UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1870
WALTER F. BIGGINS,
Plaintiff, Appellant,
v.
THE HAZEN PAPER COMPANY, ROBERT HAZEN and THOMAS N. HAZEN,
Defendants, Appellees.
No. 96-1871
WALTER F. BIGGINS,
Plaintiff, Appellee,
v.
THE HAZEN PAPER COMPANY, ROBERT HAZEN and THOMAS N. HAZEN,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Boudin, Circuit Judge
Campbell and Bownes, Senior Circuit Judges.
Maurice
M. Cahillane with whom John J. Egan and Egan, Flanagan and
Cohen, P.C. were on briefs for plaintiff.
Robert B. Gordon with whom John H. Mason and Ropes & Gray were on
briefs for defendants.
April 18, 1997
BOUDIN,
Circuit
Judge
.
This Flying Dutchman of a case has
returned to us after a first trial, a panel decision, Supreme
Court review, a further panel decision, an en banc order
directing a further trial on one count, and then a second
trial, followed now by the instant appeal. We hope that this
opinion will bring the matter to a close, for a decade of
litigation about a single, narrow event is enough.
I.
The case began in February 1988 when Walter Biggins
brought suit in district court against his former employer,
Hazen
Paper
Company, and its two principals, Robert Hazen, the
president, and his cousin, Thomas Hazen, the treasurer. The
company
is
a
small but successful maker of specialty papers of
various
kinds. Biggins joined the company in 1977, at age 52,
and
served
as its technical director for about nine years. He
had no written employment contract.
During his employ, Biggins developed a superior water-
based paper coating that increased the company's sales. He
sought a larger salary, was given a small increase, but
remained unsatisfied and sought a further increase. Biggins
later claimed that in 1984 Thomas Hazen had promised him
company stock instead of a further raise; Thomas Hazen denied
making any such promise.
Biggins, during his employ by the company, was also
involved
in
two different ventures with his sons. When Thomas
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Hazen learned of this, he sought a confidentiality agreement
from Biggins, limiting his outside activities during, and for
a
limited
time
after,
his employment with the company. Biggins
refused to sign, except in exchange for the stock he said had
been promised. He was discharged in June 1986--a few weeks
before his rights under the company pension plan would
otherwise have vested.
Biggins then sued the company and the Hazen cousins
(collectively "the Hazens") in an eight-count complaint. The
first two counts charged the Hazens with age discrimination
under the ADEA and interference with pension rights under
ERISA.1 The remaining claims, of limited importance to this
appeal (except for the contract claim), were for wrongful
deprivation
of
property,
wrongful discharge, fraud, conversion,
breach of contract and violation of the Massachusetts Civil
Rights Act, Mass. Gen. Laws ch. 12, SS 11H and 11I.
In
substance, Biggins claimed under the first two counts,
respectively,
that he had been fired on account of his age--he
was
replaced
with a younger man--and to prevent the vesting of
his
pension.
In
additional counts, he also sought the value of
the
stock
allegedly
promised by Thomas Hazen and the benefit of
the
paper-coating formula and method, which Biggins claimed to
own.
The
gravamen
of
the remaining counts was that he had been
1ADEA
is
the
Age Discrimination in Employment Act, 29
U.S.C. S 621, et seq. and ERISA is the Employee Retirement
Income Security Act, 29 U.S.C. S 1001 et seq.
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wrongfully
discharged in violation of various rights protected
under state law.
In its verdict, the jury largely accepted Biggins'
position, apart from his claim to ownership of the formula,
which it rejected. On the ADEA claim, the jury awarded him
around $560,000; the ERISA award was $100,000, later adjusted
downward to $93,000 on appeal. The fraud award for the
allegedly
promised stock was about $315,000. Biggins was also
awarded just under $267,000 for discharge in violation of
contract. On two other counts, only nominal damages were
awarded.
Because the jury found that the age discrimination was
willful, the award on the ADEA count would normally have been
doubled,
see
29
U.S.C.
S
626(b), but the district court granted
judgment n.o.v. in favor of the Hazens on the issue of
willfulness.
In other respects, the district court upheld the
jury verdict against various post-trial motions. We reserve
for later discussion the issue of attorney's fees, which the
district court also addressed.
On appeal, a panel of this court affirmed the district
court
with
several
exceptions. Biggins v. Hazen Paper Co., 953
F.2d
1405
(1st Cir. 1992). Two are pertinent here: first, the
panel found that the evidence on the ADEA count supported
damages
(before
doubling) of only about $420,000, but the panel
also
reinstated
the
willfulness finding and doubled the reduced
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award to about $840,000. Id. at 1416. Second, the panel set
aside the contract claim verdict for lack of sufficient
evidence to establish a contract. Id. at 1421-24.
The
Supreme
Court then granted certiorari and vacated the
panel
decision on the ADEA count. Hazen Paper Co. v. Biggins,
507 U.S. 604 (1993). The Court held that the panel had been
mistaken in relying upon the ERISA violation to supply the
wrongful motive for the ADEA violation; it said that pensions
might
often
correlate with age but a firing to prevent pension
vesting
did
not itself amount to a firing based upon age. Id.
at 611-13.
The Supreme Court remanded the case to the panel to
reconsider
whether the jury had sufficient evidence to find an
ADEA violation once the ERISA violation was put to one side.
507 U.S. at 614. On remand, the original panel reconsidered
the
ADEA
claim. In a second opinion in October 1993, it ruled
that
even
disregarding the ERISA violation, enough evidence of
age discrimination remained to sustain the ADEA verdict,
reduced and then doubled as before.
The
Hazens
then petitioned for rehearing en banc, arguing
inter
alia
that the panel had misconstrued a pertinent Supreme
Court decision issued shortly after its remand in this case,
Hicks v. St. Mary's Honor Center, 113 S. Ct. 2742 (1993).
After soliciting memoranda, the en banc court in June 1994
ordered a new trial on the ADEA count, concluding that the
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verdict
on
this
count
had been contaminated by the same mistake
that had led the Supreme Court to vacate the original panel
decision.
Biggins unsuccessfully sought rehearing and then
petitioned the Supreme Court for review, arguing that the en
banc court had no power to order a new trial and that the
decision to do so violated the Supreme Court's mandate. The
Supreme
Court
denied
cert
iorari. In re Biggins, 115 S. Ct. 614
(1994).
In
April 1996, the district court held a new two-week
jury
trial
on the ADEA count. The jury returned a verdict for
the Hazens.
After
various
post-trial
motions, Biggins filed the appeal
now
before
us; a cross-appeal was filed by the Hazens relating
only
to
attorney's fees. We begin with the attacks by Biggins
upon the en banc court's remand for a new trial, and then
address his claims of error in the second trial. Attorney's
fees
issues,
raised
by
the Hazens' cross-appeal, are considered
at the close.
II.
Biggins' challenge to the en banc order requiring a new
trial
is,
strictly
speaking, addressed to the wrong bench. The
arguments that the remand was unlawful or unsound were
presented to the en banc court in a petition for rehearing,
rejected
there,
and
then
presented in a petition for certiorari
which the Supreme Court denied. It is not open to the panel,
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in
the
normal
case,
to
reconsider issues decided earlier in the
same
case
by
the en banc court. See United States v. DeJesus,
752 F.2d 640, 642-43 (1st Cir. 1985).
Nevertheless, it may be helpful to explain why Biggins'
arguments relating to authority of the en banc court are
mistaken.
His
constitutional argument amounts to this: first,
the Seventh Amendment prohibits any federal court from
reexamining jury findings "otherwise . . . than according to
the
rules
of
common law"; and second, in Biggins' view, the en
banc court's new trial order overturned the jury findings of
age discrimination--without any identified legal error
committed by the district court.
This
last
qualification
is critical. Where there is legal
error, appeals courts often overturn jury verdicts, and order
new
trials
or even dismissal. This occurs, for example, where
evidence
has
been
wrongly admitted, or where an instruction was
mistaken, or even where the evidence did not permit a
reasonable jury to reach the verdict rendered. See 9A Wright
&
Miller,
Fed
eral Practice and Procedure S 2540 (2d ed. 1995);
11
Wright,
Miller
&
Kane, Federal Practice and Procedure S 2805
(2d ed. 1995).
The
en
banc
court did find prejudicial legal error in the
conduct
of
the
original
trial. The court's appraisal, as noted
earlier, was that the jury was potentially misled by the same
error that the Supreme Court identified in the first panel
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decision, namely, a belief that the wrongful motive (pension
interference) that gave rise to an ERISA violation by itself
constituted
wrongful motive under ADEA. Whether or not the en
banc
court's
assessment of prejudice was invincibly supported,
the
en
banc
court was free under the Seventh Amendment to make
that judgment.2
Biggins'
other challenge to the en banc court's authority
is also wide of the mark. He argues that when the Supreme
Court
remanded the case to this court, it precluded this court
from taking any action other than an up-or-down vote as to
whether enough evidence remained to support the ADEA verdict.
Therefore, says Biggins, the en banc court has violated the
Supreme Court's mandate.
Of course, a higher court's mandate must be respected,
Sprague v. Ticonic Nat'l Bank, 307 U.S. 161, 168 (1939), but
the issue here is the scope of the mandate. Where as here a
judgment is vacated and the matter remanded, Hazen Paper Co.,
507 U.S. at 617, the lower court must undo the judgment just
vacated and cannot normally revisit a legal issue actually
decided
by
the reviewing court. But after that, the situation
is less rigid than Biggins assumes.
2The concern did not come out of the blue. Biggins
had relied in his complaint upon the deprivation of pension
benefits
as
an act of age discrimination and had made the same
argument on appeal.
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On remand, courts are often confronted with issues that
were never considered by the remanding court. And
the mandate of an appellate court
forecloses the lower court from reconsidering
matters determined in the appellate court, it
`leaves
to
the [lower] court any issue not expressly
or
impliedly
disposed of on appeal.' Stevens v. F/V
Bonnie Doon, 731 F.2d 1433, 1435 (9th Cir. 1984).
Nguyen v. United States, 792 F.2d 1500, 1502 (9th Cir. 1986).
ing, mandates require respect for what the higher
although
Broadly
speak
court decided, not for what it did not decide.3
Here, the en banc court concluded that the contamination
of the ADEA verdict required a new trial, even assuming that
the remaining evidence might otherwise support a verdict for
Biggins on that claim. Whether this judgment was right or
wrong--and we cannot revisit it--the contamination issue had
certainly not been addressed in the Supreme Court's opinion.
And when Biggins made his mandate argument on certiorari, the
Supreme Court denied the petition.
III.
The
next
claim of error presents the most difficult issue
in the case. Prior to the start of the second trial, motions
in
limine
were filed by both sides. One such motion, filed by
Biggins,
invoked collateral estoppel and asked that the Hazens
3See also Rogers v. Hill, 289 U.S. 582, 587-88
(1933)(absent
a contrary direction, a district court on remand
can
permit
the
plaintiff
to 'file additional pleadings, vary or
expand the issues . . . ."); Sierra Club v. Penfold, 857 F.2d
1307, 1311-12 (9th Cir. 1988); Alter Fin Corp. v. Citizens &
Southern Int'l Bank, 817 F.2d 349 (5th Cir. 1987).
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be barred from relitigating issues decided in the first trial
on counts other than the ADEA claim. Specifically, Biggins
asked that the Hazens be precluded at trial from showing or
arguing (and we quote):
-- that
the
plaintiff was not fired, but left
work voluntarily,
-- and/or that the plaintiff was fired
because he was a disloyal employee,
-- and/or that the plaintiff's disloyalty
created a need for the defendants to
dictate that he sign a restrictive
agreement.
In a second in limine motion, Biggins asked that the
Hazens also be precluded from showing or arguing that Biggins
was seeking additional compensation when, in Spring 1986, he
conditioned his signing of the confidentiality agreement on
being given stock. Biggins claimed that the first trial had
determined
that
he
had
been promised the stock in 1984 and that
the
company
had been found liable for fraud in withholding the
stock.
The district judge rejected both in limine motions after
an
oral
hearing, expressing some doubt but concluding that the
en
banc
court had intended a full new trial on the ADEA count.
The
judge
said (and Biggins readily agreed) that it could make
the new trial an empty gesture if the jury were told that
Biggins
was
an
innocent
victim who had been fired by the Hazens
as part of an effort to defraud Biggins. The court did
instruct the jury that Biggins had been fired and had not
resigned.
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Collateral estoppel, now often called issue preclusion,
prevents a party from relitigating at a second trial issues
determined between the same parties by an earlier final
judgment--sub
ject to various limitations. Lundborg v. Phoenix
Leasing, Inc., 91 F.3d 265, 271 (1st Cir. 1996); Restatement
(Second) of Judgments S 27 (1982). But the limitations have
been slowly diluted over time and most are irrelevant here.
Nor do the Hazens dispute that the jury verdict in favor of
Biggins at the first trial is now final except on the ADEA
count.
The
Hazens'
main argument against collateral estoppel has
been
that
the "issues" in the two cases were different because
nothing in the first trial validly determined that the Hazens
had
been
motivated by age in firing Biggins (since the Supreme
Court had vacated this claim). This won't wash. True, age
motivation is usually the ultimate issue under the ADEA; but
collateral estoppel is no longer limited to ultimate issues:
necessary intermediate findings can now be used to preclude
relitigation.
Grella v. Salem Five Cent Savings Bank, 42 F.3d
26, 30-31 (1st Cir. 1994); Restatement (Second), Judgments S
27, comment j. (1982).
Often
it
is
very
difficult to prove that the initial trial
necessarily decided an intermediate issue. But in this case
the special verdict form and reasonable inference indicates
that several "facts" were determined by the jury on counts
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other
than
ADEA:
(1)
that Biggins was fired, (2) that the stock
had been promised to him, and (3) that (in the words of the
verdict form) "defendants wrongfully discharged plaintiff in
order to deprive plaintiff of the promised stock compensation
. . . ."
At
the
new
trial,
the
jury was instructed that Biggins had
been fired, so that is out of the case. But on the second
issue Biggins says that the Hazens relitigated the issue of
whether
they
had
promised him stock, and that appears to be the
case. A good argument can be made that under standard
collateral estoppel doctrine, the Hazens should not have been
allowed
to
relitigate the issue whether "in fact" Thomas Hazen
had promised the stock to Biggins, a point about which both
Biggins and Hazen told largely inconsistent stories.
Yet
if
there
was
error,
we regard it as harmless. Whether
the stock was promised has little relevance to the question
whether the Hazens engaged in age discrimination when they
fired Biggins. Biggins argues that the Hazens purported to
fire him because he refused to sign the confidentiality
agreement
and
therefore
the stock promise was relevant, Biggins
having
offered
to
sign
in exchange for the promised stock. But
Biggins'
refusal to sign does not vanish as a plausible motive
for the Hazens, regardless of whether stock was wrongly
withheld.
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Obviously the Hazens wanted to relitigate the stock-
promise issue, and Biggins to foreclose relitigation, because
the Hazens look worse--from the standpoint of character--if
they were welshing on a promise and Biggins looks worse if he
were making new demands. But character evidence is not
normally admissible to show conformity therewith. Fed. R.
Evid.
404(a). Thus, the permissible use of the evidence about
the promise was very limited so far as the ADEA claim was
concerned; properly used, it added useful context, nothing
more.
Turning to the third "fact" in issue, we reject Biggins'
claim that the jury should have been told that the Hazens
fraudulently discharged Biggins to deprive him of promised
stock.
How
such
an
instruction would be understood is unclear:
the Hazens say that (by supplying a different motive) it cuts
against Biggins' current claim that he was discharged on
account
of
age;
on
the
other hand, Biggins would obviously have
liked the new jury to hear the terms "fraud" and "wrongful
discharge" as a dual motive.
The
problem
the
jury
confronted on retrial was to sort out
any age discrimination motive in the tangle of other possible
motivations, including perceived disloyalty, compensation
quarrels, and the like. We think that it would badly distort
matters to tell the jury that in carrying out this task, it
must accept that the Hazens' motivation in firing Biggins was
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wrongful or fraudulent. The glare from such an instruction
would distort any effort to distinguish shadows or shades in
the Hazens' actual motivation. See Fed. R. Evid. 403.4
In
sum,
there was no prejudicial error in this challenged
refusal
to
apply collateral estoppel. We thus need not decide
whether, even on the opposite assumption, it would make any
sense to reverse here. After all, the issues have now been
relitigated, collateral estoppel is a doctrine of judicial
economy,
and
one
might
wonder whether--assuming no other error-
-such
an
objective would be served by a third trial. Cf. Lama
v. Borras, 16 F.3d 473, 476 n.5 (1st Cir. 1994) (court of
appeals
will
not
review
denial of summary judgment motion after
a full trial and an adverse jury verdict).
IV.
In addition to the two large claims of error--the attack
on
the
en
banc
order
and
the collateral estoppel claim--Biggins
makes six shorter claims of trial error and also seeks to
resurrect the contract claim found insufficient by the first
panel opinion. Only the contract claim and one of the six
claimed
trial errors require any discussion; the other alleged
errors
are
fairly
raised
but are answered by the Hazens and are
of no general interest.
4Biggins also argues that the second jury should have
been told that at the prior trial, Biggins had been found to be
loyal. There is no indication from the special verdict that the
first jury made a generic finding of "loyalty."
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Biggins'
strongest
claim
of error, which we do address, is
that
the
district court on retrial erred by excluding evidence
of
his
pension
status
and the Hazens' effort to deprive Biggins
of his unvested pension plan benefits upon termination.
Biggins
says
that
without this information, the jury was misled
by the Hazens' effort at the second trial to portray the
company
as
a
generous
employer willing to provide such benefits
for Biggins.
The
Hazens
argue
that
the attempted pension termination is
irrelevant:
they
say
that Biggins can collect only once for the
wrongful termination of his pension, and this loss was
compensated
by the earlier award on the ERISA count. But that
is beside the point: facts underlying one claim could be
pertinent to a different claim, regardless of whether the
former
claim
had been satisfied. Still, the Hazens also argue
that
in
this
instance the Supreme Court expressly decided that
interference with pension vesting is not age discrimination.
Actually,
the Supreme Court reserved the possibility that
pension evidence might occasionally be relevant where the
employer is shown consciously to equate pension status with
age, Hazen Paper Co., 507 U.S. at 612-613; but that is not
Biggins' argument here. Rather, what Biggins wanted the jury
to infer from the pension interference finding is that the
Hazens are not as nice as they claim to be. Again, this is
largely
forbidden character evidence, although the trial court
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has some latitude since the evidence can also be treated as
context.
Still, in regard to age discrimination, the Hazens'
generosity vel non is at best marginally relevant. The
district court had every reason to worry, in light of the
Supreme Court and en banc decisions, that undue attention to
pension termination would prompt yet another reversal. Even
if
some
narrow
path
could have been followed--e.g., by limiting
instructions--the district court was within its discretion in
declining to do so. See United States v. Houlihan, 92 F.3d
1297 (1st Cir. 1996), cert. denied, 117 S. Ct. 963 (1997).
Biggins' other claim relates to his post-verdict motion.
Following the second trial, Biggins filed a motion to reopen
the adverse judgment on the contract claim, relying upon Fed.
R. Civ. P. 60(b)(6), which permits the court to undo a final
judgment. His claim was that a recent state decision
undermined
the
panel's
earlier rejection of the contract claim.
The district court denied the motion.
To understand this Rule 60(b) claim, one must return to
the
original
proceedings. In the first trial, the jury awarded
Biggins
about
$267,000
on his breach of contract claim; Biggins
claimed that the company's "employee handbook" comprised a
contract under Jackson v. Action for Boston Community
Development, Inc., 525 N.E.2d 411 (Mass. 1988), and that
protections it afforded against discharge had been denied to
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him. Jackson had held that "on proper proof, a personnel
manual can be shown to form the basis of [such] an express or
implied contract." 525 N.E.2d at 414.
On the first appeal, the panel set aside the contract
claim award. The panel noted that there was no evidence that
the handbook had been incorporated into a contract by
negotiation or that either Biggins or the company had treated
the handbook as a contract between them. 953 F.2d at 1423.
The
panel
held that a judgment n.o.v. should have been granted
and
vacated
the
award.
That disposition, like the several jury
awards to Biggins that were not further challenged by the
Hazens, became final.
In the Rule 60(b) motion, Biggins argued that a more
recent decision of the state's highest court, O'Brien v. New
England Telephone & Telegraph Company, 664 N.E.2d 843 (Mass.
1996), conflicts with the panel's earlier treatment of the
contract
issue in 1992. We agree that the panel's disposition
of the contract claim might have been different had O'Brien
been
decided
earlier:
its tone and language are more favorable
to such recoveries than Jackson. While there is no direct
contradiction, O'Brien is a gradual extension of precedent
(Jackson
was
itself
an
extension of an earlier case) typical of
common-law jurisprudence.
Yet the case law is very hostile to using a mistake of
state
law,
still less a change in state common law, as grounds
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for a motion to reopen a final judgment under Rule 60(b)(6).
though cf. Polites v. United
States
,
364
U.S. 426, 433 (1960), there is good sense--as well
as much precedent--to make this the rarest of possibilities.5
Al the door is not quite closed,
Decisions constantly are being made by judges which, if
reassessed in light of later precedent, might have been made
differently; but a final judgment normally ends the quarrel.
Indeed, the common law could not safely develop if the
latest
evolution in doctrine became the standard for measuring
previously
resolved
claims. The finality of judgments protects
against
this
kind of retroactive lawmaking. Admittedly, there
is some arbitrariness (e.g., "new law" is applied in cases
still
on
direct
appeal);
but, by the same token, Jackson itself
had not been decided when the Hazens first handed out their
employee handbook.
Biggins says that the abuse of discretion standard under
Rule 60(b) should not shield the district court in this case,
since that court may have thought itself disabled from
reconsidering the panel's holding on the contract award. But
absent extraordinary circumstances, we would think it dubious
practice
to
reopen a final judgment under Rule 60(b)(6) solely
because of later precedent pointing in a different direction.
5Se
e, e.g., Batta v. Tow-Motor Forklift Co., 66 F.3d
743,
750
(5th
Cir.
1995), cert. denied, 116 S. Ct. 1851 (1996);
Overbee v. Van Waters & Rogers, 765 F.2d 578, 580 (6th Cir.
1985);
Seese
v.
Volkswage
nwerk A.G., 679 F.2d 336, 337 (3d Cir.
1982).
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The fact that a different claim in this case is still alive
does not comprise an extraordinary circumstance.
The Hazens' cross-appeal is a challenge to the district
court's award of attorney's fees. To understand the issues
requires
us
to retrace several steps, beginning again with the
first trial. After that trial, the district court in two
stages
awarded Biggins a total of about $207,000 in fees (plus
costs), reflecting Biggins' success on both the ADEA and the
ERISA claims.
Attorney's
fees
are
mandatory for the successful plaintiff
under the ADEA and permissible under ERISA, see 29 U.S.C. S
626(b);
29
U.S.C. S 1140; as to the latter, the district court
exercised its discretion in favor of an award. No such fees
were available for the common-law claims on which Biggins
recovered substantial damages, namely, fraud and discharge in
violation of contract. The award for the two federal claims
was based upon straight time and upon hourly rates not now in
issue.
After the first panel opinion, Biggins--having
successfully defended his verdicts on both federal claims--
sought an additional award of attorney's fees and costs for
appellate work. In March 1992, the panel awarded Biggins
additional fees of just under $72,000. There followed the
Supreme Court remand of the ADEA claim and the second panel
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opinion where Biggins, again successful on that claim, sought
further attorney's fees in November 1993.
However,
in
June 1994, the en banc court vacated the ADEA
award, ordering a new trial. In a companion order, the panel
declined
to
award any additional fees for the first appeal, as
sought by Biggins, and said that the remainder of Biggins'
application for additional fees had been rendered moot by the
en banc order. The case then returned to the district court
where the new trial occurred in April 1996.
After
the
second
trial,
Biggins sought to execute judgment
on
the
prior
awards of attorney's fees (just over $207,000 for
the
first
trial
and
almost $72,000 for the first appeal). The
Hazens, by contrast, moved under Fed. R. Civ. P. 60(b)(5) to
reopen the judgment and reduce the previously awarded fees
because
Biggins was no longer the prevailing party on the ADEA
claim.
In
July
1996,
the district court resolved the matter in
a detailed memorandum, pointing out that he was "intimately
familiar" with the case.
The district judge agreed with the Hazens that the fee
award resulting from the first trial should be reexamined,
since
one
predicate (the ADEA award) had now been undone. See
Mother
Goose
Nursery
Schools, Inc. v. Sendak, 770 F.2d 668, 676
(7th Cir. 1985), cert. denied, 474 U.S. 1102 (1986). But the
district judge disagreed with the Hazens that a drastic
reduction was warranted. He concluded that subtracting the
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ADEA claim from the first trial would not have substantially
reduced
the
amount of time needed to prepare and try the ERISA
claim on which Biggins had conclusively prevailed. He ruled
that a 20 percent reduction was warranted and awarded 80
percent of the original $207,000 figure to cover the original
trial.
The
district
court declined to alter the panel's award of
almost $72,000 for the first appeal; that appeal, it will be
remembered, had resulted in affirmance of the ADEA and ERISA
awards,
but
the
ADEA
award had later been undone. The district
court
said
that this court had likely considered the matter of
a
reduction
when it remanded for a new trial, and in any case,
that award was the court of appeals' business.
Accordingly,
the
district court entered a revised judgment
covering
the
entire attorney's fees award in both courts. The
total is about $237,700, apart from costs. It is from this
judgment that the Hazens have now cross-appealed, objecting
both
to
the
modesty
of
the 20 percent reduction in the district
court fee and the refusal to reduce at all the amount awarded
by this court for appellate work.
The district judge's refusal to order more than a 20
percent reduction is easily sustained. Most of this case has
focused throughout on a central event, Biggins' firing, in an
effort to appraise the Hazens' reason or reasons; but
motivation had to be discerned through examination of several
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controversies
that had enveloped the parties and led up to the
firing, including Biggins' other ventures and claim to stock
ownership.
A
trial
of
the firing and related background events would
have been quite extensive, and probably pretty similar in
contour, even if Biggins had brought only one of the two
federal
claims.
Indeed,
the second trial was nominally limited
to the ADEA claim, but its duration and breadth were
considerable. The commonality of issues has already been
noted, in the Hazens' favor, sustaining their evidence as to
background matters in the second trial.
In
all
events,
the
Hazens make no effort to show in detail
that
the
20
percent
reduction understates the time savings from
(hypothetically) eliminating the ADEA claim from the first
trial. Instead, they rely mainly upon doctrine, namely, that
where
a plaintiff has achieved only partial or limited
success,
the
product of hours reasonably expended on
the litigation as a whole times a reasonable hourly
rate may be an excessive amount. . . . even where
the plaintiff's claims were interrelated . . . .
Hensley v. Eckerhart, 461 U.S. 424, 436 (1983).
We
say
"mainly"
because
the Hazens also try to make use of
Biggins' earlier attempt, in resisting a remand, to minimize
the importance of the ERISA claim in the first trial. It is
true
that
Biggins called the claim little more than "a blip on
the screen" but, of course, the en banc court disagreed with
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him. Catching up counsel on past rhetoric is sometimes fair,
but
not
in
the present situation where the blip argument was
so clearly unsuccessful exaggeration.
This brings us back to Hensley. Of course, it is
sometimes
appropriate
to
discount for failed or non-compensable
claims
where
they
cannot
be neatly segregated from a successful
compensable one. But the district court did discount by 20
percent for the failed ADEA claim; and it took the original
$207,000
award as already reduced to account for time spent on
state claims that would not have been needed for the federal
claims. The former adjustment is obvious; and if the latter
assumption is an error, the Hazens have not shown it.
Finally,
we
come
to
the
district court's refusal to reduce
the award of almost $72,000 made by this court for the first
appeal.
Biggins
says
that this award is no longer open because
the Hazens did not ask for a reduction at the time of the
remand;
the
Hazens say, we think with some justification, that
such a reduction request would have been premature since the
possibility remained that Biggins would still prevail on the
ADEA claim at the second trial.
But this court is not inclined to reopen its earlier
$72,000 award. In theory, the Hazens have a claim that time
spent on the first appeal as to the ADEA issue--among a
considerable number of other issues--ought to be subtracted.
But
one
may
doubt,
at
least here, whether much discernable cost
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is added by writing more pages in an appellate brief, to
address one more issue with which counsel is already familiar
after an extensive trial.
In
refusing
to
reopen
the earlier award, we also take into
account two other factors: that the original panel earlier
refused
to
enlarge
Biggins' award, despite his offer of further
time
records, and that this panel has no intention of making a
further award to Biggins for time he has just spent in
defending
his
attorney's
fee judgment (although it too could be
the
subject
of an award in this court's discretion). From our
standpoint, this case is now over.
Affirmed.
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