United States Court of Appeals

For the First Circuit

Nos. 02-1139, 02-1340, 02-1465 

LUIS A. ACEVEDO-GARCIA, et al.,

Plaintiffs-Appellees/Cross-Appellants,

v.

ROBERTO VERA MONROIG, Individually and as Mayor of Adjuntas;

MUNICIPALITY OF ADJUNTAS; IRMA M. GONZALEZ DELGADO, Individually

and as Personnel Director of Adjuntas,

Defendants-Appellants/Cross-Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

[Hon. Jaime Pieras, Jr., U.S. Senior District Judge]

Before

 Boudin, Chief Judge,

Bownes, Senior Circuit Judge,

and Lipez, Circuit Judge.

Johanna M. Emmanuelli-Huertas, with whom Jorge Martinez

Luciano and Law Offices of Pedro A. Ortiz Alvarez were on brief for

the Municipality of Adjuntas. 

Luis Villares Sarmiento, with whom Yahaida Zabala, and

Sanchez, Betances & Sifre, were on brief for appellants/crossappellees Vera and Gonzalez in their individual capacities.

Gael Mahony, with whom Israel Roldan-Gonzalez, Stuart Svonkin,

Erica Templeton, Michael E. Liftik, and Hill & Barlow were on brief

for appellees/cross-appellants. 

August 21, 2003
-2-

LIPEZ, Circuit Judge. This complex political

discrimination case was filed by eighty-two plaintiffs terminated

from career employment positions with the municipality of Adjuntas

in Puerto Rico. The district court severed the plaintiffs into

four groups -- three groups of twenty and one group of twenty-two

-- and the claims of the first twenty plaintiffs are now before us

on defendants' appeal from a substantial verdict for plaintiffs.

Although this case raises many familiar issues, it also presents

some unusual questions arising from the court's initial severance

of the plaintiffs, and its later decision to apply non-mutual

offensive collateral estoppel to the three remaining pieces of the

severed litigation. We vacate the court's collateral estoppel

order, and affirm in all other respects. 

I.

On November 12, 1997, eighty-two current and former

employees of the municipality of Adjuntas brought suit under 42

U.S.C. § 1983, alleging violations of their First, Fifth and

Fourteenth Amendment rights arising from a massive layoff of

municipal employees in the aftermath of the November 1996 mayoral

election. Every claimant was fired from a "career position" (akin

to a civil service job), as opposed to a "trust position"

(political appointment), temporary or transitory post, or

"contract" (fixed term) job. The plaintiffs named three defendants

in the suit -- Roberto Vera Monroig ("Vera"), the mayor of Adjuntas
1Defendants do not challenge the legal availability of

municipal liability in this case. In Cordero v. De Jesus-Mendez,

867 F.2d 1 (1st Cir. 1989), we acknowledged the Supreme Court's

holding in Pembaur v. City of Cincinnati, 475 U.S. 469 (1986) that

"municipality liability under § 1983 attaches where . . . a

deliberate choice to follow a course of action is made from among

various alternatives by the official or officials responsible for

establishing final policy with respect to the subject matter in

question." Id. at 483-84 (emphasis added). The Cordero court

subsequently noted that mayors in Puerto Rico are the government

officials ultimately responsible for the employment decisions of

the municipality:

Under Puerto Rico law, one of the express

powers given to mayors of municipalities is:

"To appoint all the officials and employees of

the municipal executive branch, and remove

them from office whenever necessary for the

good of the service, pursuant to the

procedures provided herein." P.R. Laws Ann.

tit. 21, ch. 155 § 3002(15) (1980).

Id. at 7. Hence, Defendant Vera's employment decisions ipso facto

"constituted the official policy of the municipality." Id. 

-3-

(sued in both his individual and official capacities); Irma

Gonzalez, Adjunta's Director of Human Resources (sued in both her

individual and official capacities); and the municipality of

Adjuntas.1 

On November 23, 1998, the district court issued an order

and opinion denying absolute and/or qualified immunity to Mayor

Vera and Gonzalez in their individual capacities, and granting in

part and denying in part the defendants' motion for summary

judgment. See Acevedo-Garcia v. Vera-Monroig, 30 F. Supp. 2d 141

(D.P.R. 1998) ("Acevedo I"). In an opinion published February 17,

2000, we affirmed the district court's order in all respects,

ruling inter alia that defendants could not claim the protection of
2All eighty-two plaintiffs alleged political discrimination

and due process violations. Thirty-three of the eighty-two

plaintiffs added a third claim of political harassment to their

lawsuit. The political discrimination and due process claims arose

from the discharges themselves, while the political harassment

claims alleged shoddy treatment in the months preceding the

terminations. 

-4-

absolute immunity, and that we lacked jurisdiction to review the

district court's rulings on qualified immunity and municipal

liability. See Acevedo-Garcia v. Vera-Monroig, 204 F.3d 1 (1st

Cir. 2000) ("Acevedo II").

Our decision in Acevedo II cleared the remaining

roadblocks to trial, and the district court undertook the

formidable logistical task of arranging to try the multitude of

political discrimination, political harassment, and due process

claims alleged by the eighty-two individual plaintiffs.2 To this

end, the court issued an order on October 11, 2001, severing the

case into four separate trials of twenty, twenty, twenty, and

twenty-two plaintiffs, respectively. To configure the first group

of twenty plaintiffs, the order directed each side to choose six

plaintiffs with political discrimination and due process claims

only (for a total of twelve), and four plaintiffs prosecuting

political discrimination, due process and political harassment

claims (for a total of eight). 

The trial for this first group began October 12, 2001,

and lasted twenty-three days. At the conclusion of the

proceedings, the jury returned a verdict awarding each plaintiff a
-5-

package of compensatory and punitive damages totaling hundreds of

thousands of dollars, summing to a group total of $6,956,400.

After a flurry of post-trial motions, the court entered judgment on

the verdict. It then issued an order on January 30, 2002, applying

the doctrine of non-mutual offensive collateral estoppel to

preclude defendants from litigating the defendants' liability for

political discrimination and denial of the plaintiffs' due process

rights. Acevedo-Garcia v. Vera-Monroig, 213 F. Supp. 2d 38, 41

(D.P.R. 2002).

Defendants filed a timely appeal after this first trial,

challenging inter alia the sufficiency of the evidence at the

summary judgment stage, the sufficiency of the evidence at trial,

the severance of plaintiffs into four groups, the district court's

denial of qualified immunity, numerous evidentiary rulings, the

court's active participation at trial, the damage award, and the

court's application of non-mutual offensive collateral estoppel.

Plaintiffs cross-appealed from the district court's denial of an

injunction ordering the reinstatement of all plaintiffs. 

II. 

Acevedo I and Acevedo II provide a lengthy exposition of

the background facts in this case. See Acevedo II, 204 F.3d at 4-

7; Acevedo I, 30 F. Supp. 2d at 143-45. We summarize those facts
3The facts presented here are intended to convey a general

impression of the case. We provide additional facts in subsequent

sections of the discussion where they are pertinent to the legal

analysis.

-6-

here, and supplement our recitation with an overview of the postAcevedo II developments.3 

A. Stipulated and Undisputed Facts

Defendant Vera, representing the Popular Democratic Party

("PDP"), won the November 1996 mayoral election in Adjuntas, and

appointed Defendant Gonzalez, a fellow PDP member, to be the

Director of Human Resources on January 14, 1997. Vera and Gonzalez

inherited a municipal government whose ranks were swelled by 115

new hires during the seven-year administration of Rigoberto Ramos,

Vera's predecessor, and a member of the rival New Progressive Party

("NPP"). Of those 115 employees, only 2 were affiliated with the

PDP. By January 1997, the municipality employed 229 regular

employees, and the parties stipulated prior to trial that "many

departments were so overstaffed that some employees did not have

desks." 

On April 30, 1996, the Puerto Rico Comptroller's Office

published an audit report, M-96-14, indicating that Adjuntas had

accrued annual budget deficits of at least $1,000,000 from 1985 to

1990. After Vera took office in January 1997, he commissioned a

second financial audit of the municipality by Reinaldo Ramirez, a

certified public accountant. Ramirez presented his report on May
-7-

8, 1997, informing city officials that the municipality had a

budget deficit of over $5,000,000 and long term debts totaling more

than $2,000,000. Anticipating this unwelcome news, Vera had

previously hired a Human Resources Consulting firm in February 1997

to prepare a "Layoff Plan for Municipality of Adjuntas Employees"

(the "Plan"). The consultants completed the Plan in March 1997,

and it received approval from the Adjuntas Municipal Assembly on

April 2, 1997 (as required under Puerto Rico's Autonomous

Municipalities Act). See 21 P.R. Laws Ann. § 4551, as amended

(1995) ("Law 81"). On April 11, 1997, a copy of the Plan was

circulated to every municipal employee. 

In broad strokes, the Plan (1) enumerated the steps the

municipality was obliged to undertake before firing employees

(including relocation, retraining, temporary unpaid leave,

demotions to vacant positions, and voluntary retirement); (2)

established an order of priority for laying off municipal workers;

and (3) established a series of procedures for earmarking

particular employees and job classifications for termination, and

for providing notice to the affected individuals. The Plan was not

self-executing. Instead, it authorized the termination of

municipal employees "[w]hen the Mayor determines that there are

financial problems and that as a result, programs or services are

being affected." The Mayor made this determination in May 1997

after conferring with Ramirez and the Human Resource consultants,
-8-

and he ordered city officials to implement the Plan. When the dust

settled on October 31, 1997, 102 employees, including 82 NPP

members and 11 PDP members, had been fired from their career

positions. 

Since January 1, 1997, the municipality has hired

seventy-seven new employees to "contract" or fixed-term jobs funded

through non-municipal sources (i.e. federal and state programs).

The most significant of these programs, referred to as "Law 52,"

allows municipalities to present job training proposals to the

Labor Department of the Commonwealth of Puerto Rico, which may then

appropriate funds on an annual basis to underwrite the salaries of

a certain number of municipal employees that the city could not

otherwise afford. Only five of the eighty-two plaintiffs received

one of these seventy-seven appointments, the vast majority of which

went to PDP members.

B. Contested Facts

The trial featured a contentious dispute regarding the

period preceding the October 31, 1997, layoffs. The twenty

plaintiffs in the first trial group testified that, during this

period, the defendants sabotaged their working conditions by

denying NPP employees (and only NPP employees) basic amenities,

including phone privileges, short work breaks for breakfast, access

to restroom facilities, and the opportunity to drive municipal

vehicles to perform their job functions. Many plaintiffs testified
-9-

that they were removed from their jobs entirely, and sent to random

locations where they were either given nothing to do for months on

end or else ordered to perform menial tasks outside the scope of

their job descriptions. The defendants denied these allegations,

contending that prior abuses of telephone privileges and municipal

vehicles had contributed to large budget overruns that compelled

the municipality to restrict access to these services. According

to defendants, the dearth of functioning bathroom facilities was a

consequence of plumbing and physical infrastructure deficiencies

that were ignored during the previous NPP mayoral administrations.

There was also a factual controversy concerning the

implementation of the Plan. The defendants insisted that the

particular layoff scheme developed in accordance with the Plan was

politically neutral in both its conception and implementation.

Noting that prior NPP administrations had almost exclusively hired

NPP members to fill over a hundred municipal positions in the

preceding years, they claimed it was inevitable that a senioritybased layoff plan would disproportionately impact NPP employees.

Plaintiffs presented evidence of a different agenda. In

their view, Mayor Vera manipulated the Plan to produce

discriminatory results in three ways. First, he contravened

provisions of the Plan by failing to seriously consider measures

short of outright termination, including relocation, retraining,

temporary unpaid leave, demotions to vacant positions, and
4Article X of the Lay Off Plan provides: 

If the layoff is due to lack of funds, it must be

evaluated if it is possible to generate savings through

means other than requiring the elimination of permanent

positions. If the crisis is temporary, to consider

reducing the work day and granting unpaid leaves. To

consider, additionally, if it is feasible to retrain

employees in other functions or relocate them to other

positions within or outside the Municipality.

Article X, Layoff Plan for Municipality of Adjuntas Employees

(March 1997).

-10-

voluntary retirement.4 Second, the layoff scheme developed

pursuant to the Plan tied termination to seniority within job

classifications, rather than seniority across the board.

Hypothetically, under this scheme, an NPP librarian with seven

years of seniority could be laid off while a PDP office clerk with

five years of seniority retained her position. Vera's scheme thus

eschewed the possibility of retraining veteran NPP employees to

take over the jobs of less senior PDP members with jobs requiring

a similar skill set (but bearing a different classification),

thereby exacerbating the discriminatory impact of the layoffs.

Third, the seniority system employed by defendants incorporated a

fixed years-of-service threshold -- eight years and ten months --

that dated back precisely to the end of the previous PDP

administration in Adjuntas. In other words, any employee with

eight years and ten months of seniority (or more) was immune from

the layoffs. Accordingly, PDP members hired during that previous

administration were insulated from the layoffs, while all employees
-11-

hired thereafter (during the intervening NPP administrations) were

at risk of termination. 

Finally, there was evidence that Vera contrived to shed

NPP employees with sufficient seniority to withstand the initial

round of layoffs by simply eliminating their job category

altogether. For example, if an NPP member employed as a "Citizens'

Affairs Specialist" outranked his PDP colleagues on the seniority

scale, the municipality would eliminate the Citizens' Affairs

Specialist position entirely, and then hire back the former PDP

Citizens' Affairs Specialists under the auspices of Law 52 or some

other employment program funded by outside sources. 

III.

As a preliminary matter, we note that our review of the

legal issues in this case is handicapped considerably by the

defendants' failure to produce transcripts of the second half of

the trial. The defense began presenting its case on October 29,

and the court issued its instructions to the jury on November 19.

The only record of the defendants' case in chief before us is a

small excerpt of Mayor Vera's direct testimony on October 30, and

an excerpt of CPA Ramirez's direct testimony on November 6. The

informative value of even these tidbits is reduced substantially by

the defendants' failure to provide a transcript of the crossexamination of these witnesses by plaintiffs' counsel.

Rule 10 of the Federal Rules of Appellate Procedure

clearly states that "[i]f the appellant intends to urge on appeal
-12-

that a finding or conclusion is unsupported by the evidence or is

contrary to the evidence, the appellant must include in the record

a transcript of all evidence relevant to that finding or

conclusion." Fed. R. App. P. 10(b)(2). Elaborating on this

requirement, we have admonished appellants "with a regulatory

bordering on the monotonous" that

[t]his rule imposes a duty upon an appellant

to print all of the evidence, good and bad,

material to the point he wishes to raise.

Should an appellant spurn this duty and drape

an incomplete record around the court's neck,

the court in its discretion either may

scrutinize the merits of the case insofar as

the record permits, or may dismiss the appeal

if absence of a full transcript thwarts

intelligent review. In this vein, we have

held . . . that, should the record provided on

appeal preclude us from reaching a reasoned

determination on the merits, it is the

appellant who must bear the brunt of an

insufficient record on appeal.

 

Moore v. Murphy, 47 F.3d 8, 10-11 (1st Cir. 1995) (internal

citations and quotations omitted); see Scarfo v. Cabletron Sys.,

Inc., 54 F.3d 931, 963 (1st Cir. 1995); United States v. One Motor

Yacht Named Mercury, 527 F.2d 1112, 1113 (1st Cir. 1975). 

We are left with no choice but to confine our review of

defendants' challenges to those claims adequately grounded in the

portions of the record produced on appeal. As we work our way

through their manifold claims of error, we identify those

challenges that we are unable to evaluate owing to the procedural

default.

 
-13-

A. Pre-Trial Rulings

1. Sufficiency of the evidence at the summary judgment stage

In partially denying defendants' motion for summary

disposition of plaintiffs' political discrimination claims, the

district court offered the following explanation for its ruling:

Plaintiffs have put forth sufficient evidence

to sustain their initial burden that

Defendants' employment decisions were based on

improper and discriminatory motives.

Defendants have, however, put forth evidence

in support of their burden that regardless of

Plaintiffs' political affiliation, the

municipal budgetary crisis required the

municipality to cut jobs on the basis of

seniority . . . . The Court finds that this

proffer of evidence is sufficient to

demonstrate that regardless of political

affiliation, Defendants would have made the

same decision in laying off Plaintiffs. 

Acevedo I, 30 F. Supp. 2d at 154. Defendants contend that this

finding mandated the dismissal of plaintiffs' political

discrimination claims under the rule established in Mt. Healthy

City Sch. Dis. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977), and

insist that the district court erred in shifting the burden of

proof back to plaintiffs to demonstrate that "they would not have

been fired 'but for' their political affiliation." Acevedo I, 30

F. Supp. 2d at 154 (citing Rodriguez-Pinto v. Tirado-Delgado, 982

F.2d 34, 39 (1st Cir. 1993); Aviles-Martinez v. Monroig, 963 F.2d

2, 5 (1st Cir. 1992)). The court compounded its error, in

defendants' view, by postponing a final ruling on plaintiffs'

political discrimination claims pending the submission of
-14-

additional evidence from plaintiffs to demonstrate that they were

qualified to fill the seventy-seven new positions created by the

municipality after January 1, 1997. Defendants argue that the

court was obliged to rule in their favor on the basis of the

insufficient evidence currently before it. 

These objections are unavailing. When a district court's

assessment of the evidentiary record at the summary judgment stage

is subsequently "overtaken" by a full trial and verdict, it is our

practice not to revisit that determination on appeal:

We need not address the merits of [a]

preverdict challenge to the sufficiency of the

evidence on the motion for summary judgment.

Such an attack on the denial of defendant's

motion for summary judgment "has been

overtaken by subsequent events, namely, a

full-dress trial and an adverse jury verdict"

. . . The rationale for this rule has been

based on the procedural fact that denial of a

motion for summary judgment "is merely a

judge's determination that genuine issues of

material fact exist. It is not a judgment,

and does not foreclose trial on issues on

which summary judgment was sought." Hence, a

challenge to the sufficiency of the evidence

adduced on the motion to support the district

court's conclusion that genuine issues of

material fact exist will not lie on appeal.

Eastern Mountain Platform Tennis, Inc. v. Sherwin-Williams Co., 40

F.3d 492, 500 (1st Cir. 1994) (internal citations omitted).

Accordingly, any sufficiency of the evidence challenge on appeal

must be grounded in the record as a whole. Here, defendants also

argue that the trial record considered in its entirety did not
-15-

support the jury verdict, and we address that claim later in the

discussion.

2. Severance

On October 11, 1997, the district court severed the case

into four separate trials, finding that 

it is not practical or just to subject one

jury panel to a trial in which 82 plaintiffs

with varying claims will be testifying. No

single jury panel would be able to remember

all of the testimony and evidence or be able

to reach a fair and impartial verdict at the

end of that time. It is the opinion of this

Court that severance will most likely result

in a just final disposition of this

litigation.

The defendants objected on numerous grounds, arguing inter alia

that the court's proposal (1) precluded defendants from eliciting

contradictory testimony among plaintiffs, (2) imposed increased

expense and inconvenience on defendants by compelling the

examination of expert witnesses and government officials on four

occasions rather than one, (3) reduced the likelihood of an

impartial jury for the second, third and fourth plaintiff groups,

and (4) hampered defendants' ability to portray the relevant events

to the jury in a comprehensive fashion. On October 15, the court

emphatically rejected these concerns in a written ruling:

The considerations alleged by Defendants as to

the fact that they would have to present

evidence at four different occasions is of

secondary importance. "A paramount

consideration at all times in the

administration of justice is a fair and

impartial trial to all litigants.
-16-

Considerations of economy of time, money and

convenience of witnesses must yield thereto."

Acevedo-Garcia v. Vera-Monroig, 240 F.R.D. 26, 30 (D.P.R. 2001)

(quoting In re Bendectin Litigation, 857 F.2d 290, 308 (6th Cir.

1988)). 

Defendants lodge two objections to the severance on

appeal. First, they argue that the district court's refusal to try

the claims of all eighty-two plaintiffs at once was inappropriate

and unfairly prejudicial. We can dispense with this argument

quickly. The decision to separate parties or claims is a case

management determination "peculiarly within the discretion of the

trial court," Gonzalez-Marin v. Equitable Life Assurance Socy., 845

F.2d 1140, 1145 (1st Cir. 1998), and courts of appeals accord broad

latitude to district courts in this area. Id.; Applewhite v.

Reichold Chems., Inc., 67 F.3d 571, 574 (5th Cir. 1995); New York

v. Hendrickson Bros., Inc., 840 F.2d 1065, 1082 (2d Cir. 1988). We

would note, however, that we need not rest our affirmance on this

deferential standard of review -- the circumstances of this case

compel the conclusion that the division of plaintiffs was a

legitimate and feasible means of efficiently conducting this

unwieldy litigation. 

Defendants' second objection is more troublesome, and

implicates the particular procedural device employed by the

district court to quarter the proceedings. "Two types of

severances or separations of claims are contemplated by the Federal
-17-

Rules of Civil Procedure -- one within the action itself, the other

resulting in a second, or new action." Official Comm. of Unsecured

Creditors v. Shapiro, 190 F.R.D. 352, 354 (E.D. Pa. 2000). Rule 21

of the Federal Rules of Civil Procedure furnishes the mechanism for

separating a case into separate actions, i.e, severance: "Parties

may be dropped or added by order of the court on motion of any

party or of its own initiative at any stage of the action and on

such terms as are just. Any claim against a party may be severed

and proceeded with separately." Fed. R. Civ. P. 21; see 9 Charles

Alan Wright & Arthur R. Miller, Federal Practice and Procedure §

2387 (1971); 88 C.J.S. Trial § 17 (2003) ("A severance occurs when

a lawsuit is divided into two or more separate and independent or

distinct causes."). Rule 42(b), on the other hand, authorizes

courts to divide a single action into separate trials that remain

under the umbrella of the original solitary action:

The court, in furtherance of convenience or to

avoid prejudice, or when separate trials will

be conducive to expedition and economy, may

order a separate trial of any claim, crossclaim, counterclaim, or third-party claim, or

of any separate issue or of any number of

claims, cross-claims, counterclaims, thirdparty claims, or issues.

Fed. R. Civ. P. 42(b); see 9 Wright & Miller, Federal Practice and

Procedure § 2387; 88 C.J.S. Trial § 17 ("An order for a separate

trial keeps the lawsuit intact while enabling the court to hear and

decide one or more issues without trying all of the controverted

issues at the same hearing.").
-18-

The salient distinction between these two procedural

devices concerns the appealability of an order terminating the

proceedings in a partitioned piece of the litigation: 

The judgment in a severed action is final,

enforceable and appealable when it disposes of

all parties and issues. Conversely, the order

entered at the conclusion of a separate trial

is often interlocutory because a final and

appealable judgment cannot be rendered until

all of the controlling issues have been tried

and decided.

88 C.J.S. Trial § 17; see White v. ABCO Eng'g Corp., 199 F.3d 140,

145 n.6 (3d Cir. 1999); 9 Wright & Miller, Federal Practice and

Procedure § 2387 (1971) ("Separate trials usually will result in

one judgment, but severed claims become entirely independent

actions to be tried, and judgment entered thereon,

independently."). 

Courts often confuse these two procedural devices. "The

procedure authorized by Rule 42(b) should be distinguished from

severance under Rule 21 . . . . Unfortunately, this distinction,

clear enough in theory, often is obscured in practice since at

times the courts talk of 'separate trial' and 'severance'

interchangeably." 9 Wright & Miller, Federal Practice and

Procedure § 2387; see McDaniel v. Anheuser-Busch, Inc., 987 F.2d

298, 304 (5th Cir. 1993). Here, defendants argue that the court

committed reversible error by invoking Rule 42(b) as the basis for

partitioning the plaintiffs into four groups while conducting the

proceedings as if they had been severed under Rule 21. 
-19-

The district court addressed the distinction between Rule

42(b) and Rule 21 in its October 15 decision: 

In the instant motion, Defendants contend that

severance of actions is covered by Rule 21 of

the Federal Rules of Civil Procedure, and not

by Rule 42(b). This distinction is of little

consequence because both rules provide the

Court with wide discretion to order severance

. . . . The Court's determination as to

whether it should sever the claims of

Plaintiffs under Rule 21 or whether it should

order separate trials under Rule 42 requires

the same considerations, and are within the

broad discretion of the District Court.

Acevedo-Garcia, 204 F.R.D. at 29-30. Although the court accurately

observed that it had wide discretion to manage the litigation under

either rule, the particular procedural device it employed is of

paramount importance in this appeal. Because our jurisdiction is

limited to "all final decisions of the district courts of the

United States," United States v. Leichter, 160 F.3d 33, 35 (1st

Cir. 1998) (emphasis added), we cannot exercise jurisdiction over

an appeal from a separate trial ordained under Rule 42(b). See In

re Licht & Semonoff, 796 F.2d 564, 569 (1st Cir. 1986) ("A 'final

decision' is ordinarily one which disposes of all the rights of all

the parties to an action.") (emphasis added). Moreover, since

separate trials do not individually produce final judgments, any

attempt to apply collateral estoppel to the remaining three trials

would be invalid under a Rule 42(b) regime. See NLRB v. Donna-Lee

Sportswear Co., 836 F.2d 31, 33-34 (1st Cir. 1987) (noting that one

"essential element which must be present for the successful
-20-

application of issue preclusion" is that "the determination must

result in a valid and final judgment.") (emphasis added); Griffin

v. Burns, 570 F.2d 1065, 1072 (1st Cir. 1978) (same); Restatement

(Second) of Judgements § 27 (same).

As defendants concede, this is not a case where the

district court's intentions were ambiguous. See McDaniel, 987 F.2d

at 304. The district court's order of October 11 explicitly states

that "[e]ach Judgment entered at the end of each of these four

trials shall be final and appealable and published and subject to

all motions provided by the Federal Rules of Civil Procedure, such

as 'new trial,' 'judgment notwithstanding the verdict', etc."

Additionally, in its opinion rejecting defendants' objections to

the severance, the court reasoned that 

conducting separate trials wherein the jury

verdict from each trial is final and

appealable as to each set of Plaintiffs

facilitates judicial economy and possible

settlement in this case by providing the

parties with some scale or model upon which to

re-assess whether further litigation would be

prudent or advantageous to their cause. 

Acevedo-Garcia, 204 F.R.D. at 30. Thus, the court's references to

Rule 42(b) notwithstanding, its clearly articulated intent was to

sever the plaintiffs pursuant to Rule 21. The Third Circuit

observed in White that "[n]othing on the face of Rule 21 indicates

that it must be explicitly invoked in order to have effect. There

must be, however, a strong indication that the judge intended to

effect a severance." White, 199 F.3d at 145 n.6 (citing Allied
5There is a potential argument, disavowed by defendants here,

that Rule 21 (entitled "Misjoinder and Non-Joinder of Parties") is

not applicable to cases where there has been no improper joinder of

parties at the outset. However, the prevailing rule in our sister

circuits is that a finding of misjoinder is not a prerequisite to

severing parties or claims under Rule 21. As the Second Circuit

observed in Wyndham Assoc. v. Bintliff, 398 F.2d 614 (2d Cir.

1968):

Rule 21 . . . provides that "Any claim against a party

may be severed and proceeded with separately." We

believe that this provision authorizes the severance of

any claim, even without a finding of improper joinder,

where there are sufficient other reasons for ordering a

severance.

Id. at 618; see Safeco Ins. Co. v. City of White House, 36 F.3d

540, 545-46 (6th Cir. 1994) (characterizing this principle as the

majority rule). 

-21-

Elevator, Inc. v. E. Tex. State Bank of Buna, 965 F.2d 34, 36 (5th

Cir. 1992)). That intent is manifest from the language of the

court's October 11 order. Accordingly, we find no reversible error

in the court's severance ruling under Rule 21, and we regard the

district court's entry of judgment on the verdict below as a final

and appealable judgment under 28 U.S.C. § 1291.5

B. The Trial

1. Evidentiary rulings

Plaintiffs aptly characterize the defendants' challenges

to the district court's evidentiary rulings as "rambling,"

"discursive" and "unrefined." Defendants' briefs narratively

recite a plethora of offending rulings in a scattershot format

devoid of legal authority, citations to analogous cases, or any

application of law to facts. Many of defendants' challenges
-22-

reference evidentiary rulings and/or courtroom exchanges that

occurred during their own case in chief, and hence are procedurally

defaulted as a consequence of their failure to produce the relevant

transcripts. The briefs also leave uncertain which of the dozens

of evidentiary challenges raised on appeal were properly preserved

below. See Reyes-Garcia v. Rodriguez & Del Valle, Inc., 82 F.3d

11, 14 (1st Cir. 1996). With one exception, the evidentiary

challenges that survive these procedural defects lack the developed

argumentation needed to trigger review on the merits. "We have

steadfastly deemed waived issues raised on appeal in a perfunctory

manner, not accompanied by developed argumentation." Mulvihill v.

Top-Flite Golf Co., 335 F.3d 15, 27 (1st Cir. 2003). 

The one evidentiary challenge that does merit our

attention is the defendants' contention that the court improperly

admitted evidence about claims not at issue -- namely, political

harassment claims filed by particular plaintiffs that the court had

earlier dismissed. Defendants correctly point out that, in some

cases, evidence of previously dismissed claims may have an undue

tendency to suggest a decision on an improper basis. However, the

Supreme Court has ruled that such evidence is not ipso facto

inadmissible, noting that "[a] discriminatory act which is not made

the basis for a [] charge . . . may constitute relevant background

evidence in a proceeding in which the status of a current practice

is at issue." United Air Lines, Inc. v. Evans, 431 U.S. 553, 558

(1977); see O'Rourke v. City of Providence, 235 F.3d 713, 726 (1st
-23-

Cir. 2001); Morrison v. Carleton Woolen Mills, Inc., 108 F.3d 429,

439 (1st Cir. 1997). We find no abuse of discretion in the

district court's decision to admit this evidence as relevant

background "to show the atmosphere in which [plaintiffs] lived and

developed since Mayor Vera was elected Mayor." 

2. Active participation of the court

Defendants allege that at various junctures during the

trial the district court inaccurately and prejudicially commented

on the evidence, truncated the defendants' cross-examination of

several plaintiffs, and chastised defense witnesses in front of the

jury. As we have previously observed, it is well settled that

the trial judge "has a perfect right -- albeit a right that should

be exercised with care -- to participate actively in the trial

proper." Logue v. Dore, 103 F.3d 1040, 1045 (1st Cir. 1997). "A

trial judge retains the common law power to question witnesses and

to comment on the evidence . . . . An inquiry into the judge's

conduct of the trial necessarily turns on the question of whether

the complaining party can show serious prejudice." United States

v. Gonzalez-Soberal, 109 F.3d 64, 72 (1st Cir. 1997). 

We reiterate that the complaints grounded in defendants'

case in chief are defaulted on the basis of an inadequate record.

Defendants also fail to demonstrate "serious prejudice" arising

from the court's participation during plaintiffs' case in chief.

This was a lengthy and contentious trial featuring dozens of

witnesses, numerous sidebar conferences, and a myriad of other
-24-

procedural delays arising, inter alia, from the inartful labeling

and introduction of exhibits, translation difficulties, and a

continuing stream of objections from both parties. Under these

challenging circumstances, the court's efforts to accelerate the

pace of the trial with infrequent commentary on the evidence and

the occasional prodding of witnesses were amply justified and well

within its discretion. See Rosario-Diaz v. Gonzalez, 140 F.3d 312,

315 (1st Cir. 1998) ("The Civil Rules endow judges with formidable

case-management authority . . . . In exercising this power, trial

judges enjoy great latitude.") (citations omitted). 

C. Post-Trial Rulings

1. Qualified Immunity

The Supreme Court has recognized that qualified immunity

embodies "an entitlement not to stand trial or face the other

burdens of litigation, conditioned on the resolution of the

essentially legal question whether the conduct of which the

plaintiff complains violated clearly established law." Mitchell v.

Forsyth, 472 U.S. 511, 526 (1985). Defendants' efforts to invoke

the protections of qualified immunity at the summary judgment

stage, however, were rejected by the district court, which

concluded that "[p]laintiffs [] proffered evidence of a triable

issue of fact regarding a potentially discriminatory application of

the Layoff Plan . . . . Therefore, Defendants are not entitled to

qualified immunity for their allegedly discriminatory actions

merely because they assert they acted pursuant to [the Layoff
6Where defendants continue to assert qualified immunity after

undergoing trial on a § 1983 claim, a post-trial grant of immunity

would still confer a benefit by shielding them from any liability

for monetary damages awarded by the jury. See Roldan-Plumey v.

Cerezo-Suarez, 115 F.3d 58, 65 (1st Cir. 1997). 

-25-

Plan]." Acevedo I, 30 F. Supp. 2d at 149. As previously noted, we

dismissed defendants' interlocutory appeal from this ruling,

determining that we lacked jurisdiction to review the factual

grounds for the district court's denial of qualified immunity.

Acevedo II, 204 F.3d at 10. 

After the jury returned its verdict, defendants renewed

their challenge to the court's denial of qualified immunity,6

arguing that in light of the facts elicited at trial, "the

unlawfulness of implementing a layoff plan duly approved by the

municipal legislature according to seniority would not have been

apparent to a reasonable official." (citing Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982)). The court once again rejected

defendants' claim, concluding that the jury's findings foreclosed

the availability of immunity: 

For the record, the prohibition against

political discrimination was clearly

established in 1997 when Defendants acted to

violate Plaintiffs' constitutionally protected

rights. A jury trial was held wherein

Plaintiffs presented evidence that supported

their allegations of political discrimination.

The evidence led the Jury to conclude that

political affiliation was in fact a

substantial or motivating factor for Mayor

Vera Monroig's and Irma Gonzalez's actions . .

. . Therefore, the qualified immunity argument

that Defendants now make is simply an attempt
-26-

to re-write the facts and re-litigate this

case. 

Defendants allege two errors in the district court's

post-verdict denial of qualified immunity. First, they claim that

the court erred in failing to deliver two proposed instructions on

qualified immunity to the jury:

1. Proposed Jury Instruction 51: Qualified Immunity

Government officials performing discretionary functions

are granted qualified immunity from civil claims for

damages, if their conduct at the time of the alleged acts

that give rise to the civil damages "does not violate

clearly established statutory or constitutional rights of

which a reasonable person would have known." The

relevant inquiry "is the objective question whether a

reasonable officer could have believed the actions

alleged by the plaintiff herein" to be lawful, in light

of clearly established law and the information the state

official possessed.

2. Proposed Jury Instruction 53: Reach of Qualified

Immunity

Even defendants who violate constitutional rights enjoy

a qualified immunity that protects them from liability

for damages unless it is further demonstrated that their

conduct was unreasonable with respect to clearly

established rights and laws at the time of the conduct at

issue.

After proposing these instructions, defendants concede that they

failed to object on the record to the court's refusal to issue the

instructions before the jury retired to deliberate. Accordingly,

we review for plain error only. See Chestnut v. City of Lowell,

305 F.3d 18, 20 (1st Cir. 2002) (en banc) ("Failures to object,

unless a true waiver is involved, are almost always subject to

review for plain error."); Advisory Committee on the Federal Rules
-27-

of Civil Procedure, Report of the Civil Rules Advisory Committee

62-68 (March 14, 2001), revised Jul. 31, 2001 (modifying Rule 51 of

the Federal Rules of Civil Procedure to provide for plain error

review of challenges to jury instructions where the claim was not

properly preserved).

The availability of qualified immunity after a trial is

a legal question informed by the jury's findings of fact, but

ultimately committed to the court's judgment. "When the case goes

to trial, the jury itself decides the issues of historical fact

that are determinative of the qualified immunity defense, but the

jury does not apply the law relating to qualified immunity to those

historical facts it finds; that is the court's duty." Johnson v.

Breeden, 280 F.3d 1308, 1318 (11th Cir. 2002); see Singh v. Blue

Cross/Blue Shield of Mass., 308 F.3d 25, 34 (1st Cir. 2002); Swain

v. Spinney, 117 F.3d 1, 10 (1st Cir. 1997). Accordingly, there was

no error, let alone plain error, in the district court's refusal to

submit the proposed qualified immunity instructions to the jury. 

Defendants also contend that the court committed

reversible error when it failed to grant a new trial or judgment

notwithstanding the verdict on the basis of qualified immunity.

They reinforce this second claim of error with two legal arguments.

First, they assert that the district court misapplied the second

prong of the familiar three-pronged qualified immunity test:

Determining whether qualified immunity is

available to a particular defendant at a

particular time requires a trifurcated
-28-

inquiry. We ask, first, whether the plaintiff

has alleged the violation of a constitutional

right. If so, we then ask whether the

contours of the right were sufficiently

established at the time of the alleged

violation. Finally, we ask whether an

objectively reasonable official would have

believed that the action taken or omitted

violated that right. 

Hatch v. Dept. for Children, Youth and their Families, 274 F.3d 12,

20 (1st Cir. 2001). Defendants contend that the court erroneously

characterized the "constitutional right" at issue as plaintiffs'

right not to be discriminated against on the basis of their

political beliefs during the implementation of the layoff plan.

They decry the excessive abstractness of this "right," citing

language from the Supreme Court's decision in Anderson v.

Creighton, 483 U.S. 635 (1987):

The operation of this standard depends

substantially upon the level of generality at

which the relevant "legal rule" is to be

identified . . . . If [referring to the right

to due process of law] the test of "clearly

established law" were to be applied at this

level of generality, it would bear no

relationship to the "objective legal

reasonableness" that is the touchstone of

Harlow. Plaintiffs would be able to convert

the rule of qualified immunity that our cases

plainly establish into a rule of virtually

unqualified liability simply by alleging a

violation of extremely abstract rights.

Id. at 639; see Rivera-Ramos v. Roman, 156 F.3d 276, 279-80 (1st

Cir. 1998). It is difficult to divine from defendants' briefs how

they would articulate the right at issue -- the pertinent

discussion is geared exclusively to demonstrating the absence of
-29-

any clearly established rule regulating the implementation of

seniority-based layoff plans. Of course, this approach commits the

Anderson fallacy in reverse by construing the relevant rights/rules

with such specificity that the predictably scant jurisprudence on

point would never satisfy the "clearly established" threshold. 

In the end, their argument is unavailing. The clearly

established law both in this circuit and beyond precludes

government officials from discharging civil or "career" employees

for politically-motivated reasons. See Branti v. Finkel, 445 U.S.

507 (1980); Elrod v. Burns, 427 U.S. 347 (1976); Roldan-Plumey, 115

F.3d at 65-66; Jirau-Bernal v. Agrait, 37 F.3d 1, 3 (1st Cir.

1994). The complexity of the municipality's workforce reduction

plan suggests that it was conceived by the Adjuntas municipal

assembly as a politically neutral means of responding to the city's

fiscal crisis. Yet the jury could reasonably have found that while

the Plan itself was politically neutral, the method of

implementation revealed the defendants' discriminatory intent. 

Defendants also raise a challenge under the third prong

of Hatch, relying on stipulated facts painting a bleak picture of

the municipality's financial status, see supra, and the conclusory

assertion that "the aforementioned set of circumstances clearly

demonstrate that defendants acted within the reasonable boundaries

of their duties under the lay-off plan." In limiting their focus

to the objective circumstances surrounding the implementation of

the Plan, defendants misconceive the salient inquiry under the
-30-

third prong of the qualified immunity analysis. As we observed in

Tang v. State of Rhode Island, 120 F.3d 325 (1st Cir. 1997): 

The objective test focuses on the

reasonableness of the official's conduct

independent of motive. It is rarely going to

be manifestly unreasonable, judged apart from

motive, to [take certain action against] an

employee. But because of special

constitutional or statutory protections, some

motives can convert [those decisions] into

causes of action.

Id. at 327 (emphasis in original). Indeed, we recognized in

Acevedo II that illicit motive is the touchstone of a political

discrimination claim: "The plaintiffs allege that they were

terminated because of their political affiliation, a constitutional

claim that has no meaning absent the allegation of impermissible

motivation." Acevedo II, 204 F.3d at 11; see Stella v. Kelley, 63

F.3d 71, 74-75 (1st Cir. 1995). Here, as plaintiffs point out,

"the jury verdict necessarily rejected the claim that the seniority

system was a politically neutral method for implementing the Layoff

Plan." 

Finally, defendants insist that the Supreme Court's

decision in Saucier v. Katz, 533 U.S. 194 (2001), establishes "a

margin for errors and expands the zone of protection in

discretionary determinations where an official reasonably believed

that he acted reasonably although [he] was later found to have

acted unlawfully." The district court aptly disposed of this

argument below by distinguishing Saucier on its facts:
-31-

Saucier involved a military police officer's

mistaken but reasonable belief that excessive

force was needed to protect the Vice President

of the United States from an unknown

demonstrator. Because high security measures

are needed to safeguard a United States Vice

President, because the degree of danger posed

by the demonstrator was unknown, and because

law enforcement officers are usually required

to make split-second, life and death

decisions, the Court held that the officer

acted reasonably . . . Mayor Vera Monroig and

Irma Gonzalez acted over a 10-month period of

time. As they had a long period within which

to assess the situation, the probability that

they could have made a "reasonable mistake" as

in the case of an officer guarding the Vice

President, is largely diminished. 

Accordingly, we conclude that the district court did not err in

denying defendants' post-verdict request for qualified immunity. 

2. Sufficiency of the evidence

After the jury issued its verdict, defendants moved for

judgment as a matter of law under Rule 50(b), or in the alternative

for a new trial pursuant to Rule 59. The district court denied

both avenues of relief, and defendants appealed. A party seeking

recourse under either rule faces an uphill battle:

In reviewing the denial of a motion for

directed verdict or for judgment

notwithstanding the verdict "we must examine

the evidence in the light most favorable to

the plaintiff and determine whether there are

facts and inferences reasonably drawn from

those facts which lead to but one conclusion -

- that there is a total failure of evidence to

prove plaintiff's case."

Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 558 (1st Cir. 1989)

(quoting Mayo v. Schooner Capital Corp., 825 F.2d 566, 568 (1st
-32-

Cir. 1987)). When considering a Rule 59(a) motion, "a district

court may set aside a jury's verdict and order a new trial only if

the verdict is against the demonstrable weight of the credible

evidence or results in a blatant miscarriage of justice." Sanchez

v. Puerto Rico Oil Co., 37 F.3d 712, 717 (1st Cir. 1994). 

Defendants' failure to produce the transcripts from their

own case in chief precludes review of their sufficiency of the

evidence challenges. It is well-settled that a court must review

a sufficiency of the evidence challenge against the backdrop of the

record as a whole. See United States v. McLaughlin, 957 F.2d 12,

18 (1st Cir. 1992) ("In reviewing the record for a sufficiency of

the evidence appeal, it is well established that the evidence must

be examined in its entirety . . . "); N.Y. State Elec. & Gas Corp.

v. Sec'y of Labor, 88 F.3d 98, 108 (2d Cir. 1996) ("[T]he

sufficiency of the evidence is tested on appeal by viewing the

entire record."). As noted above, Rule 10 of the Federal Rules of

Appellate Procedure requires an appellant contesting the

sufficiency of the evidence on appeal to "include in the record a

transcript of all evidence relevant to that finding or conclusion."

Fed. R. App. P. 10(b)(2). Our previous jurisprudence establishes

that the evidence "relevant" to a finding of sufficiency (or lack

thereof) is the record as a whole. Since "it is the appellant who

must bear the brunt of an insufficient record on appeal," Moore, 47

F.3d at 11, we must conclude that defendants have procedurally

defaulted their sufficiency of the evidence challenges. 
-33-

3. Damages

Rule 59(e) of the Federal Rules of Civil Procedure

permits a party aggrieved by the jury verdict to move "to alter or

amend the judgment" within ten days after entry of judgment. Fed.

R. Civ. P. 59(e). Pursuant to Rule 59(e), the defendants filed a

timely motion seeking reduction or remittitur of the damage award

for each plaintiff. Where defendants properly preserve a challenge

to the amount of compensatory damages awarded by the jury, "our

inquiry is limited to determining 'whether the trial court abused

its discretion in refusing to set aside the verdict as excessive.'"

Anthony v. G.M.D. Airline Servs., Inc., 17 F.3d 490, 493 (1st Cir.

1994) (quoting McDonald v. Fed. Labs., Inc., 724 F.2d 243, 246 (1st

Cir. 1984)). The review of a preserved challenge to a punitive

damages award "is de novo, and the award will stand unless we find

it 'certain' that the amount in question exceeds that necessary to

punish and deter the alleged misconduct." Romano v. U-Haul Int'l,

233 F.3d 655, 672 (1st Cir. 2000). 

These deferential standards of review implicitly

recognize that "[t]ranslating legal damage into money damages --

especially in cases which involve few significant items of

measurable economic loss -- is a matter peculiarly within the

jury's ken." Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 577

(1st Cir. 1989); see Brown v. Freedman Baking Co., 810 F.2d 6, 11

(1st Cir. 1987) ("We rarely will override the jury's judgment on

the appropriate amount of damages to be awarded."); Segal v.
-34-

Gilbert Color Systems, Inc., 746 F.2d 78, 81 (1st Cir. 1984) ("This

court has consistently declined to play Monday morning quarterback

in reviewing a jury's assessment of damages."). Consequently,

defendants bear the onerous burden of proving to our satisfaction

that the damage award was "grossly excessive, inordinate, shocking

to the conscience of the court, or so high that it would be a

denial of justice to permit it to stand." Correa v. Hospital San

Francisco, 69 F.3d 1184, 1197 (1st Cir. 1995) (quoting Segal, 746

F.2d at 81). 

The district court issued a strong endorsement of the

jury verdict in rejecting defendants' Rule 59(e) motion below:

The Court believes that the Jury considered

all of the evidence presented, and fashioned

their award in light of Plaintiffs' economic

damages, and damages resulting from pain and

suffering. Simply put, the verdict was not

against the weight of the evidence.

Considering the significant disruptions which

Defendants' actions caused the Plaintiffs'

lifestyles, the Court does not find that the

compensatory and punitive damages award for

each individual Plaintiff . . . is grossly

excessive or inordinate. Further, after

weighing the evidence, the Court finds that

the damage award also does not shock the

conscience. 

Acevedo-Garcia, 213 F. Supp. 2d at 53. On appeal, defendants

reiterate their objections to the jury verdict as excessive. They

also raise a new argument that was not submitted to the district

court -- namely, that the jury's award of compensatory damages for

due process violations was duplicative of the political

discrimination damages also awarded as part of the verdict. 
7The individual damage awards for each plaintiff are too

lengthy to list here. As a general matter, there was some

uniformity among the damage awards. For category (1), all twenty

plaintiffs received $75,000 in compensatory damages from Defendant

Vera and $75,000 from Defendant Gonzalez. Every plaintiff also

received $15,000 in punitive damages from Defendant Vera and

$15,000 in punitive damages from Defendant Monroig.

Categories (2), (3), and (4) produced some variation. For the

eight plaintiffs alleging political harassment, the jury found that

four had failed to prove political harassment, and awarded no

damages in this category. Two plaintiffs received $50,000, and the

other two received $75,000. Finally, the awards for pain and

suffering ranged from $75,000 to $150,000, and the awards for lost

earnings ran the gamut from zero damages awarded to $55,000 (all

awards in this category reflected varying percentage reductions for

-35-

a. Duplicate damages

This argument, which is premised on an error of law, has

more force than defendants' factually grounded claim of excessive

damages. Before addressing the consequences of defendants' failure

to preserve this argument below, we examine the merits of the claim

itself.

By way of background, the jury award was broken down into

five components for the eight plaintiffs alleging discrimination,

due process violations and harassment:

(1) Due process violations;

(2) Political discrimination in the form of

harassment;

(3) Political discrimination resulting in dismissal

causing pain and suffering;

(4) Political discrimination resulting in dismissal

causing loss of earnings; and

(5) Punitive damages 

For the twelve plaintiffs alleging only political discrimination

and due process injuries, the jury award contained all of the above

components except (2).7 
required mitigation of damages).

 

-36-

Defendants point out that plaintiffs' Fourteenth

Amendment due process claims arise from the municipality's failure

to offer the claimants alternatives to outright termination. The

consequences of this denial of due process include the normal

injuries associated with removal from a secure job -- lost

earnings, pain and suffering associated with unemployment, lost

future income, etc. Defendants contend that their alleged

violation of defendants' First Amendment rights resulted in

precisely the same harms. Because the jury essentially compensated

plaintiffs for their unemployment injuries twice -- once under a

First Amendment theory and once under a Fourteenth Amendment theory

-- defendants argue that the court erred as a matter of law in

entering judgment on a "double award" for the same injury.

It is well-settled that double awards for the same injury

are impermissible. Lewis v. Kendrick, 944 F.2d 949, 954 (1st Cir.

1991); Freeman v. Package Mach. Co., 865 F.2d 1331, 1345 (1st Cir.

1988). Moreover, Congress intended for compensatory damages in

section 1983 cases to remedy only actual injuries caused by a

deprivation of constitutional rights, and not "the abstract 'value'

of [] due process and First Amendment rights." Memphis Community

Sch. Dist. v. Stachura, 477 U.S. 299, 313 (1986). The Supreme

Court elaborated in Stachura that 
8Puerto Rico law grants career employees a property interest

in their government positions: "Regular career employees are those

who have entered the system after undergoing the recruitment

procedure established in this subtitle, including the probational

period. These employees shall be entitled to permanent status and

may only be removed from their positions for just cause after due

filing of charges." 21 P.R. Laws Ann. § 4554(b) (1991). 

-37-

when § 1983 plaintiffs seek damages for

violations of constitutional rights, the level

of damages is ordinarily determined according

to principles derived from the common law of

torts . . . . Congress adopted this common-law

system of recovery when it established

liability for "constitutional torts."

Consequently, "the basic purpose" of § 1983

damages is "to compensate persons for injuries

that are caused by the deprivation of

constitutional rights."

Id. at 306-07 (quoting Carey v. Piphus, 435 U.S. 247, 254 (1978)).

Consequently, any duplication problem cannot be resolved by

conceptualizing First Amendment and Fourteenth Amendment violations

as distinct "injuries" warranting separate compensation.

In defending the jury verdict, plaintiffs argue that the

damages awarded for the due process violations were retrospective

in nature, designed to compensate the claimants for wages lost from

the date of dismissal to the date of the verdict. By contrast, the

compensatory damages awarded for defendants' Fourteenth Amendment

violations were forward-looking and intended to remedy the

plaintiffs' lost property rights8 in their career employment

positions. Specifically, plaintiffs argue that

because career employment carries with it an

expectancy of continued income prospectively

(front pay), retirement and medical insurance
-38-

(lost benefits), and the security of

continuing employment terminable only for

cause, a deprivation of that right permits an

additional award. This award is legally

distinguishable in that it represents

compensation for prospective losses, from the

date of the trial forward, whereas political

discrimination damages are calculated

retroactively from the date of trial. 

We agree with plaintiffs that both front and back pay are valid

elements of a compensatory damage award under section 1983.

Indeed, "compensatory damages may include not only out-of-pocket

loss and other monetary harms, but also such injuries as

'impairment of reputation . . ., personal humiliation, and mental

anguish and suffering.'" Stachura, 477 U.S. at 307 (quoting Gertz

v. Robert Welch, Inc., 418 U.S. 323, 350 (1974)); see Davet v.

Maccarone, 973 F.2d 22, 29 (1st Cir. 1992). 

In support of their argument that the jury apportioned

its compensatory damage awards between the First Amendment and

Fourteenth Amendment violations, plaintiffs refer us to the

"Political Discrimination" section of the special verdict form,

which directs the jury to "indicate the amount of back pay to date

[plaintiff] should receive" if political affiliation was a

substantial or motivating factor in his/her dismissal (emphasis

added). Yet there is no analogous reference to front pay in either

the jury instructions or the due process section of the verdict

form, which simply provides that "[u]nder the law you may choose to

award damages for a violation of due process. If you answered
-39-

'YES' to the previous question [addressing liability], state the

amount of damages this Plaintiff should be awarded from

[defendants]" (emphasis added). 

Moreover, plaintiffs' theory of apportionment arguably

suffers from another flaw. If the jury had found defendants guilty

of either a due process violation or a First Amendment violation,

but not both, plaintiffs would still be entitled to front pay, back

pay, and pain and suffering, because the singular violation would

still have resulted in the loss of career employment and any

secondary harms flowing from that loss. Put differently, nothing

inherent in the nature of a due process violation limits the

resulting economic injury to front pay, and nothing inherent in an

act of political discrimination inflicts an injury that is limited

to back pay. 

Finally, we note that the court's duplicative damage

instruction was worded so as to suggest that the relevant "injury"

that could not be doubly compensated was the violation of a

constitutional right, rather than an actual loss or harm. 

In awarding damages you should be careful not

to award duplicate damages. Plaintiffs are

entitled to collect full compensation for

their injuries if proved, but they must not

collect more than once for the same wrong . .

. . Again, each plaintiff is entitled to

collect full compensation for his or her

injury but the plaintiff must not collect more

than once for the same wrong. 
-40-

(emphasis added). The court's use of the term "wrong," read in

conjunction with a special verdict form divided into separate

sections for each constitutional violation, may have led the jury

to conceptualize the term "injury" as the violation of a

constitutional right vel non, rather than an actual loss caused by

the violation of that right. See Stachura, 477 U.S. at 306-07;

Carey, 435 U.S. at 254. Possibly, in the absence of more detailed

instructions supporting plaintiffs' front pay/back pay theory, the

jury may have erroneously awarded duplicative damages by

compensating plaintiffs for the same actual losses under both a due

process and political discrimination theory of liability. We

acknowledge, therefore, that the lack of clarity in the court's

duplicative damages instruction was obvious error which may

potentially have resulted in an improper award of double damages.

We must now decide whether defendants are entitled to

relief in the face of this error. Defendants were on notice

throughout the proceedings that plaintiffs were seeking recovery for

both due process violations and political discrimination. To the

extent that a jury award on both claims would be duplicative, the

proper practice is to ensure that the verdict form is structured so

as to allow the jury to recompense the plaintiffs' injuries just

once. As we observed in Britton v. Murphy, 196 F.3d 24, 32 (1st

Cir. 1999): 

The problem of guarding against double

recovery is a familiar one when multiple
-41-

claims exist but separate damages on each

would be partly or wholly duplicative. If the

parties explicitly agree that the damages

should be the same on each claim, then it is

easy enough to construct special

interrogatories that identify separate bases

for liability but have only a single line for

damages. On the other hand, when the amounts

awarded could conceivably differ depending on

the claim but may also involve some overlap,

verdict forms sometimes require a separate

specification of damages for each claim on

which the jury determines liability, leaving

it to the judge to make the appropriate

adjustments to avoid double recovery. 

Id. (internal citation omitted). Defendants could also have

requested jury instructions that clearly directed the jury to

compensate the plaintiffs' unemployment injuries just once. Here,

defendants failed to lodge a pertinent objection to either the jury

instructions or the verdict form. Even after the jury delivered its

sizeable verdict, defendants never submitted a post-trial motion

challenging the actual award as duplicative. Accordingly, we review

the appellants' allegation of duplicative damages for plain error

only. See Chestnut, 305 F.3d at 20 (verdict form); M & I Heat

Transfer Prods. v. Gorchev, 141 F.3d 21, 23 (1st Cir. 1998) (jury

instructions); Advisory Committee on the Federal Rules of Civil

Procedure, Report of the Civil Rules Advisory Committee 62-68;

supra.

"We apply the plain error doctrine 'in exceptional cases

or under peculiar circumstances to prevent a clear miscarriage of

justice . . . [or] where the error seriously affected the fairness,
9In City of Newport v. Fact Concerts, Inc., 458 U.S. 247

(1981), the Supreme Court ruled that municipalities are immune from

punitive damages under 42 U.S.C. § 1983. See id. at 271. 

-42-

integrity or public reputation of judicial proceedings.'" Rocafort

v. IBM Corp., 334 F.3d 115, 122 (1st Cir. 2003) (citing Beatty v.

Michael Bus. Machs. Corp., 172 F.3d 117, 121 (1st Cir. 1999). Our

previous cases reflect a marked reluctance to find plain error in

civil cases: "[E]specially in a civil case this is a very hard test

to meet because over and above plain error, it requires a showing

both of prejudice and a miscarriage of justice or something of this

magnitude." Fraser v. Major League Soccer, L.L.C., 284 F.3d 47, 62

(1st Cir. 2002) (citing Davis v. Rennie, 264 F.3d 86, 100-01 (1st

Cir. 2001), cert. denied, 123 S.Ct. 118 (2002)). 

Defendants' claim for relief from the alleged double

damages founders on the prejudice prong of the plain error standard.

In reaching this conclusion, we are in no way trivializing the

consequences of this verdict for the municipality of Adjuntas and

the individual defendants. The jury returned a verdict of

$6,956,400, of which $6,356,400 (the total jury award, excluding

punitive damages)9 was against a municipality whose entire annual

budget in 1996-97 was only $4,529,327. See Exhibit 2, Defendants'

Statement of Uncontested Facts (July 17, 1998). Moreover, this

figure reflects the damages owed only to the first twenty

plaintiffs; sixty-two plaintiffs remain in the queue. But

"prejudice," as that term is incorporated into the plain error test,
-43-

requires a strong causal link between the harm to the aggrieved

party and the legal error. At best, defendants can only demonstrate

the possibility that faulty jury instructions resulted in a

duplicative damage award. 

Indeed, the appellate materials set forth competing

explanations for the jury's award of damages under both a due

process and First Amendment theory of liability. Appellants argue

that the compensatory damages awarded under each theory doubly

recompensed claimants for their actual losses, while appellees

insist that the jury compensated plaintiffs for their total loss

just once, but divided that single award between the due process and

First Amendment causes of action. Nothing in this record precludes

that possibility, or rules out other appropriate bases for the jury

award. For defendants who fail to protect themselves on the record

by requesting jury instructions and/or special verdict forms

structured to preclude the possibility of a double damage award,

these possibilities are fatal to a request for plain error relief.

The "prejudice" component of the plain error standard implies a

stringent demonstration of causation. Thus, in Chestnut v. City of

Lowell, our decision to vacate a punitive damage award on plain

error review rested in part on the finding that "[p]rejudice in the

sense of affecting the final outcome is . . . obvious: had the jury

been instructed as to the City's immunity [from punitive damages]

there almost certainly would not be a $500,000 judgment against it
-44-

today, although conceivably the jury might have somewhat increased

the compensatory damages." Chestnut, 305 F.3d at 20 (emphasis

added). Here, although we can speculate that the court's

instructions may have led the jury to erroneously award duplicative

damages, we have no concrete basis for accepting defendants'

characterization of the jury award. Under these circumstances, we

decline to expand the rule of Chestnut to encompass cases in which

prejudice to the aggrieved party is not manifest on the face of the

record.

b. Excessive damages

Defendants meticulously document the economic damages

awarded to each plaintiff, and argue mathematically that the totals

in every case exceed the lost wages (reduced by the appropriate

percentage for mitigation). As a threshold matter, the magnitude

of the claimed discrepancy is sufficiently small (ranging from

$2,607.94 to $10,900.00) to preclude a finding that the verdict was

"grossly excessive, inordinate, shocking to the conscience of the

court, or so high that it would be a denial of justice to permit it

to stand." Correa, 69 F.3d at 1197; Segal, 746 F.2d at 81.

Furthermore, the jury was entitled to consider any secondary

economic injuries flowing from the plaintiffs' loss of earnings and

employment benefits. See Stachura, 477 U.S. at 307; Davet, 973 F.2d

at 29. For example, nearly every claimant testified that they

relied entirely on their monthly earnings to cover the expenses of
10Plaintiffs argue on appeal that "[t]he due process award

effectively was the monetary equivalent of reinstatement. Should

that award be taken away or significantly reduced by this court,

plaintiffs will not have been made whole for their due process

injuries." Our decision to affirm that award moots plaintiffs'

cross appeal from the district court's denial of reinstatement. 

-45-

running their household, meet their mortgage obligations, pay their

childrens' tuition, etc. As a consequence of losing their jobs,

plaintiffs were forced to seek additional bank loans, dip into their

savings, and make other costly financial adjustments to cover these

expenses. 

We also decline to set aside the damages awarded in the

other three categories (pain and suffering resulting from political

harassment, pain and suffering resulting from dismissal, and

punitive damages). Damages for pain and suffering defy "exact

mathematical computation," Moore-McCormack Lines, Inc. v. Amirault,

202 F.2d 893, 898 (1st Cir. 1953); and "are not susceptible to proof

by a dollar amount," Mejias-Quiros v. Maxxam Property Corp., 108

F.3d 425, 428 (1st Cir. 1997). The jury's awards of non-economic

compensatory damages and punitive damages were moderate in scope and

well within acceptable bounds. The individualized nature of the

twenty verdicts reflects the jury's careful attention to the

peculiar circumstances of each plaintiff, and evinces the jury's

desire to craft an appropriate award for each claimant.10 
-46-

D. Non-Mutual Offensive Collateral Estoppel

On January 30, 2002, the district court issued an order

precluding the defendants from relitigating (with respect to the

remaining sixty-two plaintiffs) the following three issues that were

determinative of defendants’ liability in the first trial: 

(1) That political affiliation was a substantial or

motivating factor in the implementation of the lay-off

plan.

(2) That Defendants violated Plaintiffs’ due process rights

by implementing the lay-off plan in a discriminatory

fashion.

(3) That Plaintiffs were discharged from their career

positions with the Municipality of Adjuntas on account of

their political affiliation; and other individuals were

employed to perform their duties under different titles,

and under different programs, in violation of the law. 

Acevedo-Garcia, 213 F. Supp. 2d at 40. This ruling, if allowed to

stand, would confine the scope of the subsequent three trials to the

issue of damages. Not surprisingly, defendants vigorously dispute

the court’s application of collateral estoppel, raising a host of

objections that we consider in due course. 

As a threshold matter, neither party disputes our

jurisdiction to review the court's application of collateral

estoppel. This case presents unique circumstances, however, that

call into question the ripeness of the collateral estoppel question.

See Pustell v. Lynn Pub. Sch., 18 F.3d 50, 51 n.1 (1st Cir. 1994)

(observing that we may raise issues of jurisdiction sua sponte).

Generally, a court will determine that collateral estoppel is
-47-

appropriate within the very proceeding where the ruling is to have

its preclusive effect. Here, the district court announced its

attention to apply collateral estoppel at the end of Trial 1, but

the court's ruling will have no preclusive effect until Trials 2,

3, and 4, which are not currently before us. Because these trials

were severed into four independent proceedings pursuant to Rule 21,

see supra, any resolution of the collateral estoppel question will

have no effect on the rights of the parties as they pertain to Trial

1. See Cotter v. City of Boston, 323 F.3d 160, 173 (1st Cir. 2003)

("Article III's cases and controversies language prohibits federal

courts from issuing advisory opinions. A court may not decide

questions that cannot affect the rights of litigants in the case

before it.") (internal quotation marks and citation omitted).

In the end, however, we conclude that we have jurisdiction

to review the district court's application of collateral estoppel.

The four cases comprising this matter began as a single lawsuit.

The boundaries that now divide it into four severed cases are not

temporal or transactional in nature. Instead, they are a judicial

artifice imposed pursuant to the court's case management authority

under Rule 21 to streamline the proceedings in the subsequent three

trials. That the court chose to issue its collateral estoppel

ruling at the at the end of Trial 1 rather than the beginning of

Trial 2 in no way attenuates the finality of the order or the force

of its preclusive effect.
-48-

Moreover, neither party disputes that the district court

-- the same court that is presiding over the subsequent trials --

has entered a final order decreeing that non-mutual offensive

collateral estoppel will be enforced in the subsequent three cases.

The contours of the order are clear from its language, and the

attorneys who litigated the issue below and now on appeal are the

counsel of record for plaintiffs and defendants in all four matters.

The district court's order bound the defendants as of its entry of

January 30, and the application of collateral estoppel in the

subsequent trials is a certainty beyond any speculation.

Accordingly, there is no compelling reason for us to delay our

review of the collateral estoppel question until the judgment in

Trial 2 is appealed. If, as a consequence of sidestepping the

collateral estoppel issue now, we belatedly reversed the district

court's estoppel ruling at that late stage, we would unnecessarily

void a burdensome litigation that is currently slated to involve

twenty plaintiffs and forty-eight claims. Disclaiming jurisdiction

over the district court's collateral estoppel ruling under these

circumstances would vindicate form over substance, to the detriment

of both parties and the district court. See Schneider v. Lockheed

Aircraft Corp., 658 F.2d 835, (D.C. Cir. 1981) ("The potential

future use of collateral estoppel in the remaining cases requires

that we address these arguments in the interest of sound judicial

administration."). 
11In the case at bar, the application of collateral estoppel

is “non-mutual” in the sense that the sixty-two plaintiffs

benefitting from the pre-determination of liability were not

parties in the trial of the first twenty plaintiffs, where the

liability question was originally litigated.

-49-

The brand of collateral estoppel applied by the district

court -- non-mutual offensive collateral estoppel -- historically

spawned the greatest misgivings among jurists. Prior to the Supreme

Court’s decision in Blonder-Tongue Labs. v. Univ. of Ill. Found.,

402 U.S. 313 (1971), many courts adhered to the doctrine of

“mutuality of estoppel,” which ordained that “unless both parties

(or their privies) in a second action are bound by a judgment in a

previous case, neither party (nor his privy) in the second action

may use the prior judgment as determinative of an issue in a second

action.” Id. at 320-21; see Triplett v. Lowell, 297 U.S. 638, 644

(1936); Restatement of Judgments § 93 (1942) (“[A] person who is not

a party or privy to a party to an action in which a valid judgment

. . . is rendered (a) cannot directly or collaterally attack the

judgment, and (b) is not bound by or entitled to claim the benefits

of an adjudication upon any matter decided in the action.”).11 The

Blonder-Tongue Court determined that the traditional rationales
12According to Wright, Miller & Cooper:

The basic arguments against nonmutual preclusion may be

seen from two aspects . . . . [T]he nonparty who seeks to

invoke nonmutual preclusion has never had to bear the

burdens of litigating the issues, and accordingly

presents a much weaker claim than a party who has borne

these burdens or a privy who has at least run the risk of

defeat . . . . [T]he [second] argument is simply that the

risk of proliferating the consequences of a mistaken

judgment cannot be justified absent the full range of

needs that require preclusion between parties and those

in privity with them.

18A Federal Practice & Procedure § 4464 (2d ed. 2002).

-50-

undergirding the mutuality requirement12 were unavailing in the face

of weightier institutional concerns: 

In any lawsuit where a defendant, because of

the mutuality principle, is forced to present

a complete defense on the merits to a claim

which the plaintiff has fully litigated and

lost in a prior action, there is an arguable

misallocation of resources. To the extent the

defendant in the second suit may not win by

asserting, without contradiction, that the

plaintiff had fully and fairly, but

unsuccessfully, litigated the same claim in the

prior suit, the defendant's time and money are

diverted from alternative uses -- productive or

otherwise -- to relitigation of a decided

issue. And, still assuming that the issue was

resolved correctly in the first suit, there is

reason to be concerned about the plaintiff's

allocation of resources. Permitting repeated

litigation of the same issue as long as the

supply of unrelated defendants holds out

reflects either the aura of the gaming table or

“a lack of discipline and of disinterestedness

on the part of the lower courts, hardly a

worthy or wise basis for fashioning rules of

procedure.”

Id. at 329 (quoting Kerotest Mfg. Co. v. C-O Two Co., 342 U.S. 180,

185 (1952)). The excerpted language from Blonder-Tongue endorses
-51-

the application of non-mutual defensive collateral estoppel.

Collateral estoppel is “defensive” when wielded by a defendant to

bar plaintiffs from relitigating an issue(s) previously decided in

his favor in a suit involving other plaintiffs. For the reasons

articulated by Justice White, permitting litigants to assert

collateral estoppel in a defensive pose promotes efficiency by

discouraging speculative lawsuits and conserving the resources of

defendants.

Non-mutual collateral estoppel may be asserted offensively

as well. That is, where, as here, plaintiffs seek to use issue

preclusion to tie the defendants' hands with an adversely decided

issue from a previous case, the use of collateral estoppel is deemed

“offensive.” As the Supreme Court recognized, the offensive use of

non-mutual collateral raises special concerns:

First, offensive use of collateral estoppel

does not promote judicial economy in the same

manner as defensive use does. Defensive use of

collateral estoppel precludes a plaintiff from

relitigating identical issues by merely

"switching adversaries." Thus defensive

collateral estoppel gives a plaintiff a strong

incentive to join all potential defendants in

the first action if possible. Offensive use of

collateral estoppel, on the other hand, creates

precisely the opposite incentive. Since a

plaintiff will be able to rely on a previous

judgment against a defendant but will not be

bound by that judgment if the defendant wins,

the plaintiff has every incentive to adopt a

"wait and see" attitude, in the hope that the

first action by another plaintiff will result

in a favorable judgment. Thus offensive use of

collateral estoppel will likely increase rather

than decrease the total amount of litigation,
-52-

since potential plaintiffs will have everything

to gain and nothing to lose by not intervening

in the first action. 

A second argument against offensive use of

collateral estoppel is that it may be unfair to

a defendant. If a defendant in the first action

is sued for small or nominal damages, he may

have little incentive to defend vigorously,

particularly if future suits are not

foreseeable. Allowing offensive collateral

estoppel may also be unfair to a defendant if

the judgment relied upon as a basis for the

estoppel is itself inconsistent with one or

more previous judgments in favor of the

defendant. Still another situation where it

might be unfair to apply offensive estoppel is

where the second action affords the defendant

procedural opportunities unavailable in the

first action that could readily cause a

different result.

Parklane Hosiery Co. v. Shore, 439 U.S. 322, 329-31 (1979) (internal

citations and footnotes omitted). Notwithstanding these concerns,

the Supreme Court completed its break with traditional collateral

estoppel doctrine in Parklane Hosiery by according district courts

broad discretion to apply non-mutual offensive collateral estoppel:

We have concluded that the preferable approach

for dealing with these problems in the federal

courts is not to preclude the use of offensive

collateral estoppel, but to grant trial courts

broad discretion to determine when it should be

applied. The general rule should be that in

cases where a plaintiff could easily have

joined in the earlier action or where, either

for the reasons discussed above or for other

reasons, the application of offensive estoppel

would be unfair to a defendant, a trial judge

should not allow the use of offensive

collateral estoppel. 

Id. at 331. 
-53-

Significantly, the Supreme Court's apprehensive regard for

non-mutual offensive collateral estoppel is rooted in considerations

that are inapposite in a unique case such as this where a court

applies collateral estoppel to pieces of a severed action over which

it is presiding. In the case at bar, the district court exercised

its discretion under Rule 21 to mandate the severance of plaintiffs

into four trial groups, thereby prohibiting the sixty-two plaintiffs

in groups 2, 3 and 4 from voluntarily joining the first litigation.

Once the action was severed, the prospect of multiple trials was

eminently foreseeable to the defendants, if not explicitly assured.

Moreover, with one eye on the impending three trials, and the other

on their potentially immense exposure to the first group of twenty

plaintiffs, see supra, the defendants had every possible incentive

to vigorously litigate the issue of liability in the first action.

See id. The contentious proceedings below, coupled with the copious

materials filed by appellants in this appeal, confirm that

defendants zealously contested (and continue to contest) the issue

of liability to the first plaintiff group. Finally, because the

court severed the proceedings on the eve of trial, defendants have

fully availed themselves of discovery and other pre-trial procedures

with respect to all eighty-two plaintiffs. Accordingly, there is

little risk that the subsequent proceedings will "afford[] the

defendant[s] procedural opportunities unavailable in the first

action that could readily cause a different result." Id. The
-54-

district court's stated intent to preside over all four trials

further suggests that trial and post-trial procedures for the

remaining sixty-two plaintiffs will not vary substantially from the

procedural opportunities available in the first trial. 

 

Having addressed the background concerns raised by the

application of non-mutual offensive collateral estoppel, we turn our

attention to the most important question -- whether defendants

"received a full and fair opportunity to litigate their claims" in

the first trial. Parkland Hosiery, 439 U.S. at 332. Our prior

jurisprudence enumerates four factors that we consider in this

regard: 

(1) an identity of issues (that is, that the issue sought to

be precluded is the same as that which was involved in

the prior proceeding),

(2) actuality of litigation (that is, that the point was

actually litigated in the earlier proceeding),

(3) finality of the earlier resolution (that is, that the

issue was determined by a valid and binding final

judgment or order), and

(4) the centrality of the adjudication (that is, that the

determination of the issue in the prior proceeding was

essential to the final judgment or order). 

Faigin v. Kelly, 184 F.3d 67, 78 (1st Cir. 1999); see Grella v.

Salem Five Cent Sav. Bank, 42 F.3d 26, 30 (1st Cir. 1994); NLRB v.

Donna-Lee Sportswear Co., 836 F.2d 31, 34 (1st Cir. 1987).

 Our focus here is confined to factor (2) -- actuality of

litigation. To satisfy this factor, the party seeking to impose

issue preclusion must demonstrate that the issue to be given
13We reproduce the three issues once more for the reader's

benefit:

(1) That political affiliation was a substantial or

motivating factor in the implementation of the lay-off

plan.

(2) That Defendants violated Plaintiffs’ due process rights

by implementing the lay-off plan in a discriminatory

fashion.

(3) That Plaintiffs were discharged from their career

positions with the Municipality of Adjuntas on account of

their political affiliation; and other individuals were

employed to perform their duties under different titles,

and other different programs, in violation of the law. 

-55-

preclusive effect was actually litigated in the prior proceeding.13

Without excluding the possibility of other problems with the scope

of the court's collateral estoppel order, we cite by way of

illustration the political discrimination claims of plaintiffs.

Those First Amendment claims implicate the burden-shifting framework

set forth in Mt. Healthy City School Dist. Bd. of Educ. v. Doyle,

429 U.S. 274, 287 (1977). To satisfy the first prong of the Mt.

Healthy framework, plaintiffs must demonstrate that they engaged in

constitutionally protected activities, and that this protected

conduct was a substantial or motivating factor in an employer's

adverse employment action. If plaintiffs satisfy the first prong,

the second prong of Mt. Healthy shifts the burden to defendant to

prove "by a preponderance of the evidence" that the plaintiff would

have been subject to the adverse employment act even if he had not

engaged in the protected conduct. Id. at 278; Lewis, 321 F.3d at

219. 
-56-

The record indicates that eighty-two plaintiffs brought

claims against the defendants, but the municipality only made

seventy-seven new hires over the relevant period. Accordingly, it

stands to reason that not every plaintiff was substituted for on a

one-to-one basis. More fundamentally, application of the Mt.

Healthy defense necessarily varies with the circumstances of the

individual plaintiffs. Certain plaintiffs may have held municipal

positions that were so superfluous or duplicative of the duties

assigned to other employees that defendants could reasonably argue

that these plaintiffs would have been terminated regardless of their

political affiliation. Put differently, the defendants might be

able to establish that the position of certain municipal employees

were sufficiently precarious that they would have been eliminated

under a properly motivated or improperly motivated implementation

of the plan. This contention has never actually been litigated

because it is necessarily unique to the circumstances of the

particular plaintiffs involved in Trial 2. Yet the second clause

of the third issue designates for preclusive effect the

"established" fact that "other individuals were employed to perform

their duties under different title, and other different programs,

in violation of the law." In our view, this ruling runs afoul of

the actual litigation requirement.

Our ruling is not intended to suggest that any flaws in

the collateral estoppel order are limited to the second clause of
-57-

the third issue. Having identified this problem, however, we cannot

go on to approve even in part a collateral estoppel order that

purports to preclude any liability defense in Trial 2. Where even

one issue of liability must be made available to defendants in the

second trial, granting preclusive effect to the other issues may not

result in efficiency gains because litigation of the "live" issue

may require introduction of some of the same evidence pertinent to

the estopped issues. See 18A Wright, Miller & Cooper § 4465.3 ("The

need to relitigate individual issues that overlap the common issues

may provide a special reason to deny preclusion -- little if any

trial time will be spared . . .").

Still, for the reasons enumerated in the preceding

background discussion, we acknowledge that non-mutual offensive

collateral estoppel may well be a useful and appropriate trial

management device in the second trial. Our ruling is not intended

to discourage its application. However, any renewed consideration

of that doctrine by the trial court must be grounded in the

proceedings of Trial 2. Specifically, the judge and the parties

should revisit the course of proceedings in Trial 1, and the issues

and proposed proof in Trial 2. The defendants and the second

plaintiff group should then have an opportunity to brief and argue

the question of how the doctrine of non-mutual offensive collateral

estoppel should be fairly applied in light of those considerations.

At this juncture, and at this remove from an impending second trial,
-58-

we cannot determine with the necessary certitude that defendants

have had a full and fair opportunity to litigate all the relevant

dimensions of their liability defense. Accordingly, we must vacate

the court's collateral estoppel order.

IV.

The unique circumstances of this case presented the

district court with a number of complex questions in areas that have

previously received little attention in this circuit. The court

correctly resolved most of these issues in comprehensive written

decisions that greatly aided our review on appeal. The court also

acquitted itself admirably in managing this difficult litigation.

The errors we have cited in no way detract from our admiration for

and appreciation of the court's work.

We vacate the district court's collateral estoppel order.

In all other respects we affirm.

So ordered.