concurring and dissenting:
I would decide the issue as to whether “front pay” is a permissible remedy under the Act as this is the basic issue presented on appeal. Front pay was awarded by the trial court, and I would hold that this was not a remedy contemplated by the ADEA. Kolb v. Goldring, Inc., 694 F.2d 869 (1st Cir.).
It must be recognized that the equitable jurisdiction of a federal court should be flexibly and broadly construed to afford complete relief in light of the statutory purposes. Mitchell v. DeMario Jewelry, 361 U.S. 288, 80 S.Ct. 332, 4 L.Ed.2d 323. However, such equitable powers cannot be used to expand or override the limited legal remedies available under the ADEA. The Congress very clearly distinguishes between the legal and equitable remedies available under the ADEA. See Lorillard v. Pons, 434 U.S. 575, 583, 98 S.Ct. 866, 871, 55 L.Ed.2d 40. Allowing front pay runs against the intent of Congress in limiting legal remedies to “unpaid wages and unpaid overtime compensation.” The court should not use its equitable powers to frustrate the intent of the statute. See Vazquez v. Eastern Air Lines, Inc., 579 F.2d 107 (1st Cir.).
The legal remedies under the ADEA consist of “unpaid minimum wages and unpaid overtime compensation,” thus “items of pecuniary or economic loss such as wages, fringe, and other job-related benefits.” H.R.Rep. No. 950, 95th Cong., 2d Sess., reprinted in [1978] U.S.Code Cong. & Ad. News 504, 535.
Liquidated damages may be recovered when the violation is willful. Liquidated damages are designed to compensate the plaintiff for non-pecuniary losses or highly speculative pecuniary losses. Liquidated damages are a significant factor in this analysis of damages.
The front pay damages are too uncertain to be considered “lost wages” or “lost earned benefits.” The possibilities of promotions, legitimate demotions, terminations, or death inject too many unknowns. In these circumstances the award of front pay is too speculative to be considered pecuniary damages under the statute. The enforcement section of the ADEA was specifically constructed to limit the type of available damages. As mentioned, although the statute grants broad equitable powers those powers cannot be used to expand the legal remedies specifically detailed in the statute.
It should be noted that this court has allowed “front pay” damages in some Title VII discrimination cases. See United States v. Lee Way Motor Freight, Inc., 625 F.2d 918 (10th Cir.), and Fitzgerald v. Sirloin Stockade, Inc., 624 F.2d 945 (10th Cir.). Title VII is not the designated statutory model for damages under the ADEA. In light of the specific language of the ADEA and the FLSA it is not appropriate to analogize to Title VII for determination of damages. For a discussion of the difference between the ADEA and the FLSA see Lorillard v. Pons, 434 U.S. 575, 584, 98 S.Ct. 866, 872, 55 L.Ed.2d 40.
I would not decide, as does the majority, that it was error to award front pay because reinstatement is the “preferred remedy.” I do not agree that reinstatement should be ordered “whenever it is an appropriate remedy,” as the majority states, if this means that such a remedy has some priority or is preferred, or there is some presumption. The Act does not create any such priorities and the matter is best left to the trial court with the usual standard of review. The trial courts are in a better position to decide whether reinstatement will accomplish the purposes of the Act. If there is a choice between “appropriate” remedies the trial court should make it. We do not know the status of the parties in the case before us at this late date nor their relationship with other employees and superiors.
I would thus decide the front pay issue presented to us on the law and the facts *1482and not decide that something else is preferred.
As to attorney fees, the analysis and the proof would seem to be controlled by the Supreme Court’s decision in Blum v. Sten-son, — U.S. -, 104 S.Ct. 1541, 79 L.Ed.2d 891, which would seem to restrict a multiplication of factors to be considered.