
USCA1 Opinion

	




                                [Not for Publication]                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 95-2227                                 GERALD W. CLEMENTE,                                Plaintiff, Appellant,                                          v.                               ROBERT Q. CRANE, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Cyr and Lynch, Circuit Judges.                                           ______________                                 ____________________            Richard E.  Bachman, with whom John  A. King  and Hale, Sanderson,            ___________________            _____________      ________________        Byrnes & Morton were on brief, for appellant.        _______________            Salvatore  M. Giorlandino,  Assistant Attorney  General, with whom            _________________________        Scott  Harshbarger,   Attorney  General,  and  Phyllis   N.  Crockett,        __________________                             ______________________        Assistant Attorney General, were on brief, for appellees.                                 ____________________                                   OCTOBER 09, 1996                                   OCTOBER 09, 1996                                 ____________________                      LYNCH, Circuit Judge.  The      Commonwealth     of                      LYNCH, Circuit Judge.                             _____________            Massachusetts State Board of Retirement  terminated plaintiff            Gerald   W.  Clemente's   disability  retirement   and  group            insurance benefits because of his conviction of a crime  four            years earlier.   Clemente  had been federally  prosecuted and            convicted for his involvement in the theft and sale of police            promotional  exams, a  scheme  popularly known  as the  "Exam            Scam."  See generally  United States v. Doherty, 867  F.2d 47                    ___ _________  _____________    _______            (1st Cir.),  cert. denied, 492  U.S. 918 (1989).   Clemente's                         ____________            crime, the Board reasoned, involved the  funds or property of            a state agency and so justified the termination of Clemente's            benefits under Mass. Gen. L. ch. 32,   15(1),  (3).  Clemente            did not receive prior notice of the impending termination  of            benefits; nor was he given an  opportunity to be heard.  Four            years after the termination,  after Clemente had appealed the            decision through the state administrative process,  the Board            finally held a hearing.  It then determined that Clemente was            not entitled  to receive the  benefits the Board  had earlier            stopped paying.  The Board also determined that Clemente owed            an  agency of  the  Commonwealth,  the Metropolitan  District            Commission ("MDC"), sums in restitution for his crime.                      In  the  interim, Clemente  had  filed  this action            alleging  procedural and substantive  due process violations.            The district court held  that the Board's initial termination            of  Clemente's  benefits  violated Clemente's  constitutional                                         -2-                                          2            right to procedural due process and  that the defendant Board            members were individually liable.   The court determined that            Clemente's federal  damages were  the payments he  would have            received  up  to the  time of  an  adequate hearing  and then            "offset" the  damages by the restitutionary  amount the Board            had determined Clemente  owed to  the MDC on  account of  his            crimes,  an  amount  apparently   greater  than  the  damages            suffered.  Clemente  appeals from  the judgment,  complaining            primarily of the offset.  We affirm.                                    I.  Background                      Clemente worked  as a  police officer with  the MDC            until  May 28, 1983, when the Board granted him an accidental            disability   retirement  due   to  his   hypertension,  which            prevented him  from working.  Clemente  thereafter received a            monthly allowance from the State Retirement System as well as            group medical  insurance benefits  for himself and  his wife.            In  November  1986,  Clemente  pleaded guilty  to  a  federal            racketeering charge.   He  had participated  in  a scheme  to            defraud  the  Commonwealth  by  stealing  police  promotional            exams, giving or selling them to others, and altering scores.            In  1988,  the Board  requested  an  opinion from  the  State            Attorney  General as  to  the  effect  of the  conviction  on            Clemente's entitlement  to  pension benefits.   The  Attorney            General  responded in June 1990, advising  the Board that the            Exam  Scam scheme, to the  extent that it actually succeeded,                                         -3-                                          3            was  a crime that involved  MDC funds or  property within the            meaning of Mass. Gen. L. ch. 32,   15.1                      In July  1990, without giving  Clemente notice that            such an action was contemplated, the Board voted to terminate            his   benefits  based   upon  its   determination   that  his            racketeering conviction was for an offense which involved the            funds  or property  of  the MDC.    The Board  then  notified            Clemente of its action and ceased paying benefits.                                            ____________________            1.  The relevant portions of Mass. Gen.  L. ch. 32,   15 read            as follows:                      (1)    Misappropriation  of Funds.    Any                             __________________________                      member  who  has  been  charged  with the                      misappropriation of funds or  property of                      any  governmental  unit  in which  or  by                      which he is employed  or was employed  at                      the time of his retirement or termination                      of service  . . . and who files a written                      request  therefor  shall  be   granted  a                      hearing  by the  board .  . .  .   If the                      board after the hearing finds the charges                      to be true, such member shall forfeit all                      rights . . . to a retirement allowance or                      to  a  return  of his  accumulated  total                      deductions  . .  . to  the extent  of the                      amount so found to be misappropriated and                      to  the  extent  of   the  costs  of  the                      investigation,  if any,  as found  by the                      board. . . .                      (3)      Forfeiture   of    Rights   upon                               ________________________________                      Conviction.  In no event shall any member                      __________                      after  final  conviction  of  an  offense                      involving  the  funds  or  property  of a                      governmental  unit .  . . referred  to in                      subdivision  (1)  of  this   section,  be                      entitled   to    receive   a   retirement                      allowance  or a return of his accumulated                      total deductions  . . . unless  and until                      full    restitution    for    any    such                      misappropriation has been made.                                         -4-                                          4                      Clemente  appealed  to the  Contributory Retirement            Appeal Board,  which, in September 1992,  remanded the matter            to the  Board and  directed the  Board to  hold a  hearing if            Clemente so  requested.  In 1994, the  Board finally notified            Clemente of its intent  to initiate misappropriation  charges            and then held  a hearing  upon his  request.   On January  4,            1995,  the Board issued a  decision finding that Clemente had            misappropriated MDC funds and owed restitution to  the MDC in            the amount  of $239,146  plus interest and  ordered forfeited            all his  rights to  his retirement allowance  and accumulated            deductions.2                      In 1993,  while the state administrative action was            pending  but  before  the  Board  had  given  him  a hearing,            Clemente filed  this federal  action under  42 U.S.C.    1983            against  the Commonwealth,  the  Board, and  the members  who            served on the Board  when Clemente's benefits were terminated            in 1990.  Clemente claimed that the defendants terminated his            disability retirement allowance  and medical benefits without            notice  or  a  hearing, thus  violating  his  rights to  both            substantive and procedural due process.  He also claimed that            the  termination  constituted   further  punishment  for  his            participation in  the Exam Scam, thus violating  his right to                                            ____________________            2.  The Board found that "Clemente misappropriated the amount            of $216,175.00 from the  MDC, and that he is  responsible for            $22,971.00 in  costs of investigation.   The total  amount of            restitution  due   the  MDC   is  the  principal   amount  of            $239,146.00, plus interest."                                         -5-                                          5            be free from double jeopardy.  He requested damages for these            constitutional violations.3  The district court dismissed the            claims against the Commonwealth and the Board, as well as the            claims  against   the  Board   members   in  their   official            capacities.  The Board members in their individual capacities            are thus the only remaining defendants.                      The district court withheld  decision on the matter            until  after  the Board  issued  its  January 1995  decision.            Thereafter,  on  cross  motions  for  summary  judgment,  the            district court  held that  the Board had  violated Clemente's            procedural due process  rights by failing to give  him notice            and  a   hearing  before  terminating  his   benefits.    The            defendants   did   not   dispute    that   Clemente   had   a            constitutionally protected property interest in the benefits,            and that,  under state law, he was  entitled to notice and an            opportunity  to  be heard  before  the  Board terminated  the            benefits.    The  district  court  rejected  the  defendants'            argument  that   the  Board's   actions   were  "random   and            unauthorized" acts that could  be cured by a post-deprivation            hearing  under Parratt v.  Taylor, 451 U.S.  527, 541 (1981),                           _______     ______            overruled in part on other  grounds, Daniels v. Williams, 474            ___________________________________  _______    ________            U.S. 327, 330 (1986), and rejected the defendants' claims  of                                            ____________________            3.  In   his  complaint,  Clemente  also  sought  prospective            relief, but after  the Board  held a hearing  on the  matter,            these prayers were  not pursued, although they have  not been            formally dismissed.                                         -6-                                          6            qualified  immunity.    In  addition,  the  court  held  that            Clemente's  substantive  due  process  rights  had  not  been            violated,  and it  also rejected  his double  jeopardy claim,            holding that  the termination  of payments was  not punitive,            and  even if  it  were,  that  the  Board's  action  was  not            unconstitutional  because the  criminal  prosecution and  the            termination  proceedings were brought by separate sovereigns.                      The district court  accepted Clemente's  contention            that the "deprivation decision could have been made no faster            in  a  proper  fashion."     Therefore,  the  district  court            calculated damages from  the due process violation  to be the            pension benefits  Clemente would have received  from the time            the benefits were terminated until the January 1995 decision,            as  well as  out-of-pocket medical  expenses that  would have            been covered under  the health insurance  plan.  That  amount            was $104,064.85, plus interest.   However, the district court            also determined that "[t]his amount may be used to offset the            restitution  amount   Clemente  owes  as  a   result  of  the            defendants'  January  4,  1995,   decision."    Clemente  has            appealed  both the award of  the offset and  the rejection of            his double jeopardy claim.4                                 II.  Double Jeopardy                                            ____________________            4.  Defendants have not appealed from the judgment.                                         -7-                                          7                      Clemente  appeals the district court's holding that            the Double Jeopardy Clause did not bar the termination of his            benefits.     Even   assuming   arguendo  that   the  Board's                                            ________            termination of Clemente's  benefits constituted  punishment,5            the  doctrine of  double  jeopardy does  not  apply to  suits            brought by separate sovereigns.  Abbate v. United States, 359                                             ______    _____________            U.S. 187, 194 (1959); United States v. 40 Moon Hill Road, 884                                  _____________    _________________            F.2d 41, 43  (1st Cir.  1989).  Clemente  was convicted of  a            federal offense in federal court.  The Double Jeopardy Clause            does not bar  later action by  the Commonwealth to  terminate            benefits and thereby recover sums it lost due to the offense,            even if the termination were in part punitive.                                   III.  The Offset                      Clemente challenges  the  offset, arguing  that  it            should be  reversed because it  was not  timely pleaded6  and                                            ____________________            5.  The district court held  that the termination of benefits            was purely remedial because it found that "[o]nce the MDC has            been  fully reimbursed  for  the funds  or property  Clemente            allegedly  misappropriated,  Clemente  will  be  entitled  to            receive the remainder of his pension payments."  This finding            was  apparently  based upon  a  1990  letter written  by  the            Board's  legal  counsel.     However,  in  its  January  1995            decision, the Board stated that "[Clemente] is ineligible for            any retirement allowance under  the provisions of sections 1-            28,  regardless  of  whether  he ever  makes  restitution  or            whether  the Board  recovers  misappropriated funds  from the            other  MDC  co-conspirators."     Because  we affirm  summary            judgment  on  the  double  jeopardy  claim  on  the  separate            sovereign theory, we need  not decide whether the termination            was punitive in nature.            6.  Defendants  first raised  the  issue  in pleadings  filed            after  the summary judgment motion.  While the defendants ran            a risk in being  so dilatory, the district court  reached the                                         -8-                                          8            because  the  Board's  order  did  not  establish  a  legally            enforceable  debt  for  the   amount  of  restitution.    The            defendants  counter by  characterizing  the district  court's            judgment as a permanent injunction, warranted by the equities            in the case,  and argue that the district court did not abuse            its  equitable discretion  in formulating  such relief.   The            defendants  also argue  that  the offset  was appropriate  to            prevent a windfall to Clemente.7                      As the Supreme Court  said in Carey v. Piphus,  435                                                    _____    ______            U.S. 247, 258-59 (1978):                      In  order  to further  the  purpose of                         1983,  the  rules governing  compensation                      for injuries caused by the deprivation of                      constitutional rights  should be tailored                      to   the   interests  protected   by  the                      particular right  in question --  just as                      the    common-law   rules    of   damages                      themselves were defined by  the interests                      protected in the various branches of tort                      law.                                            ____________________            issue and  there was adequate opportunity for  Clemente to be            heard.  We reach the issue as well.            7.  The  defendants  assert   further  that   there  was   no            procedural  due  process  violation, or  alternatively,  that            there  were   no  actual  damages.     However,  because  the            defendants failed to  file a cross-appeal, we do not consider            the argument as to  liability.  An appellee is  not permitted            to urge reversal of a judgment.  United States v. Lumbermens'                                             _____________    ___________            Mut. Casualty Co.,  917 F.2d  654, 658 n.6  (1st Cir.  1990);            _________________            Bath Iron Works Corp.  v. White, 584 F.2d  569, 573 n.2  (1st            _____________________     _____            Cir. 1978); 15A Wright et al., Federal Practice and Procedure                                           ______________________________              3904,  at  196 (2d  ed.  1992).   Nor have  the  defendants            appealed  from  the measure  of  damages  awarded before  the            offset, and so we  do not express any views  on the propriety            ab initio of that award.                                         -9-                                          9            Here, the  district court  was concerned about  fashioning an            award to  the  plaintiff that  would  "redress," to  use  the            language of   1983,  his actual injuries.  The  court's order            was  intended to  permit "judgment to  be rendered  that does            justice  in  view  of  the   one  transaction  as  a  whole."            Rothensies v. Electric Storage Battery Co., 329 U.S. 296, 299            __________    ____________________________            (1946).                      The remedial order  is to  be read as  a whole  and            provides:                           The  clerk  is  directed   to  enter                      judgment  for   the  plaintiff  directing                      defendants first to apply as an offset to                      the  restitutionary  award  made  against                      plaintiff by the defendants'  decision of                      January  4, 1995, an  amount equal to the                      [damages plaintiff suffered  in terms  of                      pension benefits and medical expenses].            The order also establishes  a mechanism that accommodates the            fact that Clemente  has appealed the Board's January  4, 1995            decision in state court:                           The Board's January 4, 1995 decision                      recites that such an offset would be "far                      exceeded by the principle [sic] amount of                      restitution    due."         Under    the                      circumstances,   it   does   not   appear                      necessary for this court to calculate the                      precise offset in order to adjudicate the                      issues  between  the   parties  in   this                      litigation.   Of course, if there is such                      a dispute, it may be resolved in light of                      the   principles   developed  in     this                      Memorandum,    through    the    ordinary                      administrative process.            By  this mechanism, we understand that should the state court            reject or revise the Board's decision, a corollary adjustment                                         -10-                                          10            would  be made in the  amount, if any,  recoverable under the            federal order.  The issue  here is whether such an  order was            within  the  power of  the  court  and represented  a  proper            exercise of its discretion.                      Clemente  is correct  that  this is  not a  classic            "set-off," within the technical meaning of the term.  A "set-            off"  is  a  "'counter-claim  demand  which  defendant  holds            against plaintiff, arising out  of a transaction extrinsic of            plaintiff's  cause of  action.'"   United Structures  of Am.,                                               __________________________            Inc. v. G.R.G. Eng'g,  S.E., 9 F.3d 996, 998  (1st Cir. 1993)            ____    ___________________            (quoting Black's  Law Dictionary  1230 (5th ed.  1979)).   In                     _______________________            this  case, however,  the debts  were not  reciprocal, as  is            usually  true  in a  set-off.   Clemente's  damages  ran only            against  the  members  of   the  Board  in  their  individual                                                               __________            capacities,8 while the restitution award was due the  MDC, an            agency  of the  Commonwealth.   Thus, the  mutuality  of debt            generally  required to support  a set-off was  lacking.9  But                                            ____________________            8.   The claims  against the Commonwealth and the  Board were            dismissed and  the federal  claims were dismissed  insofar as            they sought retroactive damages  against the members in their            official capacities.            ________            9.  Some  courts  have  held   that  there  is  an  equitable            exception  to the  mutuality  requirement  when  it  "becomes            necessary to effect a clear equity or to prevent irremediable            injustice."  Black  & Decker Mfg.  Co. v. Union Trust  Co., 4                         _________________________    ________________            N.E.2d 929, 930 (Ohio App. Ct. 1936).  We find it unnecessary            to reach this issue.                                         -11-                                          11            Clemente's  argument  that  it is  not  a  set  off10 in  the            end proves nothing.                      Despite defendants'  inappropriate characterization            of the  relief as injunctive relief, we  believe the district            court was exercising its equitable judgment in fashioning the            remedy.  We  start with  the premise that  "[t]he measure  of            damages in section 1983 actions is a matter of federal common            law."  Figueroa-Rodriguez v. Aquino, 863 F.2d 1037, 1045 (1st                   __________________    ______            Cir. 1988);  see also Sullivan  v. Little Hunting  Park, Inc.                         ________ ________     __________________________            396 U.S. 229, 240 (1969) ("The rule of damages, whether drawn            from federal or  state sources, is a federal  rule responsive                                            ____________________            10.  One response to Clemente's argument is that even the law            of    damages   recognizes    in   certain    instances   the            appropriateness  of offsetting  awards,  under  the guise  of            "recoupment."    A recoupment  is "'a reduction  or rebate by            the defendant of part  of the plaintiff's claim because  of a            right in the defendant arising out of the same transaction.'"            United  Structures,  9  F.3d  at  998  (quoting  Black's  Law            __________________                               ____________            Dictionary  1147 (5th  ed. 1979)).   Recoupment  may  only be            __________            asserted to diminish  or defeat a plaintiff's  claim.  Reiter                                                                   ______            v. Cooper, 507 U.S. 258, 264 (1993); Nashville Lodging Co. v.               ______                            _____________________            Resolution  Trust Corp., 59 F.3d 236, 246 (D.C. Cir. 1995); 6            _______________________            Wright et al., Federal  Practice and Procedure   1401, at  10                           _______________________________            (2d ed. 1990).   In United  Structures, 9 F.3d at  999, then-                                __________________            Chief Judge Breyer pointed out the  relevance of the doctrine            of recoupment to cases such as Clemente's:                           Recoupment .  . . is "in  the nature                      of a defense" and is intended to  "permit                      . .  . judgment to be  rendered that does                      justice in view of the one transaction as                      a whole."            Id.  (quoting Rothensies,  329 U.S.  at 299).   The  court in            ___           __________            United Structures further commented  that the plaintiff "has,            _________________            in a sense, no right to funds subject to recoupment."  Id. at                                                                   ___            998.                                           -12-                                          12            to  the need  whenever a  federal right  is impaired.").   We            review the exercise of  equitable jurisdiction under an abuse            of  discretion standard.    Ferrofluidics Corp.  v.  Advanced                                        ___________________      ________            Vacuum Components, Inc., 968 F.2d 1463, 1471 (1st Cir. 1992).            _______________________                      In federal courts, law and equity jurisdictions are            merged.  Fed. R. Civ. P. 2.  Thus, Clemente's legal  argument            on  set  off  does not  cut  back  on  the court's  equitable            remedial  power.   One  commentator has  noted that  "[a]fter            merger,  a court having both  law and equity  powers may give            the plaintiff any remedy justified by pleading and proof."  2            Dobbs, Law of  Remedies   2.6(1), at 150 (2d  ed. 1993).  The                   ________________            ancient distinctions between law  and equity, helpful in some            contexts, see Beacon Theatres, Inc. v. Westover, 359 U.S. 500                      ___ _____________________    ________            (1959),  are less  so here.   "[W]ith the  merger of  law and            equity  it is difficult to  see why equitable defenses should            be limited to equitable suits anymore, and of course many are            not  so limited . . . ."   Byron v. Clay, 867 F.2d 1049, 1052                                       _____    ____            (7th Cir. 1989) (Posner, J.).11  Courts also have articulated            the broader principle  "that adjures a court to  consider the                                            ____________________            11.  Upholding  in Byron  the dismissal  of a    1983  action                               _____            brought  by  a  former   government  employee  who  had  been            discharged for political reasons and who sought reinstatement            to a  "ghost job" (a job  for which no work  was required but            for which  a salary was  paid), Judge  Posner noted:   "It is            enough  to observe that a  highwayman who decided  to sue his            partner  for common law damages  as well as  for an equitable            accounting for  profits would  surely have gotten  no further            with his 'legal' claim than with his 'equitable' one."  Id.                                                                    ___                                         -13-                                          13            third party effects  of equitable  relief and  to shape  that            relief accordingly."  Id. at 1051.                                    __                      In fashioning  a remedy under    1983, trial judges            may  consider the equities of the matter.  "[T]he hallmark of            equity  is  the ability  to  assess  all relevant  facts  and            circumstances and tailor appropriate relief on a case by case            basis."  Rosario-Torres v. Hernandez-Colon, 889 F.2d 314, 321                     ______________    _______________            (1st Cir.  1989)  (en banc)  (whether to  reinstate a  public            employee  fired   in  violation  of     1983  is  within  the            discretion of trial court); see also  Walker v. Waltham Hous.                                        ________  ______    _____________            Auth.,  44 F.3d 1042, 1048  (1st Cir. 1995)  (trial judge was            _____            "unquestionably  within  her  authority in  holding  that the            equities  did not  warrant [reinstatement  to public  job]").            "The substantive scope of relief available is a matter of the            equitable powers of the  federal courts.  Accordingly, courts            have exercised broad remedial power in civil rights actions."            Knecht v.  Gillman,  488 F.2d  1136,  1140 (8th  Cir.  1973).            ______     _______            Whatever the  limits of a federal  court's equitable remedial            power in an  action under  42 U.S.C.    1983, we believe  the            "restitution"  order here is  well within that  scope and was            proper.   Restitution orders  requiring criminals  to restore            the victim to the victim's original position are of venerable            origin.    See  Note,  Victim  Restitution  in  the  Criminal                       ___         ______________________________________            Process; A  Procedural Analysis, 97  Harv. L.  Rev. 931,  933            _______________________________            (1984).                                           -14-                                          14                      Here, due to  the mechanisms implementing  Eleventh            Amendment  guaranties,  the  damages  were   awarded  against            individual defendants,  and the  restitution was owed  not to            these defendants, but to a state agency.  See Hafer  v. Melo,                                                      ___ _____     ____            502  U.S. 21, 26-30 (1991).   However, we  think the district            court was entitled to consider the close relationship between            the  individual  defendants --  state  officials  -- and  the            state.      In  fact,   defendants   were   exercising  their            responsibilities  as state officials  in the  very activities            that gave rise to this litigation.                      Despite  the  distinction  between  the  individual            defendants  and the  state agency,  the district  court could            look  to the  underlying  reality  of  the situation.    "The            essence of  equity jurisdiction has been  the power . .  . to            mould each decree to the necessities of the particular case."            Hecht Co.  v. Bowles, 321 U.S.  321, 329 (1944).   This is an            _________     ______            unusual case, with a fact pattern not likely to recur, and we            think the district court was sensitive to the realities.  The            alleged procedural  due process  violation and the  basis for            the assertion of  the setoff arise from related  questions as            to  what plaintiff  is  in  fact  due  by  way  of  benefits,            questions arising from the statutory  scheme the Commonwealth            has  created in  Gen.  L. ch.  30.   These are  not unrelated                                         -15-                                          15            parties  or  unrelated  matters.12   Indeed,  the  order  was            entered against a  backdrop in which the Board,  after giving            Clemente  the hearing to which he was entitled, found that he            was not entitled to benefits.                      Clemente  argues  strenuously  that  reversing  the            offset  will produce no windfall because there is no right of            recoupment  unless  he  wishes  to have  his  pension  rights            reinstated under Mass.  Gen. L.  ch. 32,    15.13  The  state            courts will address the  state law issues here on  Clemente's            appeal  from  the Board's  order.   The district  court order            provides a  mechanism for adjustment which,  depending on the            outcome  of   that  appeal,  should  avoid   the  problem  of            overpayment  to either  side.   In any  event, the  state law                                            ____________________            12.  As  a  result, we  express no  views  on whether  such a            restitutionary order  in favor  of a truly  independent third            party, or based  on unrelated transactions, could  be used to            set off a judgment.            13.  This may or may not  be a correct reading of state  law.            For  example, Mass.  Gen. L.  ch. 32,    15(1)  provides that            "[i]f  the  Board after  the  hearing finds  the  charges [of            misappropriation] to  be true, such member  shall forfeit all                                                              _______            rights .  . . ."   Id. (emphasis added); see  also DeLeire v.                               ___                   _________ _______            Contributory  Retirement  Appeal  Bd., 605  N.E.2d  313,  316            _____________________________________            (Mass.  App.  Ct. 1993)  ("In accordance  with  G.L. c.  32              10(4),  [plaintiff]   is  entitled  to  the   return  of  his            accumulated total  deductions.    That  right  is  qualified,            however, by G.L.  c. 32    15(3), which  provides that,  upon            conviction of  an offense  involving misappropriation of  any            funds  of  the  governmental unit  in  which  the person  was            employed, such return is conditioned upon the making  of full            restitution of the funds misappropriated."), rev. denied, 617                                                         ___________            N.E.2d 640 (Mass. 1993).                                         -16-                                          16            issues,  while  informing  the  federal court's  exercise  of            discretion, do not define the limits of that discretion.                      Each side cites to  us the Eighth Circuit decisions            in  Hankins v. Finnel, 964 F.2d 853 (8th Cir.), cert. denied,                _______    ______                           ____________            506 U.S. 1013 (1992) and Beeks  v. Handley, 34 F.3d 658  (8th                                     _____     _______            Cir. 1994).  While neither Hankins nor Beeks is on point (and                                       _______     _____            each raises issues  extraneous to this  case), we agree  with            the Eighth Circuit that   1983 relief must be consistent with            the deterrence goal inherent in   1983.  An important purpose            of    1983  is  "to  serve  as  a  deterrent  against  future            constitutional  deprivations."  Owen v. City of Independence,                                            ____    ____________________            445 U.S.  622, 651 (1980).   Along  with the  Beeks court  we                                                          _____            conclude that  "victim restitution  does not defeat    1983's            deterrence goal.14   Beeks, 34 F.3d  at 661; see also  Doe v.                                 _____                   ___ ____  ___            Morgenthau, 871 F. Supp. 605, 611 (S.D.N.Y. 1994) ("Any claim            __________            . . . on behalf of plaintiff's victims would be  an offset to            plaintiff's claims  against the People and  could be asserted            as of right.").                      Ultimately,  the  deterrence  argument   must  also            accommodate  "the  factual  permutations  and  the  equitable            considerations they raise" on a case by case basis.  McKennon                                                                 ________                                            ____________________            14.  Indeed,   Clemente  was  awarded  attorney's  fees,  not            subject to  the offset.  Attorney's fee awards are themselves            a  deterrent.   Congress  must have  believed  so when,  in a            related  area of law, it  enacted the 1991  Civil Rights Act,            which  provides  for recovery  of  attorney's  fees in  mixed            motive  cases even when  actual damages are  unavailable.  42            U.S.C.   2000e-5(g)(2)(B).                                           -17-                                          17            v. Nashville Banner  Pub. Co.,  115 S. Ct.  879, 886  (1995).               __________________________            While  McKennon was  an ADEA  action, the  related deterrence                   ________            argument there  did not trump  a damages remedy  which fairly            accounts for  a plaintiff's  own wrongdoing.   McKennon holds                                                           ________            that  where after-acquired evidence  demonstrates an employer            would  have  terminated  plaintiff anyway,  even  though  the            employer  had a  discriminatory motive,  the plaintiff,  as a            general rule, is not entitled to front  pay or reinstatement,            nor  to  back-pay  damages  extending  beyond  the  time  the            employer  learned about  the  employee wrongdoing  that would            have  led to legitimate  discharge.15  Id.   The compensation                                                   ___            analysis here fairly accounted for plaintiff's own wrongdoing            and does not undermine the deterrent effect of the statute.                                   IV.  Conclusion                      We  conclude  that   the  district  court  properly            granted summary judgment  in favor of  the defendants on  the            plaintiff's  double  jeopardy claim  and  did  not abuse  its            discretion in fashioning the  remedial order.  We affirm  the            judgment.                                            ____________________            15.  It is not difficult to imagine a  situation where, under            McKennon, an illegally discharged  employee might win a civil            ________            rights suit,  yet still  walk away empty-handed,  as Clemente            does in this case.   For instance, if the  employer discovers            the after-acquired evidence  which would justify  termination            on  the  same  day  as  the  illegal  discharge,  or  shortly            afterwards, plaintiff's back-pay damages would be nonexistent            or minimal.                                         -18-                                          18
