Biggins v. Hazen Paper Co.

• Decision Date: 06 December 1996
• Docket Number: Nos. 96-1870,96-1871,s. 96-1870
• Citation: 111 F.3d 205
• Parties: 70 Empl. Prac. Dec. P 44,684, 21 Employee Benefits Cas. 1086, 46 Fed. R. Evid. Serv. 1451 Walter F. BIGGINS, Plaintiff, Appellant, v. The HAZEN PAPER COMPANY, Robert Hazen and Thomas N. Hazen, Defendants, Appellees. Walter F. BIGGINS, Plaintiff, Appellee, v. The HAZEN PAPER COMPANY, Robert Hazen and Thomas N. Hazen, Defendants, Appellants. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 205

111 F.3d 205

70 Empl. Prac. Dec. P 44,684, 21 Employee

Benefits Cas. 1086,

46 Fed. R. Evid. Serv. 1451

Walter F. BIGGINS, Plaintiff, Appellant, v. The HAZEN PAPER COMPANY, Robert Hazen and Thomas N. Hazen,

Defendants, Appellees.

Walter F. BIGGINS, Plaintiff, Appellee, v. The HAZEN PAPER COMPANY, Robert Hazen and Thomas N. Hazen,

Defendants, Appellants.

Nos. 96-1870, 96-1871.

United States Court of Appeals, First Circuit.

Heard Dec. 6, 1996.

Decided April 18, 1997.

Maurice M. Cahillane, Springfield, MA, with whom John J. Egan and Egan, Flanagan and Cohen, P.C., were on briefs, for plaintiff.

Robert B. Gordon, Boston, MA, with whom John H. Mason and Ropes & Gray were on briefs, for defendants.

Before BOUDIN, Circuit Judge, CAMPBELL and BOWNES, Senior Circuit Judges.

BOUDIN, Circuit Judge.

This Flying Dutchman of a case has returned to us after a first trial, a panel decision, Supreme Court review, a further panel decision, an en banc order directing a further trial on one count, and then a second trial, followed now by the instant appeal. We hope that this opinion will bring the matter to a close, for a decade of litigation about a single, narrow event is enough.

I.

The case began in February 1988 when Walter Biggins brought suit in district court against his former employer, Hazen Paper Company, and its two principals, Robert Hazen, the president, and his cousin, Thomas Hazen, the treasurer. The company is a small but successful maker of specialty papers of various kinds. Biggins joined the company in 1977, at age 52, and served as its technical director for about nine years. He had no written employment contract.

During his employ, Biggins developed a superior waterbased paper coating that increased the company's sales. He sought a larger salary, was given a small increase, but remained unsatisfied and sought a further increase. Biggins later claimed that in 1984 Thomas Hazen had promised him company stock instead of a further raise; Thomas Hazen denied making any such promise.

Biggins, during his employ by the company, was also involved in two different ventures with his sons. When Thomas Hazen learned of this, he sought a confidentiality agreement from Biggins, limiting his outside activities during, and for a limited time after, his employment with the company. Biggins refused to sign, except in exchange for the stock he said had been promised. He was discharged in June 1986--a few weeks before his rights under the company pension plan would otherwise have vested.

Biggins then sued the company and the Hazen cousins (collectively "the Hazens") in an eight-count complaint. The first two counts charged the Hazens with age discrimination under the ADEA and interference with pension rights under ERISA. ¹ The remaining claims, of limited importance to this appeal (except for the contract claim), were for wrongful deprivation of property, wrongful discharge, fraud, conversion, breach of contract and violation of the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, §§ 11H and 11I.

In substance, Biggins claimed under the first two counts, respectively, that he had been fired on account of his age--he was replaced with a younger man--and to prevent the vesting of his pension. In additional counts, he also sought the value of the stock allegedly promised by Thomas Hazen and the benefit of the paper-coating formula and method, which Biggins claimed to own. The gravamen of the remaining counts was that he had been wrongfully discharged in violation of various rights protected under state law.

In its verdict, the jury largely accepted Biggins' position, apart from his claim to ownership of the formula, which it rejected. On the ADEA claim, the jury awarded him around $560,000; the ERISA award was $100,000, later adjusted downward to $93,000 on appeal. The fraud award for the allegedly promised stock was about $315,000. Biggins was also awarded just under $267,000 for discharge in violation of contract. On two other counts, only nominal damages were awarded.

Because the jury found that the age discrimination was willful, the award on the ADEA count would normally have been doubled, see 29 U.S.C. § 626(b), but the district court granted judgment n.o.v. in favor of the Hazens on the issue of willfulness. In other respects, the district court upheld the jury verdict against various post-trial motions. We reserve for later discussion the issue of attorney's fees, which the district court also addressed.

On appeal, a panel of this court affirmed the district court with several exceptions. Biggins v. Hazen Paper Co., 953 F.2d 1405 (1st Cir.1992). Two are pertinent here: first, the panel found that the evidence on the ADEA count supported damages (before doubling) of only about $420,000, but the panel also reinstated the willfulness finding and doubled the reduced award to about $840,000. Id. at 1416. Second, the panel set aside the contract claim verdict for lack of sufficient evidence to establish a contract. Id. at 1421-24.

The Supreme Court then granted certiorari and vacated the panel decision on the ADEA count. Hazen Paper Co. v. Biggins, 507 U.S. 604, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993). The Court held that the panel had been mistaken in relying upon the ERISA violation to supply the wrongful motive for the ADEA violation; it said that pensions might often correlate with age but a firing to prevent pension vesting did not itself amount to a firing based upon age. Id. at 611-13, 113 S.Ct. at 1706-08.

The Supreme Court remanded the case to the panel to reconsider whether the jury had sufficient evidence to find an ADEA violation once the ERISA violation was put to one side. 507 U.S. at 614, 113 S.Ct. at 1708. On remand, the original panel reconsidered the ADEA claim. In a second opinion in October 1993, it ruled that even disregarding the ERISA violation, enough evidence of age discrimination remained to sustain the ADEA verdict, reduced and then doubled as before.

The Hazens then petitioned for rehearing en banc, arguing inter alia that the panel had misconstrued a pertinent Supreme Court decision issued shortly after its remand in this case, St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). After soliciting memoranda, the en banc court in June 1994 ordered a new trial on the ADEA count, concluding that the verdict on this count had been contaminated by the same mistake that had led the Supreme Court to vacate the original panel decision.

Biggins unsuccessfully sought rehearing and then petitioned the Supreme Court for review, arguing that the en banc court had no power to order a new trial and that the decision to do so violated the Supreme Court's mandate. The Supreme Court denied certiorari. In re Biggins, 513 U.S. 1013, 115 S.Ct. 614, 130 L.Ed.2d 523 (1994). In April 1996, the district court held a new two-week jury trial on the ADEA count. The jury returned a verdict for the Hazens.

After various post-trial motions, Biggins filed the appeal now before us; a cross-appeal was filed by the Hazens relating only to attorney's fees. We begin with the attacks by Biggins upon the en banc court's remand for a new trial, and then address his claims of error in the second trial. Attorney's fees issues, raised by the Hazens' cross-appeal, are considered at the close.

II.

Biggins' challenge to the en banc order requiring a new trial is, strictly speaking, addressed to the wrong bench. The arguments that the remand was unlawful or unsound were presented to the en banc court in a petition for rehearing, rejected there, and then presented in a petition for certiorari which the Supreme Court denied. It is not open to the panel, in the normal case, to reconsider issues decided earlier in the same case by the en banc court. See United States v. DeJesus, 752 F.2d 640, 642-43 (1st Cir.1985).

Nevertheless, it may be helpful to explain why Biggins' arguments relating to authority of the en banc court are mistaken. His constitutional argument amounts to this: first, the Seventh Amendment prohibits any federal court from reexamining jury findings "otherwise ... than according to the rules of common law"; and second, in Biggins' view, the en banc court's new trial order overturned the jury findings of age discrimination--without any identified legal error committed by the district court.

This last qualification is critical. Where there is legal error, appeals courts often overturn jury verdicts, and order new trials or even dismissal. This occurs, for example, where evidence has been wrongly admitted, or where an instruction was mistaken, or even where the evidence did not permit a reasonable jury to reach the verdict rendered. See 9A C. Wright & A. Miller, Federal Practice and Procedure § 2540 (2d ed.1995); 11 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2805 (2d ed.1995).

The en banc court did find prejudicial legal error in the conduct of the original trial. The court's appraisal, as noted earlier, was that the jury was potentially misled by the same error that the Supreme Court identified in the first panel decision, namely, a belief that the wrongful motive (pension interference) that gave rise to an ERISA violation by itself constituted wrongful motive under ADEA. Whether or not the en banc court's assessment of prejudice was invincibly supported, the en banc court was free under the Seventh Amendment to make that judgment. ²

Biggins' other challenge to the en banc court's authority is also wide of the mark. He argues that when the Supreme Court remanded the case to this court, it precluded this court from taking any action other than an up-or-down vote as to whether enough evidence remained to support the ADEA verdict. Therefore, says Biggins, the en banc court has violated the Supreme Court's mandate.

Of course, a higher court's mandate must be respected, Sprague v. Ticonic Nat'l Bank, 307 U.S. 161, 168, 59 S.Ct. 777, 780-81, ...