50 F.3d 1103 (1st Cir. 1995), 94-1863, Lussier v. Runyon

Docket Nº:94-1863, 94-1946.
Citation:50 F.3d 1103
Party Name:Thomas R. LUSSIER, Plaintiff, Appellant, v. Marvin RUNYON, United States Postmaster General, Defendant, Appellee. Thomas R. Lussier, Plaintiff, Appellee, v. Marvin Runyon, United States Postmaster General, Defendant, Appellant.
Case Date:March 29, 1995
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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50 F.3d 1103 (1st Cir. 1995)

Thomas R. LUSSIER, Plaintiff, Appellant,


Marvin RUNYON, United States Postmaster General, Defendant,


Thomas R. Lussier, Plaintiff, Appellee,


Marvin Runyon, United States Postmaster General, Defendant, Appellant.

Nos. 94-1863, 94-1946.

United States Court of Appeals, First Circuit

March 29, 1995

Argued Feb. 2, 1995.

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[Copyrighted Material Omitted]

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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, Asst. Atty. Gen., Jay P. McCloskey, U.S. Atty., Robert S. Greenspan and Sandra Wien Simon, Appellate Staff, Civ. Div., Dept. of Justice, were on brief, for defendant.

Before SELYA and STAHL, Circuit Judges, and BOWNES, Senior Circuit Judge.

SELYA, Circuit Judge.

After determining that the 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. Secs. 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

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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."


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. Sec. 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--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. Sec. 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,

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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.


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 Sec. 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.

  1. 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. Sec. 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. Sec. 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, --- U.S. ----, 114 S.Ct. 1189, 127 L.Ed.2d 539 (1994); Shore v. Federal Express Corp., 777 F.2d 1155, 1158-60 (6th Cir.1985); Thompson v....

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