Filed: Sep. 12, 2012
Latest Update: Mar. 26, 2017
Summary: CENTRAL PENSION FUND OF THE INTERNATIONAL UNION OF OPERATING, ENGINEERS AND PARTICIPATING EMPLOYERS ET AL.4, The attorneys' fees at issue here graphically illustrate, this point: they include remuneration for legal work performed, before any formal litigation was commenced.F.3d at 695-96;
United States Court of Appeals
For the First Circuit
No. 11-1944
CENTRAL PENSION FUND OF THE INTERNATIONAL UNION OF OPERATING
ENGINEERS AND PARTICIPATING EMPLOYERS ET AL.,
Plaintiffs, Appellants,
v.
RAY HALUCH GRAVEL CO.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Thompson, Selya and Dyk,*
Circuit Judges.
Kenneth L. Wagner, with whom Blitman & King LLP was on brief,
for appellants.
José A. Aguiar, with whom Doherty, Wallace, Pillsbury and
Murphy, P.C. was on brief, for appellee.
September 12, 2012
*
Of the Federal Circuit, sitting by designation.
SELYA, Circuit Judge. This appeal requires us to resolve
two issues of first impression in this circuit. The first, which
has divided our sister circuits, relates to judgment finality. The
second relates to what happens when an employer fails to keep
appropriate records concerning work covered by the benefit-
remittance provisions of a collective bargaining agreement. After
careful consideration, we hold that the appeal is timely as to all
issues and that both the judgment on the benefit-remittance claim
and the judgment awarding attorneys' fees are open to appellate
review. We further hold that these judgments must be vacated.
Consequently, we remand to the district court for further
proceedings consistent with this opinion.
I. BACKGROUND
We briefly rehearse the background and the travel of the
case, reserving more exegetic detail for our treatment of
particular issues.
The defendant, Ray Haluch Gravel Co., is a landscape
supply company in Ludlow, Massachusetts.1 Over time, its primary
operations have morphed from site work and excavation to the sale
of landscaping products — but it continues to perform both types of
work.
1
There is some confusion in the record as to both the number
of defendants originally sued and the correct corporate name of the
employer (which is, for all practical purposes, the sole
defendant). For simplicity's sake, we treat Ray Haluch Gravel Co.
as the employer and defendant.
-2-
Beginning in 1988, the defendant entered into a series of
collective bargaining agreements with the International Union of
Operating Engineers, Local 98 (the Union), which maintains a hiring
hall where employers may either seek Union referrals or directly
hire workers. The collective bargaining agreement at issue here
(the CBA) took effect on May 1, 2005 and expired on April 30, 2011.
Under it, the defendant remitted contributions to an array of
Union-affiliated benefit funds (the Funds) primarily on behalf of
a single employee: Todd Downey. All of the Funds are employee
benefit plans regulated under the Employee Retirement Income
Security Act (ERISA), 29 U.S.C. §§ 1001-1461.
In 2007, the Funds commissioned audits of the defendant's
books. Armed with the completed audits, they demanded additional
remittances for previously unreported work allegedly covered by the
CBA. The defendant demurred, and the Funds sued the defendant in
the federal district court.2 Pertinently, their complaint sought
recovery of both unpaid remittances and attorneys' fees.
Following a three-day bench trial, the lower court took
the matter under advisement and requested briefs (covering, inter
2
The Funds include Central Pension Fund of the International
Union of Operating Engineers and Participating Employers;
International Union of Operating Engineers Local 98 Health and
Welfare, Pension and Annuity Funds; Local 98 Engineers Joint
Training, Retraining, Skill Improvement, Safety Education,
Apprenticeship and Training Fund; and International Union of
Operating Engineers Local 98 and Employers Cooperative Trust. Each
of the Funds sued through its appropriate fiduciary or fiduciaries.
The Union itself is also a named plaintiff.
-3-
alia, the claim for attorneys' fees). In line with this briefing
order, the plaintiffs — having been granted extra time for this
purpose — filed a motion for attorneys' fees.
On June 17, 2011, the district court issued an order
resolving the claim for unpaid remittances. It awarded the
plaintiffs $26,897.41 referable to covered work performed by a
specific employee (Martin Jagodowski), but denied recovery for any
other work. Int'l Union of Oper'g Eng'rs, Local 98 Health &
Welfare, Pension & Annuity Funds v. Ray Haluch Gravel Co. (Haluch
I), 792 F. Supp. 2d 129, 138 (D. Mass. 2011). The court directed
the entry of judgment for the plaintiffs,3 explaining that it would
rule on the claim for attorneys' fees in a separate decision. Id.
On July 25, 2011, the court resolved the claim for
attorneys' fees, awarding the plaintiffs $34,688.15. Int'l Union
of Oper'g Eng'rs, Local 98 Health & Welfare, Pension & Annuity
Funds v. Ray Haluch Gravel Co. (Haluch II), 792 F. Supp. 2d 139,
143 (D. Mass. 2011). At the end of its order, the court noted for
the first time that "[t]his case may now be closed." Id. On
August 15, 2011, the plaintiffs appealed the decisions in both
Haluch I and Haluch II.
3
The court did not direct the clerk to enter this judgment as
a partial final judgment. See Fed. R. Civ. P. 54(b).
-4-
II. ANALYSIS
We subdivide our analysis into three segments. First, we
discuss the timeliness of the appeal vis-à-vis the lower court's
decision in Haluch I. Second, we consider the plaintiffs' plaint
that the district court misconstrued the CBA and, in the bargain,
did not appropriately resolve the claim for unpaid remittances.
Finally, we turn to the claim for attorneys' fees.
A. Timeliness of the Appeal.
The timeliness of an appeal in the federal courts is
governed by the provisions of Rule 4 of the Federal Rules of
Appellate Procedure. With narrow exceptions not relevant here
(such as when the federal government is a party), an appeal in a
civil case must be filed within either thirty days of the entry of
a final judgment or thirty days after the district court's denial
of one of several post-judgment motions. Fed. R. App. P.
4(a)(1)(A), (a)(4). These time limits are mandatory and
jurisdictional. See Budinich v. Becton Dickinson & Co., 486 U.S.
196, 203 (1988).
In the case at hand, the plaintiffs filed their notice of
appeal within thirty days following the district court's entry of
judgment with respect to the claim for attorneys' fees. This was,
however, more than thirty days after the district court had entered
its previous and separate judgment as to the claims for unpaid
remittances. The question reduces, then, to whether the notice of
-5-
appeal was timely as to the first judgment. This, in turn,
requires us to determine whether the first judgment was a final
judgment. See 28 U.S.C. § 1291 (conferring on the courts of
appeals jurisdiction over "final decisions of the district
courts").
The point of embarkation for this inquiry is Budinich, in
which the plaintiff, after prevailing on an employment claim,
sought to recover counsel fees under a state fee-shifting statute.
486 U.S. at 197. The plaintiff, who was dissatisfied with the
outcome of the case on the merits, did not file a notice of appeal
until after the district court resolved the claim for attorneys'
fees. That notice was filed more than thirty days after the entry
of judgment on the merits. See id. at 197-98.
The Budinich Court ruled that the appeal was untimely as
to the merits of the employment claim. See id. at 199-203. It
started with the conventional wisdom that a final decision under
section 1291 is "one which ends the litigation on the merits and
leaves nothing for the court to do but execute the judgment." Id.
at 199 (internal quotation marks omitted). It then noted that, in
general, "a claim for attorney's fees is not part of the merits of
the action to which the fees pertain." Id. at 200. In the usual
case, "[s]uch an award does not remedy the injury giving rise to
the action, and indeed is often available to the party defending
against the action." Id. The judgment on the merits was,
-6-
therefore, final when rendered — the fees issue was wholly
collateral — and the appeal should have been taken within thirty
days thereafter. Id. at 203.
The defendant insists that Budinich is controlling here:
in its view, the Budinich Court crafted a bright-line rule. But
this characterization begs the question of where and how the line
should be drawn. We must explore that conundrum.
The decisions of the courts of appeals on this point are
in disarray. Some have held that Budinich applies to all claims
for attorneys' fees. See, e.g., O & G Indus., Inc. v. Nat'l R.R.
Pass. Corp., 537 F.3d 153, 167-68 & n.11 (2d Cir. 2008); United
States ex rel. Familian Nw., Inc. v. RG & B Contractors, Inc.,
21
F.3d 952, 954-55 (9th Cir. 1994); Cont'l Bank, N.A. v. Everett,
964
F.2d 701, 702 (7th Cir. 1992); First Nationwide Bank v. Summer
House Joint Venture,
902 F.2d 1197, 1199-1200 (5th Cir. 1990).
Other courts have held, on various rationales, that contractual
claims for attorneys' fees may fall beyond the Budinich line. See
Carolina Power & Light Co. v. Dynegy Mktg. & Trade,
415 F.3d 354,
356 (4th Cir. 2005) (concluding that a claim for attorneys' fees
"not limited to expenses incurred during the underlying litigation
is an element of damages" and that, therefore, "a judgment that
leaves open such a claim is not final and appealable"); Brandon,
Jones, Sandall, Zeide, Kohn, Chalal & Musso, P.A. v. MedPartners,
Inc.,
312 F.3d 1349, 1355 (11th Cir. 2002) (per curiam) (holding
-7-
that "a request for attorneys' fees pursuant to a contractual
clause is considered a substantive issue; and an order that leaves
a substantive fees issue pending cannot be 'final'"); Justine
Realty Co. v. Am. Nat'l Can Co., 945 F.2d 1044, 1047-49 (8th Cir.
1991) (explaining that attorneys' fees are part of the merits when
sought under contract for, in part, pre-litigation costs incurred
as a result of breach). At least one court has put a foot in each
camp. See Gleason v. Norwest Mortg., Inc.,
243 F.3d 130, 137-38
(3d Cir. 2001) (concluding that certain contract-based attorneys'
fees are outside the scope of Budinich but finding "no difference
. . . for § 1291 finality purposes, between payment of attorneys'
fees to a prevailing party under statute and payment . . . under
the contract"). We have not yet had occasion to pass upon this
issue.
We do not believe that Budinich should be read
mechanically to apply to all claims for attorneys' fees, whatever
their genesis. Such a mechanical reading overlooks the Supreme
Court's acknowledgment that "[i]f one were to regard the demand for
attorney's fees as itself part of the merits, the . . . . merits
would then not have been concluded, and § 1291 finality would not
exist." Budinich, 486 U.S. at 200 (emphasis in original). This
acknowledgment unmistakably signals that, although the Budinich
Court determined that attorneys' fees generally should be
considered a collateral matter, they may sometimes be considered as
-8-
part of the merits. Cf. Osterneck v. Ernst & Whinney, 489 U.S.
169, 175-77 (1989) (holding that prejudgment interest is part of
the merits, distinguishing Budinich, and explaining that "as a
general matter, a request for attorney's fees is not part of the
merits of the underlying action because such fees are not part of
the compensation for the plaintiff's injury but traditionally have
been regarded as an element of costs awarded to the prevailing
party").
Where, as here, an entitlement to attorneys' fees derives
from a contract rather than from a statute, the critical question
is whether the claim for attorneys' fees is part of the merits. In
this instance, the plaintiffs brought suit, at least in part, to
enforce certain provisions of the CBA. That agreement provided for
the payment of attorneys' fees as an element of damages in the
event of a breach. Throughout the litigation, the plaintiffs,
pursuant to the terms of the CBA, sought to recoup the attorneys'
fees incurred as part of their collection efforts. These included
fees for legal services rendered prior to suit. Viewed through
this prism, the attorneys' fees must be considered an element of
the plaintiffs' contractual damages. It follows that when the
district court entered judgment only for the unpaid remittances and
explicitly left open the claim for attorneys' fees, the damages
award was incomplete and the judgment was not final. A judgment as
to liability that does not resolve the question of damages is not
-9-
a final judgment within the purview of 28 U.S.C. § 1291 because the
assessment of damages is an element of the cause of action itself.
See Carolina Power & Light, 415 F.3d at 358; Ragan v. Tri-Cnty.
Excav'g, Inc., 62 F.3d 501, 505-06 (3d Cir. 1995).
In an effort to blunt the force of this reasoning, the
defendant argues that, under the CBA, only a prevailing party would
be entitled to attorneys' fees and, thus, this case is on a par
with Budinich. This purported distinction is of little moment
here. The CBA states in pertinent part that "[a]ny costs,
including legal fees, of collecting payments due these Funds shall
be borne by the defaulting [e]mployer." There is no requirement
that suit be brought and, thus, there is no requirement that the
Funds be prevailing parties. For example, the quoted provision
would apply when a fund attempts to collect contributions from an
employer, who, after a period of recalcitrance, yields to the
fund's demands before suit is brought.4
That ends this aspect of the matter. The plaintiffs
consistently have asserted an entitlement to attorneys' fees under
the CBA. Those fees are damages and, as such, are part of the
merits of their contract claim. It follows, therefore, that they
fall beyond the line drawn by the Budinich Court. Because no final
judgment entered until the district court resolved the contract-
4
The attorneys' fees at issue here graphically illustrate
this point: they include remuneration for legal work performed
before any formal litigation was commenced.
-10-
based claim for attorneys' fees, the plaintiffs' appeal is timely
as to all the issues raised.
B. Unpaid Remittances.
We turn next to the claim for unpaid remittances.
Neither the district court's decision to order remittances
referable to Jagodowski's work nor the amount of those remittances
is contested on appeal. The plaintiffs argue, however, that the
district court should have ordered additional payments with respect
to certain unidentified employees.
Whether the defendant was required to remit certain
payments is a matter of contract. See Gastronomical Workers Union
Local 610 & Metro. Hotel Ass'n Pension Fund v. Dorado Beach Hotel
Corp., 617 F.3d 54, 62 (1st Cir. 2010). Federal common law
supplies the substantive rules by which labor agreements are
interpreted. See Allis-Chalmers Corp. v. Lueck,
471 U.S. 202, 211
(1985); Sweeney v. Westvaco Co.,
926 F.2d 29, 36 (1st Cir. 1991)
(Breyer, C.J.). A special gloss applies: a court interpreting a
collective bargaining agreement must take an industry-specific
view, considering "the scope of other related collective bargaining
agreements, as well as the practice, usage and custom pertaining to
all such agreements." Transp.-Commc'n Emps. Union v. Union Pac.
R.R.,
385 U.S. 157, 160-61 (1966); see Senior v. NSTAR Elec. & Gas
Corp.,
449 F.3d 206, 220-21 (1st Cir. 2006). We review the
district court's findings of fact for clear error and its
-11-
conclusions of law (including its interpretation of the CBA) de
novo. See Dist. Lodge 26, Int'l Ass'n of Machinists & Aerospace
Workers, AFL-CIO v. United Techs. Corp., 610 F.3d 44, 51 (2d Cir.
2010); Smart v. Gillette Co. Long-Term Disab. Plan,
70 F.3d 173,
178 (1st Cir. 1995).
"In construing the terms of contracts that are governed
by federal common law, we are guided by common-sense canons of
contract interpretation." Smart, 70 F.3d at 178 (internal
quotation marks omitted). One such canon holds that contract
language is normally considered ambiguous "where an agreement's
terms are inconsistent on their face or where the phraseology can
support reasonable difference of opinion as to the meaning of the
words employed and obligations undertaken." Fashion House, Inc. v.
K mart Corp., 892 F.2d 1076, 1083 (1st Cir. 1989). "If a
contractual provision is not susceptible of reasonable but
conflicting interpretations, it is not ambiguous." Avery v.
Hughes,
661 F.3d 690, 694 (1st Cir. 2011). In the absence of an
ambiguity, contractual language must be construed according to its
plain and natural meaning. Smart, 70 F.3d at 178.
Three articles contained in the CBA are of particular
pertinence here. Article I states that the CBA "shall apply to all
work . . . in connection with all operations usually performed in
the sand and gravel industry, described in Article IV." Article IV
sets out various types of employee classifications. Article VI
-12-
requires benefit-remittance payments "for each payroll hour
. . . for each employee covered by this Agreement."
The district court concluded that the CBA was ambiguous
as to "how employees [were] to be classified" and, relatedly, the
extent to which an employer was required to make contributions
under Article VI. Haluch I, 792 F. Supp. 2d at 136-37 (emphasis in
original). In reaching these conclusions, the court relied heavily
on the fact that Article IV was couched in terms of employee
classifications, not work descriptions per se. See id. at 134-36.
We find the district court's interpretation
insupportable. Its construction of the CBA undervalues the
sensible rule forbidding the "balkanization of contracts for
interpretive purposes." Smart, 70 F.3d at 179. By virtue of
Article I, the CBA applies to covered work; that is, work "in
connection with all operations usually performed in the sand and
gravel industry." Article IV is couched in terms of employee
classifications, but this compendium (for example, the reference to
"Maintenance Mechanic, Operators on shovels, cranes, drag-lines,
bulldozers, plant operators, front end loaders, power leaders of
all types and similar equipment") is obviously intended to describe
covered work. By the same token, the text of Article VI ("for each
payroll hour . . . for each employee covered by this Agreement")
requires remittance for hours of covered work. Viewing these
provisions in context and as a seamless whole, the only reasonable
-13-
interpretation is that an employer must remit benefit payments for
each hour of work covered by the CBA.
Ironically, the district court's resolution of the claim
relating to Jagodowski's benefits fits hand in glove with this
interpretation. The court determined that seventy-five percent of
Jagodowski's time was spent "operating and repairing heavy
equipment such as front-end loaders and bucket loaders" and, thus,
came within the ambit of the CBA. Haluch I, 792 F. Supp. 2d at
136. We think that this determination, which is not challenged on
appeal, indicates the lack of ambiguity and bolsters our
construction of the CBA.
The absence of any material ambiguity is of decretory
significance here. Under both federal common law and labor law, an
unambiguous contract must be enforced according to its tenor.
Senior, 449 F.3d 219. Plain meaning prevails.5
This plain-meaning interpretation casts light on the
plaintiffs' claim that they are entitled to remittances for covered
work performed by unidentified employees. Under ERISA, "every
employer shall . . . maintain records with respect to each of his
employees sufficient to determine the benefits due or which may
5
Because the language of the CBA is sufficiently clear, we
eschew any further inquiry into the broader context surrounding its
execution. See Senior, 449 F.3d at 219.
-14-
become due to such employees." 29 U.S.C. § 1059(a)(1).6 The
statute further provides that "[t]he employer shall furnish to the
plan administrator the information necessary for the administrator
to make the [required] reports." Id.
The evidence presented in the court below indicates quite
clearly that some covered work was done by unidentified employees.
The plaintiffs contend that the lack of required records triggered
a burden-shifting paradigm under which the defendant had to show
which hours represented covered work and which did not. The
district court rebuffed this contention, reasoning that the
plaintiffs did not produce sufficient evidence to support a
shifting of the burden. Haluch I, 792 F. Supp. 2d at 138. In
charting this course, the court distinguished a line of cases
proffered by the plaintiffs on the ground that, in those cases,
"the relevant employees were . . . indisputably performing covered
work, and the employer failed to maintain any records concerning
the work performed"; whereas in this case the plaintiffs adduced
"no evidence . . . indicating that any other classified employee
actually performed covered work under the Agreement after
6
We note that at least one of the plaintiffs is a multi-
employer benefit plan. This feature would appear to call for the
application of section 1059(a)(2) rather than section 1059 (a)(1).
See Bard v. Bos. Shipping Ass'n, 471 F.3d 229, 230 & n.2 (1st Cir.
2006). The parties, however, have argued the record-keeping point
exclusively in terms of section 1059(a)(1), and we accept their
implicit agreement that section 1059(a)(1) is the relevant
statutory provision. See United States v. Bayard,
642 F.3d 59, 62-
63 (1st Cir. 2011).
-15-
Jagodowski left." Id. (emphasis in original). We review the
district court's rulings about the required quantum of proof and
the legal effect of the ERISA record-keeping provision de novo.
There can be no question but that section 1059(a)(1)
requires an employer to document work covered by a collective
bargaining agreement. See Cent. States, Se. & Sw. Areas Pension
Fund v. Cent. Transp., Inc., 472 U.S. 559, 566 (1985); Mich.
Laborers' Health Care Fund v. Grimaldi Concrete, Inc.,
30 F.3d 692,
695 (6th Cir. 1994); Combs v. King,
764 F.2d 818, 822-23 (11th Cir.
1985). Although we have not previously spoken to the question,
several other courts have concluded that an employer's failure to
keep adequate records as required by section 1059(a)(1) may trigger
burden-shifting. See, e.g., Mich. Laborers' Health Care Fund, 30
F.3d at 695-96; Brick Masons Pension Trust v. Indus. Fence &
Supply, Inc.,
839 F.2d 1333, 1337-39 (9th Cir. 1988); Combs, 764
F.2d at 826-27. Under any view, however, such burden-shifting is
not automatic. In a case like this one, in which ERISA-protected
benefit plans seek to enforce remittance requirements, burden-
shifting occurs only when a fiduciary seeking remittance of unpaid
benefit contributions shows both that some employees performed
covered work that was not reported to the benefit plan and that the
employer neglected to maintain adequate records. See Motion
Picture Indus. Pension & Health Plans v. N.T. Audio Visual Supply,
Inc.,
259 F.3d 1063, 1066 (9th Cir. 2001). In such a case, the
-16-
presumption is that the employer is liable for all hours
potentially representing covered work. See Brick Masons Pension
Trust, 839 F.2d at 1338-39. This presumption is rebuttable: to
reduce its liability the employer must separate wheat from chaff
and offer some evidence that will allow a court to calculate the
extent of covered work previously unreported. See Motion Picture
Indus., 259 F.3d at 1066; Combs, 764 F.2d at 826-27.
The burden-shifting paradigm makes good sense. As the
Supreme Court noted in an analogous context, an employer should not
"be heard to complain that the damages lack the exactness and
precision of measurement that would be possible had he kept records
[as required]." Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680,
688 (1946); see Mich. Laborers' Health Care Fund, 30 F.3d at 697
(drawing the same analogy); Brick Masons Pension Trust, 839 F.2d at
1339 (similar). Put another way, an employer cannot evade
responsibility for benefit remittances by the simple expedient of
failing to keep the records that the law requires.
The circumstances of this case trigger the presumption.
At trial, Joanne Martins, the defendant's president and the person
who oversaw its day-to-day operations since 2006, testified that
she had knowledge of work performed by the defendant's employees;
that both the nature and volume of the work performed remained
essentially the same during the period from 2006 to 2011; that she
knew the extent of Jagodowski's duties; that, upon Jagodowski's
-17-
departure in 2006, other employees continued to use and maintain
the equipment he had used; and that no records existed showing
either who used that equipment or the number of hours it was used.
Inasmuch as no remittances were made to the plaintiffs with respect
to the work performed by the unidentified employees after
Jagodowski left, Martin's testimony was sufficient to trigger the
burden-shifting paradigm.
We do not accept the district court's suggestion that the
burden-shifting cases are inapposite here. To begin, the court's
conclusion that the plaintiffs had to show that employees
performing covered work are "classified employee[s]," Haluch I, 792
F. Supp. 2d at 138, is incorrect because, as we have explained, the
focal point of the inquiry contemplated by the CBA is covered work
— not job classifications per se. Even more important, the
district court's reasoning, if endorsed, would destroy the efficacy
of the burden-shifting paradigm. The reality is that an employer
has a strong incentive to underreport the number of covered
employees because underreporting reduces the amount of the
remittances it must make. Cent. States, 472 U.S. at 567; see Brick
Masons Pension Trust, 839 F.2d at 1335-37. A view of the
presumption that would leave the defendant better off if it kept
fewer records rather than more would drain the presumption of any
meaning.
-18-
To sum up, the presumption is that the defendant is
liable "for all hours worked . . . in which [employees] were shown
to have performed some covered work." Brick Masons Pension Trust,
839 F.2d at 1339. The employer, despite its record-keeping lapses,
may offer evidence in an effort either to overcome the presumption
or to limit its effect. In the absence of such evidence, however,
the presumption controls.
Here, the benchmark for the operation of the presumption
is the district court's determination that seventy-five percent of
Jagodowski's work was covered by the CBA. Haluch I, 792 F. Supp.
2d at 136-37. From this determination, it can be presumed that one
or more employees performed Jagodowski's work after he left, that
those employees worked each year the same total number of hours as
Jagodowski, and that seventy-five percent of that work was covered
by the CBA. Accordingly, the defendant is presumptively liable for
the same number of hours of covered work for each successive year
through October 31, 2010 (the last date encompassed by the
plaintiffs' claim).
As we have said, this presumption is rebuttable. So far,
the defendant has not rebutted it. Nevertheless, the validity and
contours of this burden-shifting paradigm have, until now, been a
matter of guesswork within this circuit. Given this lack of
clarity, we think that the fairest course is to vacate the
challenged portion of the district court's decision in Haluch I and
-19-
remand so that the district court, applying the presumption and
considering any countervailing evidence that the defendant adduces,
may determine the amount of remittances owed on account of covered
work performed by unidentified employees. Cf. Pruell v. Caritas
Christi, 678 F.3d 10, 12-15 (1st Cir. 2012) (allowing plaintiffs to
amend their complaint as a result of recent clarification in
pleading requirements).
C. Attorneys' Fees.
The plaintiffs' remaining assignment of error posits that
the district court's award of attorneys' fees was too skimpy. The
district court's fee calculation rested appreciably on the
plaintiffs' lack of success in recovering remittances referable to
unidentified employees. See Haluch II, 792 F. Supp. 2d at 142-43.
Because we have ruled that the plaintiffs are entitled to some
level of payment for this work, see supra Part II(B), a principal
pillar of the district court's calculus has been removed.
Consequently, the fee award will have to be recalculated after the
appropriate amount of unpaid remittances is determined. See, e.g.,
Cordero v. De Jesus-Mendez,
922 F.2d 11, 19 (1st Cir. 1990)
(directing recalculation of fee award in light of changes to award
of damages).
As a practical matter, this circumstance counsels
persuasively against any consideration of the adequacy of the fee
award at this juncture. Courts ought not to venture advisory
-20-
opinions, and there is nothing to be gained by passing upon the
appropriateness of a fee award that must in all events be
recalculated. We therefore deny this aspect of the plaintiffs'
appeal without prejudice to their right to renew it if, upon the
issuance of a reformulated fee award, they remain aggrieved.7
III. CONCLUSION
We need go no further. For the reasons elucidated above,
we hold that the plaintiffs' notice of appeal was timely filed as
to all issues in the case. We vacate the district court's
judgments in both Haluch I and Haluch II, and remand for further
proceedings consistent with this opinion. All parties shall bear
their own costs.
In refashioning the award of overdue benefit-remittance
payments, the district court should reinstate that portion of its
previous award referable to work performed by Jagodowski (a portion
of the award that was not challenged on appeal).
So Ordered.
7
The defendant has filed a cross-appeal with respect to the
award of attorneys' fees (No. 11-1970). By separate order, we have
dismissed that appeal without prejudice.
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