USCA1 Opinion

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,

v.

MARVIN RUNYON, UNITED STATES POSTMASTER GENERAL,

Defendant, Appellant.
_________________________

ERRATA SHEET
ERRATA SHEET

The

opinion of

the

Court issued

on

March 29,

corrected as follows:

On page 3, line

change "504(a)" to "501"

On page 3, line

change "794(a)" to "791"

On page 4, line 14

change "794(a)" to "791"

1995,

is

UNITED STATES COURT OF APPEALS

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,

v.

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
__________________
Attorney

General,

whom

Frank W. Hunger,
________________

Jay P. McCloskey,
_________________

United

States

Assistant

Attorney,

Robert S. Greenspan and Sandra Wien Simon, Attorneys, Appellate

____________________
__________________
Staff,

Civil Division,

Dep't

of Justice,

defendant.

_________________________

March 29, 1995

_________________________

were

on brief,

for

SELYA,
SELYA,

Circuit Judge.
Circuit Judge.
______________

United States Postal Service

After

determining

that

the

(the Service) wrongfully discharged

Thomas Lussier because of his post-traumatic stress disorder, the

district

court

made

an

award that

included

future

sometimes called "front pay." Both parties consider

be

a dead

letter.

Their

cross-appeals

pose

damages,

the award to

two

kinds

of

questions.

source

may

The

principal

inquiry

rule and requires us

tailor a

front

pay

implicates

the

to decide whether

award,

stemming

collateral

a district court

from

finding

of

disability discrimination under

the Rehabilitation Act of

1973,

Pub.

355 (codified

at 29

L.

U.S.C.

No. 93-112,

701-796i),

87 Stat.

to

account for

an

as amended

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

may

district court, after the

parties have rested,

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.

the

second issue,

district

we hold

court, absent

that

waiver

once the

or consent,

record is

On

closed, a

ordinarily may

not

receive additional factual information

of a kind not susceptible

to judicial

reopens

notice

unless

it

fully

the

record

and

animates

the

panoply

safeguards customarily

of

evidentiary

available to

rules

litigants.

and

procedural

Finding,

as we

do, that the district court transgressed this rule, we cancel the

award and stamp the matter "returned to sender."

I.
I.

BACKGROUND
BACKGROUND

Lussier

sued his

quondam employer in

district court alleging, inter alia, that

_____ ____

Service on

March 4, 1992, amounted

Maine's federal

his discharge from the

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

exclusively on the front pay award and

antecedent

question

of

remedies, we discuss only

liability

these appeals focus

do not concern either the

or the

propriety

the evidence relating to the

of

other

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

aggregated

present

small

between

value.

estimates,

projected

$790,805

and

The Service did

but introduced

silver lining;

his ouster

when

not directly

the post

and

have

reduced

to

contradict these

Lussier's cloud

been receiving

disability,

from

expectancy would

$1,067,193

evidence that

he had

military-service-related

surrounding

25-year work

VA benefits

the

had a

for a

circumstances

office exacerbated

disability and triggered an increase in those benefits.

this

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

Patricia Asdourian, a Postal

testified

that

Lussier

rings twice

Service human resources specialist,

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

increase

Service argued that

the present value

of both

the

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

district court took the case under advisement.

found

that

the Service

account of his

had

discriminated

1,

1994) (Lussier I).

__________

plaintiff, see
___

because,

given

id. at *11,
___

the sequelae

The court

the

against Lussier

791.

on

See
___

WL 129776, at *1 (D. Me.

made

but declined to

of

and

In due course, it

disability in violation of 29 U.S.C.

Lussier v. Runyon, No. 92-397-P-H, 1994

_______
______

Mar.

rested

the firing,

an award

to the

order reinstatement

Lussier

could no

longer

court

of

perform his accustomed duties.

found that Lussier would probably be capable at some point

returning to

present

As to future damages, the

lighter, lower-paying

value of Lussier's

benefits to be

$790,805.

work, and

net future lost

See id. at *9.

___ ___

estimated the

earnings and fringe

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

respect to

the VA

award to

CSRS benefits,

benefits, should

essentially the

economic

application,"

be factored

into

See
___

in

benefits, like

Lussier's front

id. at *11
___

n.7.

pay

But

declaring itself "unable to determine Lussier's

loss

id.
___

same reasoning

concluding that these

prevent overcompensation.

there was a rub:

net

adopted

without

at *11,

judgment and ordered the

knowing the

the

outcome

court deferred

of

entry

parties to file reports within

his

CSRS

of final

30 days

concerning

the outcome

or status

of Lussier's

application for

CSRS benefits.

Though

complied under

dated

May 2,

objecting

protest.

He

to

the

court's

request,

submitted status reports

1994) disclosing

that he

Lussier

(the last

was receiving

$390 per

month in CSRS benefits on an interim basis "pending determination

of his

final entitlement."

1994 WL

247873, at *1 (D.

Service,

by contrast,

within the 30-day

ignoring the

it to respond

gave

period.

Lussier v. Runyon,
_______
______

No. 92-397-P-H,

Me. May 24, 1994) (Lussier II).

___________

the court

no concrete

It then compounded

court's instruction, issued on

within ten days.

Judge

The

information

its omission

by

April 21, directing

Hornby, unwilling to wait

any longer, entered final judgment on May 24, 1994.

Based mainly

on

upon

the lack of

any submission by the

Service, the judge seized

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

The

thereupon

court

$320,000

in

front pay

against the

entered

potential front

a final

(representing

judgment

$790,805

that

pay award.

included

in future

lost

earnings, minus $358,401 in increased VA benefits, minus $112,723

in CSRS benefits).

Three days later, the

the judgment,

Service moved to alter

or amend

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

effective March 1, 1994, in the amount

in

monthly payment

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

of

result, awarding

the

defendant relief would make a mockery of

all

a "windfall"

as a

somewhat

judicial deadlines and the closing of a trial

record.

Both parties appeal.

II.
II.

COLLATERAL BENEFITS
COLLATERAL BENEFITS

These

manner,

if any,

appeals pose

does the

an

important question:

collateral source

resort to collateral benefits

rule

In

what

which bars

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

concerned,

the

by

effect to

whatever their source

district

the

in

holding

court.2

that

be

given

insofar as

front

to collateral

pay

is

benefits

is within the equitable discretion of the

Applying this

general principle, we rule that

court below acted within the proper sphere of its discretion

tailoring the

collateral

plaintiff's

benefits received

front pay

by

award

the plaintiff

to account

as a

for

traceable

consequence of the defendant's statutory violation.

A.
A.

The

The Letter of the Law.

The Letter of the Law.
_____________________

Rehabilitation Act

makes available

in disability

discrimination cases the remedies authorized

Civil Rights Act

of 1964, see 29 U.S.C.

___

by Title VII of the

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

2000e-5(g).

the court

deems appropriate,"

Under this generous language,

recognized front pay as

a condign remedy.

v. Monroe Community Hosp., 4 F.3d

______________________

denied, 114 S. Ct.

______

257,

courts commonly have

See,
___

e.g., Saulpaugh
____ _________

134, 145 (2d Cir. 1993), cert.

_____

1189 (1994); Shore v. Federal Express Corp.,

_____
______________________

777 F.2d 1155, 1158-60

F.2d

42 U.S.C.

292 (D.C.

(6th Cir. 1985); Thompson v.

________

Cir.

1982) (collecting

Sawyer, 678
______

cases);

see also
___ ____

United States v. Burke, 112 S. Ct. 1867, 1873 n.9 (1992)

_____________
_____

(noting

____________________

2We limit this

front pay is a

holding to

situations where,

as here,

discretionary equitable remedy, and (2)

(1)

there is

no statutory impediment to factoring collateral benefits into the

mix.

approvingly, in

dictum, that

VII

who

plaintiffs

were

"[s]ome courts have

wrongfully discharged

allowed Title

and

for

whom

reinstatement

lost

was not feasible to recover

`front pay' or future

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

equitable remedy under the analogous

Discrimination

in

Employment Act

pay as an

relief provision of the Age

(ADEA),

29

U.S.C.

626(b)

(1988)).

These

them, we hold

under

Title

precedents illuminate

that front

VII

and,

pay is an

hence,

under

our

path.

In light

available equitable

the

Rehabilitation

of

remedy

Act.

Nevertheless, confirming the propriety of the remedy merely takes

us

to

way

station,

not to

expedition must

be mounted if

the

source

collateral

rule

our

destination.

we are to plot

and the

tenets

further

the terrain where

that

inform

the

computation of front pay intersect.

We start

pay, within

equitable

42 F.3d

along this route by

the employment discrimination universe, is generally

in nature.

See, e.g., Shore v. Federal Express Corp.,

___ ____ _____
_____________________

373, 377-78 (6th Cir. 1994).

the equitable nature of

withhold

acknowledging that front

front

pay

It follows a fortiori from

_ ________

the remedy that the decision to award or

is, at the outset,

_______________

discretion of the trial court.

within the

equitable

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.,
______________

F.2d 34, 42-43 (1st Cir. 1990); Wildman, 771 F.2d at

_______

perceive

no

reason

why

differently in respect to

front

pay

should

be

915

616, and we

characterized

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

that

the

idiocratic circumstances of each case.

We

think

it

follows

logically derivative question

from

this

of whether a

premise

front pay award,

if

granted, may be tailored to take collateral benefits into account

is also within the court's equitable discretion.

is supported

States
______

not only by

v. O'Neil, 11 F.3d
______

the brute

This conclusion

force of logic,

292, 296 (1st

see United
___ ______

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

itself.

understanding

of the

fundamental

nature of

equity

We canvass these sources.

1.
1.

favors the

Precedent.
Precedent.
_________

view that

The weight of authority unquestionably

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).

________________

10

plaintiff's

receipt

appropriateness

of

collateral

and amount

of

benefits

front pay,

and

in

gauging

if so,

calibrate the scales, lie within the equitable discretion

trial

court.

See,
___

e.g.,
____

Hukkanen v.
________

how

the

to

of the

International Union of
_______________________

Operating Eng'rs, 3 F.3d 281, 286 (8th Cir. 1993) (holding under
_________________

Title VII that "calculation

equitable relief

of front pay

. . .

is a matter

of

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

from

870

evaluate district court's deduction

of pension benefits

an ADEA front pay award); Graefenhain v. Pabst Brewing Co.,

___________
_________________

F.2d

1198,

1210

(7th Cir.

stating that whether to deduct

front

pay award is a

trial

court").

1989)

(similar;

such collateral benefits "from

matter committed to

While

specifically

the case

the discretion of the

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

considered in fashioning an

virtually

seamless

pension benefits

should not

ADEA front pay award), we

array of

precedents

to

be

deem this

be worthy

of

our

allegiance.

Our

rule is

conviction that

the majority

rule is

the better

not weakened by the debate that has rent the circuits in

regard to

whether collateral benefits should

be subtracted from

11

back pay

awards in employment discrimination

to our rough count, courts

on this issue.

cases.4

According

of appeals have divided four-to-three

Compare EEOC v. Wyoming Retirement Sys., 771 F.2d

_______ ____
_______________________

1425,

1431

(10th

"[d]eduction of

Cir.

1985)

collateral

(holding

sources of

under

the

income from

ADEA

that

a back

pay

award is a matter within the trial court's discretion") and Orzel

___ _____

v.

City of Wauwatosa Fire Dep't,

_____________________________

(similar),

697 F.2d 743,

756 (7th Cir.)

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,

__________________________

(allowing

against

(1977)

district court

542 F.2d 579, 591-92 (2d

to

offset public

a Title VII back pay award),

Cir. 1976)

assistance payments

cert. denied, 430 U.S. 911

_____ ______

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

Gerrard Mfg. Co.,

________________

banc)

715 F.2d

(similar) and
___

back pay

award) and
___

1549, 1550-51 (11th

Brown v.
_____

A.J.
____

Cir. 1983)

(en

EEOC v. Ford Motor Co., 688

____
_______________

(4th Cir. 1982) (similar).

F.2d 951, 952

Three other circuits have shown signs

____________________

4NLRB v.
____

Gullett Gin Co.,

_______________

cited in connection with

collateral
issue.

source
In

340 U.S. 361

(1951), frequently

the interplay between back pay

rule, is

Gullett Gin,
____________

simply
the

not

Court

and the

determinative on
held

that

this

unemployment

compensation need not be deducted from a back pay award under the
National Labor Relations Act. Id. at 364.
___
furnish

clear

guidance

as to

whether

benefits was categorically disallowed

trier's
Thomas

discretion.
W. Lee,

See 2
___

But the
the

use

Court did not

of collateral

or merely entrusted to the

Dobbs, supra,
_____

6.10(4), at 223-24;

Comment, Deducting Employment Compensation and

_______________________________________

Ending Employment Discrimination: Continuing Conflict, 43

______________________________________________________

Emory

L.J. 325, 326 (1994).

12

of an internal division.

958 F.2d 720,

726 (6th

pension benefits from

Compare Hawley v. Dresser Indus., Inc.,

_______ ______
____________________

Cir. 1992) (approving

an ADEA

back pay award)

Michigan Dep't of Mental Health,

_________________________________

1983)

714 F.2d

the deduction

of

with Rasimas
____ _______

v.

614, 627

(6th Cir.

(holding that "[u]nemployment benefits . . . should not be

deducted from backpay awards" under Title VII), cert. denied, 466
_____ ______

U.S. 950 (1984); and

___

12

F.3d 845,

compare Glover v. McDonnell Douglas Corp.,

_______ ______
________________________

848 (8th

erred in refusing

Cir.) (holding

to offset

that the

pension payments from

back pay), cert. denied, 114 S.

_____ ______

691, 700

(9th

possess discretion

Cir. 1981)

to deduct

awards in ADEA cases)

343,

347 (9th

Cir.

"unemployment benefits

employment

an award

Ct. 1647 (1994) with Doyne,

____ _____

F.2d at 451-52 (contra);5 and compare Naton

______
___ _______ _____

F.2d

district court

(holding

of

953

v. Bank of Cal., 649

____________

that district

courts

collateral benefits from

back pay

with Kauffman v. Sidereal Corp.,

____ ________
______________

695 F.2d

1982) (holding

in

a Title

received by a successful

discrimination

action

are

not

VII

case that

plaintiff in an

offsets

against

backpay award").

While we tend to agree with those courts that have held

the

interplay between collateral benefits

matter

within

the district

court's

and back pay

discretion,6

to be a

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

level cases in this circuit

above, several trial-

take the same position.

See,
___

e.g.,
____

Townsend v. Grey Line Bus Co.,

________
_________________

597 F. Supp. 1287, 1293 (D. Mass.

1984) ("The better

is that the recovery

view . . .

of back pay

under Title VII is an equitable remedy intended primarily to make

13

decide that precise question today.

that granting discretion to

Even if we assume, arguendo,

________

district courts to deduct collateral

benefits from back pay awards is problematic, front

an easier

call.

only because

After all,

F.2d at 616

and

the amount of front pay

aspect

the dispensation of front

of its relatively speculative

771

is

pay presents

pay

if

nature, see Wildman,

___ _______

necessarily less mechanical than back pay,

if only because of its predictive

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

possess

discretion.7

the

collateral

for the

authority

Consequently,

to

tailor

benefits into account

time

being

we are

back

whether

or

not

pay

awards

courts

to

take

a question that we leave open

confident that

they possess

the

authority to tailor awards of front pay in that manner.

2.
2.

The Nature of Equity.

The Nature of Equity.
______________________

Beyond

the relevant

case

____________________

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.

unemployment
aff'd, 717
_____

1981) (exercising
benefits

from

equitable discretion

the plaintiff's

F.2d 633 (1st Cir. 1983),

back

pay

to deduct

award),

cert. denied, 466 U.S. 904

_____ ______

(1984); see also Crosby v. New Eng. Tel. & Tel. Co., 624 F. Supp.
___ ____ ______
________________________

487, 491
First

(D. Mass.

Circuit

1985) (predicting in

will likely

allow

an ADEA case

district

courts to

that the

exercise

discretion in tailoring back pay awards to account for collateral

benefits).

7To illustrate this point, we remind the reader that,

front pay is fully

within the district court's discretion,

pay is a presumptive entitlement

prosecutes an

employment

while

back

of a plaintiff who successfully

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
_________

denied, 464 U.S. 1017 (1983).

______

14

U.S.

920 (1983),

and
___

cert.
_____

law, our decision is informed by the nature of equity itself.

particular,

the abstract

imposition

of

a black-or-white

In

rule

regarding the relevance of collateral benefits, even if otherwise

desirable, would simply not

comport with the essential character

and function of equitable discretion.

practice for

the most

part merges

And, though modern

equity

civil

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

(suggesting

Pound,

Introduction
____________

heightened importance

to

of

Newman,

principles

supra,
_____

of

at

10

equitable

discretion "in applying legal precepts and remedies").

Historically, equity powers emerged in response to

the

rigidity of the common

of

the remedies it

law, especially the impersonal generality

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).

_____________________________

it:

As Lord Ellesmere put

"The Cause why there is a Chancery is, for that Mens Actions

are so

divers and infinite,

general Law which may

not fail in

That it

is impossible to

make any

aptly meet with every particular

Act, and

some Circumstances."

Rep. 485, 486 (1615).

. .

. to soften and

Id.
___

Because the

Earl of Oxford's Case, 21 Eng.

_____________________

Hence, "[t]he

Office of the Chancellor is

mollify the Extremity of

hallmarks of equity have long

the Law .

. . ."

been flexibility

and

particularity, the imposition of

a rigid rule,

concerning the interrelationship between collateral

pro or con,

benefits and

15

front

pay (an

equitable remedy) would

be incongruent

historic and essential conception of equity.

that

confers latitude

interface

upon

the district

between collateral benefits

with the

In contrast, a rule

court

to handle

the

and front pay differently

in

different

cases

is

fully

consistent

with

this

storied

heritage.

For these reasons, we conclude that

whether

to tailor

collateral

benefits

front

is,

pay

and

award

must

to

be,

the decision as to

take

into

within

the

account

equitable

discretion of the nisi prius court.

____ _____

On much the

discretion

is

same basis,

rigidly

collateral benefits.8

we do not

circumscribed

We

consider the

by

believe that

the

source of a

benefit to be informative, but not dispositive.

because the

should

source
______

of

this

the

collateral

That is to say,

district court's decision about whether it should or

not tailor

collateral benefits

a front

pay award

to dovetail

with certain

is discretionary,

we think it

follows that

____________________

8The parties attach great significance to the source of

benefits.

the

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

government.

no such

advocates
rather,

Lussier
that we

sees

judge the

parcel not

federal

relationship.

by its

He

wrapping, but,

by its contents, and asseverates that the post office is

an independent entity distinct

as the

special

the

Veterans

from other federal agencies, such

Administration.

In his

view, therefore,

the

front pay and the collateral benefits do not derive from the same
source, and there is
source

rule

all the more reason to apply the collateral

simpliciter.
___________

Since

the

district

court's

discretionary decision in this case is sustainable without regard

to the source

of the benefits,

relationship between

the

we need not

post office

federal apparatus.

16

and

decide the
other parts

precise
of

the

the defendant's status as

benefit comprises, at

mailbag of

the source (or not) of

the most,

one factor of

discretionary considerations.

the collateral

many within

Here,

the

too, the nature

and function of equity jurisprudence guide our reasoning.

To

events.

be

sure, equity

The fact that the

collateral benefit

linked in some

is not

blind

to the

reality of

payer of damages and the dispenser of

are one

and the

same,

or that

they are

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 is

source rule may

lack force "when

the defendant"), cert.

_____

Enterprise Ass'n Steamfitters, 542

_____________________________

v.

United States,
______________

(similar); see
___

also 2
____

nonetheless easy to

equitable

F.2d

recognize a

of any

considerations

Accordingly,

affinity

courts

and,

1163-64

the

we decline

the

the

rule's

offend

1974)

491.

It is

and

to

the

of

strict invocation

dispenser.

exception to the

discretion

Cir.

which the totality

between payer

thus, would

(9th

8.6(2), at

imagine scenarios in

favors

1105 (1986);

F.2d at 591 (similar); Olivas

______

1158,

mechanical same-source

district

denied, 476 U.S.

______

Dobbs, supra,
_____

considerations

regardless

deny

506

the collateral

weigh

rule would

these

logic of

parties' invitations

To

other

equity.

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.
B.

Application of the Law.

Application of the Law.
______________________

17

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

withhold equitable remedies for abuse of

Shore, 42 F.3d at
_____

F.2d

314, 323

general,

friendly.

discretion.

or

See, e.g.,
___ ____

377-78; Rosario-Torres v. Hernandez-Colon, 889

______________
_______________

(1st Cir. 1989)

the abuse

See
___

to impose

of

Dopp v.
____

(en banc)

(listing cases).

discretion framework

is not

Pritzker, 38 F.3d 1239,

________

will come to naught).

If

appellant-

1253 (1st Cir.

1994) (predicting that most appeals from discretionary

of the district courts

In

decisions

we are to find

an abuse of discretion, the appellant ordinarily must persuade us

that

the

lower

judgment.'"

court

"committed

`a

meaningful

error

in

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
factor

deserving

overlooked, or
accorded
court

discretion when a
of

when

significant

considers

factors,

but

judgment

in

the

commits

relevant

significant weight
an improper

is

factor

is

when

the

appropriate

mix

of

error of

weight,

calibrating

or

palpable
the

decisional

scales.

United States v.
______________
Whether the

Roberts,
_______

978 F.2d

17,

district court's decision is

21 (1st

Cir.

1992).

viewed macroscopically

or microscopically, however, the appellate focus is fundamentally

the same.

18

In

discretion

employment

standard is

purposes at stake.

U.S. 405, 417

583

n.2.

primary

discrimination

necessarily

cases,

informed

the

abuse-of-

by the

statutory

See, e.g., Albemarle Paper Co. v. Moody, 422

___ ____ ____________________
_____

(1975); Enterprise Ass'n Steamfitters, 542 F.2d at

_____________________________

In mulling

purposes from

Title VII,

the

the Court

statute:

the

has distilled

need to

create

two

and

maintain a level, discrimination-free

to make

victims

of

discrimination

playing field and the need

whole.

See
___

McKennon
________

v.

Nashville Banner Publ. Co., 115 S. Ct. 879, 884 (1995); Albemarle
__________________________
_________

Paper,
_____

422 U.S.

at 417-18.

gauged, at least in

Thus, front

pay

awards must

part, against the twin goals

of eradicating

discrimination and ameliorating the harm that it has caused.

Shore, 42 F.3d at 378; Thompson, 678 F.2d at 292.

_____
________

then, investigating

Title

court's

VII case

decision

the

soundness of

entails two

serve

inquiries:

"to

achieve

See
___

On this basis,

any remedial

(1) Does

equality

be

award in

the district

of

employment

opportunity and remove barriers that have operated in the past to

favor an identifiable group of .

. . employees"?

Griggs v. Duke
______
____

Power Co.,
_________

court's

401 U.S. 424, 429-30

decision

suffered

on

serve

account

of

"to

(1971).

(2) Does

make persons

whole

unlawful

employment

the district

for

injuries

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.

inquiries in reverse order, the fit

between the district court's

action and the second of the two statutory objects

19

Taking the

compensation

cannot be gainsaid.

is to

The root purpose of the challenged

prevent overcompensation

decision

whole.

faithfully

and, thus, the

serves the

goal

of

No more is exigible in this respect.

offset

district court's

making the

plaintiff

See, e.g., Wyoming

___ ____ _______

Retirement Sys., 771 F.2d at 1431; Orzel, 697 F.2d at 756.

_______________
_____

The district court's

service to the

While

first of the

decision is also

sufficiently in

two statutory objects:

deterrence.

any consideration that holds down the amount of a monetary

judgment

judgment,

can

be said

to lessen

the

deterrent effect

of that

we believe that the relevant inquiry is broader in its

scope.

Deterrence

Rehabilitation

maximized at

is a function of

Act

or

in the

all costs.

force where, as here,

This

case

degree, and nothing in

law

commands

that it

practical wisdom has

maximizing deterrence might well interfere

of other statutory goals.10

short

statutory

satisfied

maximization,

so long as

Navarro-Ayala
_____________

(holding,

be

particular

with the measured achievement

of

the

the

purpose

can

deterrence is meaningfully

v. Nunez,
_____

968

F.2d 1421,

in the context of Fed. R.

1427

be

achieved.

(1st Cir.

Even

fully

Cf.
___

1992)

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.

function

of

front

discrimination whole.
EEOC v. Prudential Fed.

pay

award

See Wildman,
___ _______
Sav. & Loan

is

to

After all, the basic

make

771 F.2d at

victims

of

615; see
___

also
____

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

conduct"), cert. denied, 474

_____ ______
an abuse of

the defendant's illegal

U.S. 946 (1985).

discretion ordinarily

will not lie

For

when the

court, in the process of making the plaintiff whole

less

that reason,

trial

no more, no

happens to produce a marginal diminution of deterrence.

20

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

scheme

predominantly compensatory");

which is

Steamfitters, 542 F.2d

____________

recovery

indication

is that

for

Enterprise Ass'n
________________

at 592 (finding "no compelling

deterrence" that would justify

double

on a statutory

his

the

reason of

"providing the injured party with

lost

employment").

district court's

award

Here,

every

of front

pay,

handsome eventhough diminished,packs an adequatedeterrent effect.

We add a

isolation for

the

postscript:

the purpose

viewing a

of measuring its

front pay award

in

contribution toward

goals of an antidiscrimination statute is risky business.

front

pay award

relief

like any other

single strand in a tapestry of

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

denying front

district court acted within

pay entirely because other

pay, prejudgment interest, and

the plaintiff whole).

fact that the finding

the

stage

compensation

relief

and

relief, including back

attorneys' fees, sufficed to make

This holistic principle takes into account

the

for

its discretion in

and

of liability, in

thereby

deterrence,

furthering

itself

21

addition to setting

sends

the

goals

of

valuable

informational signal.

See, e.g.,
___ ____

(explaining

goals

statute

are

"disclosure

that

the

advanced by

of

policies

an

finding

through litigation of

violate national

McKennon, 115 S.
________

employment

Ct. at

discrimination

of discrimination

incidents or

885

because

practices which

respecting nondiscrimination

in

the

work force is itself important").

We sum up by

the world of equity

remarking the obvious:

decisions within

by their nature reflect judicial

efforts to

balance competing

instance,

balance

the

district

between

deterrence.

centrifugal and

court

the goals

Mindful

of

of

centripetal forces.

struck

fair

the breadth

an

entirely

In this

reasonable

compensation and

of

adequate

the district

court's

discretion in such matters, we affirm its decision to award front

pay to

the

plaintiff, but

account the collateral VA

to

tailor the

award to

take

benefits that he received as

into

a result

of his unlawful discharge.11

III.
III.

LATE-ARRIVING EVIDENCE
LATE-ARRIVING EVIDENCE

In

interplay

general, the

between

front

view

pay

that we

and the

take

of the

collateral

flexible

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

permissible

views

the factfinder's choice between two

of

the

erroneous, see Cumpiano

___ ________
152

(1st Cir.

1990), we

evidence cannot

be

deemed

or more

clearly

v. Banco Santander P.R., 902 F.2d

_____________________
reject this

complaint (which,

148,

in any

event, is anchored in an overly optimistic reading of the record)

out of hand.

22

extends

to

CSRS

benefits.12

Withal,

the

district

court's

handling of these benefits gives us pause.

During

eligibility

for

the

trial,

CSRS

reference

was made

disability retirement

government advanced a rough estimate of the

Lussier

would

likely

receive.

to

Lussier's

annuity.

The

monthly stipend that

Dissatisfied

with

the

trial

evidence on this subject, the district court ordered "the parties

to file

within

application for

129776, at

*11.

30 days

status report

CSRS disability benefits."

Lussier,

directive, submitted

some

though objecting

information anent

The Service offered no assistance.

its

Lussier I,
_________

Lussier's

1994 WL

vigorously to

interim

the

payments.

Eventually, the court reduced

planned front pay award based on

parties appeal.

concerning

the new information.

Both

Lussier

contends

that

the

entire

procedurally infirm; that the Service failed

of any purported offset,

source rule should have operated

For its part, the

that the court erred in not

59(e)

and, in

benefits from consideration in connection

with the front pay award.

introduced at trial,

was

to prove the amount

thus rendering the issue moot;

all events, that the collateral

to disqualify the CSRS

enterprise

Service asseverates

using the estimate of CSRS

benefits

or, alternatively, in not granting its Rule

motion and using

the more precise

figure limned therein.

____________________

12Lussier argues that CSRS benefits arise, at least in part,

out

of employee

treated

in the

contributions,
same manner

and, therefore,

as other

should not

collateral benefits.

express no opinion on this aspect of the matter.

be

We

Lussier can, of

course, renew the argument before the district court on remand.

23

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

that discretion.

Inc.,

401

See
___

U.S. 321,

court's discretion, reviewable

for abuse of

Zenith Radio Corp. v. Hazeltine Research,

__________________
____________________

331-32

(1971); Briscoe

v.

Fred's Dollar

____

_______

Store, Inc.,
____________

24

F.3d

1026,

1028

Resources Defense Council, Inc.

_______________________________

F.3d 493, 504 (3d Cir. 1993);

Gulf Ins. Co., 837 F.2d

______________

(8th

Cir.

_____________

1994);

Natural
_______

v. Texaco Ref. & Mktg., Inc., 2

__________________________

Hartford Accident & Indem. Co.

______________________________

767, 773

(7th Cir. 1988).

This

v.

rule

pertains even when the

district court opts to reopen

on its own initiative.

See, e.g., Calage v. University of Tenn.,

___ ____ ______
___________________

544 F.2d 297, 301-02 (6th Cir. 1976)

sua
___

sponte
______

solicitation

evidentiary submissions in

and

(upholding district court's

consideration

of

post-trial

employment discrimination suit);

also Briscoe, 24 F.3d at 1028.

____ _______

despite what it said

the record

see
___

Here, however, the district court

did not reopen the record; instead, the

court, over

the plaintiff's

pursuit of additional evidence

standard prophylaxis

we

do

not doubt

objection, engaged in

without affording the parties the

that generally

the court's

a unilateral

obtains at trial.13

good intentions

the

While

judge was

clearly motivated by concerns of judicial economy and a desire to

____________________

13These
right

protections include,

to object to evidence,

relevance,

and

reliability,

but are

not limited

the right to
the

right

question its source,

to

cross-examine

proponent, and the right to impeach or contradict it.

24

to, the

its

be fair to all

that

parties

offends accepted

Therefore, we

court

payments

chose a mode of

practice

and

evidence-gathering

contradicts existing

must sustain Lussier's preserved

And, moreover,

the

it

because the

used

the

to reduce

the

judgment must be vacated.

objection to it.

error affected substantial

extra-record

amount of

information

the

law.

rights

anent

front pay

award

interim

the

We explain briefly.

It is a fundamental principle of our jurisprudence that

a factfinder

may not

consider extra-record

disputed adjudicative facts.

evidence concerning

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

determination

reasonably

court

by

or

resort

(2)

capable

of

to

sources

whose

be questioned."

201(b) stringently

Courts

and well

have

accurate

and

ready

accuracy

tended to

cannot

apply Rule

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
______________
______________________

1993), petition for cert. filed

_________________________

(U.S. Oct. 12,

1993) (No.

Cir.

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

___ ___
___ ____ ____

25

Rubber Prods. Co.

_________________

v. Sun Rubber Co., 425

______________

Cir.) (stating similar legal tenets),

(1970).

F.2d 1114, 1125-26 (2d

cert. denied, 400 U.S. 878

_____ ______

In

information

Its

this case, the

by special

court's acquisition of extra-record

delivery is

similarly beyond

the pale.

actions cannot be justified under the first furculum of Rule

201(b).

Facts that

jurisdiction

of the

are "generally known within

trial court"

are those

unrefreshed, unaided recollection of the

21 Charles A. Wright

and Procedure
_____________

rubric,

may take judicial notice

"traditional features of

Field & Co.,

____________

that exist

675 F.2d

in the

populace at large.

& Kenneth W. Graham, Jr.,

5105, at 489 (1977).

the territorial

See
___

Federal Practice
________________

Though a court, under this

of such varied

matters as the

a snowman," Eden Toys, Inc. v. Marshall

_______________
________

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

interim CSRS payments

derived,

pellucid

any) of the interim

facts surrounding

the amount received, how the

its significance

Lussier's disability

that the

in

relation to

retirement annuity,

benefits to front

pay

the

amount was

likely size

and the

the

of

relevance (if

never achieved

the

requisite level of popular familiarity.

By like token, the

evidence also fails to

26

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

questioned."

whose

accuracy

cannot

reasonably

be

See, e.g., Massachusetts v. Westcott, 431 U.S. 322,

___ ____ _____________
________

323 n.2 (1977)

licenses as

sources

(per curiam) (taking

reflected

in

the

judicial notice of

records

of

the

Coast

fishery

Guard's

Merchant Vessel Documentation Division).

The information here at

issue

In the first place, the

does not reach this safe harbor.

information

records.

to any
___

is not contained

Second,

the court did not acquire

public record,

submissions.

Third, a

but, rather, through

be the

sort

court gave

it by direct resort

untested unilateral

of disputed

the parties

a plaintiff's

eventually quantifiable, seems to us

adjudicative

adversarial truth-finding process is

the

available government

monetary figure affecting

ultimate award, even though

to

in generally

no real

fact for

well suited.

which

the

And, finally,

opportunity to

address or

counter the gleaned evidence.15

____________________

14Because

courts

records and the records

may take

judicial

notice

of sister tribunals under a

of their

own

special set

of rules,
256-57

see generally 21
___ _________

(Supp.

1994),

Wright &

we

exempt

Graham, supra,
_____
court

documents

5106, at
from

this

discourse.

15Westcott forms
________
There,

in

information

addition

both

to

interesting
the

sought and in the

relied, "[t]he parties

the

an

contrast

qualitative

this

differences

data source upon

were given an

to

case.
in

the

which the court

opportunity to comment

on

propriety of [the Court's] taking notice of the license, and

sides agreed that [the

U.S. at 323 n.2.

Court] could properly

do so."

Neither of these conditions obtains here.

27

433

Ours is a system

means of a managed

If we

that seeks the discovery of

adversarial relationship between the parties.

were to allow

judges to bypass

this system, even

interest of furthering efficiency or promoting

we

would subvert this ultimate purpose.

judges

may not

truth by

defenestrate established

thereby rendering

inoperative the

in the

judicial economy,

As Rule 201(b) teaches,

evidentiary processes,

standard mechanisms of

proof

and scrutiny, if the evidence in question is at all vulnerable to

reasonable dispute.

Here,

beacon.

the

There is

district

no indication,

characterization,16

that the

that

were

the

evidentiary

parties

and

court

procedural

despite the

record

afforded

failed to

steer

guarantees

to

this

court's contrary

was actually

anything

by

reopened

approximating

which

they

or

the

were

entitled.

parties

Similarly,

waived

shortcut, or

there is

this

deprivation,

otherwise invited

record "proof."

no basis

To the

for finding

consented

to

that the

the

judicial reliance on

court's

the extra-

extent that the judgment is

premised on

this late-arriving evidence, it cannot stand.

____________________

16The

district court paid

have discussed, writing that

the parties
what

the

lip service to

the principle we

it had "reopened the record."

But

agree that no actual reopening occurred, and calling

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

rose

by any

other

name would

smell

as

sweet.'")

(quoting William Shakespeare, Romeo and Juliet act 2, sc. 2).

________________

28

Accordingly, we

neither dictate how

nor

restrict

limiting

its

vacate the judgment and

the district court should

range

of

options.

the generality of the

discretion choose to reopen

remand.17

We

proceed on remand

For instance,

without

foregoing, the court

may in its

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.
IV.

CONCLUSION
CONCLUSION

We have

rain,

reached the point

at which neither

snow, nor

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,

collateral benefits

the court,

by choosing to

in fashioning such

an award, did

account for

not abuse

____________________

17We neither
disregard
Had

of the

the judge

overlook

nor condone

district judge's

scrapped the

the Service's

request for

proposed offset

cavalier

status reports.

as a

sanction for

uncooperative behavior, a different issue would confront us.

R.W. Int'l Corp. v. Welch Foods, Inc.,
_________________
_________________
(1st Cir. 1991).

Here,

sanction the Service

937 F.2d 11, 19-20 & n.9

however, the judge

but instead decided a

did not purpose

on other

"lollygagging

occasions, even

when a

to

hotly disputed issue

in the case based partly on extra-record information.

indicated

Cf.
___

party is

As we have

guilty of

that a district court should not have to tolerate,

two wrongs seldom make a right."

Id. at 20.
___

29

its

discretion.

But

because

relied on

the

particular

offset,

vacate the

judgment and remand for

court,

evidence

in

dehors
______

calculating

the record,

we

further proceedings relating

to that offset.

Affirmed in part, vacated in part, and remanded.

Affirmed in part, vacated in part, and remanded.
________________________________________________

Each
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.
_____________

30