USCA1 Opinion

[Not for Publication]

United States Court of Appeals

For the First Circuit
____________________

No. 95-2227

GERALD W. CLEMENTE,

Plaintiff, Appellant,

v.

ROBERT Q. CRANE, ET AL.,

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Cyr and Lynch, Circuit Judges.

______________

____________________

Richard E. Bachman, with whom John A. King

___________________
_____________

and Hale, Sanders

_____________

Byrnes & Morton were on brief, for appellant.

_______________
Salvatore

M. Giorlandino,

Assistant Attorney

General, with w

_________________________
Scott Harshbarger,
__________________

Attorney

General,

and

Phyllis
N. Crocke
____________________

Assistant Attorney General, were on brief, for appellees.

____________________
OCTOBER 09, 1996
OCTOBER 09, 1996
____________________

LYNCH, Circuit Judge.

LYNCH, Circuit Judge.

The

Commonwealth

of

_____________

Massachusetts State Board of Retirement

Gerald

W.

Clemente's

disability

terminated plaintiff

retirement

and

group

insurance benefits because of his conviction of a crime

years earlier.

Clemente

had been federally

four

prosecuted and

convicted for his involvement in the theft and sale of police

promotional

Scam."

exams, a

See generally
___ _________

(1st Cir.),

scheme

popularly known

as the

United States v. Doherty, 867

_____________
_______

cert. denied, 492

____________

U.S. 918 (1989).

crime, the Board reasoned, involved the

"Exam

F.2d 47

Clemente's

funds or property of

a state agency and so justified the termination of Clemente's

benefits under Mass. Gen. L. ch. 32,

15(1),

(3).

Clemente

did not receive prior notice of the impending termination

of

benefits; nor was he given an

years after the termination,

opportunity to be heard.

after Clemente had appealed the

decision through the state administrative process,

finally held a hearing.

not entitled

an

agency of

the Board

It then determined that Clemente was

to receive the

stopped paying.

Four

benefits the Board

had earlier

The Board also determined that Clemente owed

the

Commonwealth,

the Metropolitan

District

Commission ("MDC"), sums in restitution for his crime.

In

alleging

the

interim, Clemente

procedural and substantive

The district court held

of

Clemente's

benefits

had

filed

this action

due process violations.

that the Board's initial termination

violated Clemente's

-22

constitutional

right to procedural due process and

members were individually liable.

Clemente's federal

received

up

"offset" the

to the

damages were

time of

an

The court determined that

the payments he

amount

owed to

apparently

would have

adequate hearing

damages by the restitutionary

had determined Clemente

crimes,

an

that the defendant Board

amount the Board

the MDC on

greater

and then

account of

than

the

his

damages

suffered.

Clemente

appeals from

primarily of the offset.

complaining

We affirm.

I.

Clemente worked

until

the judgment,

Background

as a

police officer with

the MDC

May 28, 1983, when the Board granted him an accidental

disability

prevented him

retirement

due

to

from working.

his

Clemente

hypertension,

which

thereafter received a

monthly allowance from the State Retirement System as well as

group medical

In

November

insurance benefits

1986,

racketeering charge.

defraud

the

Clemente

He

Commonwealth

for himself and

pleaded guilty

had participated

by

stealing

to

in

police

his wife.

federal

a scheme

to

promotional

exams, giving or selling them to others, and altering scores.

In

1988,

Attorney

the Board

General as

Clemente's entitlement

General

Exam

requested

to

the

to

an

effect

opinion from

of the

pension benefits.

responded in June 1990, advising

Scam scheme, to the

the

State

conviction

The

on

Attorney

the Board that the

extent that it actually succeeded,

-33

was

a crime that involved

MDC funds or

meaning of Mass. Gen. L. ch. 32,

In July

property within the

15.1

1990, without giving

Clemente notice that

such an action was contemplated, the Board voted to terminate

his

benefits

based

upon

its

determination

that

his

racketeering conviction was for an offense which involved the

funds

or property

of

the MDC.

The Board

then

notified

Clemente of its action and ceased paying benefits.

____________________

1.

The relevant portions of Mass. Gen.

L. ch. 32,

as follows:

(1)

Misappropriation of Funds.
__________________________

member

who

has

been

charged

misappropriation of funds or
any

governmental

unit

Any

with the

property of

in which

or

by

15 read

which he is employed

or was employed

at

the time of his retirement or termination

of service

. . . and who files a written

request

therefor

hearing

by the

shall
board .

be

granted

. .

If the

board after the hearing finds the charges

to be true, such member shall forfeit all
rights . . . to a retirement allowance or
to

return

deductions

of his

. .

. to

accumulated

total

the extent

of the

amount so found to be misappropriated and

to

the

extent

investigation,

of

the

if any,

costs

of

as found

the

by the

board. . . .

(3)

Forfeiture
of
Rights
upon
________________________________

Conviction.
__________
after

In no event shall any member

final

involving

conviction

the

governmental
subdivision

funds
unit .

(1)

of

or

of

an

offense

property

. . referred
this

to in

section,

to

allowance

or a return of his accumulated

full

be

entitled

total deductions

receive

of a

retirement

. . . unless

restitution

for

and until
any

misappropriation has been made.

such

-44

Clemente

Appeal Board,

to the

directed the

requested.

Clemente of its intent

and then held

to the

Contributory Retirement

which, in September 1992,

Board and

Clemente so

appealed

a hearing

Board to

In 1994, the

remanded the matter

hold a

hearing if

Board finally notified

to initiate misappropriation

upon his

request.

charges

On January

4,

1995,

the Board issued a

decision finding that Clemente had

misappropriated MDC funds and owed restitution to

the amount

all his

of $239,146

rights to

plus interest and

his retirement allowance

the MDC in

ordered forfeited

and accumulated

deductions.2

In 1993,

pending

but

before

Clemente filed

against

while the state administrative action was

the

Board

this federal

the Commonwealth,

served on the Board

in 1990.

given

action under

the

Board, and

him

a hearing,

42 U.S.C.

the members

1983

who

when Clemente's benefits were terminated

Clemente claimed that the defendants terminated his

disability retirement allowance

notice

had

or

hearing, thus

and medical benefits without

violating

his

rights to

both

substantive and procedural due process.

He also claimed that

the

punishment

termination

participation in

constituted

further

the Exam Scam, thus violating

for

his

his right to

____________________

2.

The Board found that "Clemente misappropriated the amount

of $216,175.00 from the

$22,971.00 in
restitution

MDC, and that he is

costs of investigation.
due

the

MDC

is

$239,146.00, plus interest."

-55

the

responsible for

The total
principal

amount of
amount

of

be free from double jeopardy.

constitutional violations.3

He requested damages for these

The district court dismissed the

claims against the Commonwealth and the Board, as well as the

claims

against

capacities.

the

Board

members

in

their

official

The Board members in their individual capacities

are thus the only remaining defendants.

The district court withheld

until

after

Thereafter,

the Board

on

district court

cross

and

hearing

issued

its

January 1995

motions

for

summary

held that

procedural due process

before

decision on the matter

the Board had

judgment,

his

the

violated Clemente's

rights by failing to give

terminating

decision.

him notice

benefits.

The

defendants

did

not

dispute

that

Clemente

had

constitutionally protected property interest in the benefits,

and that,

under state law, he was

opportunity

to

benefits.

The

argument

that

be heard

before

district

the

court

Board's

unauthorized" acts that could

hearing

under Parratt v.
_______

entitled to notice and an

the

Board terminated

rejected

actions

the

were

the

defendants'

"random

and

be cured by a post-deprivation

Taylor, 451 U.S.

______

527, 541 (1981),

overruled in part on other grounds, Daniels v. Williams, 474

___________________________________ _______
________

U.S. 327, 330 (1986), and rejected the defendants' claims

of

____________________

3.

In

his

complaint,

relief, but after

Clemente

the Board

also

sought

held a hearing

prospective

on the

matter,

these prayers were

not pursued, although they have

not been

formally dismissed.

-66

qualified

immunity.

Clemente's

violated,

substantive

and it

In

addition,

due

process

also rejected

the

court

rights

had

his double

the termination

of payments was

and

it

the

were,

that

Board's

that

not

been

jeopardy claim,

holding that

even if

held

not punitive,

action

was

not

unconstitutional

termination

because the

criminal

prosecution and

the

proceedings were brought by separate sovereigns.

The district court

accepted Clemente's

contention

that the "deprivation decision could have been made no faster

in

proper

fashion."

calculated damages from

pension benefits

Therefore,

the

district

the due process violation

Clemente would have received

court

to be the

from the time

the benefits were terminated until the January 1995 decision,

as

well as

out-of-pocket medical

been covered under

expenses that

the health insurance

was $104,064.85, plus interest.

plan.

would have

That

amount

However, the district court

also determined that "[t]his amount may be used to offset the

restitution

amount

Clemente

defendants'

January

4,

appealed

1995,

both the award of

owes

as

decision."

the offset and

result

of

the

Clemente

has

the rejection of

his double jeopardy claim.4

II.

Double Jeopardy

____________________

4.

Defendants have not appealed from the judgment.

-77

Clemente

appeals the district court's holding that

the Double Jeopardy Clause did not bar the termination of his

benefits.

Even

assuming

termination of Clemente's

the

doctrine of

double

arguendo
________

that

the

benefits constituted

jeopardy does

brought by separate sovereigns.

not

Board's

punishment,5

apply to

suits

Abbate v. United States, 359

______
_____________

U.S. 187, 194 (1959); United States v. 40 Moon Hill Road, 884
_____________
_________________

F.2d 41, 43

(1st Cir.

1989).

Clemente

federal offense in federal court.

does not bar

later action by

was convicted of

The Double Jeopardy Clause

the Commonwealth to

terminate

benefits and thereby recover sums it lost due to the offense,

even if the termination were in part punitive.

III.

The Offset

Clemente challenges

should be

the

reversed because it

offset, arguing

was not

that

timely pleaded6

it

and

____________________

5.

The district court held

that the termination of benefits

was purely remedial because it found that "[o]nce the MDC has
been

fully reimbursed

allegedly

for

the funds

misappropriated,

Clemente

or property
will

be

receive the remainder of his pension payments."

was

apparently

Board's

legal

based upon

counsel.

1990

However,

entitled

its

to

This finding

letter written
in

Clemente

by

January

the
1995

decision, the Board stated that "[Clemente] is ineligible for

any retirement allowance under
28,

regardless

whether
other

of

the Board
MDC

judgment

whether
recovers

co-conspirators."
on

the

double

sovereign theory, we need

was punitive in nature.

the provisions of sections 1he ever

makes

restitution

misappropriated funds
Because

jeopardy

claim

we affirm
on

the

or

from the
summary
separate

not decide whether the termination

6.

Defendants

after

first raised

the

issue

the summary judgment motion.

a risk in being

in pleadings

filed

While the defendants ran

so dilatory, the district court

reached the

-88

because

the

enforceable

defendants

Board's

debt

for

counter by

order

the

did

not

amount

characterizing

establish

of

restitution.

the district

legally

The

court's

judgment as a permanent injunction, warranted by the equities

in the case,

its

and argue that the district court did not abuse

equitable discretion

defendants

also argue

in formulating

that

the offset

such relief.

The

was appropriate

to

prevent a windfall to Clemente.7

As the Supreme Court

said in Carey v. Piphus,

_____
______

U.S. 247, 258-59 (1978):

In

order

1983,

the

to further

the

rules governing

purpose of
compensation

for injuries caused by the deprivation of

constitutional rights
to

the

interests

particular right
the

common-law

should be tailored
protected

in question -rules

themselves were defined by

of

by

the

just as
damages

the interests

protected in the various branches of tort

law.

435

____________________

issue and
heard.

7.

there was adequate opportunity for

We reach the issue as well.

The

defendants

procedural
there

Clemente to be

due

were

assert

process

no

actual

defendants failed to
the argument as to

further

violation, or
damages.

there

was

alternatively,
However,

no
that

because

the

file a cross-appeal, we do not consider

liability.

An appellee is

to urge reversal of a judgment.

Mut. Casualty Co.,
_________________

that

917 F.2d

Bath Iron Works Corp.

_____________________

not permitted

United States v. Lumbermens'

_____________
___________

654, 658 n.6

(1st Cir.

v. White, 584 F.2d

_____

1990);

569, 573 n.2

(1st

Cir. 1978); 15A Wright et al., Federal Practice and Procedure

______________________________
3904,
appealed

at

196 (2d

from

ed.

the measure

offset, and so we

1992).
of

Nor have
damages

-99

defendants

awarded before

do not express any views

ab initio of that award.

the

the

on the propriety

Here, the

award to

district court

the

language of

was

plaintiff that

1983,

intended to

justice

in

was concerned about

view

would

"redress," to

his actual injuries.

permit "judgment to

of

the

one

fashioning an

The

use

court's order

be rendered

transaction

the

as

that does

whole."

Rothensies v. Electric Storage Battery Co., 329 U.S. 296, 299

__________
____________________________

(1946).

The remedial order

is to

be read as

a whole

and

provides:

The
judgment

clerk
for

is

directed

to

enter

the

plaintiff

directing

defendants first to apply as an offset to

the

restitutionary

award

made

plaintiff by the defendants'

January

4, 1995, an

against

decision of

amount equal to the

[damages plaintiff suffered

in terms

of

pension benefits and medical expenses].

The order also establishes

fact that Clemente

a mechanism that accommodates the

has appealed the Board's January

decision in state court:

The Board's January 4, 1995 decision

recites that such an offset would be "far
exceeded by the principle [sic] amount of
restitution

due."

circumstances,

it

Under
does

not

the
appear

necessary for this court to calculate the

precise offset in order to adjudicate the
issues

between

litigation.

the

parties

in

this

Of course, if there is such

a dispute, it may be resolved in light of

4, 1995

the

principles

Memorandum,

developed

through

the

in

this
ordinary

administrative process.

By

this mechanism, we understand that should the state court

reject or revise the Board's decision, a corollary adjustment

-1010

would

be made in the

federal order.

amount, if any,

The issue

recoverable under the

here is whether such an

order was

within

the

power of

the

court

and represented

proper

exercise of its discretion.

Clemente

not a

classic

"set-off," within the technical meaning of the term.

A "set-

off"

is

is correct

"'counter-claim

that

demand

against plaintiff, arising out

plaintiff's

cause of

action.'"

this is

which

defendant

of a transaction extrinsic of

United Structures of Am.,

__________________________

Inc. v. G.R.G. Eng'g, S.E., 9 F.3d 996, 998

____
___________________

(quoting Black's Law Dictionary

_______________________

this

case, however,

usually

true

in a

against

the

members

the debts

set-off.

of

the

holds

(1st Cir. 1993)

1230 (5th ed.

were not

Clemente's

Board

in

1979)).

reciprocal, as

damages

their

In

is

ran only

individual
__________

capacities,8 while the restitution award was due the

MDC, an

agency

of debt

of the

generally

Commonwealth.

Thus, the

required to support

mutuality

a set-off was

lacking.9

But

____________________

8.

The claims

dismissed and

against the Commonwealth and the

the federal

Board were

claims were dismissed

they sought retroactive damages

insofar as

against the members in their

official capacities.
________

9.

Some

courts

exception

to the

have

held

mutuality

that

there

requirement

is
when

an
it

equitable
"becomes

necessary to effect a clear equity or to prevent irremediable

injustice."

Black & Decker Mfg. Co. v. Union Trust Co., 4

_________________________
________________

N.E.2d 929, 930 (Ohio App. Ct. 1936).

to reach this issue.

-1111

We find it unnecessary

Clemente's

argument

that

it is

not

set

off10 in

the

end proves nothing.

Despite defendants'

of the

inappropriate characterization

relief as injunctive relief, we

believe the district

court was exercising its equitable judgment in fashioning the

remedy.

We

start with

the premise that

"[t]he measure

of

damages in section 1983 actions is a matter of federal common

law."

Figueroa-Rodriguez v. Aquino, 863 F.2d 1037, 1045 (1st

__________________
______

Cir. 1988);

see also Sullivan

________ ________

v. Little Hunting Park, Inc.

__________________________

396 U.S. 229, 240 (1969) ("The rule of damages, whether drawn

from federal or

state sources, is a federal

rule responsive

____________________

10.
of

One response to Clemente's argument is that even the law

damages

recognizes

appropriateness

of offsetting

"recoupment."

A recoupment

the defendant of part

in

certain
awards,

instances

under

is "'a reduction

the

the guise

of

or rebate by

of the plaintiff's claim because

of a

right in the defendant arising out of the same transaction.'"

United Structures,
__________________
Dictionary
__________

1147 (5th

asserted to diminish

F.3d

at

ed. 1979)).

998

(quoting
Recoupment

or defeat a plaintiff's

Black's Law
____________
may

only be

claim.

Reiter
______

v. Cooper, 507 U.S. 258, 264 (1993); Nashville Lodging Co. v.

______
_____________________
Resolution Trust Corp., 59 F.3d 236, 246 (D.C. Cir. 1995); 6
_______________________

Wright et al., Federal Practice and Procedure

_______________________________
(2d ed. 1990).

1401, at

In United Structures, 9 F.3d at

__________________

Chief Judge Breyer pointed out the

10

999, then-

relevance of the doctrine

of recoupment to cases such as Clemente's:

Recoupment .

. . is "in

the nature

of a defense" and is intended to

. .

. judgment to be

"permit

rendered that does

justice in view of the one transaction as

a whole."

Id.
___

(quoting Rothensies,
__________

329 U.S.

United Structures further commented

_________________

at 299).

The

that the plaintiff "has,

in a sense, no right to funds subject to recoupment."

998.

-1212

court in

Id. at
___

to

the need

whenever a

review the exercise of

of

federal right

is impaired.").

We

equitable jurisdiction under an abuse

discretion standard.

Ferrofluidics Corp.
___________________

v.

Advanced
________

Vacuum Components, Inc., 968 F.2d 1463, 1471 (1st Cir. 1992).
_______________________

In federal courts, law and equity jurisdictions are

merged.

Fed. R. Civ. P. 2.

Thus, Clemente's legal

on

off

back

set

remedial

merger,

does not

power.

One

cut

on

commentator has

a court having both

the court's

noted that

law and equity

argument

equitable

"[a]fter

powers may give

the plaintiff any remedy justified by pleading and proof."

Dobbs, Law of Remedies

________________

2.6(1), at 150 (2d

ancient distinctions between law

ed. 1993).

The

and equity, helpful in some

contexts, see Beacon Theatres, Inc. v. Westover, 359 U.S. 500

___ _____________________
________

(1959),

equity

are less

so here.

it is difficult to

"[W]ith the

merger of

law and

see why equitable defenses should

be limited to equitable suits anymore, and of course many are

not

so limited . . . ."

Byron v. Clay, 867 F.2d 1049, 1052

_____
____

(7th Cir. 1989) (Posner, J.).11

the broader principle

Courts also have articulated

"that adjures a court to

consider the

____________________

11.

Upholding

in Byron
_____

the dismissal

of a

1983

action

brought

by

former

government

employee

who

had

been

discharged for political reasons and who sought reinstatement

to a

"ghost job" (a job

for which
enough
partner

a salary was

to observe that a

for which no work

paid), Judge

Posner noted:

highwayman who decided

for common law damages

accounting for

was required but

profits would

as well as

"It is

to sue his

for an equitable

surely have gotten

no further

with his 'legal' claim than with his 'equitable' one."

Id.
___

-1313

third party effects

of equitable

relief and

to shape

that

relief accordingly."

Id. at 1051.
__

In fashioning

may

a remedy under

1983, trial judges

consider the equities of the matter.

equity

is

the ability

to

assess

"[T]he hallmark of

all relevant

facts

and

circumstances and tailor appropriate relief on a case by case

basis."

Rosario-Torres v. Hernandez-Colon, 889 F.2d 314, 321

______________
_______________

(1st Cir.

employee

1989)

fired

(en banc)

in

(whether to

violation

of

discretion of trial court); see also

________

Auth.,
_____

44 F.3d 1042, 1048

"unquestionably

equities

did not

within

her

reinstate a

1983

is

public

within

the

Walker v. Waltham Hous.

______
_____________

(1st Cir. 1995)

authority in

warrant [reinstatement

(trial judge was

holding

that the

to public

job]").

"The substantive scope of relief available is a matter of the

equitable powers of the

federal courts.

Accordingly, courts

have exercised broad remedial power in civil rights actions."

Knecht v.
______

Gillman,
_______

Whatever the

power in an

1136,

limits of a federal

action under

"restitution"

proper.

488 F.2d

Restitution orders

Cir.

1973).

court's equitable remedial

42 U.S.C.

order here is

1140 (8th

1983, we believe

well within that

the

scope and was

requiring criminals

to restore

the victim to the victim's original position are of venerable

origin.

See
___

Note,

Victim Restitution in the Criminal

______________________________________

Process; A Procedural Analysis, 97

_______________________________

(1984).

-14-

Harv. L.

Rev. 931,

933

14

Here, due to

Amendment

guaranties,

individual defendants,

the mechanisms implementing

the

damages

and the

were

restitution was owed

these defendants, but to a state agency.

502

U.S. 21, 26-30 (1991).

awarded

However, we

See Hafer
___ _____

Eleventh

against

not to

v. Melo,
____

think the district

court was entitled to consider the close relationship between

the

individual

state.

In

defendants --

fact,

responsibilities

state

defendants

officials

were

as state officials

-- and

exercising

in the

the

their

very activities

that gave rise to this litigation.

Despite

defendants

look

and the

to the

essence of

the

distinction

state agency,

underlying

reality

between

the

the district

of

individual

court could

the situation.

equity jurisdiction has been

the power . .

"The

. to

mould each decree to the necessities of the particular case."

Hecht Co.
_________

v. Bowles, 321 U.S.

______

321, 329 (1944).

This is an

unusual case, with a fact pattern not likely to recur, and we

think the district court was sensitive to the realities.

alleged procedural

due process

violation and the

The

basis for

the assertion of

to

the setoff arise from related

what plaintiff

is

in

fact

due

questions arising from the statutory

has

created in

Gen.

L. ch.

30.

-1515

by

way

questions as

of

benefits,

scheme the Commonwealth

These are

not unrelated

parties

or

unrelated

entered against a

Clemente

matters.12

Indeed,

the

backdrop in which the Board,

order

was

after giving

the hearing to which he was entitled, found that he

was not entitled to benefits.

Clemente

offset

argues

unless

he

reinstated under Mass.

wishes

from

provides a

of

overpayment

to have

Gen. L.

courts will address the

outcome

that

reversing

the

will produce no windfall because there is no right of

recoupment

appeal

strenuously

his

ch. 32,

15.13

state law issues here on

the Board's

order.

The district

mechanism for adjustment which,

that

appeal,

to either

pension

side.

should

avoid

In any

The

rights

state

Clemente's

court order

depending on the

the

event, the

problem

of

state law

____________________

12.

As

result, we

restitutionary order
party, or based

express no
in favor

views

on whether

of a truly

such a

independent third

on unrelated transactions, could

be used to

set off a judgment.

13.

This may or may not

For

example, Mass.

"[i]f

the

Gen. L.

Board after

misappropriation] to
rights .

. . ."

be a correct reading of state

the

ch. 32,

15(1)

hearing finds

be true, such member

App.

10(4),

[plaintiff]

Ct. 1993)

accumulated total

funds

of

the

the

charges [of

Id. (emphasis added); see also DeLeire v.

___
_________ _______

(Mass.

conviction of

provides that

shall forfeit all

_______

Contributory Retirement Appeal Bd., 605

_____________________________________

however, by G.L.

law.

is

("In accordance
entitled

deductions.
c. 32

an offense

to
That

15(3), which

N.E.2d
with

the
right

313,

G.L. c.
return
is

of

in

provides that,

which

32
his

qualified,

involving misappropriation of

governmental unit

316

the person

employed, such return is conditioned upon the making

upon
any
was

of full

restitution of the funds misappropriated."), rev. denied, 617

___________
N.E.2d 640 (Mass. 1993).

-1616

issues,

while

informing

the

federal court's

exercise

of

discretion, do not define the limits of that discretion.

Each side cites to

in

us the Eighth Circuit decisions

Hankins v. Finnel, 964 F.2d 853 (8th Cir.), cert. denied,

_______
______
____________

506 U.S. 1013 (1992) and Beeks

_____

Cir. 1994).

v. Handley, 34 F.3d 658

_______

While neither Hankins nor Beeks is on point (and

_______
_____

each raises issues

extraneous to this

the Eighth Circuit that

1983

is

constitutional

445 U.S.

"to

serve

conclude that

as

deprivations."

622, 651 (1980).

1983.

with

An important purpose

deterrent

against

future

Owen v. City of Independence,

____
____________________

Along

"victim restitution

deterrence goal.14

case), we agree

1983 relief must be consistent with

the deterrence goal inherent in

of

(8th

Beeks, 34 F.3d
_____

with the

Beeks court
_____

does not defeat

at 661; see also

___ ____

we

1983's

Doe v.
___

Morgenthau, 871 F. Supp. 605, 611 (S.D.N.Y. 1994) ("Any claim

__________

. . . on behalf of plaintiff's victims would be

an offset to

plaintiff's claims

against the People and

could be asserted

as of right.").

Ultimately,

accommodate

"the

the

deterrence

factual

argument

permutations

and

the

considerations they raise" on a case by case basis.

must

also

equitable

McKennon
________

____________________

14.

Indeed,

subject to
a

Clemente
the offset.

deterrent.

related
which
motive
U.S.C.

was

Congress

must have

believed

enacted the 1991

for recovery

cases even when

attorney's

fees,

not

Attorney's fee awards are themselves

area of law, it
provides

awarded

of

2000e-5(g)(2)(B).

-1717

in a

Civil Rights Act,

attorney's

actual damages are

so when,

fees in

mixed

unavailable.

42

v. Nashville Banner Pub. Co.,

__________________________

While

McKennon was
________

argument there

accounts for

that

would

an ADEA

did not trump

a plaintiff's

115 S. Ct.

action, the

employer

terminated

had a

(1995).

related deterrence

a damages remedy

own wrongdoing.

where after-acquired evidence

have

879, 886

which fairly

McKennon holds
________

demonstrates an employer

plaintiff anyway,

discriminatory motive,

general rule, is not entitled to front

even

though

the plaintiff,

the

as a

pay or reinstatement,

nor

to

employer

have

back-pay

damages

learned about

extending

the

led to legitimate

beyond

the

employee wrongdoing

discharge.15

Id.
___

time

the

that would

The compensation

analysis here fairly accounted for plaintiff's own wrongdoing

and does not undermine the deterrent effect of the statute.

IV.

We

conclude

granted summary judgment

plaintiff's

double

Conclusion

that

____________________

district

in favor of

jeopardy claim

discretion in fashioning the

judgment.

the

court

properly

the defendants on

and

the

did

not abuse

its

remedial order.

We affirm

the

15.

It is not difficult to imagine a

McKennon, an illegally discharged

________
rights suit,

yet still

does in this case.

situation where, under

employee might win a civil

walk away empty-handed,

For instance, if the

as Clemente

employer discovers

the after-acquired evidence

which would justify

termination

on

illegal

or

the

same

day

as

the

discharge,

shortly

afterwards, plaintiff's back-pay damages would be nonexistent

or minimal.

-1818