussion of formulae

that would apply to the classes consisting of job applicants and non-merit employees (who were denied

instatement in merit positions) because arriving at formulae for those classes would apparently be

problematic. On August 28, 1995, the parties jointly filed a "Report of Points of Agreement and

Disagreement Regarding Formula for Determination of Remedies under Article Twenty of Consent Decree

I" (referred to herein as the "August 28 Report"), which summarized where the parties stood in their

negotiations over a back pay formula for the merit employees.

        The parties agreed to a basic framework for determining the amount a class member should recover;

they disagreed, however, as to what a class member would have to demonstrate in order to recover. The

plaintiffs' position was that Consent Decree I had settled the liability issue; therefore, all a class member

would have to show was the difference (if any) between what the member and a similarly situated white

employee were paid during the class member's employment. The Department agreed that the amount of a

class member's recovery should be determined by comparing the class member's pay with a similarly situated

white employee's pay; it disagreed, however, as to which white employees would be used for comparison

purposes (and whether members of the merit employee class should have the right to opt out and sue the




                                                        8
Department separately). In addition, the Department continued to maintain that, in order to recover anything,

a class member had to show that he or she had been denied promotion(s) on account of race.

        Having been advised of the parties' disagreements on the issues of the Department's liability (to the

members of the three plaintiff classes) and an appropriate back pay formula (for the merit employees), the

district court, in May 1996, held hearings on the back pay formula, and entertained testimony from plaintiffs'

and the Department's experts and from an expert the court had appointed. At the beginning of these hearings,

the court addressed the threshold liability issue and announced (from the bench) that Consent Decree I had

established "class-wide liability" against the Department on the claims of the individual members of each of

the three plaintiff classes.8 The court further stated that its rulings on the back pay formula for the merit

employees would "proceed ... based on that finding [of liability]." After hearing evidence from the expert

witnesses, the court struggled with the problem of identifying the white employees who should be compared

with a given class member for purposes of determining how much back pay to award the class member. In

the process of doing this, the court apparently realized, though it did not explicitly acknowledge, that,

notwithstanding its earlier conclusion that in entering into Consent Decree I the Department admitted that it

had discriminated against every class member, the Department had not discriminated against some class

members.9 Consequently, these class members had not been injured and therefore were not entitled to

promotion or back pay.10




  8
    The court based its ruling on statements the parties' attorneys purportedly had made at a previous hearing
on the plaintiffs' request for the award of interim attorney's fees; the court did not identify, however, the
statements on which it was relying. On May 16, 1996, the court issued a written order, affirming practically
verbatim what it had stated from the bench.
   9
    In other words, although the Department had a policy of discriminating against black merit employees
on account of their race, the Department had not implemented the policy in some cases.
  10
     Previously, in negotiating over a method, or formula, for determining how much back pay the members
of the merit class should recover, the parties agreed that some class members were not entitled to back pay.


                                                      9
            By January 1997, the district court identified the members of the merit class who were not entitled

to relief (promotion or back pay): Any member of the class who had earned as much or more than the

average pay earned by comparable white employees had not been injured and thus would neither be promoted

nor receive back pay. The remaining members of the class would receive back pay in accordance with a

court-modified version of the formulae the parties had submitted in the August 28 Report.11

            Once the court made these rulings, the plaintiffs filed a "Motion for Entry of Judgment." On April

16, 1997, the court granted the motion and gave the merit employees (who had been injured) judgment for

$34,732,487. That sum consisted of $17,450,077 in back pay and $17,282,410 in interest.12

            The Department appeals this judgment.13 The plaintiffs cross appeal, challenging the formula the

district court used in identifying the class members who were not entitled to relief and in calculating the back

pay for the remainder of the class. We conclude that the district court erred in interpreting Consent Decree

I as an admission of liability by the Department—that it had discriminated against the three plaintiff classes,

and the individual members thereof, with respect to its hiring and promotion decisions. We therefore vacate

the judgment at issue and remand the case for further proceedings. Given this disposition, the plaintiffs'

appeal is moot, and we accordingly dismiss it.

                                                         II.

            The Department contends that the district court erred in interpreting Consent Decree I to establish

"class-wide liability" such that the merit employees could obtain relief without demonstrating that they were


  11
    In addition to these rulings, the court held that no member of the merit employee class could opt out and
sue the Department separately. This ruling effectively granted the Department judgment on the claims of the
non-injured members of the merit employee class.
  12
    The court ordered the Department to deposit the total amount of the judgment in escrow within 60 days.


       13
      The judgment at issue is a partial final judgment. The court entered the judgment pursuant to
Fed.R.Civ.P. 54(b), thereby making it appealable under 28 U.S.C. § 1291.

                     The Adams Intervenors also appeal the district court's judgment. Since their claims of error
            are the same as the Department's, we refer to both appeals as the Department's appeal.

                                                        10
denied promotion(s) or back pay on account of their race. The plaintiffs, in addition to asking us to affirm

the district court's judgment, contend that a waiver of appeal provision in Consent Decree I bars the

Department's appeal.14 If the plaintiffs are correct, we need not consider the Department's appeal. We

therefore address this issue first.

                                                      A.

          The waiver of appeal provision relied upon by the plaintiffs appears in Article 19 of the consent

decree:

          All parties agree and stipulate that there will be no appeal from this Consent Decree or from any
          ruling, order, or decision entered by the Court in the case relating to any issue or subject
          encompassed within the terms of this Decree. Nothing herein shall prohibit the non-class employees
          or any other person not a party to this Decree from having the right to appeal any interpretation,
          ruling, decision or order.

          As a general rule, "[a] party normally has no standing to appeal a judgment to which he or she

consented." 5 Am.Jur.2d Appellate Review § 619 (1995). See White v. Commissioner of Internal Revenue,

, 977 (11th Cir.1985). Accordingly, the words "there will be no appeal from this Consent

Decree" were not needed to preclude appellate review of the decree's substantive provisions. There are

exceptions to the general rule; one is that an appeal will lie if "the judgement allegedly deviates from the

terms of the parties' agreement." 5 Am.Jur.2d Appellate Review § 619 (1995). The Department invokes this

exception by contending that, in interpreting the decree to create "class-wide liability," the district court

effectively entered a new decree, one that "deviates from the terms of the parties' agreement." The district

court's deviation, therefore, is subject to appellate review.

          If the Department is correct, the plaintiffs respond, Article 19's waiver-of-appeal provision is

meaningless—specifically, the words "there will be no appeal ... from any ruling, order, or decision entered

by the Court in the case relating to any issue or subject encompassed within the terms of this Decree." The

district court's interpretation of the decree to establish "class-wide liability," including the Department's

  14
    The plaintiffs moved this court to dismiss the Department's appeal, and we carried their motion with the
case. We now deny their motion.

                                                      11
liability to the individual class members, necessarily relates to an "issue or subject encompassed within the

terms" of the decree; accordingly, the plaintiffs contend, the interpretation is not subject to appellate review.

        If the plaintiffs are correct, the waiver provision would bar appellate review of any interpretation the

district court might give the decree. The provision would also bar appellate review of the court's disposition

of the individual claims for instatement, promotion, or back pay—regardless of the errors the court might

commit in disposing of those claims.15 In short, the waiver provision would give the district court unbridled

discretion to rewrite Consent Decree I—as long as the court's "ruling, order or decision" "relat[es] to" or is

"encompassed within the terms" of the decree.

         Long standing precedent evinces a strong public policy against judicial rewriting of consent decrees.

"[A] district court may not impose obligations on a party that are not unambiguously mandated by the decree

itself." King v. Allied Vision, Ltd., 

, 1058 (2d Cir.1995). As the following discussion makes

clear, the district court rewrote Consent Decree I, and imposed an obligation on the Department that the

decree did not "unambiguously mandate[ ]," when it declared that the Department, in entering into the decree,

had conceded "class-wide liability," including liability to the members of the three plaintiff classes.

Accordingly, the waiver-of-appeal provision of Article 19 does not bar the Department's appeal, which we

now consider.

                                                       B.

         As a general matter, the rules we use to interpret a consent decree are the same ones we use to

interpret a contract—since a consent decree is a form of contract. See Jacksonville Branch, NAACP v. Duval

County Sch. Bd., 

, 1578 (11th Cir.1992). What a contract provision means, or whether it is

ambiguous, are questions of law, which we review de novo. See Equitable Life Assurance Soc'y v. Sublett

(In re Sublett), 

, 1384 (11th Cir.1990). If the contract provision is ambiguous and the trial

  15
    Implicit in the decree's provisions regarding the litigation of the individual claims for relief—specifically,
Article 20, which we quote in the text supra—is the notion that the court would properly apply the law. In
theory, Article 19's waiver provision would bar review of any error the court might make in processing those
claims, no matter how fundamental the error might be.

                                                       12
court must look to extrinsic evidence to determine the parties' intent, we review its findings of fact (or those

of the jury) as to the parties' intent for clear error. United Benefit Life Ins. Co. v. United States Life Ins. Co.,

, 1065 (11th Cir.1994). With these principles in mind, we consider the Department's argument

that Consent Decree I did not establish the liability the district court found.

          The district court did not articulate its reasons for concluding that the consent decree rendered the

Department liable for the relief the members of the three plaintiff classes were seeking until after the

Department took this appeal on April 24, 1997. In fact, we suspended the briefing schedule for this appeal

pending the district court's issuance of an order explaining the basis for its finding of liability—in particular,

the basis for awarding the merit employees back pay relief without entertaining proof of their respective

claims.

          On March 18, 1998, the district court issued its order. Reynolds v. Alabama Dep't of Transp., 

(M.D.Ala.1998). In that order, the court stated that "neither Consent Decree I, nor the August

28 report, expressly indicated whether class-wide discrimination ha[d] been established." In fact, the most

plausible reading of the consent decree "at first blush" was that "the issue [of liability] had been left open,

with the plaintiffs and the defendants simply to litigate the issue upon resumption of the trial." 

          Drawing on a phrase from the Preamble of the consent decree—that the decree constituted the "final

and complete resolution of all class issues"—the court nonetheless concluded that "both the plaintiffs and the

[Department] agree[d] that the decree should not be read as silent on the liability issue." 

original). The liability issue had been settled; the plaintiffs had made out a case for class-wide liability, and

the Department had consented to the entry of a decree abolishing the Department's allegedly discriminatory

employment and promotion policies.16 In the court's view, the Department's agreement that the plaintiffs did

  16
     The court read the Department's position on post-consent decree liability as this: all that remained to be
litigated were the claims of the individual class members for instatement or promotion, and back pay. To
prevail on their claims, the class members would have to satisfy the McDonnell Douglas test by
demonstrating that (1) they belonged to a protected class; (2) they were subject to an adverse job decision;
(3) the employer treated similarly situated employees outside their classification more favorably (i.e. a white
was hired or promoted instead); and (4) they were qualified to do the job. See McDonnell Douglas Corp.

                                                        13
not have to offer further proof of discrimination in order to obtain the class-wide relief the decree provided

constituted an admission that the Department had discriminated against the plaintiff classes as alleged in the

complaint. The court expressed this point in its March 18, 1998 order: the Department's agreement to the

relief afforded by the consent decree "[could not] be logically interpreted as anything other than as an

extensive effort to redress existing class-wide discrimination." 

             This admission, of course, did not answer the question whether the Department had conceded that

it was liable to the individual class members for the relief they were seeking—instatement or promotion

and/or back pay. To answer that question the court took the following approach. First, it concluded that the

phrase "final and complete resolution of all class issues" in the decree's Preamble is ambiguous. Having

drawn that conclusion, the court turned to several pieces of extrinsic evidence to resolve the ambiguity. They

included: (1) a paragraph in the notice sent to the plaintiff class members (prior to the entry of Consent

Decree I) which indicated that the case would advance to the "remedies" stage if the decree were approved

and entered;17 (2) statements made by the Department's counsel after the trial resumed in September 1997

(five months after the court entered the $34 million judgment for back pay); (3) the presence of an express

disclaimer of liability in the consent decrees the parties proposed in 1988 and 1991 (which the court rejected),

and lack of an express disclaimer of liability in Consent Decree I; and (4) plaintiffs' counsel's representation

that, while negotiating the terms of Consent Decree I, the Department's attorneys conceded that the

Department had discriminated against the plaintiff classes as alleged in the complaint.18


v. Green, 

, 802, 

, 1824, 

(1973).
   17
     A subsequent paragraph in the notice indicated that the remedies stage would involve separate trials of
the individual class members' possessive claims for relief:

                    The proposed Consent Decree, by itself, does not guarantee that any particular member of
                    the class will be entitled to back pay or front pay, but it also does not limit the amount of
                    such relief to which any class member may be entitled in the future proceedings to be held
                    on that phase of the case.
        18
      Plaintiffs' counsel made these representations to the district court on several occasions—in their
pleadings, in their memoranda filed in support of their pleadings, and in the well of the courtroom. They

                                                        14
        After considering these pieces of evidence, the court found that the phrase "final and complete

resolution of all class issues" meant that the Department's hiring and promotion policies, as implemented, had

discriminated against all three plaintiff classes as alleged in the complaint, and warranted not only the

prospective injunctive relief the consent decree provided, but the relief the individual class members were

claiming as well. The court went on to find that even if this evidence did not establish such global liability,

the August 28 Report rendered the Department liable to the merit employee class for back pay because, in

that report, the Department agreed to a framework for a back pay formula.19 In effect, such agreement

constituted a settlement of the back pay claims of the merit class members.

        We cannot accept the district court's conclusions that the consent decree established that the

Department had discriminated against the members of the three plaintiff classes and, therefore, was liable for

the class-wide prospective relief the decree granted and relief the individual class members were seeking.

Finally, we cannot accept the contention that the August 28 Report rendered the Department liable for the

back pay the court awarded the merit employees on April 16, 1997. We state our reasons below.

                                                       1.

         The district court concluded that, by inserting the phrase "final and complete resolution of all class

issues" into the Preamble of the consent decree, the parties intended that "the decree should not be read as

silent on the liability issue." Such an intent does not logically follow from the quoted phrase. What the

phrase obviously means is that the consent decree finally and completely resolved the plaintiffs' claims for

prospective class-wide injunctive relief abolishing the Department's allegedly discriminatory practices. The

Department's acknowledgment that, upon the entry of the decree, it became unnecessary for the plaintiffs to



made the same representations to this panel, during oral argument, and in a post-argument submission the
panel requested.
  19
    The court concluded that, in agreeing to the framework for a formula, the Department conceded liability;
thus, "even in the absence of a class-wide liability finding under the consent decree, the court would still find
class-wide liability under the formula." 

. Presumably, the pieces of evidence
cited in (1)-(4) above buttressed the court's finding.

                                                       15
offer further proof in support of their claims for class-wide relief—which the court treated as an admission

by the Department that it had engaged in the discriminatory practices alleged in the complaint—was an

obvious consequence of the parties' settlement of those claims. A defendant who consents to the entry of an

injunction (or other form of judgment) does not necessarily agree that it has committed the wrongful acts

alleged in the plaintiff's complaint. Common practice is that defendants who consent to the entry of

injunctive orders do so without admitting liability. Cf. Dennis v. County of Fairfax, 

, 154 (4th

Cir.1995) (stating that, although parties agree to be bound to the remedies in consent judgments, "in electing

such a remedy, they generally admit nothing in the way of guilt."). If every consent decree constituted an

admission of liability, defendants would have little incentive to settle the case.

                                                       2.

        In addition to concluding that the Preamble phrase "final and complete resolution of all class issues"

constituted an admission by the Department that it had engaged in racially discriminatory employment

practices (thus warranting the class-wide injunctive relief provided by the consent decree), the district court

also held that the phrase meant that the Department had discriminated against the individual class members.

Thus, all the members of the merit-employee class (the recipients of the money judgment now before us) had

to show in order to recover was the difference between what they and similarly situated white employees were

paid. This holding is flatly inconsistent with the parties' agreement that, absent settlement, each class member

(including the members of the merit-employee class) would have to establish entitlement to relief in

post-decree proceedings before the court.

        The Preamble phrase is repeated practically verbatim in Article 19, which states that the class-wide

relief provided by the decree "constitutes full and complete relief on all claims." Both the Preamble and

Article 19 are "subject to the provisions of this Decree providing for further proceedings, including but not

limited to Article[ ] 20." Article 20 states that "[f]urther negotiations and proceedings are required to resolve

the claims for monetary and non-monetary remedies for individual members of the class[es] ..., provided



                                                       16
however, that this Decree does not in and of itself entitled [sic] any such class member to such remedies "

(emphasis added). At the fairness hearing held to consider Consent Decree I, the court emphasized this point

in a colloquy with plaintiffs' counsel regarding the claim of Wayne Leonard, a member of the merit-employee

class:

         THE     COURT: [The consent decree] does not require any back pay?

         [PLAINTIFF'S COUNSEL]: No, it only requires that Mr. Leonard's back pay be calculated in stage
                      two of this case, under article—

         THE     COURT: That assumes he prevails in Stage 2.

         [PLAINTIFF'S COUNSEL]: Yes, sir. No—yes, it assumes that the parties either agree on or that
                      he's been a victim of some racially discriminatory practice or the Court finds that,
                      yes sir.

                 ....

         [PLAINTIFF'S COUNSEL]: ... [I]t is my belief that the decree affords [Mr. Leonard] all of the
                      relief that he would be entitled to receive except the issue of back pay which would
                      be reached in the next phase of the case.

         THE     COURT: What you're saying in effect is that the-any claim he may have to individual relief
                 is still available to him?

         [PLAINTIFF'S COUNSEL]: Yes.

         THE     COURT: If he can prove his case.

         [PLAINTIFF'S COUNSEL]: Yes, completely.

         THE     COURT: Well, this decree in no way cuts off his right to come forward with evidence of
                 racial discrimination. If he has it, he will prevail, if he doesn't, he'll lose. That option is still
                 open.

         [PLAINTIFF'S COUNSEL]: Yes. In Stage 2, he will be given the opportunity to show that he's
                      been an individual victim.

Plaintiff's counsel thus represented to the court in these statements that, after entry of the consent decree, the

individual class members had the burden of proving their respective claims. Given this representation, the

district court's statements to counsel, and the provision of Article 20 cited above, we reject the notion that the

Preamble phrase rendered the Department liable for the relief the individual class members are seeking.


                                                        17
                                                       3.

        Notwithstanding these provisions of Articles 19 and 20, and its statement to counsel concerning what

Wayne Leonard would have to prove to prevail on his claim, the district court held that several pieces of

extrinsic evidence showed that the phrase "final and complete resolution of all class issues" indicated that the

Department had conceded liability to the individual class members for the relief they were seeking. The court

considered this extrinsic evidence because it viewed the phrase as ambiguous. This evidence included (1)

the statement in the class notice that the next stage of the case would be the "remedies" stage; (2) statements

the Department's counsel made after the trial resumed; (3) the absence in Consent Decree I of the express

disclaimer the parties had inserted in earlier settlement proposals; and (4) plaintiffs' counsel's representation

that the Department's attorneys had admitted liability during the parties' negotiations over the terms of

Consent Decree I.

        We assume for sake of discussion that the phrase "final and complete resolution of all class issues"

is ambiguous, and that the court was justified in attempting to resolve that ambiguity. To resolve the

ambiguity, the court was required to employ the principles governing the interpretation of contracts.

         As in the case of an ambiguous contract provision, if a provision of a consent decree is ambiguous,

the court looks to extrinsic evidence to determine the parties' intent. Cf. United States v. Insurance Co. of N.

Am. 

, 1042 (D.C.Cir.1997) (ambiguous contract). The best evidence of the parties' intent is

not what the parties or their lawyers may have said to one another—as to the meaning of the phrase—long

after the consent decree is entered. First and foremost, the court should look to what the parties or their

lawyers said to one another in fashioning the decree. See Lanier Prof'l Servs., Inc. v. Ricci, 

, 4 (1st

Cir.1999) (noting that contract negotiations between the parties is at the top of the "descending order of

importance" of admissible extrinsic evidence). Next, to determine the meaning of a provision, the court might

look to a prior course of performance, a prior course of dealing, or usage of trade.20 See Restatement (Second)

   20
    Neither this type of evidence nor any of the tools indicated in the following text are applicable in the
context of the instant case.

                                                       18
of Contracts § 202(5) (1981). If none of these tools resolve the ambiguity, and the meaning of the provision

is in equipoise, the court may utilize accepted presumptions, including resolving the ambiguity against the

party that drafted the instrument, cf. Anderson v. Auto-Owners Ins. Co., 

, 769 (11th Cir.1999)

(applying Florida law), or, in the case of a contract of adhesion, resolving the ambiguity in favor of the

adhering party, cf. Wheelock v. Sport Kites, Inc., 

, 736 n. 6 (D.Haw.1993) (applying Hawaii

law), or in favor of a party without sophisticated legal assistance, cf. Edwin K. Williams & Co., Inc. v. Edwin

K. Williams & Co.-East, 

, 423 (C.D.Cal.1974) (applying California law), rev'd in part on

other grounds, 

(9th Cir.1976). See generally 17A Am.Jur.2d Contracts §§ 346-47 (1991).

If none of these means of discerning the parties' intent resolves the ambiguity, the court has no choice "but

to leave the parties where it found them." 4 Williston on Contracts § 627 (3d ed.1961) (citing the classic

English case of the two "Peerless" ships, Raffles v. Wichelhaus, 2 Hurlst & Colt. (Eng) 906).

         Each of these methods of discerning intent involves an examination of circumstances antecedent to

the formation of the contract or consent decree. Self-serving statements made after the contract is formed—or

the consent decree is entered—as to what a given provision means are verboten. Accordingly, the district

court should not have considered item (2), the statements the Department's attorneys made after the trial

resumed (and several months after the consent decree was entered).21 We turn, then, to items (1), (3), and (4).

         The district court found significant, in item (1), that the class notice mentioned "remedies" as the next

stage of the litigation once the court entered the decree. In other words, the court concluded that the

Department, by agreeing to the class notice, was telling each class member that, once the court entered the

decree, the member would be entitled to an individual remedy (instatement, promotion and/or back pay)

without having to prove that he or she was a victim of racial discrimination. The reference to "remedies,"



    21
      The principal statements (by Department counsel) that the district court cited were that, in order to
recover, each class member would have to establish a prima facie case of liability as required by the
McDonnell Douglas test, 

, n. 88, and that the class member could not rely on
the disparate impact theory of liability, 

Neither of these statements sheds light on the meaning
of the phrase "final and complete resolution of all class issues."

                                                       19
however, when read in conjunction with the Article 20 provision quoted above, shows only that the parties

contemplated "further proceedings." In fact, the class notice, paraphrasing Article 20, stated that Consent

Decree I, by itself, "does not guarantee that any particular member of the class will be entitled to back pay."22

Item (1) thus did nothing to resolve the ambiguity the district court found.

           Item (3) is similarly unavailing. That earlier settlement proposals contained an express disclaimer

of liability while Consent Decree I is silent on the point does not yield permissible inferences that the

Department admitted that its employment and promotion practices were discriminatory and that it had actually

discriminated against every member of the plaintiff classes because of race.23 The latter inference is

impermissible because Article 20 explicitly informed the class members that no individual relief would be

forthcoming absent proof that racial discrimination motivated the Department's employment or promotion

decision.     The former inference is impermissible because an admission of liability concerning the

Department's employment and promotion practices was unnecessary given the Department's agreement to

Consent Decree I's class-wide relief.

           This brings us to item (4), plaintiffs' counsel's representation that, while negotiating the terms of

Consent Decree I, the Department's attorneys admitted that the Department had discriminated against the

members of the plaintiff classes on account of their race and thus were liable for the relief being sought.

            Typically, as we have noted, what the parties or their lawyers say while negotiating the terms of a

contract may be highly probative of the meaning of an ambiguous provision in their agreement. Federal Rule

of Evidence 408, however, provides an exception for statements relating to liability made during settlement

talks. Rule 408 states, in pertinent part:

           Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or
           promising to accept, a valuable consideration in compromising or attempting to compromise a claim
           which was disputed as to either validity or amount, is not admissible to prove liability for or


   22
        See supra note 17.
  23
     We use the phrase "permissible inferences" to indicate probable, as opposed to possible, inferences; that
is, inferences established by a preponderance of the evidence. Almost any inference is possible.

                                                       20
         invalidity of the claim or its amount. Evidence of conduct or statements made in compromise
         negotiations is likewise not admissible.24

Absent this exception, the district court acted properly when it considered the statements the Department's

attorneys made to plaintiffs' counsel as to the meaning of the phrase "final and complete resolution of all of

the class issues." But because of the 408 exception, plaintiffs' counsel's representation of what the

Department's attorneys said in the course of negotiating the terms of Consent Decree I about the legality of

the Department's employment and promotion practices was inadmissible, and the court should not have

considered it.25

         In sum, even if the phrase at issue is considered ambiguous, the district court had no admissible

evidence before it with which to resolve the ambiguity. Accordingly, the court should have left the parties

where it found them, with the issue of the Department's liability—as to the classes or the individual class

members—unresolved. This having been said, we return to our earlier holding; that is, that the phrase "final

and complete resolution of all class issues" is unambiguous.

                                                      4.

         Putting aside the question whether the "final and complete resolution" phrase is ambiguous, the

district court concluded that the members of the merit-employee class were entitled to back pay because the

Department effectively admitted liability for such pay by agreeing, in the August 28 Report, to a formula for

determining back pay. In essence, the court found that, by jointly filing the August 28 Report with the court,

the Department and the plaintiffs settled the back pay issue for the merit-employee class.




    24
      In other words, while normally a court may use as evidence statements made during negotiations to
interpret ambiguous gaps in consent decrees, Rule 408 precludes such evidence to "prove liability for or
invalidity of [a] claim or its amount." This is entirely consistent with the common law rule that judgment may
only be entered when an admission of liability by a defendant is "distinct, unequivocal, and unconditional."
49 C.J.S. Judgments § 193(a) (1997). See also Backar v. Western States Producing Co., 

, 880
n. 4 (5th Cir.1977) (holding that judicial admissions must be "deliberate, clear, and unequivocal").
   25
    The obvious teaching of Rule 408 is that parties negotiating consent decrees should not use ambiguous
language when drafting provisions relating to the issue of liability.

                                                     21
        The court's conclusion is erroneous, and we accordingly disregard it, for two reasons. First, nothing

in the report could reasonably be construed as the Department's admission of liability for the back pay the

court subsequently awarded. Second, in submitting the report, the Department was simply following the

court's command—that the parties negotiate a "formula" for determining back pay. As it turned out, the

parties were able to agree on a framework for a formula; they disagreed, though, as to precisely what the

formula should be. Because the court had nothing before it on which to base its holding of liability on the

back pay issue, we need not decide whether the Department's concession in the August 28 Report if, indeed,

that is what it was—is inadmissible under Rule 408, because it related not only to liability but also damages.

There can be little doubt that whatever the Department did was done in a court-ordered effort to arrive at a

compromise on either or both of those issues.

                                                      III.

        For the reasons we have given, we vacate the district court's determination that Consent Decree I

operated as an admission, and therefore an adjudication, of the Department's liability as to both the class

claims for prospective injunctive relief and the class member's claims for individual relief. We also vacate

the judgment for back pay the court awarded the members of the merit-employee class. Finally, we remand

the case for further proceedings.

        With the exception of the prospective injunctive relief Consent Decree I has provided, the paths the

parties have followed in litigating this case have led to nothing but the expenditure of time and considerable

resources. For the most part, counsel have simply engaged in shadow boxing—all at the expense of the

taxpayers of the State of Alabama and other litigants whose cases are awaiting the district court's attention.

We therefore consider it necessary to explain the present posture of this case and what remains to be litigated.

        First, the prospective injunctive relief provided by Consent Decree I remains undisturbed. Second,

that decree did not adjudicate the Department guilty of anything.26 Third, as Article 20 of the decree states,

   26
     The district court, in its order of March 18, 1998 (explaining the court's ruling that Consent Decree I
established Department liability for the unlawful conduct alleged in the complaint), held that the post-decree

                                                      22
in order to obtain individual relief, the members of the three plaintiff classes must prove that the Department

discriminated against them on account of their race when it failed to hire or promote them (to a higher

position, in the case of the merit employees, or to merit status, in the case of the non-merit employees). A

member will establish a prima facie case of racial discrimination if he or she satisfies the McDonnell Douglas

test. If it appears that, as a matter of policy or practice, the Department's hiring or promotion decisions were

based on race, a class member may rely on such fact in countering the Department's lawful excuse for not

hiring or promoting the member.27


stage was controlled by Pettway v. American Cast Iron Pipe Co., 

(5th Cir.1974) (Pettway III
). This is not a Pettway case. In Pettway, the district court, following a trial on the allegations of the plaintiff
classes (black job applicants and employees) that the employer's hiring and promotion decisions were being
made on the basis of race, held in favor of the plaintiffs. The case then moved to the remedies stage, and the
question before the former Fifth Circuit dealt with the extent to which the class members could use the district
court's finding of class-wide discrimination in proving their individual claims of discrimination. Here,
because the parties settled the plaintiffs' claims for prospective relief (concerning the hiring and promotion
criteria the Department should use), there is no adjudication that the Department discriminated against the
plaintiff classes on the basis of race in deciding whether to hire or promote.
    27
       Whether the Department followed a discriminatory policy in deciding whether to hire or promote a
person is an issue that may be susceptible to resolution in a consolidated proceeding involving representative
members of each of the three plaintiff classes, so that the findings of fact yielded by such proceeding would
operate as collateral estoppel in the litigation of the individual class members' claims under the framework
provided by McDonnell Douglas. See Gulf Tampa Drydock Co. v. Germanischer Lloyd, 

, 877
n. 4 (5th Cir.1981) (stating that collateral estoppel "would 'preclude a party from relitigating an issue decided
against him in a prior action, even if the party asserting the estoppel was a stranger to the prior action ...
unless it appears that the party against whom the estoppel is asserted [did not have] a full and fair opportunity
to litigate the issue in the prior proceeding and that application of the doctrine [would] result in an injustice.'
") (quoting Rachal v. Hill, 

, 62 (5th Cir.1970)).

                  We emphasize that a finding, in such consolidated proceeding, that the Department
         implemented a racially discriminatory policy, would not necessarily create an inference that a given
         class member was denied employment or a promotion because of race. That is, a finding that the
         employer has been discriminating against job applicants and employees does not, standing alone,
         entitle a person to relief; other facts must be present—including that the person seeking relief was
         qualified for the position in question—if that person is to carry the day. In Pettway v. American Cast
         Iron Pipe Co., 

(5th Cir.1974) (Pettway III ), which we discuss in the previous footnote,
         the district court found, after a full trial on the merits, that the defendant essentially froze all of its
         black employees in less desirable positions by using testing requirements unrelated to business
         necessity. See 

The former Fifth Circuit held that those facts supported a "reasonable
         inference" that an individual member was the victim of discrimination. 

                 In the instant case, it is undisputed that the Department hired thousands of blacks; these

                                                        23
SO ORDERED.




black employees, in fact, make up the merit and non-merit classes of employees. It is also clear that
the Department promoted some members of the merit-employee class and gave some members of the
non-merit employee class merit status. In light of this, there can be no inference that the
Department's policies and practices injured every member of the plaintiff classes by discriminating
against him or her on account of race. It is for this reason that, in litigating an individual class
member's case, the establishment of the facts that give rise to a McDonnell Douglas presumption of
discrimination is important.

                                            24