# United Stat es Court of Appeals For the First C ircuit

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 Villare s S armiento , with whom Yahaida Zabala , and Sanchez, Beta nces & 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 fromcareer 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' app eal 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 app ly non -mutual offensive collateral estoppel to the three remaining pieces of the severedlitigation. We vacate the court's collatera l es toppel order, and affirm in all other respects. I. On November 12, 1997 , eighty-two current and former employees of the municipality of Adjuntas bro ugh t suit under 42 U.S.C. § 1983, alleging violations of their First, F ift h and Fourteenth Amendment right s ar ising 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 namedthree defendants in the suit -- Roberto Vera Monroig ("Vera"), the mayor of Adjuntas1 Defendants do no t chal lenge 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 m att er in question. " Id. at 483-84 (emphasis added). The Cordero court subs equent lynoted that mayors in Puerto Rico are the government officials ultimately responsible for the employ ment decisions of the municipality:

Under P ue rto 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 themfrom office whenever necessary for the goodof 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- (suedin both his individual and official capacities); Irma Gonzalez, Adjunta's Director of Human Resources (sued in both her individual and official capacities); and the munic ipalit y of Adjuntas. 1 On November 23, 1998, the district court issuedan order andopinion 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 distr ict co urt's order in all respects, ruling inter alia that defendants could not claim the protection of2 All eighty-two plaintiffs alleged political discrimination

anddue process violations. Thirty-three of the eighty-two plaintiffs addeda third claim of political harassment to their lawsuit. The political discrimination and due process claims arose fromthe disch arges themselves, while the political harassment claims alleged shoddy treatment in the months preceding the terminations. -4- absolute immunity, and tha t we l acked jurisdiction to review the district court's rulin gs on qualified immunity and municipal liability. See Acevedo-Garcia v . V era-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 formid abl e logistical task of arranging to try the multitude of political discrimination, political harassment, and due process claims alleged by the eighty- two in dividual plaintiffs. 2 To this end, the court issued an order o n Oct ober 11, 2001, severing the

case into four separate tri als 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 proces s claims only (for a total of twelve), and f our plaintiffs prosecuting political discrimination, due process and political harassment claims (for a total of eight).

The trial for this f irst g roup began October 12, 2001, andlasted twenty-three days. At the co nclusion 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, 956,40 0. 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 offens ive collateral estoppel to preclude defendants from litigating the defendants' liability for political discrimination anddenial 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 suffic iency 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 ruli n gs, the court's active parti cipation 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.3dat 4- 7; Acevedo I , 30 F. Supp. 2d at 143-45. We summarize those facts3 The 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 appointedDefendant Gonzalez, a fellow PDP mem ber , to be the Director of Human Resources on January 14, 1997. Vera andGonzalez in herite da 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 J anu ary 1997, the municipality employed 229 regular employees, and the parties stipulated prior to trial that "many depart ments were so overstaffed that some employees did not have desks." On April 30, 1996, the Puerto Rico Comptroller's Office publishe d an audit report, M-96-14, indicating that Adjuntas had accruedannual budget deficits of at least $1,000,000 from 1985 to 1990. After Vera took office in January 1997, he co mmiss ioned a second financial audit of the municipality by Reinaldo Ramirez, a certified public accountant. Ramirez presented his report on May-7-

8, 1997, informing cit y offi cials 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 , Ve ra had previouslyhired a Human Resources Consulting firmin February 1997 to prepare a "Layoff Plan for Municipality of Adjuntas Employees" (the "Plan"). The consultants completed the Plan in March 1997, andit received approval from the Ad juntas Municipal Assembly on April 2, 1997 (as required under Puerto Rico's Autonomous Municipalities Act). See 21 P.R. Laws A nn. § 4551, as amended (19 95) ("Law 81"). On April 11, 1997, a copy of the Plan wa s circulated to every municipal employee.

In broad strokes, the Plan (1) enumerated the steps the municipalitywas obliged to un dertake before firing employees (including relocation, retraining, temporary unpaid leave, demotions to vacant positions , and voluntary retirement); (2) establishedan 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-

andhe ordered city officials to implement the Plan. When the dust settledon Octob er 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 tra inin g 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 dis pute regarding the periodpreceding the October 31, 1997, layoffs. The twenty plain tif fs in the first trial group testified that, during this period, the defendants sabotaged their wor king c onditions by denying NPP employees (and only NPP employees) basic amenities, including phone privileges, short work breaks for breakfast, access to restroom faci lities, 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 endor 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 hadcontributed 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 f actual controversy concerning the impl ementation of the Plan. The defendants insisted that th e particular layoff scheme developedin accordance with the Plan was politicallyneutral in both its conception and implement ation . Noting that prior NPP administrations had almost exclusively hired NPP members to fill over a hundred municipal positions in thepreceding 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, Mayo r Ve ra manipulated the Plan to produce di scri minatoryresults in three ways. First, he contravened provisions of the Plan by failing to ser iously consider measures short of outright termination, including relocation, retraining, temporaryunpaid leave, demotions to vacant positions, and4 Article X of the Lay Off Plan provides:

If t he layof f 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 unp aid leaves. To c onsider, additionally, if it is feasible to re trai n 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- vol untary retirement. 4 Second, the layoff scheme developed pursuant to the Plan tied termination to seniority wi thin j ob classifications , rather than seniority across the board. Hypothetically, under th is s cheme, 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 eschewedthe 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), thereb y exa cerbating 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-

hiredthereafter (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 th e in itial roundof layoffs by simply eliminating their job category altogether. For example, if an NPP member employedas a "Citizens' Affairs Specialist" outranked his PDP colleagues on the seniority scale, the municipa li ty would eliminate the Citizens' Affairs Specialist position en tirely, 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 con siderably by the defendants' failure to produce transcripts of the secon d half of the trial. T he de fense 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 te stimo ny on November 6. The informative value of even these tidbits is reduced substantially by the defendants' failure to provide a tra nscrip t 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 dut y up on an appellant to print all of the evidence, good and bad, material to the point h e 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 i nsof ar as the record permits, or may dismiss the appeal if absence of a full transcript thwarts intelligent review. In t his vein, we have held. . . that, should the recordprovided 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 cit ations 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 municipalityto cut jobs on the basis of seniority . . . . The Cou rt 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 qualifiedt o fill the seventy-seven new positions created by the municipalityafter 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 mer its of [a] preverdict challenge to the sufficiency of the evidence on the motion for summary judgment. Such an at t ack 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, anddoes not fo reclose 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.3d492, 500 (1st Cir. 1994) (internal citations omitted). Accordingly, any suffici ency 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 l ater in the discussion. 2. Severance

On October 11, 1997, the district court severed the case into four separate trials, finding that

it is n ot p ractical or just to subject one jurypanel to a trial in which 82 plai ntiffs with varying claims will be testifyi n g. No single jury pa n el would be able to remember all of the testimony and evidence or be able to reach a fair and im part ial verdict at the endof 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 comp elli ng the examination of exper t wi tnesses 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 secondaryimportance. "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 objec ti ons 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 unfair ly prejudicial. We can dispense with this argument quickly. The decision to separate parties or cl aims is a case management determination "peculiarly within the discretion of the trial court," Gonzalez-Marin v. Equitable Life Assurance Socy. , 845 F.2d1140, 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 defere ntial standard of review -- the circumstances of this case compel the conclusion that the division of plaintiffs was a legi timate and feasible means of efficiently conducting this unwieldy litigation.

Defendants' second objection is more troublesome, and implicates the particula r p rocedural device employed by the district court to quarter the proce edi ngs. "Two types of

severances or separations of claims are contemplatedby 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 maybe dropped or added by order of the cou rt on motio n of any pa rtyor of its own initiative at any stage of the action and o n such terms as are just. Any claim against a party may be severed andproceeded 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 orde r 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 terminat ing 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 (3 d Cir. 1999); 9 Wright & Miller, Federal Practice and Procedure § 2387 (1971) ("Separate tri als us ually will result in

one judgment, but severed claims becom e entirely independent actions to be tr ied, 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' in terc hangeably." 9 Wright & Miller, Federal Practice and Pr ocedur e § 2387; see McDaniel v. Anheuser-Busch, Inc. , 987 F.2d 298, 304 (5th Cir. 1993) . He re, defendants argue that the court committedreversible 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 observedthat it had wide discretion to manage the litigation under either rule, the particular procedural device it e mpl oyed is of paramount importance in this appeal. Because our jurisdiction is limitedto "all final decisions of the district courts of the UnitedStates," 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

se para te trials do not individually produce final judgments, any attempt to apply collateral estoppel to the remaining three trials wouldbe invalid under a Rule 42(b) regime. See NLRB v. Donna-Lee Sportswear Co. , 836 F.2d31, 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 determi nati on 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 verdi ct ', etc." Additionally, in its opinion rejecting defe ndants' 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 observedin 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 All ie d5 There 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 t he Se cond Circuit observedin Wyndham Assoc. v. Bintliff , 398 F.2d 614 (2d Cir. 1968): Rul e 21 . . . provides that "Any claim against a party may be sev eredand proceeded with separately." We believe that this provision authorizes the severance of anyclaim, even without a find ing of improper joinder, where there are sufficient other reasons for ordering a severance. Id. at 618; see Safeco Ins. Co. v. City o f W hite 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 r egard 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 def end ants' challenges-22-

reference evidentiary rulings and/or courtroom exchanges that occurredduring their own case in chief, and hence are procedurally defaultedas 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. Rodrigu ez & 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 on e evidentiary challenge that does merit ou r attention is the defendants' contention that the court improperly admittedevidence about claims not at iss ue -- namely, political harassment claims filed by particular plaintiffs that the court had earlier dismissed. D efenda nts correctly point out that, in some cases, evidence of previously dismissed cla ims ma y 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 cour t's decision to admit this evidence as relevant background"to show the atmosphere in which [plaintiffs] livedand developed since Mayor Vera was elected Mayor." 2. Active participation of the court

Defen dant s allege that at various junctures during the trial the district court inaccurately and prejudicially commented

on the evidence, tr u ncated the defendants' cross-examination of several plaintiffs, andchastised defense witnesses in front of the jury. As we ha ve previ ously 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 eviden ce . . . . 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 demon s trate "serious prejudice" arising fromthe court's particip atio n during plaintiffs' case in chief. This wa s a lengthy and contentious trial featuring dozens of witnesses, numero us s idebar conferences, and a myriad of other-24-

procedural delays arising, inter alia , from the inartful labeling andintroduction o f exhibits, translation difficulties, and a continuing stream of objections from both parties. Under the se challenging circumstances, the court's efforts to accel erat e the pace of the trial with infrequent commentary on the evidence and the occasional prodding of witnesses were amply justifiedand 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 recognizedthat 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, howe ver, were rejected by the district court, which concludedthat "[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 qualifiedimmunity for their allegedly discriminatory actions merelybeca use th ey assert they acted pursuant to [the Layoff6 Where 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 dismisseddefendants' interlocutory appeal from this ruling, determining that we lacked jurisdiction to review the factual grounds for the district court's denial of qualif ied 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 imp lem enting a layoff plan duly approved by the municipal legislature according to seniority would not have bee n apparent to a reasonable official." (citing Harlowv. 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 establishedin 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 ev idenc e led the Jury to conclude that political affiliation was in fact a substantial or motivating factor for Mayor Vera Monroig's andIrma 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 e rrors in the district court's post-verdict denial of qualifiedimmunity. 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 immun ity f rom civil claims for damages, if their conduct at the time of the alleged acts that give rise to t he civil damages "does not violate clearlyestablished statutory or constitutional rights of which a reasonable person would have known." The relevant inquiry "is t h e 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 Inst ruction 53: Reach of Qualifie d

Immunity Even defendants who violate constitutional rights enjoy a qualified immunity that protects them from lia bili ty for damages unless it is further demonstrated that their conduct was unreasonable with respect to clearly establishedrights and laws at the time of the conduct at issue. After proposing these inst ructions, defendants concede that they failedto 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 1 8, 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 Advisor y Comm ittee 62-68 (March 14, 2001), revisedJul. 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 ultimatelycommitted 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. Bre eden , 280 F.3d 1308, 1318 (11th Cir. 2002); see Singh v. B lu e Cross/Blue Shield of Mass. , 308 F.3d25, 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

r evers ible 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. Fir st, th ey 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 . I f so, we then ask whether the contours of the right were sufficiently establishedat the time of the alleged violation. Finally, we ask whether an objectivelyreasonable official would have believedthat 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 characterizedt he " 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 w hich t he relevant "legal rule" is to be identified . . . . If [referring to the right to due process of law] the test of "clearly estab l ishedlaw" 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 . P laintiffs would be able to convert the rule of qualified immunity that our cases plainlyestablish into a rule of virtually unqualifiedliability simply by alleging a violation of extremely abstract rights. Id. at 639; see Rivera-R amos 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 iss ue -- the pertinent discussion is geared exclu sive ly to demonstrating the absence of-29-

anyclearly established rule regulating the im pl ementation of seniority-basedlayoff 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, t heir argument is unavailing. The clearly establishedlaw both in this circuit and beyond precludes government officials from discharging civil or "career" employees for politically-motivatedreasons. See Branti v. Finkel , 445 U.S. 507 (1980); Elrodv. Burns , 427 U.S. 347 (1976) ; Roldan-Plumey , 115 F.3dat 65-66; Jirau-Bernal v. Agrait , 37 F.3d 1, 3 (1st Cir . 1994) . The complexity of the municipal ity' s workforce reduction plan suggests that it was conceived by the Adjuntas munici pal assembly as a politically neutral means of responding to the city's fiscal crisis. Yet the jury could reasonably have foundthat 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

asse r tion 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 impl ementation of the Plan, defenda nts misconceive the salient inquiry under the-30-

thirdprong 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 disc rim ination claim: "The plaintiffs allege that they were terminatedbecause of their political affiliation, a constitutional claimthat has no meaning absent the al legati on of impermissible motivation." Acevedo II , 204 F.3d at 11; see Stella v. Kelley , 63 F.3d71, 74-75 (1s t Cir. 199 5). Here, as plaintiffs point out, "the jury verdict necessarily rejected the claim that the seniority systemwas a politically neutral methodfor 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 prot ection in discretionary determinations where an official reasonably believed that he acted reasonably although [he] was later found to have act edunlawfully." The district court aptly disposed of thi s 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 need ed t o safeguard a United States Vice President, because the degree of danger posed bythe 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 theycouldhave 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:

I n reviewing the denial of a motion fo r directed verdict or for j udgmen t notwithstanding the verdict "we must examine the evidence in the lig h t 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. Se c'y of Labor , 88 F.3d 98, 108 (2d Cir. 1996) ("[T ]h e sufficiencyof 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.3dat 11, we must conclude that defendants have procedurally defaulted their sufficiency of the evidence challenges.-33-

3. Damages

Rule 59(e) of the F eder al Rules of Civil Procedure permits a party aggrieved by the jury verdict to move "to alter or amendthe 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.'" Anthonyv. G.M.D. Airline Servs., Inc. , 17 F.3d 490, 493 (1st Cir. 1994) (quoting McDonaldv. Fed. Labs., Inc. , 724 F.2d 243, 246 (1st Cir. 1984)). The review of a preserved challenge to a p unitiv e 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

r ecog nize that "[t]ranslating legal damage into money damages -- especiallyin cases which involve few significant i tems of

me asurable economic loss -- is a matter peculiarly withi n th e 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 a war ded."); Segal v.-34-

Gilbert Color Systems, Inc. , 746 F.2d78, 81 (1st Cir. 1984) ("This court has consistently declinedto play Monday morning quarterback in reviewing a jury's ass essment 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 v e rdict was not against the weight of the evidence. Considering the significant disruptions which Defendants' actions caused the Plaintiffs' lif estyles, the Court does not find that th e compensatoryand punitive damages award for each individual Plain tiff . . . 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 als o rai se 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.7 The individual damage awards for each plaintiff are too

lengthy to list here. As a general matter, t he re was some uniformity among the damage awards. For category (1), all twenty plaintiffs received $75,000 in compensatory damages fromDefendant Vera an d $75,000 from Defendant Gonzalez. Every plaintiff also rec eive d$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 h arassm ent, 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. Byway 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 anddue process injuries, the jury award contained all of the above components except (2). 7required 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 norma l injuries a ssocia ted with removal from a secure job -- lost earnings, pain and suffering associated with unemployment, lost future income, etc. Defendants cont end that their alleged violation of defendants' F irs t Amendment rights resulted in preciselythe same harms. Because the jury essentially compensated plaintiffs for their unemploymen t inju ries 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. Dis t. v. Stachura , 477 U.S. 299, 313 (1986). The Supreme Court elaborated in Stachura that8 Puerto 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 recruitme n t 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 prin cipl es derived from the common law of torts . . . . Congress adoptedthis common-law systemof recovery when it established liabilityfor "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, a ny 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 rights 8 i n their career employment positions. Specifically, plaintiffs argue that

because career employment carries with it an expectancyof 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 andback pay are valid elements of a compensatory damage award under section 1983. Indeed, "compensatory damages may include not only o ut-o f-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. R obert 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 tha t the jury apportioned its compensatory damag e aw ards between the First Amendment and Fourteenth Amendment violat ion s, plaintiffs refer us to the "Pol i tical 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 m o tivating 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 maychoose to award damages for a violat ion of due process. If you answered-39-

'YES' to the previous ques tion [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 hadfound defendants guilty of either a due process violation or a First Amendment violation, but not both, plaintiffs would still be entitledto 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 duplic ative damage instruction was worded so as to suggest that the relevant "injury" that could not be doubly c ompensat ed was the violation of a constitutional right, rather than an actual loss or harm.

In awarding damages you should be careful not t o award duplicate damages. Plaintiffs ar e enti tl edto collect full compensation for t heir injuries if proved, but they mus t no t collect more than once for the same wrong. .

. . Again, each plaintiff is ent itled to collect full com pens ation for his or her injurybut the plaintiff must not collect more than once for the same wrong.-40-

(emphas is a dded). The court's use of the term "wrong," read in conjunction wit h a sp ecial verdict form divided into separate section s for each constitutional violation, may have led the jury t o conceptualize the term "injury" as the violation of a constitutional right vel non , rather than an actual loss causedby the vi olat ion 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 lia bility . We acknowledge, therefore, that t he la ck of clarity in the court's dup licative damages instruction was obvious error which ma y potentiallyhave resu lt ed in an improper award of double damages.

We must now decide whether defendants are entitled to relief in the face of this error. Defenda nts were on notice throughout the proceedings that plaintiffs were seeking recovery for both due process violations and po litical discrimination. To the extent that a jury award on both claims would be du plica tive, the proper practice is to ensure that the verdict form is structured so

as to allow the jury to recompense the plain tiffs' i njuries just

on ce. As we observed in Brittonv. Murphy , 196 F.3d 24, 32 (1st Cir. 1999):

The prob le m of guarding against double recovery is a familiar one when mul tiple-41- cl aims exist but separate damages on e ac h wouldbe partly or wholly duplicative. If the partie s explicitly agree that the damages should be t he same on each claim, then it is easy enough to constr uct speci a l i nt errogatories that identify separate bases for liability but have only a single line for damages. On the other hand, when the amounts awardedcouldconceivably differ depending on the claim but may also involve so m e overlap, verdict forms so metimes require a separate specification of damages for each cla im o n wh ic h the jury determines liability, leaving it to the judge to make the appropriate adjustments to avoid double recovery. Id. (internal citation omitted). De fe ndants could also have requestedjury inst ructio ns 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 deliveredits sizeable verdict, defendants never submitted a post-trial motion challenging the actual award as duplicative. Accordingly, we review t he appellants' allegation of duplicative damages for plain erro r only. See Chestnut , 305 F.3d at 20 (ver dict form) ; M & I Heat Transfer Prods. v. Gorchev , 141 F.3d 21, 23 (1st Cir. 1998) (jury instructions); A dvisor y Committee on the Federal Rules of Civil Pr ocedure, 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 o f justice . . . [or] where the error seriously affected the fairness,9 In City of Newport v. Fact Concerts, Inc. , 458 U.S. 247

(1981), the Supreme Court ruledthat municipalities are immune from punitive damages under 42 U.S.C. § 1983. See id. at 271. -42- integrityor public reputation of judicial proceedings.'" Rocafort

v. IBMCorp. , 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 m arked re luctance to find plain error in civil cases: "[E]specially in a civil case this is a very hard test to m eet because over and above plain error, it requires a showin g 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, 10 0-01 (1st Cir. 2001), cert. denied , 123 S.Ct. 118 (2002)).

Defendants' clai m 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 trivia lizing t he consequences of this ve rdict for the municipality of Adjuntas and the individual defendant s. The jury returned a verdict of $ 6,956,400, of which $6,356,400 (the total jury award, excludi n g punitive dama ges) 9 was against a municipality whose entire annual budget in 1996-97 was only$4,529,327. See Exhibit 2, Defendants' Statement of Unc ontes ted Facts (July 17, 1998). Moreover, this figure reflects the damage s owe d only to the first twenty plaintiffs; sixty-two plaintiffs r emain in the queue. But "prejudice," as that term is incorporated into the plain error test,-43-

require s a stro ng causal link between the harm to the aggrieved partyand the legal error. At best, defendants can only demonstrate the possibilitythat faulty jury instru ctions 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 awarde d under each theory doubly

re c ompensedclaimants for their actual losses, while appellees ins ist that the jury compensated plaintiffs for their tota l los s 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 structu redto preclude the possibility of a double damage awar d , these possibilities are fatal to a request for plain error relief. The "prejudice" component of the plain error standard impli es a stringent demonstration of causation. Thus, in Chestnutv. 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 damag es ] there almost certainlywould 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 ( em phasis added). Here, although we can specu late that the court's instructions mayhave led the jury to erroneously award duplicative damages, we have no co ncrete 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 awardedto each plaintiff, andargue mathematically that the totals i n every case exceed the lost wages (reduced by the app ropriat e percentage for mitiga ti on). As a threshold matter, the magnitude of the claimed discrepancy is sufficiently sma ll (ranging from $2,607.94 to $10,900.00) to preclude a finding that the verdict was "grosslyexce ssive, 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; Sega l , 746 F.2d at 81. Furthermore, the jury was entitled to consider anys econdary economic injuries flowing fromthe plaintiffs' loss of earnings and employment benefits. See Stachura , 477 U.S. at 307; Davet , 973 F.2d at 29. For example, n early ev ery claimant testified that they reliedentirely on their monthly earnings to cover the expenses of10 Plaintiffs 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 decisi on 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 forcedto seek additional bank loans, dip into their savings, andmake 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 ha ra ssment, pain and suffering resulting from dismissal, and pu ni tive 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 P roperty Corp. , 108 F. 3d 42 5, 428 (1st Cir. 1997). The jury's awards of non-economic compensatorydamages and punitive damages were moderate in scope and well within acceptable bounds. The indi vidualiz ed nature of the twentyverdicts reflects the jury' s careful attention to the peculiar circumstanc es of each plaintiff, and evinces the jury's desire to craft an appro priate aw ard 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 (w it h respect to the remaining sixty-two plaintiffs) the following three issues that were determinative of defendants’ liability in the first trial: (1) Tha t political affiliation was a substantial or motivating factor in the implementation of the lay-off plan. (2) That Defendants violated Plaintiffs’ due proce ss rights byimplementing the lay-off plan in a discr i minatory fashion. (3) That Plaintiff s were discharged from their career positions with the Municipality of Adjuntas on account of t heir political affiliation; and other individuals we r e employedto perform their duties under different titles, andunder different programs, in violation of t he law. Acevedo-Garcia , 213 F. Supp. 2dat 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 cour t’ s application of collateral estoppel, raising a host of objections that we consider in due course.

As a thresh old matter, neither party disputes our jurisdiction to review the cou rt 's application of collateral estoppel. This cas e pres ents unique circumstances, however, that call into question the ripeness of the collateral estoppel question. See P ustell v. Lynn Pub. Sch. , 18 F.3d 50, 51 n.1 (1st Ci r. 1994 ) (observing that we may raise issues of jurisdi ction sua sponte). Generally, a court will determine that c ollate ral estoppel is-47-

appropriate within the very proceeding where the ruling is to have its preclusive effect. Here, the district court annou nc ed its attenti on to apply collateral estoppel at the end of Trial 1, but the court's ruling will ha ve no pr eclusive 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 court s from issuing advisory opinions. A court may not de cid e questions that cannot affect the right s of lit igants 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 fou r cases comprising this matter began as a single lawsui t . The boundarie s tha t 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 chos e to iss ue its collateral estoppel

ru ling 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 subseque nt tr ials -- has entered a final order decreeing that non-m utual offensive collateral estoppel will be enforced in the subsequent three cases. The contours o f the ord er are clear from its language, and the atto rneys who litigated the issue below and now on appeal are th e 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 est oppel in the subsequent trials is a certainty beyond any specul atio n. Accor dingly, there is no compelling reason for us to delayou r review of the collateral estoppel ques tion unt il the judgment in Trial 2 is appealed. If, as a consequence of sidest epping th e collateral estoppel i ssue n ow, we belatedly reversed the district court's estoppel ruling at that late stage, we would unnecessarily voida burdensome litigation that is currently slated to invol v e twentyplaintiffs and forty-eight claims. Disclaiming jurisdiction

over the district court's collateral estop pe l 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 re ma ining cases requires that w e address these arguments in the interest of sound judic ia l administration.").11 In the case at bar, the application of collateral estopp e l

is “non-mutua l” i n the sense that the sixty-two plaintiffs benefitting from the pre-determi nation 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 -- his torically spawnedthe greatest misgivings among jurists. Prior to the Supreme Court’s decision in Blonde r- Tongue Labs. v. Univ. of Ill. Found. , 402 U.S. 313 (1971), many courts adhered to the doctri ne o f “mutu ality of estoppel,” which ordained that “unless both partie s (or their privies) in a secondaction are bound by a judgment in a previous case, neither party (nor his privy) in the second action mayuse 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

. . . i s rendered (a) cannot directly or collaterally attack th e 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 Blon de r-Tongue Court determined that the traditional rationales12 According 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 r isk of proliferating the consequences of a mis take n 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 mutualityrequirement 12 were unavailing in the face of weightier institutional concerns:

In any lawsuit where a defendant, because of t he mutuality principle, is forced to presen t a complete defense on the merits to a clai m which the plaint if f has fully litigated and lost in a prior acti on , there is an arguable misallocation of resources. To the extent the defendant in the second suit may not win b y a sserting, without contradiction, that th e plaintif f h ad fully and fairly, but unsuccessfully, litigatedthe same claim in the prior suit, the defendant's time andmoney are divertedfromalternative uses -- productive or otherwise -- to relitigation of a decided issue. And, still assuming that the issue was resolvedcorrectly in the first suit, there is reason to b e concerned about the plaintiff's allocation of resources. Per mi tting repeated litigatio n of t he same issue as long as the su pplyof unrelated defendants holds o u t reflects either the aura of the gaming table or “a lack of discipline andof disinterestedness on the par t of t he lower courts, hardly a worthyor 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 ap plication of non-mutual defensive collateral estoppel. Collateral estoppel is “defensive” when wielded by a de fendant to bar plaintiffs from relitigating an issue(s) previouslydecided in h is favor in a suit involving other plaintiffs. For t he reason s articulatedby Justi ce White, permitting litigants to assert collateral estoppel in a defensive pose pr om otes efficiency by discouraging specu lat ive lawsuits and conserving the resources of defendants.

Non-mutual collateral estoppel may be asserted offensively

as well. That is, where, as here, plaintif fs seek to use issue preclusion to tie the defenda nt s' 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 colla ter al estoppel do es not promote judicial economy in the same manner as defensive use does. Defensive use of collateral estoppel precludes a plaintiff from re li tigating identical issues by merely "switching adve rs aries." Thus defensive collateral estoppel gives a plaintiff a strong incentive to j oi n all potential defendants in the first action if possible. Offensive use of collateral estoppel, on the other hand, creates precise ly the opposite incentive. Since a plaintiff will be able to rely on a p re vious judgment against a defendant but will not be boundby that judgment if the defendant wins, the plaintiff has every incentive to adopt a "wait and see" attitu de, in the hope that the first action by another plaintif f will result in a favorable judgment. Thus offensive use of collateral estoppel will likely increase rather than decrease the total amount of liti ga tion,-52- since potential plaintiffs will have everything to gain and nothing to lose by not intervening in the first action. Asecondargument 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 nomin al damages, he may have little ince nti ve to defend vigorously, particularlyif future suits are no t foreseeable. A ll owing offensive collateral e stoppel may also be unfair to a defend ant i f the judgment r elied upon as a basis for the estoppel is itself inconsistent wit h one or more previous judgments in favor of th e de fe ndant. Still another situation where it might be unfair to apply offensive estoppel is where th e second action affords the defendant procedural op portunities unavailable in the first action that could r ea dily 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 t raditi onal collateral estoppel doctrine in Parklane Hosierybyaccording district courts broaddiscretion 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 broaddiscretion to determine when it should be applied. The general ru le should be that in cases where a plaintiff c ould easily have joinedin the earlie r a ction or where, either for the reasons discussed above or for other reasons, the application of offensive estoppel wouldbe unfair to a defen dant, a trial judge shouldn ot 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 c ourt 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 pro spect of multiple trials was eminentlyforeseeable 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 materi al s filed by appellants in this appeal, confirm that defendants zealously contested(and continue to contest) the issue of liability to the first plaintiff group. Finall y, because the court severed the proceedings on the eve of trial, defendants have fullyavailed themselves of discovery and other pre-trial procedures with respect to all eigh ty -two plaintiffs. Accordingly, there is little risk that the subsequent proceedings will "afford [] the defendant[s] procedura l opportunities unavailable in the first action that could readily cause a different result ." Id. The-54-

district court's stated in te nt to preside over all four trials further suggest s 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 attentio n to the most important question -- whether defendants "receiveda full and fair opportunity to litigate their claims" in the first trial. Pa rkland Hosiery , 439 U.S. at 332. Our prior jurisprudence enumerates four fa ctors that we consider in this regard: (1) an identity of issues (that is, that the issue sought to be prec luded is the same as that which was involved i n the prior proceeding), (2) actualityof litigation (that is, th at the point was actually litigated in the earlier proceeding), (3) finality of th e earl ier resolution (that is, that the issue was determ ined b y a valid and binding final judgment or order), and (4) the centrality of the ad judication (that is, that the determination of the issue in the prior pr oc eeding was essential to the final judgment or order). Faigin v. Kelly , 1 84 F.3d 67, 78 (1st Cir. 1999); see Grella v. SalemFive 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 fac tor, the party seeking to impose issue precl usion must demonstrate that the issue to be given13 We reprod uce the three issues once more for the reader's

benefit: (1) That political affiliation was a substantial or motivating fact or in the implementation of the lay-off plan. (2) That Defendants violated Plaintiffs’ due process rights byimplementing the lay-off p lan i n 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 employedto perform their duties under different titles, and other different programs, in violation of the law. -55- preclusive effect was actually litigatedin the prior proceeding. 13 Without excluding the possibility of other problems with the scope of the court's collateral estoppel orde r, we ci te by way of illustration the po li tical discrimination claims of plaintiffs. Those First Amendment claims implicate the burden-shifting framework

s et 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 theyengaged in

co ns titutionally protected activities, and that this protected conduct was a substantial or motivating fac tor i n an employer's adverse employment action. If plaintiffs satisfy the first prong, the second prong of Mt. Healthyshifts the burde n 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 engagedin the protected conduct. Id. a t 278; Lewis , 321 F.3d at 219.-56- The record indicates that eighty-two plaintiffs b ro ught claims against the de fendants, 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, applicat ion of the Mt. Healthy defense necessarily varies w ith the circumstances of the individual plaintiffs. Certain plaintiffs may have held municipal positions that were so superfluous or duplicative of the duti es assignedto other employees that defendants could reasonably argue that these plaintiffs would have been terminated regardless of their political affili at ion. Put differently, the defendants might be able to establish that the position of certain municipal employees

we re suf ficiently precarious that they would have been eliminated under a properly moti vat ed or improperly motivated implementation of the plan. This contention has never ac tually b een litigated because it is necessarily unique t o the circumstances of the particular pl aintiffs involved in Trial 2. Yet the second clause of the t hird issue designates for preclusive effect the "established" fact that "other individuals were employed to perform their dutie s under different title, and other different programs, in violation of the law. " In our vi ew, this ruling runs afoul of the actual litigation requirement.

Our ruling is not intended to sugge st that any flaws in the collateral e stoppel 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 or der tha t purports to preclude any liability defense in Trial 2. Where even

one issue of liability must be made available to defendants in the secondtrial, granting preclusive effect to the other issues may not

r esult in efficiency gains because litigation of the "live" issu e mayrequire introduction of some of the same evidence pertinent to the estopped issues. See 18A Wright, Miller & Cooper § 4465.3 ("The needto relitigate individual issues that overlap the common issues may p rovide a special reason to deny preclusion -- little if an y trial time will be spared . . .").

Still, f or the reasons enumerated in the preceding backgrounddiscussion, we acknowledge that non-mutual o ff ensive collateral estoppe l may well be a useful and appropriate trial management device in the second trial. Our ruling is not intended to discourage its application. However, anyrenewed consideration of that doctrine by the tr ia l court must be grounded in the proceedings of Trial 2. Specifically, the judge a nd the parties shouldrevisit the course of proceedings in Trial 1, and the issues andproposed proof in Tr ial 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 secondtrial,-58-

we cannot determine with the necessary certitude tha t defendants have had a full and fair opportunity to litigate all the r elevant dimensions of their liability defense. Accordingly, we must vacate the court's collateral estoppel order. IV. The unique circumstances of this case presen ted t he district court with a number of complex questions in areas that have previouslyreceived little a ttention in this circuit. The court correctlyresolved most of these issues in compreh en sive written decisions that greatly aided our review on appeal. The court also acquitteditself admirably in managing this di fficult 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.