

                  UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS

                      FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT

                                             

No. 94-1863

                        THOMAS R. LUSSIER,
                      Plaintiff, Appellant,

                                v.

         MARVIN RUNYON, UNITED STATES POSTMASTER GENERAL,
                       Defendant, Appellee.
                                                                                                    

No. 94-1946

                        THOMAS R. LUSSIER,
                       Plaintiff, Appellee,

                                v.

         MARVIN RUNYON, UNITED STATES POSTMASTER GENERAL,
                      Defendant, Appellant.
                                                                                                    

                           ERRATA SHEET                                     ERRATA SHEET

     The  opinion of  the  Court issued  on  March 29,  1995,  is
corrected as follows:

     On page 3, line  8   change "504(a)" to "501"

     On page 3, line  9   change "794(a)" to "791"

     On page 4, line 14   change "794(a)" to "791"

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                             

No. 94-1863

                        THOMAS R. LUSSIER,
                      Plaintiff, Appellant,

                                v.

         MARVIN RUNYON, UNITED STATES POSTMASTER GENERAL,
                       Defendant, Appellee.
                                             

No. 94-1946

                        THOMAS R. LUSSIER,
                       Plaintiff, Appellee,

                                v.

         MARVIN RUNYON, UNITED STATES POSTMASTER GENERAL,
                      Defendant, Appellant.
                                             

          APPEALS FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

           [Hon. D. Brock Hornby, U.S. District Judge]                                                               

                                             

                              Before

                      Selya, Circuit Judge,                                                    
                  Bownes, Senior Circuit Judge,                                                        
                    and Stahl, Circuit Judge.                                                      

                                             

     John F. Lambert, Jr., with whom Thomas V. Laprade and Black,                                                                           
Lambert, Coffin &amp; Rudman were on brief, for plaintiff.                                  
     Jeffrey  A.  Clair, with  whom  Frank  W. Hunger,  Assistant                                                               
Attorney  General,  Jay  P. McCloskey,  United  States  Attorney,                                               
Robert S.  Greenspan and Sandra Wien  Simon, Attorneys, Appellate                                                     
Staff,  Civil Division,  Dep't  of Justice,  were  on brief,  for
defendant.

                                             

                          March 29, 1995
                                             

          SELYA,  Circuit  Judge.   After  determining  that  the                    SELYA,  Circuit  Judge.                                          

United States Postal Service  (the Service) wrongfully discharged

Thomas Lussier because of his post-traumatic stress disorder, the

district  court  made  an  award that  included  future  damages,

sometimes called "front pay." Both parties consider  the award to

be  a dead  letter.    Their  cross-appeals  pose  two  kinds  of

questions.   The  principal  inquiry  implicates  the  collateral

source  rule and requires us  to decide whether  a district court

may  tailor a  front  pay  award,  stemming  from  a  finding  of

disability discrimination under  the Rehabilitation Act of  1973,

Pub.  L.  No. 93-112,  87 Stat.  355 (codified  as amended  at 29

U.S.C.     701-796i),  to  account for  an  increase in  Veterans

Administration (VA) benefits occasioned by the adverse employment

action.   The  second inquiry  also touches  upon the  collateral

source rule, but turns on a determination of when, and under what

circumstances, a  district court, after the  parties have rested,

may  solicit and consider factual information germane to an issue

in the case without formally reopening the record.

          On the first issue, we hold that it is within the trial

court's discretion to tailor a front pay award to take account of

collateral benefits in a discrimination case, and that  the court

acted within the realm of this discretion in the case at bar.  On

the  second issue,  we hold  that  once the  record is  closed, a

district  court, absent  waiver  or consent,  ordinarily may  not

receive additional factual information  of a kind not susceptible

to judicial  notice  unless  it  fully  reopens  the  record  and

                                3

animates  the   panoply  of  evidentiary  rules   and  procedural

safeguards customarily  available to  litigants.  Finding,  as we

do, that the district court transgressed this rule, we cancel the

award and stamp the matter "returned to sender."

I.  BACKGROUND          I.  BACKGROUND

          Lussier  sued his  quondam employer in  Maine's federal

district court alleging, inter alia, that  his discharge from the                                             

Service on  March 4, 1992, amounted  to disability discrimination

in violation of section 501 of the Rehabilitation Act of 1973, 29

U.S.C.   791.1  A bench trial ensued.  Since  these appeals focus

exclusively on the front pay award and  do not concern either the

antecedent  question  of  liability  or the  propriety  of  other

remedies, we discuss only  the evidence relating to the  form and

amount of front pay.

          The plaintiff's expert, Dr. Allan McCausland, testified

that,  had Lussier not been fired, his future earnings and fringe

benefits  over a  projected  25-year work  expectancy would  have

aggregated  between  $790,805  and  $1,067,193  when  reduced  to

present  value.   The Service did  not directly  contradict these

estimates,  but introduced  evidence that  Lussier's cloud  had a

small  silver lining;  he had  been receiving  VA benefits  for a

military-service-related   disability,   and  the   circumstances

surrounding  his ouster  from  the post  office exacerbated  this

disability and triggered an increase in those benefits.  Moreover
                                                  

     1The named defendant is the Postmaster General, but, for all
intents  and purposes, the Service is the real party in interest,
and we treat it as such.

                                4

  it  is said, after all,  that the postman always  rings twice  

Patricia Asdourian, a Postal  Service human resources specialist,

testified  that  Lussier  would  also   be  receiving  disability

benefits through the Civil Service Retirement System (CSRS) as an

incident of his discharge.  Lussier had applied for CSRS benefits

only a few weeks before trial and the precise  benefit level was,

therefore,   unknown.    Nonetheless,  Asdourian  predicted  that

Lussier's CSRS benefits would be in the neighborhood of $1185 per

month.  The  Service argued that  the present value  of both  the

increase  in VA benefits (calculated to be $358,401) and the CSRS

disability payments should be deducted from any front pay.

          On  November  9,  1993,  the  parties  rested  and  the

district court took the case under advisement.  In due course, it

found  that  the Service  had  discriminated  against Lussier  on

account of his  disability in violation of 29 U.S.C.    791.  See                                                                           

Lussier v. Runyon, No. 92-397-P-H, 1994  WL 129776, at *1 (D. Me.                           

Mar.  1,  1994) (Lussier  I).   The court  made  an award  to the                                     

plaintiff, see  id. at *11,  but declined to  order reinstatement                             

because,  given  the sequelae  of  the firing,  Lussier  could no

longer  perform his accustomed duties.  As to future damages, the

court  found that Lussier would probably be capable at some point

of  returning to  lighter, lower-paying  work, and  estimated the

present  value of Lussier's  net future lost  earnings and fringe

benefits to be  $790,805.  See id. at *9.   The court also found,                                            

however, that Lussier was slated to receive increased VA benefits

worth $358,401 on a present-value basis.  It  determined that, to

                                5

prevent  a possible  windfall, these  benefits should  offset the

recovery Lussier otherwise might obtain as front pay.  See id. at                                                                        

*9-*11.

          The court  adopted  essentially the  same reasoning  in

respect to  CSRS benefits,  concluding that these  benefits, like

the VA  benefits, should  be factored  into  Lussier's front  pay

award to  prevent overcompensation.   See  id. at *11  n.7.   But                                                        

there was a rub:  declaring itself "unable to determine Lussier's

net  economic  loss  without  knowing the  outcome  of  his  CSRS

application,"  id.  at *11,  the  court deferred  entry  of final                            

judgment and ordered the  parties to file reports within  30 days

concerning  the outcome  or status  of Lussier's  application for

CSRS benefits.

          Though  objecting  to  the  court's   request,  Lussier

complied under  protest.  He  submitted status reports  (the last

dated  May 2,  1994) disclosing  that he  was receiving  $390 per

month in CSRS benefits on an interim basis "pending determination

of his  final entitlement."   Lussier v. Runyon,  No. 92-397-P-H,                                                         

1994 WL  247873, at *1 (D.  Me. May 24, 1994) (Lussier  II).  The                                                                    

Service,  by contrast,  gave  the court  no concrete  information

within the 30-day  period.   It then compounded  its omission  by

ignoring the  court's instruction, issued on  April 21, directing

it to respond  within ten days.  Judge  Hornby, unwilling to wait

any longer, entered final judgment on May 24, 1994.  Based mainly

on  the lack of  any submission by the  Service, the judge seized

upon  the figure of $390 per month, computed the present value of

                                6

these monthly payments over Lussier's work expectancy ($112,723),

and offset  this amount  against the  potential front  pay award.

The  court  thereupon  entered  a final  judgment  that  included

$320,000  in  front pay  (representing  $790,805  in future  lost

earnings, minus $358,401 in increased VA benefits, minus $112,723

in CSRS benefits).

          Three days later, the  Service moved to alter  or amend

the judgment,  Fed. R. Civ. P. 59(e), "to reflect the fact that a

final calculation of the plaintiff's [CSRS] disability retirement

annuity  has  now  been  made,  resulting  in  a  monthly payment

effective March 1, 1994, in the amount  of $1,111."  The district

court denied the motion, writing that:

          The defendant has already had more generosity
          than it deserves from my initial reopening of
          the trial record  and extensions  thereafter.
          Although the plaintiff  may realize  somewhat
          of  a "windfall"  as a  result, awarding  the
          defendant relief would make a mockery of  all
          judicial deadlines and the closing of a trial
          record.

Both parties appeal.

II.  COLLATERAL BENEFITS          II.  COLLATERAL BENEFITS

          These  appeals pose  an  important question:   In  what

manner,  if any,  does the  collateral source  rule    which bars

resort to collateral benefits  in connection with the calculation

of pecuniary damage awards, see 1 Dan B. Dobbs, Law of Remedies                                                                           

3.8(1), at 372-73 (2d ed. 1993) (describing the collateral source

rule as providing "that benefits received by the plaintiff from a

source collateral to the defendant may not be used to reduce that

defendant's liability for  damages")   apply  to awards of  front

                                7

pay?    We respond  by  holding  that  insofar as  front  pay  is

concerned,  the  effect to  be  given  to collateral  benefits   

whatever their source   is within the equitable discretion of the

district  court.2  Applying this  general principle, we rule that

the  court below acted within the proper sphere of its discretion

in  tailoring the  plaintiff's  front pay  award  to account  for

collateral  benefits received  by  the plaintiff  as a  traceable

consequence of the defendant's statutory violation.

                    A.  The Letter of the Law.                              A.  The Letter of the Law.                                                       

          The  Rehabilitation Act  makes available  in disability

discrimination cases the remedies authorized  by Title VII of the

Civil Rights Act  of 1964, see 29 U.S.C.    794a(a)(1), and Title                                        

VII, in turn, provides that a court may order "affirmative action

. .  . which may include, but is not limited to, reinstatement or

hiring of employees, with or without back pay . . ., or any other

equitable relief as  the court  deems appropriate,"  42 U.S.C.   

2000e-5(g).   Under this generous language,  courts commonly have

recognized front pay as  a condign remedy.  See,  e.g., Saulpaugh                                                                           

v. Monroe Community Hosp., 4 F.3d  134, 145 (2d Cir. 1993), cert.                                                                           

denied, 114 S. Ct.  1189 (1994); Shore v. Federal  Express Corp.,                                                                          

777 F.2d 1155, 1158-60  (6th Cir. 1985); Thompson v.  Sawyer, 678                                                                      

F.2d  257,  292 (D.C.  Cir.  1982) (collecting  cases);  see also                                                                           

United States v. Burke, 112 S. Ct. 1867, 1873 n.9 (1992)  (noting                                

                                                  

     2We limit this  holding to  situations where,  as here,  (1)
front pay is a  discretionary equitable remedy, and (2)  there is
no statutory impediment to factoring collateral benefits into the
mix.

                                8

approvingly, in  dictum, that  "[s]ome courts have  allowed Title

VII  plaintiffs  who  were  wrongfully discharged  and  for  whom

reinstatement  was not feasible to recover  `front pay' or future

lost  earnings"); Sinai v. New Eng. Tel.  &amp; Tel. Co., 3 F.3d 471,                                                              

476 (1st Cir. 1993) (recognizing, in dictum, that front pay is an

acceptable form of redress under Title VII), cert. denied, 115 S.                                                                   

Ct. 597 (1994); cf. Wildman v. Lerner Stores Corp., 771 F.2d 605,                                                            

614-16  (1st Cir. 1985)  (explicitly recognizing front  pay as an

equitable remedy under the analogous  relief provision of the Age

Discrimination  in  Employment Act  (ADEA),  29  U.S.C.    626(b)

(1988)).

          These  precedents illuminate  our  path.   In light  of

them, we hold  that front  pay is an  available equitable  remedy

under  Title  VII  and,  hence,  under  the  Rehabilitation  Act.

Nevertheless, confirming the propriety of the remedy merely takes

us  to  a  way  station,  not to  our  destination.    A  further

expedition must  be mounted if  we are to plot  the terrain where

the  collateral  source  rule  and the  tenets  that  inform  the

computation of front pay intersect.

          We start  along this route by  acknowledging that front

pay, within  the employment discrimination universe, is generally

equitable  in nature.  See, e.g., Shore v. Federal Express Corp.,                                                                          

42 F.3d  373, 377-78 (6th Cir. 1994).  It follows a fortiori from                                                                      

the equitable nature of  the remedy that the decision to award or

withhold  front  pay  is, at  the  outset,  within the  equitable                                                   

discretion of the trial court.  See, e.g., id.; Saulpaugh, 4 F.3d                                                                   

                                9

at 145;  2 Dobbs,  supra,    6.10(4),  at 214.    This court  has                                  

consistently reached the same conclusion with regard to front pay

in the ADEA  context, see,  e.g., Powers v.  Grinnell Corp.,  915                                                                     

F.2d 34, 42-43 (1st Cir. 1990); Wildman, 771 F.2d at  616, and we                                                 

perceive  no  reason  why   front  pay  should  be  characterized

differently in respect to  its dispensation under Title VII  and,

correspondingly,  under   the  Rehabilitation  Act.3    We  rule,

therefore, that statutes such as Title VII and the Rehabilitation

Act  afford trial courts wide latitude to award or withhold front

pay  according  to  established  principles  of  equity  and  the

idiocratic circumstances of each case.

          We  think  it  follows   from  this  premise  that  the

logically derivative question  of whether a  front pay award,  if

granted, may be tailored to take collateral benefits into account

is also within the court's equitable discretion.  This conclusion

is supported  not only by  the brute  force of logic,  see United                                                                           

States  v. O'Neil, 11 F.3d  292, 296 (1st  Cir. 1993) (explaining                           

that "the grant of a greater power necessarily includes the grant

of  a lesser power, unless  the authority to  exercise the lesser

power is expressly reserved"), but also by reference to precedent

and  to an  understanding  of the  fundamental  nature of  equity

itself.  We canvass these sources.

          1.  Precedent.   The weight of authority unquestionably                    1.  Precedent.                                 

favors the  view that  decisions about  whether  to consider  the
                                                  

     3This is particularly true in view of the close relationship
between the ADEA and Title VII.  See, e.g., McKennon v. Nashville                                                                           
Banner Publ. Co., 115 S. Ct. 879, 884 (1995).                          

                                10

plaintiff's  receipt  of  collateral   benefits  in  gauging  the

appropriateness  and amount  of  front pay,  and  if so,  how  to

calibrate the scales, lie within the equitable discretion  of the

trial  court.   See,  e.g.,  Hukkanen v.  International  Union of                                                                           

Operating  Eng'rs, 3 F.3d 281, 286 (8th Cir. 1993) (holding under                           

Title VII that "calculation  of front pay  . . .  is a matter  of

equitable relief  within the district court's sound discretion");

Johnson v. Chapel Hill Indep. Sch.  Dist., 853 F.2d 375, 382 (5th                                                   

Cir.  1988) (similar); see also Jackson v. City of Cookeville, 31                                                                       

F.3d  1354,  1360 (6th  Cir. 1994)  (applying abuse-of-discretion

test to  evaluate district court's deduction  of pension benefits

from  an ADEA front pay award); Graefenhain v. Pabst Brewing Co.,                                                                          

870  F.2d  1198,  1210  (7th Cir.  1989)  (similar;  specifically

stating that whether to deduct  such collateral benefits "from  a

front  pay award is a  matter committed to  the discretion of the

trial  court").   While  the case  law does  not  form a  perfect

string, see, e.g., Doyne v. Union Elec. Co., 953 F.2d 447, 451-52                                                     

(8th  Cir. 1992)  (holding that  pension benefits  should not  be

considered in fashioning an  ADEA front pay award), we  deem this

virtually  seamless  array of  precedents  to  be worthy  of  our

allegiance.

          Our  conviction that  the majority  rule is  the better

rule is  not weakened by the debate that has rent the circuits in

regard to  whether collateral benefits should  be subtracted from

                                11

back pay  awards in employment discrimination  cases.4  According

to our rough count, courts  of appeals have divided four-to-three

on this issue.  Compare EEOC v. Wyoming Retirement Sys., 771 F.2d                                                                 

1425,  1431  (10th  Cir.  1985)  (holding  under  the  ADEA  that

"[d]eduction of  collateral  sources of  income from  a back  pay

award is a matter within the trial court's discretion") and Orzel                                                                           

v.  City of  Wauwatosa Fire Dep't,  697 F.2d 743,  756 (7th Cir.)                                           

(similar),  cert. denied, 464 U.S. 992 (1983) and Merriweather v.                                                                        

Hercules, Inc., 631 F.2d  1161, 1168 (5th Cir. 1980)  (similar in                        

regard to Title VII back pay awards) and EEOC v. Enterprise Ass'n                                                                           

Steamfitters Local No. 638,  542 F.2d 579, 591-92 (2d  Cir. 1976)                                    

(allowing  district court  to  offset public  assistance payments

against  a Title VII back pay award),  cert. denied, 430 U.S. 911                                                             

(1977)  with Craig v. Y &amp; Y  Snacks, Inc., 721 F.2d 77, 81-85 (3d                                                   

Cir. 1983) (holding that  unemployment compensation should not be

deducted  from a  Title VII  back pay  award) and  Brown v.  A.J.                                                                           

Gerrard Mfg. Co.,  715 F.2d  1549, 1550-51 (11th  Cir. 1983)  (en                          

banc)  (similar) and  EEOC v. Ford  Motor Co., 688  F.2d 951, 952                                                       

(4th Cir. 1982) (similar).  Three other circuits have shown signs

                                                  

     4NLRB v.  Gullett Gin Co.,  340 U.S. 361  (1951), frequently                                        
cited in connection with  the interplay between back pay  and the
collateral  source  rule, is  simply  not  determinative on  this
issue.    In  Gullett  Gin,  the  Court  held  that  unemployment                                    
compensation need not be deducted from a back pay award under the
National Labor Relations Act. Id. at 364.  But the  Court did not                                           
furnish  clear  guidance  as to  whether  the  use  of collateral
benefits was categorically disallowed  or merely entrusted to the
trier's  discretion.  See 2  Dobbs, supra,    6.10(4), at 223-24;                                                   
Thomas  W. Lee,  Comment, Deducting  Employment Compensation  and                                                                           
Ending Employment Discrimination:  Continuing Conflict, 43  Emory                                                                
L.J. 325, 326 (1994).

                                12

of an internal division.  Compare Hawley v. Dresser Indus., Inc.,                                                                          

958 F.2d 720,  726 (6th  Cir. 1992) (approving  the deduction  of

pension benefits from  an ADEA  back pay award)  with Rasimas  v.                                                                       

Michigan  Dep't of  Mental Health,  714 F.2d  614, 627  (6th Cir.                                           

1983)  (holding that "[u]nemployment benefits . . . should not be

deducted from backpay awards" under Title VII), cert. denied, 466                                                                      

U.S. 950 (1984); and  compare Glover v. McDonnell  Douglas Corp.,                                                                          

12  F.3d 845,  848 (8th  Cir.) (holding  that the  district court

erred in refusing  to offset  pension payments from  an award  of

back pay), cert. denied, 114 S.  Ct. 1647 (1994) with Doyne,  953                                                                     

F.2d at 451-52 (contra);5 and compare Naton  v. Bank of Cal., 649                                                                      

F.2d  691, 700  (9th  Cir. 1981)  (holding  that district  courts

possess discretion  to deduct  collateral benefits from  back pay

awards in ADEA cases)  with Kauffman v. Sidereal Corp.,  695 F.2d                                                                

343,  347 (9th  Cir.  1982) (holding  in  a Title  VII  case that

"unemployment benefits  received by a successful  plaintiff in an

employment  discrimination  action  are  not  offsets  against  a

backpay award").

          While we tend to agree with those courts that have held

the  interplay between collateral benefits  and back pay  to be a

matter  within  the district  court's  discretion,6  we need  not
                                                  

     5The Eighth Circuit recently noted this "possible conflict."
Gaworski v. ITT  Commercial Fin.  Corp., 17 F.3d  1104, 1112  n.7                                                 
(8th Cir.), cert. denied, 115 S. Ct. 355 (1994).                                  

     6In addition  to the cases catalogued  above, several trial-
level cases in this circuit  take the same position.  See,  e.g.,                                                                          
Townsend v. Grey Line Bus Co.,  597 F. Supp. 1287, 1293 (D. Mass.                                       
1984) ("The better  view . . .  is that the recovery  of back pay
under Title VII is an equitable remedy intended primarily to make

                                13

decide that precise question today.  Even if we assume, arguendo,                                                                          

that granting discretion to  district courts to deduct collateral

benefits from back pay awards is problematic, front  pay presents

an easier  call.  After all,  the dispensation of front  pay   if

only because  of its relatively speculative  nature, see Wildman,                                                                          

771  F.2d at 616   is  necessarily less mechanical than back pay,

and  the amount of front pay    if only because of its predictive

aspect   is necessarily less certain than back pay, see Hukkanen,                                                                          

3 F.3d at 286.  For these reasons, front pay is much more heavily

dependent than back pay upon the district court's exercise of its

informed  discretion.7    Consequently,  whether  or  not  courts

possess  the  authority  to  tailor  back  pay  awards   to  take

collateral  benefits into account   a question that we leave open

for the  time  being    we are  confident that  they possess  the

authority to tailor awards of front pay in that manner.

          2.  The  Nature of  Equity.  Beyond  the relevant  case                    2.  The  Nature of  Equity.                                              

                                                  

the victim  of discrimination whole."),  aff'd, 767 F.2d  11 (1st                                                        
Cir. 1985); Thurber v. Jack Reilly's Inc., 521 F. Supp. 238, 242-                                                   
43  (D. Mass.  1981) (exercising  equitable discretion  to deduct
unemployment  benefits  from  the plaintiff's  back  pay  award),
aff'd, 717  F.2d 633 (1st Cir. 1983),  cert. denied, 466 U.S. 904                                                             
(1984); see also Crosby v. New Eng. Tel. &amp; Tel. Co., 624 F. Supp.                                                             
487, 491  (D. Mass.  1985) (predicting in  an ADEA case  that the
First  Circuit  will likely  allow  district  courts to  exercise
discretion in tailoring back pay awards to account for collateral
benefits).

     7To illustrate this point, we remind the reader that,  while
front pay is fully  within the district court's discretion,  back
pay is a presumptive entitlement  of a plaintiff who successfully
prosecutes an  employment  discrimination case.   Compare,  e.g.,                                                                          
Wildman, 771 F.2d at 615 with Costa v. Markey, 706 F.2d 1, 6 (1st                                                       
Cir. 1982),  cert.  dismissed, 461  U.S.  920 (1983),  and  cert.                                                                           
denied, 464 U.S. 1017 (1983).                

                                14

law, our decision is informed by the nature of equity itself.  In

particular,  the abstract  imposition  of  a black-or-white  rule

regarding the relevance of collateral benefits, even if otherwise

desirable, would simply not  comport with the essential character

and function of equitable discretion.   And, though modern  civil

practice for  the most  part merges  equity  with law,  equitable

discretion remains a salient part of our legal system.  See Ralph                                                                     

A. Newman, Equity and Law:  A Comparative Study 50-53 (1961); see                                                                           

also  Roscoe   Pound,  Introduction  to  Newman,   supra,  at  10                                                                  

(suggesting  heightened importance  of  principles  of  equitable

discretion "in applying legal precepts and remedies").

          Historically, equity powers emerged in response to  the

rigidity of the common  law, especially the impersonal generality

of  the remedies it  afforded.  See, e.g.,  Harold J. Berman, Law                                                                           

and  Revolution:   The Formation  of the Western  Legal Tradition                                                                           

518-19 (1983); Peter C. Hoffer, The  Law's Conscience:  Equitable                                                                           

Constitutionalism  in America 8-16 (1990).  As Lord Ellesmere put                                       

it:  "The Cause why there is a Chancery is, for that Mens Actions

are so  divers and infinite,  That it  is impossible to  make any

general Law which may  aptly meet with every particular  Act, and

not fail in  some Circumstances."  Earl of Oxford's Case, 21 Eng.                                                                  

Rep. 485, 486 (1615).  Hence, "[t]he  Office of the Chancellor is

. .  . to soften and  mollify the Extremity of  the Law .  . . ."

Id.  Because the  hallmarks of equity have long  been flexibility             

and  particularity, the imposition of  a rigid rule,  pro or con,

concerning the interrelationship between collateral  benefits and

                                15

front  pay (an  equitable remedy) would  be incongruent  with the

historic and essential conception of equity.  In contrast, a rule

that  confers latitude  upon  the district  court  to handle  the

interface  between collateral benefits  and front pay differently

in  different  cases  is   fully  consistent  with  this  storied

heritage.

          For these reasons, we conclude that  the decision as to

whether  to tailor  a  front  pay  award  to  take  into  account

collateral  benefits  is,  and  must  be,  within  the  equitable

discretion of the nisi prius court.                                      

          On much the  same basis,  we do not  believe that  this

discretion  is  rigidly  circumscribed   by  the  source  of  the                                                                  

collateral benefits.8   We  consider the  source of a  collateral

benefit to be informative, but not dispositive.   That is to say,

because the  district court's decision about whether it should or

should  not tailor  a front  pay award  to dovetail  with certain

collateral benefits  is discretionary,  we think it  follows that

                                                  

     8The parties attach great significance to the source of  the
benefits.   The Service argues that the collateral source rule is
peculiarly inappropriate here because both  the front pay and the
collateral benefits emanate  from the same  source   the  federal
government.   Lussier  sees  no such  special  relationship.   He
advocates  that we  judge the  parcel not  by its  wrapping, but,
rather,  by its contents, and asseverates that the post office is
an independent entity distinct  from other federal agencies, such
as the  Veterans  Administration.   In his  view, therefore,  the
front pay and the collateral benefits do not derive from the same
source, and there is  all the more reason to apply the collateral
source   rule  simpliciter.      Since   the   district   court's                                    
discretionary decision in this case is sustainable without regard
to the source  of the benefits,  we need not  decide the  precise
relationship between  the  post office  and  other parts  of  the
federal apparatus.

                                16

the defendant's status as  the source (or not) of  the collateral

benefit comprises, at  the most,  one factor of  many within  the

mailbag of  discretionary considerations.  Here,  too, the nature

and function of equity jurisprudence guide our reasoning.

          To  be  sure, equity  is not  blind  to the  reality of

events.  The fact that the  payer of damages and the dispenser of

a  collateral benefit  are one  and the  same,  or that  they are

linked in some  economically meaningful sense, tends to  make the

deployment of  the collateral source  rule less attractive.   See                                                                           

Smith v. OPM,  778 F.2d 258, 263 (5th Cir. 1985) (suggesting that                      

the collateral  source rule may  lack force "when  the collateral

source is  the defendant"), cert.  denied, 476 U.S.  1105 (1986);                                                   

Enterprise Ass'n Steamfitters, 542  F.2d at 591 (similar); Olivas                                                                           

v.  United  States,  506  F.2d  1158,  1163-64  (9th  Cir.  1974)                            

(similar); see  also 2  Dobbs, supra,    8.6(2), at  491.   It is                                              

nonetheless easy to  imagine scenarios in  which the totality  of

equitable  considerations  favors  the  rule's  strict invocation

regardless  of any  affinity  between payer  and  dispenser.   To

recognize a  mechanical same-source  exception to the  rule would

deny  district  courts  the   discretion  to  weigh  these  other

considerations  and,  thus, would  offend  the  logic of  equity.

Accordingly,  we decline  the  parties' invitations  to view  the

source of a collateral benefit, without more, as determinative of

whether  the benefit should be taken into account in fashioning a

front pay award.

                   B.  Application of the Law.                             B.  Application of the Law.                                                       

                                17

          Having surveyed the legal landscape, we now turn to the

decision  below.   Though we  review a  district court's  factual

findings in a bench trial only for clear error, see, e.g., Reilly                                                                           

v.  United States,  863  F.2d  149,  163  (1st  Cir.  1988);  RCI                                                                           

Northeast  Servs. Div. v. Boston Edison Co., 822 F.2d 199, 201-02                                                     

(1st Cir. 1987),  we review  its ultimate decision  to impose  or

withhold equitable remedies for abuse of  discretion.  See, e.g.,                                                                          

Shore, 42 F.3d at  377-78; Rosario-Torres v. Hernandez-Colon, 889                                                                      

F.2d  314, 323  (1st Cir. 1989)  (en banc)  (listing cases).   In

general,  the abuse  of  discretion framework  is not  appellant-

friendly.   See  Dopp v.  Pritzker, 38 F.3d 1239,  1253 (1st Cir.                                            

1994) (predicting that most appeals from discretionary  decisions

of the district courts  will come to naught).  If  we are to find

an abuse of discretion, the appellant ordinarily must persuade us

that  the   lower  court   "committed  `a  meaningful   error  in

judgment.'"  Rosario-Torres, 889 F.2d at 323 (quoting Anderson v.                                                                        

Cryovac, Inc., 862 F.2d 910, 923 (1st Cir. 1988)).9                       
                                                  

     9At a more refined level,  we have focused appellate  review
on the following considerations:

          In making discretionary judgments, a district
          court abuses its  discretion when a  relevant
          factor  deserving  of  significant weight  is
          overlooked, or  when  an improper  factor  is
          accorded  significant  weight,  or  when  the
          court  considers  the   appropriate  mix   of
          factors,  but  commits  a  palpable  error of
          judgment   in   calibrating  the   decisional
          scales.

United  States v.  Roberts,  978 F.2d  17,  21 (1st  Cir.  1992).                                    
Whether the  district court's decision is  viewed macroscopically
or microscopically, however, the appellate focus is fundamentally
the same.

                                18

          In  employment  discrimination  cases,   the  abuse-of-

discretion  standard is  necessarily  informed  by the  statutory

purposes at stake.  See, e.g., Albemarle Paper  Co. v. Moody, 422                                                                      

U.S. 405, 417  (1975); Enterprise Ass'n Steamfitters, 542 F.2d at                                                              

583  n.2.   In mulling  Title VII,  the Court  has distilled  two

primary  purposes from  the  statute:   the  need to  create  and

maintain a level, discrimination-free  playing field and the need

to make  victims  of  discrimination  whole.    See  McKennon  v.                                                                       

Nashville Banner Publ. Co., 115 S. Ct. 879, 884 (1995); Albemarle                                                                           

Paper,  422 U.S.  at 417-18.    Thus, front  pay  awards must  be               

gauged, at least in  part, against the twin goals  of eradicating

discrimination and ameliorating the harm that it has caused.  See                                                                           

Shore, 42 F.3d at 378; Thompson, 678 F.2d at 292.  On this basis,                                         

then, investigating  the  soundness of  any remedial  award in  a

Title  VII case  entails two  inquiries:   (1) Does  the district

court's  decision  serve  "to   achieve  equality  of  employment

opportunity and remove barriers that have operated in the past to

favor an identifiable group of .  . . employees"?  Griggs v. Duke                                                                           

Power Co.,  401 U.S. 424, 429-30  (1971).  (2) Does  the district                   

court's  decision  serve  "to  make persons  whole  for  injuries

suffered  on  account  of  unlawful  employment  discrimination"?

Albemarle Paper, 422 U.S. at 418.                         

          When addressed to the district court's front pay award,

these  queries yield no sign  of discretion misused.   Taking the

inquiries in reverse order, the fit  between the district court's

action and the second of the two statutory objects   compensation

                                19

  cannot be gainsaid.  The root purpose of the challenged  offset

is to  prevent overcompensation  and, thus, the  district court's

decision  faithfully  serves the  goal  of  making the  plaintiff

whole.  No more is exigible in this respect.   See, e.g., Wyoming                                                                           

Retirement Sys., 771 F.2d at 1431; Orzel, 697 F.2d at 756.                                                  

          The district court's  decision is also  sufficiently in

service to the  first of the  two statutory objects:  deterrence.

While  any consideration that holds down the amount of a monetary

judgment  can  be said  to lessen  the  deterrent effect  of that

judgment,  we believe that the relevant inquiry is broader in its

scope.  Deterrence  is a function of  degree, and nothing in  the

Rehabilitation  Act  or  in the  case  law  commands  that it  be

maximized at  all costs.   This  practical wisdom has  particular

force where, as here,  maximizing deterrence might well interfere

with the measured achievement  of other statutory goals.10   Even

short  of  maximization,  the  statutory  purpose  can  be  fully

satisfied  so long as  deterrence is meaningfully  achieved.  Cf.                                                                           

Navarro-Ayala  v. Nunez,  968  F.2d 1421,  1427  (1st Cir.  1992)                                 

(holding,  in the context of Fed. R.  Civ. P. 11, that a monetary
                                                  

     10We  add  that,  as   between  the  two  primary  statutory
purposes, the goal of compensation, and not deterrence, is likely
the more  important in regard to front pay.  After all, the basic
function  of  a   front  pay   award  is  to   make  victims   of
discrimination whole.   See Wildman,  771 F.2d at  615; see  also                                                                           
EEOC v. Prudential Fed.  Sav. &amp; Loan  Ass'n, 763 F.2d 1166,  1173                                                     
(10th  Cir.)  (explaining  that  front pay  "assur[es]  that  the
aggrieved party is returned as nearly as possible to the economic
situation he would  have enjoyed but for  the defendant's illegal
conduct"), cert. denied, 474  U.S. 946 (1985).  For  that reason,                                 
an abuse of  discretion ordinarily  will not lie  when the  trial
court, in the process of making the plaintiff whole   no more, no
less   happens to produce a marginal diminution of deterrence.

                                20

sanction aimed at deterrence is most appropriate "when the amount

of  the  sanction  falls  within  the  minimum  range  reasonably

required   [effectively]  to   deter   the  abusive   behavior");

Graefenhain, 870 F.2d at 1213 &amp; n.9 (noting, in calculating front                     

pay, that a court's "own vision of `optimal deterrence'" is not a

sufficient basis  "to engraft additional remedies  on a statutory

scheme  which is  predominantly compensatory");  Enterprise Ass'n                                                                           

Steamfitters, 542 F.2d  at 592 (finding "no compelling  reason of                      

deterrence" that would justify  "providing the injured party with

double  recovery   for  his  lost  employment").     Here,  every

indication  is that  the  district court's  award  of front  pay,

handsome eventhough diminished,packs an adequatedeterrent effect.

          We add a  postscript:    viewing a  front pay award  in

isolation for  the purpose  of measuring its  contribution toward

the  goals of an antidiscrimination statute is risky business.  A

front  pay award   like any other  single strand in a tapestry of

relief   must be assessed as a part of the entire remedial fabric

that the  trial court has fashioned  in a particular  case.  See,                                                                          

e.g., Barbano v. Madison County, 922 F.2d 139, 146 (2d Cir. 1990)                                         

(holding that the  district court acted within  its discretion in

denying front  pay entirely because other  relief, including back

pay, prejudgment interest, and  attorneys' fees, sufficed to make

the plaintiff whole).  This holistic principle takes into account

the  fact that the finding  of liability, in  addition to setting

the  stage  for  relief  and  thereby  furthering  the  goals  of

compensation   and   deterrence,   itself   sends    a   valuable

                                21

informational signal.   See, e.g.,  McKennon, 115 S.  Ct. at  885                                                      

(explaining  that  the  goals  of  an  employment  discrimination

statute  are  advanced by  a  finding  of discrimination  because

"disclosure  through litigation of  incidents or  practices which

violate national  policies  respecting nondiscrimination  in  the

work force is itself important").

          We sum up by  remarking the obvious:   decisions within

the world of equity  by their nature reflect judicial  efforts to

balance competing  centrifugal and  centripetal forces.   In this

instance,  the  district  court  struck  an  entirely  reasonable

balance  between  the goals  of  fair  compensation and  adequate

deterrence.   Mindful  of  the breadth  of  the district  court's

discretion in such matters, we affirm its decision to award front

pay to  the  plaintiff, but  to  tailor the  award to  take  into

account the collateral VA  benefits that he received as  a result

of his unlawful discharge.11

III.  LATE-ARRIVING EVIDENCE          III.  LATE-ARRIVING EVIDENCE

          In  general, the  view  that we  take  of the  flexible

interplay  between  front  pay  and the  collateral  source  rule

                                                  

     11The  Service  complains  that  the lower  court  erred  in
figuring the amount of VA benefits used to reduce Lussier's front
pay award.  Because  the factfinder's choice between two  or more
permissible  views  of  the  evidence cannot  be  deemed  clearly
erroneous, see Cumpiano  v. Banco Santander  P.R., 902 F.2d  148,                                                           
152  (1st Cir.  1990), we  reject this  complaint (which,  in any
event, is anchored in an overly optimistic reading of the record)
out of hand.

                                22

extends  to  CSRS  benefits.12    Withal,  the  district  court's

handling of these benefits gives us pause.

          During  the  trial,  reference  was made  to  Lussier's

eligibility  for  a  CSRS  disability retirement  annuity.    The

government advanced a rough estimate of the  monthly stipend that

Lussier  would  likely  receive.   Dissatisfied  with  the  trial

evidence on this subject, the district court ordered "the parties

to file  within  30 days  a  status report  concerning  Lussier's

application for  CSRS disability benefits."   Lussier I,  1994 WL                                                                 

129776, at  *11.   Lussier,  though objecting  vigorously to  the

directive, submitted  some  information anent  interim  payments.

The Service offered no assistance.  Eventually, the court reduced

its  planned front pay award based on  the new information.  Both

parties appeal.

          Lussier  contends   that  the  entire   enterprise  was

procedurally infirm; that the Service failed  to prove the amount

of any purported offset,  thus rendering the issue moot;  and, in

all events, that the collateral  source rule should have operated

to disqualify the CSRS  benefits from consideration in connection

with the front pay award.  For its part, the  Service asseverates

that the court erred in not  using the estimate of CSRS  benefits

introduced at trial,  or, alternatively, in not granting its Rule

59(e)  motion and using  the more precise  figure limned therein.
                                                  

     12Lussier argues that CSRS benefits arise, at least in part,
out  of employee  contributions,  and, therefore,  should not  be
treated  in the  same manner  as other  collateral benefits.   We
express no opinion on this aspect of the matter.  Lussier can, of
course, renew the argument before the district court on remand.

                                23

Since  we   give  our  stamp  of  approval   to  Lussier's  first

contention, we need not address the parties' other points.

          Typically, a district  court's decision  to reopen  the

record for the purpose of receiving additional evidence engenders

an  exercise of the  court's discretion, reviewable  for abuse of

that discretion.  See  Zenith Radio Corp. v. Hazeltine  Research,                                                                           

Inc.,  401  U.S. 321,  331-32  (1971); Briscoe  v.  Fred's Dollar                                                                           

Store,  Inc.,  24  F.3d  1026,  1028  (8th  Cir.  1994);  Natural                                                                           

Resources Defense Council, Inc.  v. Texaco Ref. &amp; Mktg.,  Inc., 2                                                                        

F.3d 493, 504 (3d Cir. 1993);  Hartford Accident &amp; Indem. Co.  v.                                                                       

Gulf Ins.  Co., 837 F.2d  767, 773  (7th Cir. 1988).   This  rule                        

pertains even when the  district court opts to reopen  the record

on its own initiative.  See, e.g., Calage v. University of Tenn.,                                                                          

544 F.2d 297, 301-02 (6th Cir. 1976)  (upholding district court's

sua   sponte  solicitation   and   consideration  of   post-trial                      

evidentiary submissions in  employment discrimination suit);  see                                                                           

also Briscoe, 24 F.3d at 1028.  Here, however, the district court                      

  despite what it said    did not reopen the record; instead, the

court, over  the plaintiff's  objection, engaged in  a unilateral

pursuit of additional evidence  without affording the parties the

standard prophylaxis  that generally  obtains at trial.13   While

we  do  not doubt  the court's  good intentions    the  judge was

clearly motivated by concerns of judicial economy and a desire to

                                                  

     13These  protections include,  but are  not limited  to, the
right  to object to evidence,  the right to  question its source,
relevance,  and  reliability,  the  right  to  cross-examine  its
proponent, and the right to impeach or contradict it.

                                24

be fair to all  parties   it  chose a mode of  evidence-gathering

that  offends accepted  practice  and  contradicts existing  law.

Therefore, we  must sustain Lussier's preserved  objection to it.

And, moreover,  because the  error affected substantial  rights  

the  court  used  the  extra-record  information  anent   interim

payments  to reduce  the  amount of  the  front pay  award    the

judgment must be vacated.  We explain briefly.

          It is a fundamental principle of our jurisprudence that

a factfinder  may not  consider extra-record  evidence concerning

disputed adjudicative facts.  A good illustration of this precept

in operation can be found in the realm of judicial notice.  Under

Fed. R. Evid. 201(b), a judge may take notice of an  adjudicative

fact only if it is "not subject to reasonable dispute  in that it

is either (1) generally known within the territorial jurisdiction

of  the  trial  court  or  (2)  capable  of  accurate  and  ready

determination  by   resort  to  sources  whose   accuracy  cannot

reasonably  be questioned."   Courts  have  tended to  apply Rule

201(b) stringently   and well  they might, for accepting disputed

evidence not tested in the crucible of trial is a sharp departure

from  standard  practice.   Hence,  in  Cooperativa de  Ahorro  y                                                                           

Credito Aguada v. Kidder, Peabody &amp;  Co., 993 F.2d 269 (1st  Cir.                                                  

1993), petition for  cert. filed  (U.S. Oct. 12,  1993) (No.  93-                                          

564), we held that the district court exceeded the bounds of Rule

201(b)   by  gleaning   information   supposedly  known   "within

institutional investment circles" from financial periodicals that

were not offered into evidence.  See id. at 272-73; see also Barr                                                                           

                                25

Rubber Prods. Co.  v. Sun Rubber Co., 425  F.2d 1114, 1125-26 (2d                                              

Cir.) (stating similar legal tenets),  cert. denied, 400 U.S. 878                                                             

(1970).

          In  this case, the  court's acquisition of extra-record

information  by special  delivery is  similarly beyond  the pale.

Its  actions cannot be justified under the first furculum of Rule

201(b).  Facts that  are "generally known within  the territorial

jurisdiction  of the  trial court"  are those  that exist  in the

unrefreshed, unaided recollection of the  populace at large.  See                                                                           

21 Charles A. Wright  &amp; Kenneth W. Graham, Jr.,  Federal Practice                                                                           

and Procedure    5105, at 489 (1977).  Though a court, under this                       

rubric,  may take judicial notice  of such varied  matters as the

"traditional features of  a snowman," Eden Toys, Inc. v. Marshall                                                                           

Field &amp;  Co.,  675 F.2d  498,  500 n.1  (2d  Cir. 1982),  or  the                      

popularity of certain reusable containers, Price Food Co. v. Good                                                                           

Foods,   Inc.,  400  F.2d  662,  665  (6th  Cir.  1968),  or  the                       

impossibility of driving from one place to another in a specified

period of  time, United States v. Baborian, 528 F. Supp. 324, 332                                                    

(D.R.I. 1981),  it is  pellucid  that the  facts surrounding  the

interim CSRS payments    the amount received, how the  amount was

derived,  its significance  in  relation to  the  likely size  of

Lussier's disability  retirement annuity,  and the  relevance (if

any) of the interim  benefits to front  pay   never achieved  the

requisite level of popular familiarity.

          By like token, the  evidence also fails to  satisfy the

                                26

second  branch of  Rule  201(b).    Court records  aside,14  some

government documents are subject to judicial notice (albeit under

certain  limited  conditions)  on  the  ground  that  information

contained therein is "capable of accurate and ready determination

by  resort  to  sources   whose  accuracy  cannot  reasonably  be

questioned."  See, e.g., Massachusetts v. Westcott, 431 U.S. 322,                                                            

323 n.2 (1977)  (per curiam) (taking  judicial notice of  fishery

licenses as  reflected  in  the  records  of  the  Coast  Guard's

Merchant Vessel Documentation Division).  The information here at

issue  does not reach this safe harbor.   In the first place, the

information  is not contained  in generally  available government

records.  Second,  the court did not acquire  it by direct resort

to any  public record,  but, rather, through  untested unilateral                

submissions.   Third, a  monetary figure affecting  a plaintiff's

ultimate award, even though  eventually quantifiable, seems to us

to  be the  sort  of disputed  adjudicative  fact for  which  the

adversarial truth-finding process is  well suited.  And, finally,

the  court gave  the parties  no real  opportunity to  address or

counter the gleaned evidence.15
                                                  

     14Because  courts  may take  judicial  notice  of their  own
records and the records  of sister tribunals under a  special set
of rules,  see generally 21  Wright &amp;  Graham, supra,    5106, at                                                              
256-57  (Supp.  1994),  we   exempt  court  documents  from  this
discourse.

     15Westcott forms  an  interesting  contrast  to  this  case.                         
There,  in  addition  to   the  qualitative  differences  in  the
information  sought and in the  data source upon  which the court
relied, "[t]he parties  were given an  opportunity to comment  on
the  propriety of [the Court's] taking notice of the license, and
both  sides agreed that [the  Court] could properly  do so."  433
U.S. at 323 n.2.  Neither of these conditions obtains here.

                                27

          Ours is a system  that seeks the discovery of  truth by

means of a managed  adversarial relationship between the parties.

If we  were to allow  judges to bypass  this system, even  in the

interest of furthering efficiency or promoting  judicial economy,

we  would subvert this ultimate purpose.  As Rule 201(b) teaches,

judges  may not  defenestrate established  evidentiary processes,

thereby rendering  inoperative the  standard mechanisms of  proof

and scrutiny, if the evidence in question is at all vulnerable to

reasonable dispute.

          Here,  the  district  court  failed to  steer  by  this

beacon.   There is  no indication,  despite the  court's contrary

characterization,16  that the  record  was actually  reopened  or

that   the  parties  were  afforded  anything  approximating  the

evidentiary  and  procedural  guarantees   to  which  they   were

entitled.   Similarly,  there is  no basis  for finding  that the

parties  waived  this  deprivation,   consented  to  the  court's

shortcut, or  otherwise invited  judicial reliance on  the extra-

record "proof."  To the  extent that the judgment is  premised on

this late-arriving evidence, it cannot stand.

                                                  

     16The  district court paid  lip service to  the principle we
have discussed, writing that  it had "reopened the record."   But
the parties  agree that no actual reopening occurred, and calling
what  the  court did  a "reopening"  does not  make  it so.   Cf.                                                                           
Siegfriedt v. Fair, 982 F.2d 14, 19 (1st Cir. 1992) ("With Juliet                            
we ask `What's in a name?' and with her we conclude `[t]hat which
we call  a  rose  by any  other  name would  smell  as  sweet.'")
(quoting William Shakespeare, Romeo and Juliet act 2, sc. 2).                                                        

                                28

          Accordingly, we  vacate the judgment and  remand.17  We

neither dictate how  the district court should  proceed on remand

nor  restrict  its  range  of  options.    For instance,  without

limiting  the generality of the  foregoing, the court  may in its

discretion choose to reopen  the record fully for the  purpose of

obtaining more information about Lussier's CSRS benefits, and, if

the court follows that path, it can then decide what, if any, use

to make of the new evidence.  Alternatively, the court may, if it

so elects, hold the parties to their proof at trial and determine

the front pay award on the existing record.

IV.  CONCLUSION          IV.  CONCLUSION

          We have  reached the point  at which neither  snow, nor

rain,  nor heat, nor gloom of night, nor any lingering unresolved

issue impedes  the delivery of our judgment.  Thus, we need go no

further.

          We  hold that the adjustment of a front pay award under

the Rehabilitation Act  of 1973 to take collateral  benefits into

account is within the equitable discretion of the district court;

and that,  in this case,  the court,  by choosing to  account for

collateral benefits  in fashioning such  an award, did  not abuse
                                                  

     17We neither  overlook  nor condone  the Service's  cavalier
disregard  of the  district judge's  request for  status reports.
Had  the judge  scrapped the  proposed offset  as a  sanction for
uncooperative behavior, a different issue would confront us.  Cf.                                                                           
R.W.  Int'l Corp. v. Welch Foods, Inc.,  937 F.2d 11, 19-20 &amp; n.9                                                
(1st Cir. 1991).   Here,  however, the judge  did not purpose  to
sanction the Service  but instead decided a  hotly disputed issue
in the case based partly on extra-record information.  As we have
indicated  on other  occasions, even  when a  party is  guilty of
"lollygagging  that a district court should not have to tolerate,
two wrongs seldom make a right."  Id. at 20.                                               

                                29

its  discretion.    But  because  the  court,  in  calculating  a

particular  offset,  relied on  evidence  dehors  the record,  we                                                          

vacate the  judgment and remand for  further proceedings relating

to that offset.

          Affirmed in  part, vacated in part, and remanded.  Each                    Affirmed in  part, vacated in part, and remanded.  Each                                                                           

party shall  bear his  own counsel  fees and costs  in regard  to          party shall  bear his  own counsel  fees and costs  in regard  to                                                                           

these appeals.          these appeals.                       

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