     09-2037-cv
     Meacham v. Knolls Atomic Power Lab.

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED
     AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1 AND
     FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT
     CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION
     MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION: “(SUMMARY ORDER).”
     UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE
     WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV), THE
     PARTY CITING THE SUMMARY ORDER MUST FILE AND SERVE A COPY OF THAT SUMMARY ORDER TOGETHER
     WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED. IF NO COPY IS SERVED BY REASON OF THE
     AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT
     DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.


 1            At a stated term of the United States Court of                    Appeals
 2       for the Second Circuit, held at the Daniel Patrick                    Moynihan
 3       United States Courthouse, 500 Pearl Street, in the                    City of
 4       New York, on the 21 st day of December, two thousand                  nine.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                PETER W. HALL,
 9                              Circuit Judge,
10                J. GARVAN MURTHA,
11                              District Judge. *
12
13       - - - - - - - - - - - - - - - - - - - -X
14       CLIFFORD B. MEACHAM, individually and
15       on behalf of all other persons
16       similarly situated, THEDRICK L.
17       EIGHMIE, individually and on behalf
18       of all other persons similarly
19       situated, ALLEN G. SWEET,
20       individually and on behalf of all
21       other persons similarly situated,


                *
               J. Garvan Murtha, Senior District Judge of the United
         States District Court for the District of Vermont, sitting
         by designation.

                                                  1
 1
 2            Plaintiffs-Appellees,
 3
 4   JAMES R. QUINN, Ph.D., DEBORAH L.
 5   BUSH, RAYMOND E. ADAMS, WALLACE
 6   ARNOLD, RONALD G. BUTLER SR., WILLIAM
 7   F. CHABOT, ALLEN E. CROMER, BELINDA
 8   GUNDERSEN, CLIFFORD J. LEVENDUSKY,
 9   BRUCE E. PALMATIER, NEIL R. PAREENE,
10   MARGARET REYNHEER, JOHN K. STANNARD,
11   DAVID W. TOWNSEND, CARL T. WOODMAN,
12
13            Consolidated-Plaintiffs-
14            Appellees,
15
16   HILDRETH E. SIMMONS JR., HENRY
17   BIELAWSKI, JAMES S. CHAMBERS, ARTHUR
18   J. KASZUBSKI, DAVID J. KOPMEYER,
19   CHRISTINE A. PALMER, FRANK A. PAXTON,
20   JANICE M. POLSINELLE, TEOFILS F.
21   TURLAIS, BRUCE E. VEDDER,
22
23            Consolidated-Plaintiffs,
24
25            -v.-                                 09-2037-cv
26
27   KNOLLS ATOMIC POWER LABORATORY, also
28   known as KAPL, Inc., LOCKHEED MARTIN,
29   INC., JOHN J. FREEH, both individually
30   and as an employee of KAPL and
31   Lockheed Martin,
32
33            Defendants-Appellants. **
34   - - - - - - - - - - - - - - - - - - - -X
35
36   APPEARING FOR APPELLANTS:   JOHN E. HIGGINS (Margaret A.
37                               Clemens, on the brief), Nixon
38                               Peabody LLP, Rochester, New
39                               York.
40


         **
            The Clerk of the Court is respectfully directed to
     amend the official caption to conform to the caption of this
     order.

                                  2
 1   APPEARING FOR APPELLEES:   KEVIN K. RUSSELL (John B.
 2                              DuCharme and Joseph C. Berger,
 3                              on the brief), DuCharme, Harp &
 4                              Clark, LLP, Clifton Park, New
 5                              York.
 6
 7        Appeal from a judgment of the United States District
 8   Court for the Northern District of New York (Homer, M.J.).
 9
10        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
11   AND DECREED that the judgment of the district court be
12   VACATED and the matter REMANDED for a new trial on the
13   liability issue only.
14
15        Defendants Knolls Atomic Power Laboratory, Lockheed
16   Martin, and John J. Freeh (“defendants”) appeal the judgment
17   of the district court reinstating a prior jury verdict in
18   plaintiffs’ favor. Defendants argue that the district court
19   committed clear error in holding that they waived the
20   defense based on reasonable factors other than age (“RFOA”),
21   and that the waiver was not properly excused; they also
22   argue that, if we vacate the waiver and excuse holdings, we
23   should order that judgment be granted in their favor as a
24   matter of law. We assume the parties’ familiarity with the
25   underlying facts, the procedural history, and the issues
26   presented for review.
27
28        Vacatur of the judgment is required by adherence to the
29   “mandate rule,” which “compels compliance on remand with the
30   dictates of the superior court and forecloses relitigation
31   of issues expressly or impliedly decided by the appellate
32   court.” United States v. Ben Zvi, 242 F.3d 89, 95 (2d Cir.
33   2001) (internal quotation marks omitted) (emphasis in
34   original); see also In re Sanford Fork & Tool Co., 160 U.S.
35   247, 255, 259 (1895). To determine whether a particular
36   issue “remains open for reconsideration on remand, [a] court
37   should look to both the specific dictates of the remand
38   order as well as the broader spirit of the mandate.” Ben
39   Zvi, 242 F.3d at 95 (internal quotation marks omitted).
40   “[W]e must always look to the opinion to interpret the
41   mandate.” FTC v. Standard Educ. Soc’y, 148 F.2d 931, 932
42   (2d Cir. 1945).

43        In an earlier decision in this case, the United States
44   Supreme Court explained that “the only thing at stake . . .
45   is the gap between production and persuasion” and that this

                                  3
 1   Court “showed no hesitation in finding that Knolls prevailed
 2   on the RFOA defense, though the court expressed its
 3   conclusion in terms of Meacham’s failure to meet the burden
 4   of persuasion. Whether the outcome should be any different
 5   when the burden is properly placed on the employer is best
 6   left to that court in the first instance.” See Meacham v.
 7   Knolls Atomic Power Lab., 128 S. Ct. 2395, 2406 (2008)
 8   (“Meacham SC II”); see also Meacham v. Knolls Atomic Power
 9   Lab., 461 F.3d 134, 144 (2d Cir. 2006), vacated by Meacham
10   SC II, 128 S. Ct. at 2407. Waiver principles are
11   analytically antecedent to an analysis on the merits; we
12   therefore read the Supreme Court’s opinion as impliedly but
13   necessarily rejecting plaintiffs’ waiver argument.
14
15        Our conclusion in this regard finds additional support
16   from the fact that plaintiffs argued forfeiture and
17   abandonment in their brief to the Supreme Court and waiver
18   of the defense at oral argument before the Supreme Court.
19   Brief for the Petitioners at 51-52, Meacham SC II (No. 06-
20   1505); Tr. of Oral Argument at 53, Meacham SC II (No. 06-
21   1505). The Court, therefore, was squarely presented with
22   plaintiffs’ waiver argument, and a natural reading of
23   Meacham SC II suggests that it was rejected.
24
25        Our summary order issued in this case, Meacham v.
26   Knolls Atomic Power Lab., Nos. 02-7378-cv, 02-7474-cv, 2009
27   WL 33609 (2d Cir. Jan. 7, 2009) (summary order), requires no
28   different result. That order does not constitute a finding
29   regarding waiver, nor, having re-examined the issue in light
30   of the arguments presented in this appeal, does it preclude
31   us now from determining that the mandate rule forecloses
32   reconsideration of the waiver issue.
33
34        We therefore remand this case to the district court
35   with instructions to hold a new trial and to allow for
36   whatever discovery is necessary for the parties fairly to
37   litigate the issues regarding liability under the law as it
38   currently stands. The uncertainty and multiple changes in
39   the governing law have complicated the issues in this case
40   to such an extent that neither party is entitled to judgment
41   as a matter of law, either on the merits or on procedural
42   grounds.
43
44        We hereby VACATE the judgment of the district court and
45   REMAND for a new trial on the liability issue only.
46

                                  4
1   FOR THE COURT:
2   CATHERINE O’HAGAN WOLFE, CLERK
3   By:
4
5
6   ___________________________




     5
