Biggins v. The Hazen Paper Co.

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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