             United States Court of Appeals
                        For the First Circuit

No. 11-1944


  CENTRAL PENSION FUND OF THE INTERNATIONAL UNION OF OPERATING
          ENGINEERS AND PARTICIPATING EMPLOYERS ET AL.,

                        Plaintiffs, Appellants,

                                  v.

                        RAY HALUCH GRAVEL CO.,

                         Defendant, Appellee.


             APPEAL FROM THE UNITED STATES DISTRICT COURT

                   FOR THE DISTRICT OF MASSACHUSETTS

             [Hon. Michael A. Ponsor, U.S. District Judge]


                                Before

                       Thompson, Selya and Dyk,*
                            Circuit Judges.


     Kenneth L. Wagner, with whom Blitman & King LLP was on brief,
for appellants.
     José A. Aguiar, with whom Doherty, Wallace, Pillsbury and
Murphy, P.C. was on brief, for appellee.



                          September 12, 2012




     *
         Of the Federal Circuit, sitting by designation.
            SELYA, Circuit Judge. This appeal requires us to resolve

two issues of first impression in this circuit.             The first, which

has divided our sister circuits, relates to judgment finality. The

second relates to what happens when an employer fails to keep

appropriate   records     concerning     work   covered    by   the    benefit-

remittance provisions of a collective bargaining agreement.              After

careful consideration, we hold that the appeal is timely as to all

issues and that both the judgment on the benefit-remittance claim

and the judgment awarding attorneys' fees are open to appellate

review.    We further hold that these judgments must be vacated.

Consequently,     we    remand   to   the   district    court    for   further

proceedings consistent with this opinion.

I.   BACKGROUND

            We briefly rehearse the background and the travel of the

case,    reserving     more   exegetic   detail   for     our   treatment   of

particular issues.

            The defendant, Ray Haluch Gravel Co., is a landscape

supply company in Ludlow, Massachusetts.1          Over time, its primary

operations have morphed from site work and excavation to the sale

of landscaping products — but it continues to perform both types of

work.


     1
       There is some confusion in the record as to both the number
of defendants originally sued and the correct corporate name of the
employer (which is, for all practical purposes, the sole
defendant). For simplicity's sake, we treat Ray Haluch Gravel Co.
as the employer and defendant.

                                      -2-
               Beginning in 1988, the defendant entered into a series of

collective bargaining agreements with the International Union of

Operating Engineers, Local 98 (the Union), which maintains a hiring

hall where employers may either seek Union referrals or directly

hire workers.        The collective bargaining agreement at issue here

(the CBA) took effect on May 1, 2005 and expired on April 30, 2011.

Under it, the defendant remitted contributions to an array of

Union-affiliated benefit funds (the Funds) primarily on behalf of

a single employee: Todd Downey.            All of the Funds are employee

benefit      plans   regulated   under   the   Employee   Retirement   Income

Security Act (ERISA), 29 U.S.C. §§ 1001-1461.

               In 2007, the Funds commissioned audits of the defendant's

books.       Armed with the completed audits, they demanded additional

remittances for previously unreported work allegedly covered by the

CBA.       The defendant demurred, and the Funds sued the defendant in

the federal district court.2        Pertinently, their complaint sought

recovery of both unpaid remittances and attorneys' fees.

               Following a three-day bench trial, the lower court took

the matter under advisement and requested briefs (covering, inter


       2
       The Funds include Central Pension Fund of the International
Union of Operating Engineers and Participating Employers;
International Union of Operating Engineers Local 98 Health and
Welfare, Pension and Annuity Funds; Local 98 Engineers Joint
Training, Retraining, Skill Improvement, Safety Education,
Apprenticeship and Training Fund; and International Union of
Operating Engineers Local 98 and Employers Cooperative Trust. Each
of the Funds sued through its appropriate fiduciary or fiduciaries.
The Union itself is also a named plaintiff.

                                     -3-
alia, the claim for attorneys' fees).       In line with this briefing

order, the plaintiffs — having been granted extra time for this

purpose — filed a motion for attorneys' fees.

            On June 17, 2011, the district court issued an order

resolving   the claim   for   unpaid    remittances.     It   awarded   the

plaintiffs $26,897.41 referable to covered work performed by a

specific employee (Martin Jagodowski), but denied recovery for any

other work.     Int'l Union of Oper'g Eng'rs, Local 98 Health &

Welfare, Pension & Annuity Funds v. Ray Haluch Gravel Co. (Haluch

I), 792 F. Supp. 2d 129, 138 (D. Mass. 2011).          The court directed

the entry of judgment for the plaintiffs,3 explaining that it would

rule on the claim for attorneys' fees in a separate decision.           Id.

            On July 25, 2011, the court resolved the claim for

attorneys' fees, awarding the plaintiffs $34,688.15.          Int'l Union

of Oper'g Eng'rs, Local 98 Health & Welfare, Pension & Annuity

Funds v. Ray Haluch Gravel Co. (Haluch II), 792 F. Supp. 2d 139,

143 (D. Mass. 2011).    At the end of its order, the court noted for

the first time that "[t]his case may now be closed."              Id.   On

August 15, 2011, the plaintiffs appealed the decisions in both

Haluch I and Haluch II.




     3
      The court did not direct the clerk to enter this judgment as
a partial final judgment. See Fed. R. Civ. P. 54(b).

                                  -4-
II.    ANALYSIS

             We subdivide our analysis into three segments. First, we

discuss the timeliness of the appeal vis-à-vis the lower court's

decision in Haluch I.        Second, we consider the plaintiffs' plaint

that the district court misconstrued the CBA and, in the bargain,

did not appropriately resolve the claim for unpaid remittances.

Finally, we turn to the claim for attorneys' fees.

                      A.    Timeliness of the Appeal.

             The timeliness of an appeal in the federal courts is

governed by the provisions of Rule 4 of the Federal Rules of

Appellate Procedure.         With narrow exceptions not relevant here

(such as when the federal government is a party), an appeal in a

civil case must be filed within either thirty days of the entry of

a final judgment or thirty days after the district court's denial

of    one   of   several    post-judgment     motions.    Fed.   R.    App.    P.

4(a)(1)(A),       (a)(4).      These   time    limits    are   mandatory      and

jurisdictional.      See Budinich v. Becton Dickinson & Co., 486 U.S.

196, 203 (1988).

             In the case at hand, the plaintiffs filed their notice of

appeal within thirty days following the district court's entry of

judgment with respect to the claim for attorneys' fees.               This was,

however, more than thirty days after the district court had entered

its previous and separate judgment as to the claims for unpaid

remittances.      The question reduces, then, to whether the notice of


                                       -5-
appeal was timely as to the first judgment.             This, in turn,

requires us to determine whether the first judgment was a final

judgment.    See 28 U.S.C. § 1291 (conferring on the courts of

appeals   jurisdiction   over     "final   decisions   of   the   district

courts").

            The point of embarkation for this inquiry is Budinich, in

which the plaintiff, after prevailing on an employment claim,

sought to recover counsel fees under a state fee-shifting statute.

486 U.S. at 197.     The plaintiff, who was dissatisfied with the

outcome of the case on the merits, did not file a notice of appeal

until after the district court resolved the claim for attorneys'

fees.   That notice was filed more than thirty days after the entry

of judgment on the merits.       See id. at 197-98.

            The Budinich Court ruled that the appeal was untimely as

to the merits of the employment claim.         See id. at 199-203.     It

started with the conventional wisdom that a final decision under

section 1291 is "one which ends the litigation on the merits and

leaves nothing for the court to do but execute the judgment."          Id.

at 199 (internal quotation marks omitted).       It then noted that, in

general, "a claim for attorney's fees is not part of the merits of

the action to which the fees pertain."       Id. at 200.     In the usual

case, "[s]uch an award does not remedy the injury giving rise to

the action, and indeed is often available to the party defending

against the action."       Id.     The judgment on the merits was,


                                    -6-
therefore,   final   when   rendered     —   the   fees   issue   was   wholly

collateral — and the appeal should have been taken within thirty

days thereafter.     Id. at 203.

          The defendant insists that Budinich is controlling here:

in its view, the Budinich Court crafted a bright-line rule.                But

this characterization begs the question of where and how the line

should be drawn.     We must explore that conundrum.

          The decisions of the courts of appeals on this point are

in disarray.   Some have held that Budinich applies to all claims

for attorneys' fees.     See, e.g., O & G Indus., Inc. v. Nat'l R.R.

Pass. Corp., 537 F.3d 153, 167-68 & n.11 (2d Cir. 2008); United

States ex rel. Familian Nw., Inc. v. RG & B Contractors, Inc., 21

F.3d 952, 954-55 (9th Cir. 1994); Cont'l Bank, N.A. v. Everett, 964

F.2d 701, 702 (7th Cir. 1992); First Nationwide Bank v. Summer

House Joint Venture, 902 F.2d 1197, 1199-1200 (5th Cir. 1990).

Other courts have held, on various rationales, that contractual

claims for attorneys' fees may fall beyond the Budinich line.             See

Carolina Power & Light Co. v. Dynegy Mktg. & Trade, 415 F.3d 354,

356 (4th Cir. 2005) (concluding that a claim for attorneys' fees

"not limited to expenses incurred during the underlying litigation

is an element of damages" and that, therefore, "a judgment that

leaves open such a claim is not final and appealable"); Brandon,

Jones, Sandall, Zeide, Kohn, Chalal & Musso, P.A. v. MedPartners,

Inc., 312 F.3d 1349, 1355 (11th Cir. 2002) (per curiam) (holding


                                   -7-
that "a request for attorneys' fees pursuant to a contractual

clause is considered a substantive issue; and an order that leaves

a substantive fees issue pending cannot be 'final'"); Justine

Realty Co. v. Am. Nat'l Can Co., 945 F.2d 1044, 1047-49 (8th Cir.

1991) (explaining that attorneys' fees are part of the merits when

sought under contract for, in part, pre-litigation costs incurred

as a result of breach).         At least one court has put a foot in each

camp.     See Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 137-38

(3d Cir. 2001) (concluding that certain contract-based attorneys'

fees are outside the scope of Budinich but finding "no difference

. . . for § 1291 finality purposes, between payment of attorneys'

fees to a prevailing party under statute and payment . . . under

the contract").        We have not yet had occasion to pass upon this

issue.

            We   do    not     believe    that    Budinich   should     be     read

mechanically to apply to all claims for attorneys' fees, whatever

their genesis.        Such a mechanical reading overlooks the Supreme

Court's acknowledgment that "[i]f one were to regard the demand for

attorney's fees as itself part of the merits, the . . . . merits

would then not have been concluded, and § 1291 finality would not

exist."    Budinich, 486 U.S. at 200 (emphasis in original).                   This

acknowledgment unmistakably signals that, although the Budinich

Court     determined    that     attorneys'      fees   generally     should    be

considered a collateral matter, they may sometimes be considered as


                                         -8-
part of the merits.    Cf. Osterneck v. Ernst & Whinney, 489 U.S.

169, 175-77 (1989) (holding that prejudgment interest is part of

the merits, distinguishing Budinich, and explaining that "as a

general matter, a request for attorney's fees is not part of the

merits of the underlying action because such fees are not part of

the compensation for the plaintiff's injury but traditionally have

been regarded as an element of costs awarded to the prevailing

party").

           Where, as here, an entitlement to attorneys' fees derives

from a contract rather than from a statute, the critical question

is whether the claim for attorneys' fees is part of the merits.    In

this instance, the plaintiffs brought suit, at least in part, to

enforce certain provisions of the CBA. That agreement provided for

the payment of attorneys' fees as an element of damages in the

event of a breach.     Throughout the litigation, the plaintiffs,

pursuant to the terms of the CBA, sought to recoup the attorneys'

fees incurred as part of their collection efforts.     These included

fees for legal services rendered prior to suit.        Viewed through

this prism, the attorneys' fees must be considered an element of

the plaintiffs' contractual damages.     It follows that when the

district court entered judgment only for the unpaid remittances and

explicitly left open the claim for attorneys' fees, the damages

award was incomplete and the judgment was not final.    A judgment as

to liability that does not resolve the question of damages is not


                                -9-
a final judgment within the purview of 28 U.S.C. § 1291 because the

assessment of damages is an element of the cause of action itself.

See Carolina Power & Light, 415 F.3d at 358; Ragan v. Tri-Cnty.

Excav'g, Inc., 62 F.3d 501, 505-06 (3d Cir. 1995).

            In an effort to blunt the force of this reasoning, the

defendant argues that, under the CBA, only a prevailing party would

be entitled to attorneys' fees and, thus, this case is on a par

with Budinich.         This purported distinction is of little moment

here.      The   CBA   states   in   pertinent   part   that   "[a]ny   costs,

including legal fees, of collecting payments due these Funds shall

be borne by the defaulting [e]mployer."           There is no requirement

that suit be brought and, thus, there is no requirement that the

Funds be prevailing parties.          For example, the quoted provision

would apply when a fund attempts to collect contributions from an

employer, who, after a period of recalcitrance, yields to the

fund's demands before suit is brought.4

            That ends this aspect of the matter.               The plaintiffs

consistently have asserted an entitlement to attorneys' fees under

the CBA.     Those fees are damages and, as such, are part of the

merits of their contract claim.         It follows, therefore, that they

fall beyond the line drawn by the Budinich Court.          Because no final

judgment entered until the district court resolved the contract-


     4
       The attorneys' fees at issue here graphically illustrate
this point: they include remuneration for legal work performed
before any formal litigation was commenced.

                                      -10-
based claim for attorneys' fees, the plaintiffs' appeal is timely

as to all the issues raised.

                        B.    Unpaid Remittances.

            We turn next to the claim for unpaid remittances.

Neither    the   district    court's   decision     to   order   remittances

referable to Jagodowski's work nor the amount of those remittances

is contested on appeal.       The plaintiffs argue, however, that the

district court should have ordered additional payments with respect

to certain unidentified employees.

            Whether the defendant was required to remit certain

payments is a matter of contract.       See Gastronomical Workers Union

Local 610 & Metro. Hotel Ass'n Pension Fund v. Dorado Beach Hotel

Corp., 617 F.3d 54, 62 (1st Cir. 2010).                  Federal common law

supplies the substantive rules by which labor agreements are

interpreted.     See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211

(1985); Sweeney v. Westvaco Co., 926 F.2d 29, 36 (1st Cir. 1991)

(Breyer, C.J.).      A special gloss applies: a court interpreting a

collective bargaining agreement must take an industry-specific

view, considering "the scope of other related collective bargaining

agreements, as well as the practice, usage and custom pertaining to

all such agreements."        Transp.-Commc'n Emps. Union v. Union Pac.

R.R., 385 U.S. 157, 160-61 (1966); see Senior v. NSTAR Elec. & Gas

Corp., 449 F.3d 206, 220-21 (1st Cir. 2006).                 We review the

district   court's    findings    of   fact   for   clear    error   and   its


                                   -11-
conclusions of law (including its interpretation of the CBA) de

novo.      See Dist. Lodge 26, Int'l Ass'n of Machinists & Aerospace

Workers, AFL-CIO v. United Techs. Corp., 610 F.3d 44, 51 (2d Cir.

2010); Smart v. Gillette Co. Long-Term Disab. Plan, 70 F.3d 173,

178 (1st Cir. 1995).

             "In construing the terms of contracts that are governed

by federal common law, we are guided by common-sense canons of

contract     interpretation."       Smart,   70   F.3d    at    178    (internal

quotation marks omitted).          One such canon holds that contract

language is normally considered ambiguous "where an agreement's

terms are inconsistent on their face or where the phraseology can

support reasonable difference of opinion as to the meaning of the

words employed and obligations undertaken." Fashion House, Inc. v.

K   mart    Corp.,   892   F.2d 1076, 1083 (1st        Cir.    1989).     "If   a

contractual     provision     is   not   susceptible     of    reasonable    but

conflicting interpretations, it is not ambiguous."                      Avery v.

Hughes, 661 F.3d 690, 694 (1st Cir. 2011).             In the absence of an

ambiguity, contractual language must be construed according to its

plain and natural meaning.         Smart, 70 F.3d at 178.

             Three articles contained in the CBA are of particular

pertinence here.      Article I states that the CBA "shall apply to all

work . . . in connection with all operations usually performed in

the sand and gravel industry, described in Article IV." Article IV

sets out various types of employee classifications.                   Article VI


                                     -12-
requires   benefit-remittance       payments       "for    each      payroll     hour

. . . for each employee covered by this Agreement."

           The district court concluded that the CBA was ambiguous

as to "how employees [were] to be classified" and, relatedly, the

extent to which an employer was required to make contributions

under Article VI.    Haluch I, 792 F. Supp. 2d at 136-37 (emphasis in

original). In reaching these conclusions, the court relied heavily

on the fact that Article IV was couched in terms of employee

classifications, not work descriptions per se.              See id. at 134-36.

           We     find     the     district        court's           interpretation

insupportable.       Its   construction       of   the    CBA    undervalues     the

sensible   rule   forbidding     the    "balkanization          of   contracts   for

interpretive purposes."          Smart, 70 F.3d at 179.               By virtue of

Article I, the CBA applies to covered work; that is, work "in

connection with all operations usually performed in the sand and

gravel industry."        Article IV is couched in terms of employee

classifications, but this compendium (for example, the reference to

"Maintenance Mechanic, Operators on shovels, cranes, drag-lines,

bulldozers, plant operators, front end loaders, power leaders of

all types and similar equipment") is obviously intended to describe

covered work.     By the same token, the text of Article VI ("for each

payroll hour . . . for each employee covered by this Agreement")

requires remittance for hours of covered work.                       Viewing these

provisions in context and as a seamless whole, the only reasonable


                                       -13-
interpretation is that an employer must remit benefit payments for

each hour of work covered by the CBA.

               Ironically, the district court's resolution of the claim

relating to Jagodowski's benefits fits hand in glove with this

interpretation.       The court determined that seventy-five percent of

Jagodowski's       time   was     spent    "operating    and    repairing      heavy

equipment such as front-end loaders and bucket loaders" and, thus,

came within the ambit of the CBA.                Haluch I, 792 F. Supp. 2d at

136.       We think that this determination, which is not challenged on

appeal,       indicates   the     lack     of    ambiguity    and   bolsters    our

construction of the CBA.

               The absence of any material ambiguity is of decretory

significance here. Under both federal common law and labor law, an

unambiguous contract must be enforced according to its tenor.

Senior, 449 F.3d 219.           Plain meaning prevails.5

               This plain-meaning interpretation casts light on the

plaintiffs' claim that they are entitled to remittances for covered

work performed by unidentified employees.                    Under ERISA, "every

employer shall . . . maintain records with respect to each of his

employees sufficient to determine the benefits due or which may




       5
       Because the language of the CBA is sufficiently clear, we
eschew any further inquiry into the broader context surrounding its
execution. See Senior, 449 F.3d at 219.

                                          -14-
become due to such employees."          29 U.S.C. § 1059(a)(1).6          The

statute further provides that "[t]he employer shall furnish to the

plan administrator the information necessary for the administrator

to make the [required] reports."        Id.

           The evidence presented in the court below indicates quite

clearly that some covered work was done by unidentified employees.

The plaintiffs contend that the lack of required records triggered

a burden-shifting paradigm under which the defendant had to show

which hours represented covered work and which did not.                   The

district   court    rebuffed   this   contention,     reasoning    that   the

plaintiffs    did   not   produce   sufficient     evidence   to   support   a

shifting of the burden.        Haluch I, 792 F. Supp. 2d at 138.             In

charting this course, the court distinguished a line of cases

proffered by the plaintiffs on the ground that, in those cases,

"the relevant employees were . . . indisputably performing covered

work, and the employer failed to maintain any records concerning

the work performed"; whereas in this case the plaintiffs adduced

"no evidence . . . indicating that any other classified employee

actually     performed    covered   work   under    the   Agreement    after


     6
       We note that at least one of the plaintiffs is a multi-
employer benefit plan. This feature would appear to call for the
application of section 1059(a)(2) rather than section 1059 (a)(1).
See Bard v. Bos. Shipping Ass'n, 471 F.3d 229, 230 & n.2 (1st Cir.
2006). The parties, however, have argued the record-keeping point
exclusively in terms of section 1059(a)(1), and we accept their
implicit agreement that section 1059(a)(1) is the relevant
statutory provision. See United States v. Bayard, 642 F.3d 59, 62-
63 (1st Cir. 2011).

                                    -15-
Jagodowski left."     Id. (emphasis in original).    We review the

district court's rulings about the required quantum of proof and

the legal effect of the ERISA record-keeping provision de novo.

          There can be no question but that section 1059(a)(1)

requires an employer to document work covered by a collective

bargaining agreement.    See Cent. States, Se. & Sw. Areas Pension

Fund v. Cent. Transp., Inc., 472 U.S. 559, 566 (1985); Mich.

Laborers' Health Care Fund v. Grimaldi Concrete, Inc., 30 F.3d 692,

695 (6th Cir. 1994); Combs v. King, 764 F.2d 818, 822-23 (11th Cir.

1985).   Although we have not previously spoken to the question,

several other courts have concluded that an employer's failure to

keep adequate records as required by section 1059(a)(1) may trigger

burden-shifting.    See, e.g., Mich. Laborers' Health Care Fund, 30

F.3d at 695-96; Brick Masons Pension Trust v. Indus. Fence &

Supply, Inc., 839 F.2d 1333, 1337-39 (9th Cir. 1988); Combs, 764

F.2d at 826-27.    Under any view, however, such burden-shifting is

not automatic.    In a case like this one, in which ERISA-protected

benefit plans seek to enforce remittance requirements, burden-

shifting occurs only when a fiduciary seeking remittance of unpaid

benefit contributions shows both that some employees performed

covered work that was not reported to the benefit plan and that the

employer neglected to maintain adequate records.        See Motion

Picture Indus. Pension & Health Plans v. N.T. Audio Visual Supply,

Inc., 259 F.3d 1063, 1066 (9th Cir. 2001).     In such a case, the


                                -16-
presumption   is    that    the   employer    is    liable   for   all    hours

potentially representing covered work.             See Brick Masons Pension

Trust, 839 F.2d at 1338-39.         This presumption is rebuttable: to

reduce its liability the employer must separate wheat from chaff

and offer some evidence that will allow a court to calculate the

extent of covered work previously unreported.            See Motion Picture

Indus., 259 F.3d at 1066; Combs, 764 F.2d at 826-27.

           The burden-shifting paradigm makes good sense.                As the

Supreme Court noted in an analogous context, an employer should not

"be heard to complain that the damages lack the exactness and

precision of measurement that would be possible had he kept records

[as required]." Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680,

688 (1946); see Mich. Laborers' Health Care Fund, 30 F.3d at 697

(drawing the same analogy); Brick Masons Pension Trust, 839 F.2d at

1339   (similar).     Put    another   way,   an    employer   cannot     evade

responsibility for benefit remittances by the simple expedient of

failing to keep the records that the law requires.

           The circumstances of this case trigger the presumption.

At trial, Joanne Martins, the defendant's president and the person

who oversaw its day-to-day operations since 2006, testified that

she had knowledge of work performed by the defendant's employees;

that both the nature and volume of the work performed remained

essentially the same during the period from 2006 to 2011; that she

knew the extent of Jagodowski's duties; that, upon Jagodowski's


                                    -17-
departure in 2006, other employees continued to use and maintain

the equipment he had used; and that no records existed showing

either who used that equipment or the number of hours it was used.

Inasmuch as no remittances were made to the plaintiffs with respect

to   the    work     performed    by    the    unidentified         employees      after

Jagodowski left, Martin's testimony was sufficient to trigger the

burden-shifting paradigm.

             We do not accept the district court's suggestion that the

burden-shifting cases are inapposite here.                 To begin, the court's

conclusion     that     the    plaintiffs      had    to   show      that     employees

performing covered work are "classified employee[s]," Haluch I, 792

F. Supp. 2d at 138, is incorrect because, as we have explained, the

focal point of the inquiry contemplated by the CBA is covered work

— not job classifications per se.                    Even more important, the

district court's reasoning, if endorsed, would destroy the efficacy

of the burden-shifting paradigm.              The reality is that an employer

has a      strong    incentive    to   underreport      the     number      of   covered

employees     because     underreporting        reduces       the    amount      of   the

remittances it must make.          Cent. States, 472 U.S. at 567; see Brick

Masons     Pension    Trust,     839   F.2d    at    1335-37.       A   view     of   the

presumption that would leave the defendant better off if it kept

fewer records rather than more would drain the presumption of any

meaning.




                                        -18-
            To sum up, the presumption is that the defendant is

liable "for all hours worked . . . in which [employees] were shown

to have performed some covered work."           Brick Masons Pension Trust,

839 F.2d at 1339. The employer, despite its record-keeping lapses,

may offer evidence in an effort either to overcome the presumption

or to limit its effect.        In the absence of such evidence, however,

the presumption controls.

            Here, the benchmark for the operation of the presumption

is the district court's determination that seventy-five percent of

Jagodowski's work was covered by the CBA.           Haluch I, 792 F. Supp.

2d at 136-37.   From this determination, it can be presumed that one

or more employees performed Jagodowski's work after he left, that

those employees worked each year the same total number of hours as

Jagodowski, and that seventy-five percent of that work was covered

by the CBA. Accordingly, the defendant is presumptively liable for

the same number of hours of covered work for each successive year

through    October   31,   2010   (the   last    date    encompassed   by    the

plaintiffs' claim).

            As we have said, this presumption is rebuttable. So far,

the defendant has not rebutted it.           Nevertheless, the validity and

contours of this burden-shifting paradigm have, until now, been a

matter of guesswork within this circuit.                 Given this lack of

clarity,   we   think   that    the   fairest   course    is   to   vacate   the

challenged portion of the district court's decision in Haluch I and


                                      -19-
remand so that the district court, applying the presumption and

considering any countervailing evidence that the defendant adduces,

may determine the amount of remittances owed on account of covered

work performed by unidentified employees.                   Cf. Pruell v. Caritas

Christi, 678 F.3d 10, 12-15 (1st Cir. 2012) (allowing plaintiffs to

amend their complaint as a result of recent clarification in

pleading requirements).

                               C.     Attorneys' Fees.

              The plaintiffs' remaining assignment of error posits that

the district court's award of attorneys' fees was too skimpy.                     The

district      court's    fee    calculation        rested    appreciably     on   the

plaintiffs' lack of success in recovering remittances referable to

unidentified employees.             See Haluch II, 792 F. Supp. 2d at 142-43.

Because we have ruled that the plaintiffs are entitled to some

level of payment for this work, see supra Part II(B), a principal

pillar   of    the     district      court's     calculus    has   been    removed.

Consequently, the fee award will have to be recalculated after the

appropriate amount of unpaid remittances is determined. See, e.g.,

Cordero v. De Jesus-Mendez, 922 F.2d 11, 19 (1st Cir. 1990)

(directing recalculation of fee award in light of changes to award

of damages).

              As   a   practical       matter,     this     circumstance    counsels

persuasively against any consideration of the adequacy of the fee

award at this juncture.               Courts ought not to venture advisory


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opinions, and there is nothing to be gained by passing upon the

appropriateness         of   a   fee   award    that   must   in   all   events   be

recalculated.       We therefore deny this aspect of the plaintiffs'

appeal without prejudice to their right to renew it if, upon the

issuance of a reformulated fee award, they remain aggrieved.7

III.       CONCLUSION

               We need go no further. For the reasons elucidated above,

we hold that the plaintiffs' notice of appeal was timely filed as

to all issues in the case.                 We vacate the district court's

judgments in both Haluch I and Haluch II, and remand for further

proceedings consistent with this opinion. All parties shall bear

their own costs.

               In refashioning the award of overdue benefit-remittance

payments, the district court should reinstate that portion of its

previous award referable to work performed by Jagodowski (a portion

of the award that was not challenged on appeal).



So Ordered.




       7
       The defendant has filed a cross-appeal with respect to the
award of attorneys' fees (No. 11-1970). By separate order, we have
dismissed that appeal without prejudice.

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