UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
No. 94-1863
THOMAS R. LUSSIER, Plaintiff, Appellant,
v.
MARVIN RUNYON, UNITED STATES POSTMASTER GENERAL, Defendant, Appellee.
No. 94-1946
THOMAS R. LUSSIER, Plaintiff, Appellee,
MARVIN RUNYON, UNITED STATES POSTMASTER GENERAL, Defendant, Appellant.
ERRATA SHEET ERRATA SHEET
The opinion of the Court issued on March 29, 1995, is corrected as follows:
On page 3, line 8 change "504(a)" to "501"
On page 3, line 9 change "794(a)" to "791"
On page 4, line 14 change "794(a)" to "791"
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
MARVIN RUNYON, UNITED STATES POSTMASTER GENERAL, Defendant, Appellee.
MARVIN RUNYON, UNITED STATES POSTMASTER GENERAL, Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Selya, Circuit Judge,
Bownes, Senior Circuit Judge,
and Stahl, Circuit Judge.
John F. Lambert, Jr., with whom Thomas V. Laprade and Black,
Lambert, Coffin & Rudman were on brief, for plaintiff.
Jeffrey A. Clair, with whom Frank W. Hunger, Assistant
Attorney General, Jay P. McCloskey, United States Attorney,
Robert S. Greenspan and Sandra Wien Simon, Attorneys, Appellate
Staff, Civil Division, Dep't of Justice, were on brief, for defendant.
March 29, 1995
SELYA, Circuit Judge. After determining that the SELYA, Circuit Judge.
United States Postal Service (the Service) wrongfully discharged
Thomas Lussier because of his post-traumatic stress disorder, the
district court made an award that included future damages,
sometimes called "front pay." Both parties consider the award to
be a dead letter. Their cross-appeals pose two kinds of
questions. The principal inquiry implicates the collateral
source rule and requires us to decide whether a district court
may tailor a front pay award, stemming from a finding of
disability discrimination under the Rehabilitation Act of 1973,
Pub. L. No. 93-112, 87 Stat. 355 (codified as amended at 29
U.S.C. 701-796i), to account for an increase in Veterans
Administration (VA) benefits occasioned by the adverse employment
action. The second inquiry also touches upon the collateral
source rule, but turns on a determination of when, and under what
circumstances, a district court, after the parties have rested,
may solicit and consider factual information germane to an issue
in the case without formally reopening the record.
On the first issue, we hold that it is within the trial
court's discretion to tailor a front pay award to take account of
collateral benefits in a discrimination case, and that the court
acted within the realm of this discretion in the case at bar. On
the second issue, we hold that once the record is closed, a
district court, absent waiver or consent, ordinarily may not
receive additional factual information of a kind not susceptible
to judicial notice unless it fully reopens the record and
animates the panoply of evidentiary rules and procedural
safeguards customarily available to litigants. Finding, as we
do, that the district court transgressed this rule, we cancel the
award and stamp the matter "returned to sender."
I. BACKGROUND I. BACKGROUND
Lussier sued his quondam employer in Maine's federal
district court alleging, inter alia, that his discharge from the
Service on March 4, 1992, amounted to disability discrimination
in violation of section 501 of the Rehabilitation Act of 1973, 29
U.S.C. 791.1 A bench trial ensued. Since these appeals focus
exclusively on the front pay award and do not concern either the
antecedent question of liability or the propriety of other
remedies, we discuss only the evidence relating to the form and
amount of front pay.
The plaintiff's expert, Dr. Allan McCausland, testified
that, had Lussier not been fired, his future earnings and fringe
benefits over a projected 25-year work expectancy would have
aggregated between $790,805 and $1,067,193 when reduced to
present value. The Service did not directly contradict these
estimates, but introduced evidence that Lussier's cloud had a
small silver lining; he had been receiving VA benefits for a
military-service-related disability, and the circumstances
surrounding his ouster from the post office exacerbated this
disability and triggered an increase in those benefits. Moreover
1The named defendant is the Postmaster General, but, for all intents and purposes, the Service is the real party in interest, and we treat it as such.
it is said, after all, that the postman always rings twice
Patricia Asdourian, a Postal Service human resources specialist,
testified that Lussier would also be receiving disability
benefits through the Civil Service Retirement System (CSRS) as an
incident of his discharge. Lussier had applied for CSRS benefits
only a few weeks before trial and the precise benefit level was,
therefore, unknown. Nonetheless, Asdourian predicted that
Lussier's CSRS benefits would be in the neighborhood of $1185 per
month. The Service argued that the present value of both the
increase in VA benefits (calculated to be $358,401) and the CSRS
disability payments should be deducted from any front pay.
On November 9, 1993, the parties rested and the
district court took the case under advisement. In due course, it
found that the Service had discriminated against Lussier on
account of his disability in violation of 29 U.S.C. 791. See
Lussier v. Runyon, No. 92-397-P-H, 1994 WL 129776, at *1 (D. Me.
Mar. 1, 1994) (Lussier I). The court made an award to the
plaintiff, see id. at *11, but declined to order reinstatement
because, given the sequelae of the firing, Lussier could no
longer perform his accustomed duties. As to future damages, the
court found that Lussier would probably be capable at some point
of returning to lighter, lower-paying work, and estimated the
present value of Lussier's net future lost earnings and fringe
benefits to be $790,805. See id. at *9. The court also found,
however, that Lussier was slated to receive increased VA benefits
worth $358,401 on a present-value basis. It determined that, to
prevent a possible windfall, these benefits should offset the
recovery Lussier otherwise might obtain as front pay. See id. at
*9-*11.
The court adopted essentially the same reasoning in
respect to CSRS benefits, concluding that these benefits, like
the VA benefits, should be factored into Lussier's front pay
award to prevent overcompensation. See id. at *11 n.7. But
there was a rub: declaring itself "unable to determine Lussier's
net economic loss without knowing the outcome of his CSRS
application," id. at *11, the court deferred entry of final
judgment and ordered the parties to file reports within 30 days
concerning the outcome or status of Lussier's application for
CSRS benefits.
Though objecting to the court's request, Lussier
complied under protest. He submitted status reports (the last
dated May 2, 1994) disclosing that he was receiving $390 per
month in CSRS benefits on an interim basis "pending determination
of his final entitlement." Lussier v. Runyon, No. 92-397-P-H,
1994 WL 247873, at *1 (D. Me. May 24, 1994) (Lussier II). The
Service, by contrast, gave the court no concrete information
within the 30-day period. It then compounded its omission by
ignoring the court's instruction, issued on April 21, directing
it to respond within ten days. Judge Hornby, unwilling to wait
any longer, entered final judgment on May 24, 1994. Based mainly
on the lack of any submission by the Service, the judge seized
upon the figure of $390 per month, computed the present value of
these monthly payments over Lussier's work expectancy ($112,723),
and offset this amount against the potential front pay award.
The court thereupon entered a final judgment that included
$320,000 in front pay (representing $790,805 in future lost
earnings, minus $358,401 in increased VA benefits, minus $112,723
in CSRS benefits).
Three days later, the Service moved to alter or amend
the judgment, Fed. R. Civ. P. 59(e), "to reflect the fact that a
final calculation of the plaintiff's [CSRS] disability retirement
annuity has now been made, resulting in a monthly payment
effective March 1, 1994, in the amount of $1,111." The district
court denied the motion, writing that:
The defendant has already had more generosity than it deserves from my initial reopening of the trial record and extensions thereafter. Although the plaintiff may realize somewhat of a "windfall" as a result, awarding the defendant relief would make a mockery of all judicial deadlines and the closing of a trial record.
Both parties appeal.
II. COLLATERAL BENEFITS II. COLLATERAL BENEFITS
These appeals pose an important question: In what
manner, if any, does the collateral source rule which bars
resort to collateral benefits in connection with the calculation
of pecuniary damage awards, see 1 Dan B. Dobbs, Law of Remedies
3.8(1), at 372-73 (2d ed. 1993) (describing the collateral source
rule as providing "that benefits received by the plaintiff from a
source collateral to the defendant may not be used to reduce that
defendant's liability for damages") apply to awards of front
pay? We respond by holding that insofar as front pay is
concerned, the effect to be given to collateral benefits
whatever their source is within the equitable discretion of the
district court.2 Applying this general principle, we rule that
the court below acted within the proper sphere of its discretion
in tailoring the plaintiff's front pay award to account for
collateral benefits received by the plaintiff as a traceable
consequence of the defendant's statutory violation.
A. The Letter of the Law. A. The Letter of the Law.
The Rehabilitation Act makes available in disability
discrimination cases the remedies authorized by Title VII of the
Civil Rights Act of 1964, see 29 U.S.C. 794a(a)(1), and Title
VII, in turn, provides that a court may order "affirmative action
. . . which may include, but is not limited to, reinstatement or
hiring of employees, with or without back pay . . ., or any other
equitable relief as the court deems appropriate," 42 U.S.C.
2000e-5(g). Under this generous language, courts commonly have
recognized front pay as a condign remedy. See, e.g., Saulpaugh
v. Monroe Community Hosp., 4 F.3d 134, 145 (2d Cir. 1993), cert.
denied, 114 S. Ct. 1189 (1994); Shore v. Federal Express Corp.,
777 F.2d 1155, 1158-60 (6th Cir. 1985); Thompson v. Sawyer, 678
F.2d 257, 292 (D.C. Cir. 1982) (collecting cases); see also
United States v. Burke, 112 S. Ct. 1867, 1873 n.9 (1992) (noting
2We limit this holding to situations where, as here, (1) front pay is a discretionary equitable remedy, and (2) there is no statutory impediment to factoring collateral benefits into the mix.
approvingly, in dictum, that "[s]ome courts have allowed Title
VII plaintiffs who were wrongfully discharged and for whom
reinstatement was not feasible to recover `front pay' or future
lost earnings"); Sinai v. New Eng. Tel. & Tel. Co., 3 F.3d 471,
476 (1st Cir. 1993) (recognizing, in dictum, that front pay is an
acceptable form of redress under Title VII), cert. denied, 115 S.
Ct. 597 (1994); cf. Wildman v. Lerner Stores Corp., 771 F.2d 605,
614-16 (1st Cir. 1985) (explicitly recognizing front pay as an
equitable remedy under the analogous relief provision of the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. 626(b)
(1988)).
These precedents illuminate our path. In light of
them, we hold that front pay is an available equitable remedy
under Title VII and, hence, under the Rehabilitation Act.
Nevertheless, confirming the propriety of the remedy merely takes
us to a way station, not to our destination. A further
expedition must be mounted if we are to plot the terrain where
the collateral source rule and the tenets that inform the
computation of front pay intersect.
We start along this route by acknowledging that front
pay, within the employment discrimination universe, is generally
equitable in nature. See, e.g., Shore v. Federal Express Corp.,
42 F.3d 373, 377-78 (6th Cir. 1994). It follows a fortiori from
the equitable nature of the remedy that the decision to award or
withhold front pay is, at the outset, within the equitable
discretion of the trial court. See, e.g., id.; Saulpaugh, 4 F.3d
at 145; 2 Dobbs, supra, 6.10(4), at 214. This court has
consistently reached the same conclusion with regard to front pay
in the ADEA context, see, e.g., Powers v. Grinnell Corp., 915
F.2d 34, 42-43 (1st Cir. 1990); Wildman, 771 F.2d at 616, and we
perceive no reason why front pay should be characterized
differently in respect to its dispensation under Title VII and,
correspondingly, under the Rehabilitation Act.3 We rule,
therefore, that statutes such as Title VII and the Rehabilitation
Act afford trial courts wide latitude to award or withhold front
pay according to established principles of equity and the
idiocratic circumstances of each case.
We think it follows from this premise that the
logically derivative question of whether a front pay award, if
granted, may be tailored to take collateral benefits into account
is also within the court's equitable discretion. This conclusion
is supported not only by the brute force of logic, see United
States v. O'Neil, 11 F.3d 292, 296 (1st Cir. 1993) (explaining
that "the grant of a greater power necessarily includes the grant
of a lesser power, unless the authority to exercise the lesser
power is expressly reserved"), but also by reference to precedent
and to an understanding of the fundamental nature of equity
itself. We canvass these sources.
1. Precedent. The weight of authority unquestionably 1. Precedent.
favors the view that decisions about whether to consider the
3This is particularly true in view of the close relationship between the ADEA and Title VII. See, e.g., McKennon v. Nashville
Banner Publ. Co., 115 S. Ct. 879, 884 (1995).
plaintiff's receipt of collateral benefits in gauging the
appropriateness and amount of front pay, and if so, how to
calibrate the scales, lie within the equitable discretion of the
trial court. See, e.g., Hukkanen v. International Union of
Operating Eng'rs, 3 F.3d 281, 286 (8th Cir. 1993) (holding under
Title VII that "calculation of front pay . . . is a matter of
equitable relief within the district court's sound discretion");
Johnson v. Chapel Hill Indep. Sch. Dist., 853 F.2d 375, 382 (5th
Cir. 1988) (similar); see also Jackson v. City of Cookeville, 31
F.3d 1354, 1360 (6th Cir. 1994) (applying abuse-of-discretion
test to evaluate district court's deduction of pension benefits
from an ADEA front pay award); Graefenhain v. Pabst Brewing Co.,
870 F.2d 1198, 1210 (7th Cir. 1989) (similar; specifically
stating that whether to deduct such collateral benefits "from a
front pay award is a matter committed to the discretion of the
trial court"). While the case law does not form a perfect
string, see, e.g., Doyne v. Union Elec. Co., 953 F.2d 447, 451-52
(8th Cir. 1992) (holding that pension benefits should not be
considered in fashioning an ADEA front pay award), we deem this
virtually seamless array of precedents to be worthy of our
allegiance.
Our conviction that the majority rule is the better
rule is not weakened by the debate that has rent the circuits in
regard to whether collateral benefits should be subtracted from
back pay awards in employment discrimination cases.4 According
to our rough count, courts of appeals have divided four-to-three
on this issue. Compare EEOC v. Wyoming Retirement Sys., 771 F.2d
1425, 1431 (10th Cir. 1985) (holding under the ADEA that
"[d]eduction of collateral sources of income from a back pay
award is a matter within the trial court's discretion") and Orzel
v. City of Wauwatosa Fire Dep't, 697 F.2d 743, 756 (7th Cir.)
(similar), cert. denied, 464 U.S. 992 (1983) and Merriweather v.
Hercules, Inc., 631 F.2d 1161, 1168 (5th Cir. 1980) (similar in
regard to Title VII back pay awards) and EEOC v. Enterprise Ass'n
Steamfitters Local No. 638, 542 F.2d 579, 591-92 (2d Cir. 1976)
(allowing district court to offset public assistance payments
against a Title VII back pay award), cert. denied, 430 U.S. 911
(1977) with Craig v. Y & Y Snacks, Inc., 721 F.2d 77, 81-85 (3d
Cir. 1983) (holding that unemployment compensation should not be
deducted from a Title VII back pay award) and Brown v. A.J.
Gerrard Mfg. Co., 715 F.2d 1549, 1550-51 (11th Cir. 1983) (en
banc) (similar) and EEOC v. Ford Motor Co., 688 F.2d 951, 952
(4th Cir. 1982) (similar). Three other circuits have shown signs
4NLRB v. Gullett Gin Co., 340 U.S. 361 (1951), frequently
cited in connection with the interplay between back pay and the collateral source rule, is simply not determinative on this issue. In Gullett Gin, the Court held that unemployment
compensation need not be deducted from a back pay award under the National Labor Relations Act. Id. at 364. But the Court did not
furnish clear guidance as to whether the use of collateral benefits was categorically disallowed or merely entrusted to the trier's discretion. See 2 Dobbs, supra, 6.10(4), at 223-24;
Thomas W. Lee, Comment, Deducting Employment Compensation and
Ending Employment Discrimination: Continuing Conflict, 43 Emory
L.J. 325, 326 (1994).
of an internal division. Compare Hawley v. Dresser Indus., Inc.,
958 F.2d 720, 726 (6th Cir. 1992) (approving the deduction of
pension benefits from an ADEA back pay award) with Rasimas v.
Michigan Dep't of Mental Health, 714 F.2d 614, 627 (6th Cir.
1983) (holding that "[u]nemployment benefits . . . should not be
deducted from backpay awards" under Title VII), cert. denied, 466
U.S. 950 (1984); and compare Glover v. McDonnell Douglas Corp.,
12 F.3d 845, 848 (8th Cir.) (holding that the district court
erred in refusing to offset pension payments from an award of
back pay), cert. denied, 114 S. Ct. 1647 (1994) with Doyne, 953
F.2d at 451-52 (contra);5 and compare Naton v. Bank of Cal., 649
F.2d 691, 700 (9th Cir. 1981) (holding that district courts
possess discretion to deduct collateral benefits from back pay
awards in ADEA cases) with Kauffman v. Sidereal Corp., 695 F.2d
343, 347 (9th Cir. 1982) (holding in a Title VII case that
"unemployment benefits received by a successful plaintiff in an
employment discrimination action are not offsets against a
backpay award").
While we tend to agree with those courts that have held
the interplay between collateral benefits and back pay to be a
matter within the district court's discretion,6 we need not
5The Eighth Circuit recently noted this "possible conflict." Gaworski v. ITT Commercial Fin. Corp., 17 F.3d 1104, 1112 n.7
(8th Cir.), cert. denied, 115 S. Ct. 355 (1994).
6In addition to the cases catalogued above, several trial- level cases in this circuit take the same position. See, e.g.,
Townsend v. Grey Line Bus Co., 597 F. Supp. 1287, 1293 (D. Mass.
1984) ("The better view . . . is that the recovery of back pay under Title VII is an equitable remedy intended primarily to make
decide that precise question today. Even if we assume, arguendo,
that granting discretion to district courts to deduct collateral
benefits from back pay awards is problematic, front pay presents
an easier call. After all, the dispensation of front pay if
only because of its relatively speculative nature, see Wildman,
771 F.2d at 616 is necessarily less mechanical than back pay,
and the amount of front pay if only because of its predictive
aspect is necessarily less certain than back pay, see Hukkanen,
3 F.3d at 286. For these reasons, front pay is much more heavily
dependent than back pay upon the district court's exercise of its
informed discretion.7 Consequently, whether or not courts
possess the authority to tailor back pay awards to take
collateral benefits into account a question that we leave open
for the time being we are confident that they possess the
authority to tailor awards of front pay in that manner.
2. The Nature of Equity. Beyond the relevant case 2. The Nature of Equity.
the victim of discrimination whole."), aff'd, 767 F.2d 11 (1st
Cir. 1985); Thurber v. Jack Reilly's Inc., 521 F. Supp. 238, 242-
43 (D. Mass. 1981) (exercising equitable discretion to deduct unemployment benefits from the plaintiff's back pay award), aff'd, 717 F.2d 633 (1st Cir. 1983), cert. denied, 466 U.S. 904
(1984); see also Crosby v. New Eng. Tel. & Tel. Co., 624 F. Supp.
487, 491 (D. Mass. 1985) (predicting in an ADEA case that the First Circuit will likely allow district courts to exercise discretion in tailoring back pay awards to account for collateral benefits).
7To illustrate this point, we remind the reader that, while front pay is fully within the district court's discretion, back pay is a presumptive entitlement of a plaintiff who successfully prosecutes an employment discrimination case. Compare, e.g.,
Wildman, 771 F.2d at 615 with Costa v. Markey, 706 F.2d 1, 6 (1st
Cir. 1982), cert. dismissed, 461 U.S. 920 (1983), and cert.
denied, 464 U.S. 1017 (1983).
law, our decision is informed by the nature of equity itself. In
particular, the abstract imposition of a black-or-white rule
regarding the relevance of collateral benefits, even if otherwise
desirable, would simply not comport with the essential character
and function of equitable discretion. And, though modern civil
practice for the most part merges equity with law, equitable
discretion remains a salient part of our legal system. See Ralph
A. Newman, Equity and Law: A Comparative Study 50-53 (1961); see
also Roscoe Pound, Introduction to Newman, supra, at 10
(suggesting heightened importance of principles of equitable
discretion "in applying legal precepts and remedies").
Historically, equity powers emerged in response to the
rigidity of the common law, especially the impersonal generality
of the remedies it afforded. See, e.g., Harold J. Berman, Law
and Revolution: The Formation of the Western Legal Tradition
518-19 (1983); Peter C. Hoffer, The Law's Conscience: Equitable
Constitutionalism in America 8-16 (1990). As Lord Ellesmere put
it: "The Cause why there is a Chancery is, for that Mens Actions
are so divers and infinite, That it is impossible to make any
general Law which may aptly meet with every particular Act, and
not fail in some Circumstances." Earl of Oxford's Case, 21 Eng.
Rep. 485, 486 (1615). Hence, "[t]he Office of the Chancellor is
. . . to soften and mollify the Extremity of the Law . . . ."
Id. Because the hallmarks of equity have long been flexibility
and particularity, the imposition of a rigid rule, pro or con,
concerning the interrelationship between collateral benefits and
front pay (an equitable remedy) would be incongruent with the
historic and essential conception of equity. In contrast, a rule
that confers latitude upon the district court to handle the
interface between collateral benefits and front pay differently
in different cases is fully consistent with this storied
heritage.
For these reasons, we conclude that the decision as to
whether to tailor a front pay award to take into account
collateral benefits is, and must be, within the equitable
discretion of the nisi prius court.
On much the same basis, we do not believe that this
discretion is rigidly circumscribed by the source of the
collateral benefits.8 We consider the source of a collateral
benefit to be informative, but not dispositive. That is to say,
because the district court's decision about whether it should or
should not tailor a front pay award to dovetail with certain
collateral benefits is discretionary, we think it follows that
8The parties attach great significance to the source of the benefits. The Service argues that the collateral source rule is peculiarly inappropriate here because both the front pay and the collateral benefits emanate from the same source the federal government. Lussier sees no such special relationship. He advocates that we judge the parcel not by its wrapping, but, rather, by its contents, and asseverates that the post office is an independent entity distinct from other federal agencies, such as the Veterans Administration. In his view, therefore, the front pay and the collateral benefits do not derive from the same source, and there is all the more reason to apply the collateral source rule simpliciter. Since the district court's
discretionary decision in this case is sustainable without regard to the source of the benefits, we need not decide the precise relationship between the post office and other parts of the federal apparatus.
the defendant's status as the source (or not) of the collateral
benefit comprises, at the most, one factor of many within the
mailbag of discretionary considerations. Here, too, the nature
and function of equity jurisprudence guide our reasoning.
To be sure, equity is not blind to the reality of
events. The fact that the payer of damages and the dispenser of
a collateral benefit are one and the same, or that they are
linked in some economically meaningful sense, tends to make the
deployment of the collateral source rule less attractive. See
Smith v. OPM, 778 F.2d 258, 263 (5th Cir. 1985) (suggesting that
the collateral source rule may lack force "when the collateral
source is the defendant"), cert. denied, 476 U.S. 1105 (1986);
Enterprise Ass'n Steamfitters, 542 F.2d at 591 (similar); Olivas
v. United States, 506 F.2d 1158, 1163-64 (9th Cir. 1974)
(similar); see also 2 Dobbs, supra, 8.6(2), at 491. It is
nonetheless easy to imagine scenarios in which the totality of
equitable considerations favors the rule's strict invocation
regardless of any affinity between payer and dispenser. To
recognize a mechanical same-source exception to the rule would
deny district courts the discretion to weigh these other
considerations and, thus, would offend the logic of equity.
Accordingly, we decline the parties' invitations to view the
source of a collateral benefit, without more, as determinative of
whether the benefit should be taken into account in fashioning a
front pay award.
B. Application of the Law. B. Application of the Law.
Having surveyed the legal landscape, we now turn to the
decision below. Though we review a district court's factual
findings in a bench trial only for clear error, see, e.g., Reilly
v. United States, 863 F.2d 149, 163 (1st Cir. 1988); RCI
Northeast Servs. Div. v. Boston Edison Co., 822 F.2d 199, 201-02
(1st Cir. 1987), we review its ultimate decision to impose or
withhold equitable remedies for abuse of discretion. See, e.g.,
Shore, 42 F.3d at 377-78; Rosario-Torres v. Hernandez-Colon, 889
F.2d 314, 323 (1st Cir. 1989) (en banc) (listing cases). In
general, the abuse of discretion framework is not appellant-
friendly. See Dopp v. Pritzker, 38 F.3d 1239, 1253 (1st Cir.
1994) (predicting that most appeals from discretionary decisions
of the district courts will come to naught). If we are to find
an abuse of discretion, the appellant ordinarily must persuade us
that the lower court "committed `a meaningful error in
judgment.'" Rosario-Torres, 889 F.2d at 323 (quoting Anderson v.
Cryovac, Inc., 862 F.2d 910, 923 (1st Cir. 1988)).9
9At a more refined level, we have focused appellate review on the following considerations:
In making discretionary judgments, a district court abuses its discretion when a relevant factor deserving of significant weight is overlooked, or when an improper factor is accorded significant weight, or when the court considers the appropriate mix of factors, but commits a palpable error of judgment in calibrating the decisional scales.
United States v. Roberts, 978 F.2d 17, 21 (1st Cir. 1992).
Whether the district court's decision is viewed macroscopically or microscopically, however, the appellate focus is fundamentally the same.
In employment discrimination cases, the abuse-of-
discretion standard is necessarily informed by the statutory
purposes at stake. See, e.g., Albemarle Paper Co. v. Moody, 422
U.S. 405, 417 (1975); Enterprise Ass'n Steamfitters, 542 F.2d at
583 n.2. In mulling Title VII, the Court has distilled two
primary purposes from the statute: the need to create and
maintain a level, discrimination-free playing field and the need
to make victims of discrimination whole. See McKennon v.
Nashville Banner Publ. Co., 115 S. Ct. 879, 884 (1995); Albemarle
Paper, 422 U.S. at 417-18. Thus, front pay awards must be
gauged, at least in part, against the twin goals of eradicating
discrimination and ameliorating the harm that it has caused. See
Shore, 42 F.3d at 378; Thompson, 678 F.2d at 292. On this basis,
then, investigating the soundness of any remedial award in a
Title VII case entails two inquiries: (1) Does the district
court's decision serve "to achieve equality of employment
opportunity and remove barriers that have operated in the past to
favor an identifiable group of . . . employees"? Griggs v. Duke
Power Co., 401 U.S. 424, 429-30 (1971). (2) Does the district
court's decision serve "to make persons whole for injuries
suffered on account of unlawful employment discrimination"?
Albemarle Paper, 422 U.S. at 418.
When addressed to the district court's front pay award,
these queries yield no sign of discretion misused. Taking the
inquiries in reverse order, the fit between the district court's
action and the second of the two statutory objects compensation
cannot be gainsaid. The root purpose of the challenged offset
is to prevent overcompensation and, thus, the district court's
decision faithfully serves the goal of making the plaintiff
whole. No more is exigible in this respect. See, e.g., Wyoming
Retirement Sys., 771 F.2d at 1431; Orzel, 697 F.2d at 756.
The district court's decision is also sufficiently in
service to the first of the two statutory objects: deterrence.
While any consideration that holds down the amount of a monetary
judgment can be said to lessen the deterrent effect of that
judgment, we believe that the relevant inquiry is broader in its
scope. Deterrence is a function of degree, and nothing in the
Rehabilitation Act or in the case law commands that it be
maximized at all costs. This practical wisdom has particular
force where, as here, maximizing deterrence might well interfere
with the measured achievement of other statutory goals.10 Even
short of maximization, the statutory purpose can be fully
satisfied so long as deterrence is meaningfully achieved. Cf.
Navarro-Ayala v. Nunez, 968 F.2d 1421, 1427 (1st Cir. 1992)
(holding, in the context of Fed. R. Civ. P. 11, that a monetary
10We add that, as between the two primary statutory purposes, the goal of compensation, and not deterrence, is likely the more important in regard to front pay. After all, the basic function of a front pay award is to make victims of discrimination whole. See Wildman, 771 F.2d at 615; see also
EEOC v. Prudential Fed. Sav. & Loan Ass'n, 763 F.2d 1166, 1173
(10th Cir.) (explaining that front pay "assur[es] that the aggrieved party is returned as nearly as possible to the economic situation he would have enjoyed but for the defendant's illegal conduct"), cert. denied, 474 U.S. 946 (1985). For that reason,
an abuse of discretion ordinarily will not lie when the trial court, in the process of making the plaintiff whole no more, no less happens to produce a marginal diminution of deterrence.
sanction aimed at deterrence is most appropriate "when the amount
of the sanction falls within the minimum range reasonably
required [effectively] to deter the abusive behavior");
Graefenhain, 870 F.2d at 1213 & n.9 (noting, in calculating front
pay, that a court's "own vision of `optimal deterrence'" is not a
sufficient basis "to engraft additional remedies on a statutory
scheme which is predominantly compensatory"); Enterprise Ass'n
Steamfitters, 542 F.2d at 592 (finding "no compelling reason of
deterrence" that would justify "providing the injured party with
double recovery for his lost employment"). Here, every
indication is that the district court's award of front pay,
handsome eventhough diminished,packs an adequatedeterrent effect.
We add a postscript: viewing a front pay award in
isolation for the purpose of measuring its contribution toward
the goals of an antidiscrimination statute is risky business. A
front pay award like any other single strand in a tapestry of
relief must be assessed as a part of the entire remedial fabric
that the trial court has fashioned in a particular case. See,
e.g., Barbano v. Madison County, 922 F.2d 139, 146 (2d Cir. 1990)
(holding that the district court acted within its discretion in
denying front pay entirely because other relief, including back
pay, prejudgment interest, and attorneys' fees, sufficed to make
the plaintiff whole). This holistic principle takes into account
the fact that the finding of liability, in addition to setting
the stage for relief and thereby furthering the goals of
compensation and deterrence, itself sends a valuable
informational signal. See, e.g., McKennon, 115 S. Ct. at 885
(explaining that the goals of an employment discrimination
statute are advanced by a finding of discrimination because
"disclosure through litigation of incidents or practices which
violate national policies respecting nondiscrimination in the
work force is itself important").
We sum up by remarking the obvious: decisions within
the world of equity by their nature reflect judicial efforts to
balance competing centrifugal and centripetal forces. In this
instance, the district court struck an entirely reasonable
balance between the goals of fair compensation and adequate
deterrence. Mindful of the breadth of the district court's
discretion in such matters, we affirm its decision to award front
pay to the plaintiff, but to tailor the award to take into
account the collateral VA benefits that he received as a result
of his unlawful discharge.11
III. LATE-ARRIVING EVIDENCE III. LATE-ARRIVING EVIDENCE
In general, the view that we take of the flexible
interplay between front pay and the collateral source rule
11The Service complains that the lower court erred in figuring the amount of VA benefits used to reduce Lussier's front pay award. Because the factfinder's choice between two or more permissible views of the evidence cannot be deemed clearly erroneous, see Cumpiano v. Banco Santander P.R., 902 F.2d 148,
152 (1st Cir. 1990), we reject this complaint (which, in any event, is anchored in an overly optimistic reading of the record) out of hand.
extends to CSRS benefits.12 Withal, the district court's
handling of these benefits gives us pause.
During the trial, reference was made to Lussier's
eligibility for a CSRS disability retirement annuity. The
government advanced a rough estimate of the monthly stipend that
Lussier would likely receive. Dissatisfied with the trial
evidence on this subject, the district court ordered "the parties
to file within 30 days a status report concerning Lussier's
application for CSRS disability benefits." Lussier I, 1994 WL
129776, at *11. Lussier, though objecting vigorously to the
directive, submitted some information anent interim payments.
The Service offered no assistance. Eventually, the court reduced
its planned front pay award based on the new information. Both
parties appeal.
Lussier contends that the entire enterprise was
procedurally infirm; that the Service failed to prove the amount
of any purported offset, thus rendering the issue moot; and, in
all events, that the collateral source rule should have operated
to disqualify the CSRS benefits from consideration in connection
with the front pay award. For its part, the Service asseverates
that the court erred in not using the estimate of CSRS benefits
introduced at trial, or, alternatively, in not granting its Rule
59(e) motion and using the more precise figure limned therein.
12Lussier argues that CSRS benefits arise, at least in part, out of employee contributions, and, therefore, should not be treated in the same manner as other collateral benefits. We express no opinion on this aspect of the matter. Lussier can, of course, renew the argument before the district court on remand.
Since we give our stamp of approval to Lussier's first
contention, we need not address the parties' other points.
Typically, a district court's decision to reopen the
record for the purpose of receiving additional evidence engenders
an exercise of the court's discretion, reviewable for abuse of
that discretion. See Zenith Radio Corp. v. Hazeltine Research,
Inc., 401 U.S. 321, 331-32 (1971); Briscoe v. Fred's Dollar
Store, Inc., 24 F.3d 1026, 1028 (8th Cir. 1994); Natural
Resources Defense Council, Inc. v. Texaco Ref. & Mktg., Inc., 2
F.3d 493, 504 (3d Cir. 1993); Hartford Accident & Indem. Co. v.
Gulf Ins. Co., 837 F.2d 767, 773 (7th Cir. 1988). This rule
pertains even when the district court opts to reopen the record
on its own initiative. See, e.g., Calage v. University of Tenn.,
544 F.2d 297, 301-02 (6th Cir. 1976) (upholding district court's
sua sponte solicitation and consideration of post-trial
evidentiary submissions in employment discrimination suit); see
also Briscoe, 24 F.3d at 1028. Here, however, the district court
despite what it said did not reopen the record; instead, the
court, over the plaintiff's objection, engaged in a unilateral
pursuit of additional evidence without affording the parties the
standard prophylaxis that generally obtains at trial.13 While
we do not doubt the court's good intentions the judge was
clearly motivated by concerns of judicial economy and a desire to
13These protections include, but are not limited to, the right to object to evidence, the right to question its source, relevance, and reliability, the right to cross-examine its proponent, and the right to impeach or contradict it.
be fair to all parties it chose a mode of evidence-gathering
that offends accepted practice and contradicts existing law.
Therefore, we must sustain Lussier's preserved objection to it.
And, moreover, because the error affected substantial rights
the court used the extra-record information anent interim
payments to reduce the amount of the front pay award the
judgment must be vacated. We explain briefly.
It is a fundamental principle of our jurisprudence that
a factfinder may not consider extra-record evidence concerning
disputed adjudicative facts. A good illustration of this precept
in operation can be found in the realm of judicial notice. Under
Fed. R. Evid. 201(b), a judge may take notice of an adjudicative
fact only if it is "not subject to reasonable dispute in that it
is either (1) generally known within the territorial jurisdiction
of the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot
reasonably be questioned." Courts have tended to apply Rule
201(b) stringently and well they might, for accepting disputed
evidence not tested in the crucible of trial is a sharp departure
from standard practice. Hence, in Cooperativa de Ahorro y
Credito Aguada v. Kidder, Peabody & Co., 993 F.2d 269 (1st Cir.
1993), petition for cert. filed (U.S. Oct. 12, 1993) (No. 93-
564), we held that the district court exceeded the bounds of Rule
201(b) by gleaning information supposedly known "within
institutional investment circles" from financial periodicals that
were not offered into evidence. See id. at 272-73; see also Barr
Rubber Prods. Co. v. Sun Rubber Co., 425 F.2d 1114, 1125-26 (2d
Cir.) (stating similar legal tenets), cert. denied, 400 U.S. 878
(1970).
In this case, the court's acquisition of extra-record
information by special delivery is similarly beyond the pale.
Its actions cannot be justified under the first furculum of Rule
201(b). Facts that are "generally known within the territorial
jurisdiction of the trial court" are those that exist in the
unrefreshed, unaided recollection of the populace at large. See
21 Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice
and Procedure 5105, at 489 (1977). Though a court, under this
rubric, may take judicial notice of such varied matters as the
"traditional features of a snowman," Eden Toys, Inc. v. Marshall
Field & Co., 675 F.2d 498, 500 n.1 (2d Cir. 1982), or the
popularity of certain reusable containers, Price Food Co. v. Good
Foods, Inc., 400 F.2d 662, 665 (6th Cir. 1968), or the
impossibility of driving from one place to another in a specified
period of time, United States v. Baborian, 528 F. Supp. 324, 332
(D.R.I. 1981), it is pellucid that the facts surrounding the
interim CSRS payments the amount received, how the amount was
derived, its significance in relation to the likely size of
Lussier's disability retirement annuity, and the relevance (if
any) of the interim benefits to front pay never achieved the
requisite level of popular familiarity.
By like token, the evidence also fails to satisfy the
second branch of Rule 201(b). Court records aside,14 some
government documents are subject to judicial notice (albeit under
certain limited conditions) on the ground that information
contained therein is "capable of accurate and ready determination
by resort to sources whose accuracy cannot reasonably be
questioned." See, e.g., Massachusetts v. Westcott, 431 U.S. 322,
323 n.2 (1977) (per curiam) (taking judicial notice of fishery
licenses as reflected in the records of the Coast Guard's
Merchant Vessel Documentation Division). The information here at
issue does not reach this safe harbor. In the first place, the
information is not contained in generally available government
records. Second, the court did not acquire it by direct resort
to any public record, but, rather, through untested unilateral
submissions. Third, a monetary figure affecting a plaintiff's
ultimate award, even though eventually quantifiable, seems to us
to be the sort of disputed adjudicative fact for which the
adversarial truth-finding process is well suited. And, finally,
the court gave the parties no real opportunity to address or
counter the gleaned evidence.15
14Because courts may take judicial notice of their own records and the records of sister tribunals under a special set of rules, see generally 21 Wright & Graham, supra, 5106, at
256-57 (Supp. 1994), we exempt court documents from this discourse.
15Westcott forms an interesting contrast to this case.
There, in addition to the qualitative differences in the information sought and in the data source upon which the court relied, "[t]he parties were given an opportunity to comment on the propriety of [the Court's] taking notice of the license, and both sides agreed that [the Court] could properly do so." 433 U.S. at 323 n.2. Neither of these conditions obtains here.
Ours is a system that seeks the discovery of truth by
means of a managed adversarial relationship between the parties.
If we were to allow judges to bypass this system, even in the
interest of furthering efficiency or promoting judicial economy,
we would subvert this ultimate purpose. As Rule 201(b) teaches,
judges may not defenestrate established evidentiary processes,
thereby rendering inoperative the standard mechanisms of proof
and scrutiny, if the evidence in question is at all vulnerable to
reasonable dispute.
Here, the district court failed to steer by this
beacon. There is no indication, despite the court's contrary
characterization,16 that the record was actually reopened or
that the parties were afforded anything approximating the
evidentiary and procedural guarantees to which they were
entitled. Similarly, there is no basis for finding that the
parties waived this deprivation, consented to the court's
shortcut, or otherwise invited judicial reliance on the extra-
record "proof." To the extent that the judgment is premised on
this late-arriving evidence, it cannot stand.
16The district court paid lip service to the principle we have discussed, writing that it had "reopened the record." But the parties agree that no actual reopening occurred, and calling what the court did a "reopening" does not make it so. Cf.
Siegfriedt v. Fair, 982 F.2d 14, 19 (1st Cir. 1992) ("With Juliet
we ask `What's in a name?' and with her we conclude `[t]hat which we call a rose by any other name would smell as sweet.'") (quoting William Shakespeare, Romeo and Juliet act 2, sc. 2).
Accordingly, we vacate the judgment and remand.17 We
neither dictate how the district court should proceed on remand
nor restrict its range of options. For instance, without
limiting the generality of the foregoing, the court may in its
discretion choose to reopen the record fully for the purpose of
obtaining more information about Lussier's CSRS benefits, and, if
the court follows that path, it can then decide what, if any, use
to make of the new evidence. Alternatively, the court may, if it
so elects, hold the parties to their proof at trial and determine
the front pay award on the existing record.
IV. CONCLUSION IV. CONCLUSION
We have reached the point at which neither snow, nor
rain, nor heat, nor gloom of night, nor any lingering unresolved
issue impedes the delivery of our judgment. Thus, we need go no
further.
We hold that the adjustment of a front pay award under
the Rehabilitation Act of 1973 to take collateral benefits into
account is within the equitable discretion of the district court;
and that, in this case, the court, by choosing to account for
collateral benefits in fashioning such an award, did not abuse
17We neither overlook nor condone the Service's cavalier disregard of the district judge's request for status reports. Had the judge scrapped the proposed offset as a sanction for uncooperative behavior, a different issue would confront us. Cf.
R.W. Int'l Corp. v. Welch Foods, Inc., 937 F.2d 11, 19-20 & n.9
(1st Cir. 1991). Here, however, the judge did not purpose to sanction the Service but instead decided a hotly disputed issue in the case based partly on extra-record information. As we have indicated on other occasions, even when a party is guilty of "lollygagging that a district court should not have to tolerate, two wrongs seldom make a right." Id. at 20.
its discretion. But because the court, in calculating a
particular offset, relied on evidence dehors the record, we
vacate the judgment and remand for further proceedings relating
to that offset.
Affirmed in part, vacated in part, and remanded. Each Affirmed in part, vacated in part, and remanded. Each
party shall bear his own counsel fees and costs in regard to party shall bear his own counsel fees and costs in regard to
these appeals. these appeals.