J. Garvan Murtha, Senior District Judge of the United *

States District Court for the District of Vermont, sitting

by designation.

1

09-2037-cv 

Meacham v. Knolls Atomic Power Lab.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED

AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1 AND

FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT

CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION

MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION: “(SUMMARY ORDER).”

UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE

WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV), THE

PARTY CITING THE SUMMARY ORDER MUST FILE AND SERVE A COPY OF THAT SUMMARY ORDER TOGETHER

WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED. IF NO COPY IS SERVED BY REASON OF THE

AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT

DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

4 New York, on the 21 day of December, two thousand nine. st

5

6 PRESENT: DENNIS JACOBS,

7 Chief Judge,

8 PETER W. HALL,

9 Circuit Judge,

10 J. GARVAN MURTHA,

11 District Judge.*

12

13 - - - - - - - - - - - - - - - - - - - -X

14 CLIFFORD B. MEACHAM, individually and

15 on behalf of all other persons

16 similarly situated, THEDRICK L.

17 EIGHMIE, individually and on behalf

18 of all other persons similarly

19 situated, ALLEN G. SWEET,

20 individually and on behalf of all

21 other persons similarly situated, 
 The Clerk of the Court is respectfully directed to **

amend the official caption to conform to the caption of this

order.

2

1

2 Plaintiffs-Appellees,

3

4 JAMES R. QUINN, Ph.D., DEBORAH L.

5 BUSH, RAYMOND E. ADAMS, WALLACE

6 ARNOLD, RONALD G. BUTLER SR., WILLIAM

7 F. CHABOT, ALLEN E. CROMER, BELINDA

8 GUNDERSEN, CLIFFORD J. LEVENDUSKY,

9 BRUCE E. PALMATIER, NEIL R. PAREENE,

10 MARGARET REYNHEER, JOHN K. STANNARD,

11 DAVID W. TOWNSEND, CARL T. WOODMAN, 

12

13 Consolidated-Plaintiffs14 Appellees, 

15

16 HILDRETH E. SIMMONS JR., HENRY

17 BIELAWSKI, JAMES S. CHAMBERS, ARTHUR

18 J. KASZUBSKI, DAVID J. KOPMEYER,

19 CHRISTINE A. PALMER, FRANK A. PAXTON,

20 JANICE M. POLSINELLE, TEOFILS F.

21 TURLAIS, BRUCE E. VEDDER,

22

23 Consolidated-Plaintiffs,

24

25 -v.- 09-2037-cv

26

27 KNOLLS ATOMIC POWER LABORATORY, also

28 known as KAPL, Inc., LOCKHEED MARTIN,

29 INC., JOHN J. FREEH, both individually

30 and as an employee of KAPL and

31 Lockheed Martin,

32

33 Defendants-Appellants.**

34 - - - - - - - - - - - - - - - - - - - -X

35

36 APPEARING FOR APPELLANTS: JOHN E. HIGGINS (Margaret A.

37 Clemens, on the brief), Nixon

38 Peabody LLP, Rochester, New

39 York.

40
3

1 APPEARING FOR APPELLEES: KEVIN K. RUSSELL (John B.

2 DuCharme and Joseph C. Berger,

3 on the brief), DuCharme, Harp &

4 Clark, LLP, Clifton Park, New

5 York.

6

7 Appeal from a judgment of the United States District

8 Court for the Northern District of New York (Homer, M.J.).

9

10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

11 AND DECREED that the judgment of the district court be

12 VACATED and the matter REMANDED for a new trial on the

13 liability issue only. 

14

15 Defendants Knolls Atomic Power Laboratory, Lockheed

16 Martin, and John J. Freeh (“defendants”) appeal the judgment

17 of the district court reinstating a prior jury verdict in

18 plaintiffs’ favor. Defendants argue that the district court

19 committed clear error in holding that they waived the

20 defense based on reasonable factors other than age (“RFOA”),

21 and that the waiver was not properly excused; they also

22 argue that, if we vacate the waiver and excuse holdings, we

23 should order that judgment be granted in their favor as a

24 matter of law. We assume the parties’ familiarity with the

25 underlying facts, the procedural history, and the issues

26 presented for review.

27

28 Vacatur of the judgment is required by adherence to the 

29 “mandate rule,” which “compels compliance on remand with the

30 dictates of the superior court and forecloses relitigation

31 of issues expressly or impliedly decided by the appellate

32 court.” United States v. Ben Zvi, 242 F.3d 89, 95 (2d Cir.

33 2001) (internal quotation marks omitted) (emphasis in

34 original); see also In re Sanford Fork & Tool Co., 160 U.S.

35 247, 255, 259 (1895). To determine whether a particular

36 issue “remains open for reconsideration on remand, [a] court

37 should look to both the specific dictates of the remand

38 order as well as the broader spirit of the mandate.” Ben

39 Zvi, 242 F.3d at 95 (internal quotation marks omitted). 

40 “[W]e must always look to the opinion to interpret the

41 mandate.” FTC v. Standard Educ. Soc’y, 148 F.2d 931, 932

42 (2d Cir. 1945). 

43 In an earlier decision in this case, the United States

44 Supreme Court explained that “the only thing at stake . . .

45 is the gap between production and persuasion” and that this
4

1 Court “showed no hesitation in finding that Knolls prevailed

2 on the RFOA defense, though the court expressed its

3 conclusion in terms of Meacham’s failure to meet the burden

4 of persuasion. Whether the outcome should be any different

5 when the burden is properly placed on the employer is best

6 left to that court in the first instance.” See Meacham v.

7 Knolls Atomic Power Lab., 128 S. Ct. 2395, 2406 (2008)

8 (“Meacham SC II”); see also Meacham v. Knolls Atomic Power

9 Lab., 461 F.3d 134, 144 (2d Cir. 2006), vacated by Meacham

10 SC II, 128 S. Ct. at 2407. Waiver principles are

11 analytically antecedent to an analysis on the merits; we

12 therefore read the Supreme Court’s opinion as impliedly but

13 necessarily rejecting plaintiffs’ waiver argument.

14

15 Our conclusion in this regard finds additional support

16 from the fact that plaintiffs argued forfeiture and

17 abandonment in their brief to the Supreme Court and waiver

18 of the defense at oral argument before the Supreme Court.

19 Brief for the Petitioners at 51-52, Meacham SC II (No. 06-

20 1505); Tr. of Oral Argument at 53, Meacham SC II (No. 06-

21 1505). The Court, therefore, was squarely presented with

22 plaintiffs’ waiver argument, and a natural reading of

23 Meacham SC II suggests that it was rejected.

24

25 Our summary order issued in this case, Meacham v.

26 Knolls Atomic Power Lab., Nos. 02-7378-cv, 02-7474-cv, 2009

27 WL 33609 (2d Cir. Jan. 7, 2009) (summary order), requires no

28 different result. That order does not constitute a finding

29 regarding waiver, nor, having re-examined the issue in light

30 of the arguments presented in this appeal, does it preclude

31 us now from determining that the mandate rule forecloses

32 reconsideration of the waiver issue.

33

34 We therefore remand this case to the district court

35 with instructions to hold a new trial and to allow for

36 whatever discovery is necessary for the parties fairly to

37 litigate the issues regarding liability under the law as it

38 currently stands. The uncertainty and multiple changes in

39 the governing law have complicated the issues in this case

40 to such an extent that neither party is entitled to judgment

41 as a matter of law, either on the merits or on procedural

42 grounds. 

43

44 We hereby VACATE the judgment of the district court and

45 REMAND for a new trial on the liability issue only.

46
5

1 FOR THE COURT:

2 CATHERINE O’HAGAN WOLFE, CLERK

3 By:

4

5

6 ___________________________