
USCA1 Opinion

	




                           UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                ____________________       No. 96-1870                                 WALTER F. BIGGINS,                                Plaintiff, Appellant,                                         v.             THE HAZEN PAPER COMPANY, ROBERT HAZEN and THOMAS N. HAZEN,                               Defendants, Appellees.                                ____________________       No. 96-1871                                 WALTER F. BIGGINS,                                Plaintiff, Appellee,                                         v.             THE HAZEN PAPER COMPANY, ROBERT HAZEN and THOMAS N. HAZEN,                               Defendants, Appellants.                                ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Michael A. Ponsor, U.S. District Judge]                                ____________________                                       Before                                Boudin, Circuit Judge                     Campbell and Bownes, Senior Circuit Judges.                                ____________________            Maurice                   M. Cahillane with whom John J. Egan and Egan, Flanagan and       Cohen, P.C. were on briefs for plaintiff.            Robert B. Gordon with whom John H. Mason and Ropes & Gray were on       briefs for defendants.                                ____________________                                   April 18, 1997                                ____________________                 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  water-            based 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                                         -2-                                         -2-            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, SS 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                                                                                                                                                                               1ADEA                           is                              the                                  Age Discrimination in Employment Act, 29            U.S.C. S  621, et seq. and  ERISA is the Employee  Retirement            Income Security Act, 29 U.S.C. S 1001 et seq.                                         -3-                                         -3-            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.                                  S                                    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                                         -4-                                         -4-            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 (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.                 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.  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,            Hicks  v. St. Mary's  Honor Center, 113  S. Ct. 2742  (1993).            After soliciting memoranda,  the en banc  court in June  1994            ordered a  new trial on the  ADEA count, concluding that  the                                         -5-                                         -5-            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                                cert                                   iorari.  In re Biggins, 115 S. Ct. 614            (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,                                         -6-                                         -6-            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 Wright            &              Miller,                      Fed                        eral Practice and Procedure S 2540 (2d ed. 1995);            11               Wright,                       Miller                             &                               Kane, Federal Practice and Procedure S 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                                         -7-                                         -7-            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 (1939),  but            the issue here is the scope of the mandate.  Where as  here a            judgment is vacated and the matter remanded, Hazen Paper Co.,            507 U.S. at 617, the lower court must undo the judgment  just            vacated and  cannot normally revisit  a legal issue  actually            decided                    by                       the reviewing court.  But after that, the situation            is less rigid than Biggins assumes.                      2The concern did not come out of the blue.  Biggins            had relied in  his complaint upon the deprivation of  pension            benefits                     as                        an act of age discrimination and had made the same            argument on appeal.                                         -8-                                         -8-                 On remand, courts are often confronted with issues  that            were never considered by the remanding court.  And                           the   mandate  of   an  appellate   court                 forecloses  the  lower  court  from   reconsidering                 matters  determined  in  the  appellate  court,  it                 `leaves                         to                            the [lower] court any issue not expressly                 or                    impliedly                              disposed of on appeal.'  Stevens v. F/V                 Bonnie Doon, 731 F.2d 1433, 1435 (9th Cir. 1984).            Nguyen v. United States, 792 F.2d 1500, 1502 (9th Cir. 1986).                        ing, mandates require respect for what the higher                 although            Broadly                    speak            court decided, not for what it did not decide.3                       Here, the en banc court concluded that the contamination            of the ADEA verdict required a new trial, even assuming  that            the remaining evidence might otherwise support a verdict  for            Biggins on  that claim.  Whether  this judgment was right  or            wrong--and we cannot revisit it--the contamination issue  had            certainly not been addressed in the Supreme Court's  opinion.            And when Biggins made his mandate argument on certiorari, the            Supreme Court denied the petition.                                        III.                 The                     next                          claim of error presents the most difficult issue            in the case.  Prior to the start of the second trial, motions            in               limine                      were filed by both sides.  One such motion, filed by            Biggins,                     invoked collateral estoppel and asked that the Hazens                         3See also Rogers v.  Hill, 289 U.S. 582,  587-88            (1933)(absent                         a contrary direction, a district court on remand            can                permit                       the                          plaintiff                                    to 'file additional pleadings, vary or            expand the issues . . . ."); Sierra Club v. Penfold, 857 F.2d            1307, 1311-12 (9th Cir. 1988); Alter Fin Corp. v. Citizens  &            Southern Int'l Bank, 817 F.2d 349 (5th Cir. 1987).                                         -9-                                         -9-            be barred from relitigating issues decided in the first trial            on counts other  than the ADEA claim.  Specifically,  Biggins            asked that the Hazens  be precluded at trial from showing  or            arguing (and we quote):                 --   that                           the                               plaintiff was not fired, but left                      work voluntarily,                 --   and/or  that  the  plaintiff  was   fired                      because he was a disloyal employee,                 --   and/or that  the  plaintiff's  disloyalty                      created a  need  for  the  defendants  to                      dictate  that   he  sign  a   restrictive                      agreement.                 In a  second in limine  motion, Biggins  asked that  the            Hazens also be precluded from showing or arguing that Biggins            was seeking additional compensation when, in Spring 1986,  he            conditioned his signing  of the confidentiality agreement  on            being given stock.  Biggins claimed that the first trial  had            determined                       that                            he                              had                                  been promised the stock in 1984 and that            the                company                        had been found liable for fraud in withholding the            stock.                 The district judge rejected both in limine motions after            an               oral                    hearing, expressing some doubt but concluding that the            en               banc                    court had intended a full new trial on the ADEA count.            The                judge                      said (and Biggins readily agreed) that it could make            the new  trial an empty  gesture if the  jury were told  that            Biggins                    was                        an                          innocent                                   victim who had been fired by the Hazens            as  part of  an effort  to defraud  Biggins.   The court  did            instruct  the jury that  Biggins had been  fired and had  not            resigned.                                        -10-                                        -10-                 Collateral estoppel, now often called issue  preclusion,            prevents a party  from relitigating at a second trial  issues            determined between  the  same  parties by  an  earlier  final            judgment--sub                        ject to various limitations.  Lundborg v. Phoenix            Leasing, Inc., 91 F.3d 265, 271 (1st Cir. 1996);  Restatement            (Second) of Judgments S 27 (1982).  But the limitations  have            been slowly diluted  over time and most are irrelevant  here.            Nor do the Hazens dispute  that the jury verdict in favor  of            Biggins at the  first trial is now  final except on the  ADEA            count.                 The                     Hazens'                             main argument against collateral estoppel has            been                 that                      the "issues" in the two cases were different because            nothing in the first trial validly determined that the Hazens            had                been                     motivated by age in firing Biggins (since the Supreme            Court had vacated this claim).   This won't wash.  True,  age            motivation is usually the ultimate issue under the ADEA;  but            collateral estoppel is no longer limited to ultimate  issues:            necessary intermediate findings can  now be used to  preclude            relitigation.                          Grella v. Salem Five Cent Savings Bank, 42 F.3d            26, 30-31 (1st Cir. 1994); Restatement (Second), Judgments  S            27, comment j. (1982).                 Often                       it                          is                            very                                 difficult to prove that the initial trial            necessarily decided an intermediate issue.  But in this  case            the special verdict  form and reasonable inference  indicates            that several "facts"  were determined by  the jury on  counts                                        -11-                                        -11-            other                  than                       ADEA:                            (1)                                that Biggins was fired, (2) that the stock            had been promised to him, and  (3) that (in the words of  the            verdict form) "defendants wrongfully discharged plaintiff  in            order to deprive plaintiff of the promised stock compensation            . . . ."                 At                    the                        new                           trial,                                  the                                      jury was instructed that Biggins had            been  fired, so that is out of  the case.  But on the  second            issue Biggins says  that the Hazens relitigated the issue  of            whether                    they                        had                            promised him stock, and that appears to be the            case.   A  good  argument can  be  made that  under  standard            collateral estoppel doctrine, the Hazens should not have been            allowed                    to                       relitigate the issue whether "in fact" Thomas Hazen            had promised the stock  to Biggins, a point about which  both            Biggins and Hazen told largely inconsistent stories.                 Yet                     if                        there                             was                                 error,                                        we regard it as harmless.  Whether            the stock was  promised has little relevance to the  question            whether the  Hazens engaged in  age discrimination when  they            fired Biggins.   Biggins argues that the Hazens purported  to            fire him  because  he  refused to  sign  the  confidentiality            agreement                      and                         therefore                                                                    the stock promise was relevant, Biggins            having                   offered                           to                             sign                                  in exchange for the promised stock.  But            Biggins'                     refusal to sign does not vanish as a plausible motive            for the  Hazens,  regardless  of whether  stock  was  wrongly            withheld.                                        -12-                                        -12-                 Obviously  the Hazens  wanted to  relitigate the  stock-            promise issue, and Biggins to foreclose relitigation, because            the Hazens look  worse--from the standpoint of  character--if            they were welshing on a promise and Biggins looks worse if he            were making  new  demands.   But  character evidence  is  not            normally admissible  to show conformity  therewith.  Fed.  R.            Evid.                  404(a).  Thus, the permissible use of the evidence about            the promise  was very limited  so far as  the ADEA claim  was            concerned; properly used,  it added  useful context,  nothing            more.                 Turning to the third "fact" in issue, we reject Biggins'            claim  that the jury  should have been  told that the  Hazens            fraudulently discharged Biggins  to deprive  him of  promised            stock.                                       How                       such                            an                               instruction would be understood is unclear:            the Hazens say that (by supplying a different motive) it cuts            against Biggins'  current  claim that  he was  discharged  on            account                    of                       age;                           on                              the                                  other hand, Biggins would obviously have            liked the  new jury to hear  the terms "fraud" and  "wrongful            discharge" as a dual motive.                 The                     problem                             the                                jury                                     confronted on retrial was to sort out            any age discrimination motive in the tangle of other possible            motivations,  including  perceived  disloyalty,  compensation            quarrels, and the like.  We think that it would badly distort            matters to tell the jury  that in carrying out this task,  it            must accept that the Hazens' motivation in firing Biggins was                                        -13-                                        -13-            wrongful or fraudulent.   The glare from such an  instruction            would distort any effort to distinguish shadows or shades  in            the Hazens' actual motivation.  See Fed. R. Evid. 403.4                 In                    sum,                         there was no prejudicial error in this challenged            refusal                    to                       apply collateral estoppel.  We thus need not decide            whether, even on  the opposite assumption, it would make  any            sense to reverse here.   After all, the issues have now  been            relitigated, collateral estoppel  is a  doctrine of  judicial            economy,                     and                         one                            might                                  wonder whether--assuming no other error-            -such                  an                     objective would be served by a third trial.  Cf. Lama            v. Borras,  16 F.3d 473,  476 n.5 (1st  Cir. 1994) (court  of            appeals                    will                         not                            review                                   denial of summary judgment motion after            a full trial and an adverse jury verdict).                                         IV.                 In addition to the two large claims of error--the attack            on               the                   en                     banc                          order                                and                                    the collateral estoppel claim--Biggins            makes  six shorter claims  of trial error  and also seeks  to            resurrect the contract claim found insufficient by the  first            panel opinion.   Only the contract claim  and one of the  six            claimed                    trial errors require any discussion; the other alleged            errors                   are                       fairly                             raised                                    but are answered by the Hazens and are            of no general interest.                     4Biggins also argues that the second jury should  have          been told that at the prior  trial, Biggins had been found to  be          loyal.  There is no indication from the special verdict that  the          first jury made a generic finding of "loyalty."                                        -14-                                        -14-                 Biggins'                          strongest                                   claim                                         of error, which we do address, is            that                 the                     district court on retrial erred by excluding evidence            of               his                   pension                          status                                 and the Hazens' effort to deprive Biggins            of  his unvested  pension  plan  benefits  upon  termination.            Biggins                    says                        that                             without this information, the jury was misled            by the  Hazens' effort  at the  second trial  to portray  the            company                    as                       a                        generous                                 employer willing to provide such benefits            for Biggins.                 The                     Hazens                            argue                                 that                                      the attempted pension termination is            irrelevant:                        they                            say                                that Biggins can collect only once for the            wrongful  termination  of his  pension,  and  this  loss  was            compensated                        by the earlier award on the ERISA count.  But that            is  beside the point:   facts underlying  one claim could  be            pertinent to  a different  claim, regardless  of whether  the            former                   claim                         had been satisfied.  Still, the Hazens also argue            that                 in                    this                         instance the Supreme Court expressly decided that            interference with pension vesting is not age discrimination.                 Actually,                           the Supreme Court reserved the possibility that            pension  evidence might  occasionally be  relevant where  the            employer is shown consciously  to equate pension status  with            age, Hazen Paper  Co., 507 U.S. at  612-613; but that is  not            Biggins' argument here.  Rather, what Biggins wanted the jury            to infer from  the pension interference  finding is that  the            Hazens are  not as nice as they claim to be.  Again, this  is            largely                    forbidden character evidence, although the trial court                                        -15-                                        -15-            has some latitude since  the evidence can also be treated  as            context.                 Still,  in regard  to  age discrimination,  the  Hazens'            generosity vel  non  is at  best  marginally relevant.    The            district  court had every  reason to worry,  in light of  the            Supreme Court and en banc decisions, that undue attention  to            pension termination would prompt yet another reversal.   Even            if               some                    narrow                          path                               could have been followed--e.g., by limiting            instructions--the district court was within its discretion in            declining to do so.   See United States v. Houlihan, 92  F.3d            1297 (1st Cir. 1996), cert. denied, 117 S. Ct. 963 (1997).                 Biggins' other claim relates to his post-verdict motion.            Following the second trial, Biggins filed a motion to  reopen            the adverse judgment on the contract claim, relying upon Fed.            R. Civ. P. 60(b)(6), which permits the court to undo a  final            judgment.    His  claim was  that  a  recent  state  decision            undermined                       the                          panel's                                  earlier rejection of the contract claim.            The district court denied the motion.                 To understand this Rule 60(b) claim, one must return  to            the                original                        proceedings.  In the first trial, the jury awarded            Biggins                    about                         $267,000                                  on his breach of contract claim; Biggins            claimed that the  company's "employee  handbook" comprised  a            contract  under  Jackson  v.  Action  for  Boston   Community            Development, Inc.,  525  N.E.2d 411  (Mass. 1988),  and  that            protections it afforded against discharge had been denied  to                                        -16-                                        -16-            him.   Jackson had  held that "on  proper proof, a  personnel            manual can be shown to form the basis of [such] an express or            implied contract."  525 N.E.2d at 414.                   On the first  appeal, the panel  set aside the  contract            claim award.  The panel noted that there was no evidence that            the  handbook  had  been  incorporated  into  a  contract  by            negotiation or that either Biggins or the company had treated            the handbook as a contract  between them.  953 F.2d at  1423.            The                panel                      held that a judgment n.o.v. should have been granted            and                vacated                        the                           award.                                                                     That disposition, like the several jury            awards to  Biggins that were  not further  challenged by  the            Hazens, became final.                 In the  Rule 60(b) motion,  Biggins argued  that a  more            recent decision of the state's highest court, O'Brien v.  New            England Telephone & Telegraph Company, 664 N.E.2d 843  (Mass.            1996), conflicts  with the panel's  earlier treatment of  the            contract                     issue in 1992.  We agree that the panel's disposition            of the contract  claim might have been different had  O'Brien            been                 decided                         earlier:                                                                   its tone and language are more favorable            to such  recoveries than Jackson.   While there is no  direct            contradiction, O'Brien is  a gradual  extension of  precedent            (Jackson                                        was                        itself                               an                                  extension of an earlier case) typical of            common-law jurisprudence.                   Yet the case law is  very hostile to using a mistake  of            state                  law,                       still less a change in state common law, as grounds                                        -17-                                        -17-            for a motion to reopen a final judgment under Rule  60(b)(6).              though                               cf. Polites v.  United            States                 ,                    364                        U.S. 426, 433 (1960), there is good sense--as well            as much precedent--to make this the rarest of possibilities.5            Al       the door is not quite closed,             Decisions constantly  are  being  made by  judges  which,  if            reassessed in light of later precedent, might have been  made            differently; but a final judgment normally ends the quarrel.                 Indeed, the common  law could not safely develop if  the            latest                   evolution in doctrine became the standard for measuring            previously                       resolved                               claims.  The finality of judgments protects            against                    this                         kind of retroactive lawmaking.  Admittedly, there            is some arbitrariness  (e.g., "new law"  is applied in  cases            still                  on                     direct                           appeal);                                    but, by the same token, Jackson itself            had not been decided  when the Hazens first handed out  their            employee handbook.                 Biggins says that the abuse of discretion standard under            Rule 60(b) should not shield the district court in this case,            since  that  court may  have  thought  itself  disabled  from            reconsidering the panel's holding on the contract award.  But            absent extraordinary circumstances, we would think it dubious            practice                     to                        reopen a final judgment under Rule 60(b)(6) solely            because of later precedent pointing in a different direction.                                                                                                                                                                               5Se                        e, e.g., Batta v. Tow-Motor Forklift Co., 66 F.3d            743,                 750                     (5th                         Cir.                              1995), cert. denied, 116 S. Ct. 1851 (1996);            Overbee v. Van Waters &  Rogers, 765 F.2d 578, 580 (6th  Cir.            1985);                   Seese                                               v.                           Volkswage                                   nwerk A.G., 679 F.2d 336, 337 (3d Cir.            1982).                                        -18-                                        -18-            The fact that a different  claim in this case is still  alive            does not comprise an extraordinary circumstance.                 The Hazens' cross-appeal is a challenge to the  district            court's award of  attorney's fees.  To understand the  issues            requires                     us                        to retrace several steps, beginning again with the            first  trial.  After  that trial, the  district court in  two            stages                   awarded Biggins a total of about $207,000 in fees (plus            costs), reflecting Biggins' success on both the ADEA and  the            ERISA claims.                  Attorney's                            fees                                are                                    mandatory for the successful plaintiff            under the ADEA and  permissible under ERISA, see 29 U.S.C.  S            626(b);                    29                       U.S.C. S 1140; as to the latter, the district court            exercised its discretion in favor of an award.  No such  fees            were available  for the  common-law claims  on which  Biggins            recovered substantial damages, namely, fraud and discharge in            violation of contract.  The award for the two federal  claims            was based upon straight time and upon hourly rates not now in            issue.                 After   the   first   panel   opinion,   Biggins--having            successfully defended his  verdicts on both federal  claims--            sought an additional  award of attorney's fees and costs  for            appellate work.   In March  1992, the  panel awarded  Biggins            additional fees of  just under $72,000.   There followed  the            Supreme Court remand of  the ADEA claim and the second  panel                                        -19-                                        -19-            opinion where Biggins, again successful on that claim, sought            further attorney's fees in November 1993.                 However,                          in                             June 1994, the en banc court vacated the ADEA            award, ordering a new trial.  In a companion order, the panel            declined                     to                        award any additional fees for the first appeal, as            sought by Biggins,  and said that  the remainder of  Biggins'            application for additional fees had been rendered moot by the            en banc order.  The case then returned to the district  court            where the new trial occurred in April 1996.                   After                       the                           second                                 trial,                                        Biggins sought to execute judgment            on               the                   prior                         awards of attorney's fees (just over $207,000 for            the                first                      trial                           and                               almost  $72,000 for the first appeal).  The            Hazens, by contrast, moved under Fed. R. Civ. P. 60(b)(5)  to            reopen the  judgment and reduce  the previously awarded  fees            because                    Biggins was no longer the prevailing party on the ADEA            claim.                                       In                      July                           1996,                                 the district court resolved the matter in            a detailed memorandum, pointing  out that he was  "intimately            familiar" with the case.                 The district judge  agreed with the Hazens that the  fee            award resulting  from the first  trial should be  reexamined,            since                  one                      predicate (the ADEA award) had now been undone.  See            Mother                   Goose                        Nursery                                Schools, Inc. v. Sendak, 770 F.2d 668, 676            (7th Cir. 1985), cert. denied, 474 U.S. 1102 (1986).  But the            district judge  disagreed  with  the Hazens  that  a  drastic            reduction was warranted.   He concluded that subtracting  the                                        -20-                                        -20-            ADEA claim from the first trial would not have  substantially            reduced                    the                        amount of time needed to prepare and try the ERISA            claim on which Biggins had conclusively prevailed.  He  ruled            that  a 20  percent reduction  was warranted  and awarded  80            percent of the original $207,000 figure to cover the original            trial.                 The                     district                              court declined to alter the panel's award of            almost $72,000 for the first appeal; that appeal, it will  be            remembered, had resulted in affirmance of the ADEA and  ERISA            awards,                    but                        the                           ADEA                                award had later been undone.  The district            court                  said                       that this court had likely considered the matter of            a              reduction                        when it remanded for a new trial, and in any case,            that award was the court of appeals' business.                 Accordingly,                              the                                 district court entered a revised judgment            covering                     the                         entire attorney's fees award in both courts.  The            total is about $237,700, apart  from costs.  It is from  this            judgment that the  Hazens have now cross-appealed,  objecting            both                 to                    the                       modesty                               of                                  the 20 percent reduction in the district            court fee and the refusal to reduce at all the amount awarded            by this court for appellate work.                 The district  judge's refusal to  order more  than a  20            percent reduction is easily sustained.  Most of this case has            focused throughout on a central event, Biggins' firing, in an            effort  to  appraise  the  Hazens'  reason  or  reasons;  but            motivation had to be discerned through examination of several                                        -21-                                        -21-            controversies                         that had enveloped the parties and led up to the            firing, including Biggins' other ventures and claim to  stock            ownership.                 A                   trial                         of                            the firing and related background events would            have been  quite extensive,  and probably  pretty similar  in            contour, even  if Biggins  had brought  only one  of the  two            federal                    claims.                                                        Indeed,                                    the second trial was nominally limited            to  the  ADEA  claim,  but  its  duration  and  breadth  were            considerable.   The commonality  of issues  has already  been            noted, in the Hazens' favor, sustaining their evidence as  to            background matters in the second trial.                 In                    all                        events,                               the                                   Hazens make no effort to show in detail            that                 the                     20                       percent                               reduction understates the time savings from            (hypothetically) eliminating the  ADEA claim  from the  first            trial.  Instead, they rely mainly upon doctrine, namely, that            where                  a plaintiff has  achieved only  partial or  limited                 success,                          the                              product of hours reasonably expended on                 the litigation as a whole times a reasonable hourly                 rate may be an  excessive amount. . . . even  where                 the plaintiff's claims were interrelated . . . .              Hensley v. Eckerhart, 461 U.S. 424, 436 (1983).                   We                    say                        "mainly"                                because                                        the Hazens also try to make use of            Biggins' earlier attempt, in resisting a remand, to  minimize            the importance of the ERISA claim in the first trial.  It  is            true                 that                      Biggins called the claim little more than "a blip on            the screen" but, of course, the en banc court disagreed  with                                        -22-                                        -22-            him.  Catching up counsel on past rhetoric is sometimes fair,            but                not                    in                       the present situation where the  blip  argument was            so clearly unsuccessful exaggeration.                 This  brings us  back  to Hensley.    Of course,  it  is            sometimes                      appropriate                                 to                                    discount for failed or non-compensable            claims                   where                         they                             cannot                                    be neatly segregated from a successful            compensable one.  But  the district court did discount by  20            percent for the failed  ADEA claim; and it took the  original            $207,000                     award as already reduced to account for time spent on            state claims that would not have been needed for the  federal            claims.  The former adjustment is obvious; and if the  latter            assumption is an error, the Hazens have not shown it.                 Finally,                          we                             come                                 to                                    the                                        district court's refusal to reduce            the award of almost $72,000 made by this court for the  first            appeal.                                         Biggins                            says                                 that this award is no longer open because            the Hazens did  not ask for  a reduction at  the time of  the            remand;                    the                        Hazens say, we think with some justification, that            such a reduction request would have been premature since  the            possibility remained that Biggins would still prevail on  the            ADEA claim at the second trial.                 But this  court is not  inclined to  reopen its  earlier            $72,000 award.  In theory, the Hazens have a claim that  time            spent on  the first  appeal  as to  the ADEA  issue--among  a            considerable number of other issues--ought to be  subtracted.            But                one                    may                       doubt,                              at                                 least here, whether much discernable cost                                        -23-                                        -23-            is added  by writing  more pages  in an  appellate brief,  to            address one more issue with which counsel is already familiar            after an extensive trial.                   In                    refusing                             to                               reopen                                      the earlier award, we also take into            account two  other factors: that  the original panel  earlier            refused                    to                      enlarge                              Biggins' award, despite his offer of further            time                 records, and that this panel has no intention of making a            further  award to  Biggins  for time  he  has just  spent  in            defending                      his                         attorney's                                    fee judgment (although it too could be            the                subject                        of an award in this court's discretion).  From our            standpoint, this case is now over.                 Affirmed.                                        -24-                                        -24-
