IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-20705
SYLVESTER L. PETERSON,
Plaintiff-Appellant,
versus
BOBBY WILSON, ET AL.,
Defendants,
BOBBY WILSON,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
May 18, 1998
Before KING, DUHÉ and WIENER, Circuit Judges.
WIENER, Circuit Judge.
The case we review today was twice tried to verdict by civil
juries. The first trial ended in a verdict favorable to Plaintiff-
Appellant Sylvester L. Peterson and unfavorable to Defendant-
Appellee Bobby Wilson, but the district court granted a new trial.
The second trial ended in a verdict rejecting all of Peterson’s
claims and exonerating Wilson. This appeal turns on whether the
district court abused its discretion when, at the conclusion of the
first trial, it granted Wilson a new one: If that was error and
was not harmless, we must reverse and remand for entry of judgment
for Peterson; but if the grant of the new trial was not error or
was harmless error, then we must affirm the new trial order and
proceed to consider Peterson’s appeal from the court’s final take-
nothing judgment rendered in accordance with the jury verdict
against him at the conclusion of the second trial. Our review of
the record of the first trial and the applicable law leads to the
unavoidable conclusion that the district court abused its
discretion in granting a new trial after the jury found for
Peterson in the first trial, and that doing so was not harmless,
i.e., it constituted reversible error. We therefore vacate the
verdict and judgment from the second trial, reverse the district
court’s order granting the new trial, and remand this case to the
district court with instructions to enter judgment for Peterson in
accordance with the first jury verdict and to award appropriate
costs, including attorneys’ fees, and interest. As such, we need
not and therefore do not reach Peterson’s assignments of error in
connection with the second trial.
I
FACTS AND PROCEEDINGS
A. Perspective
It is important that the issues before us on appeal today be
examined within the appropriate framework, for only then can we
comprehend how the district court’s new trial order constituted an
abuse of discretion that produced reversible error. And, because
Wilson moved for a judgment as a matter of law (j.m.l.) at the
2
completion of Peterson’s case and again when all evidence was in ——
and coupled the latter j.m.l. motion with an alternative motion for
new trial1 —— the version of the facts that is most favorable to
the jury’s verdict is sufficiently important by way of background
and context to bear reiteration, at least in pertinent part. This
is particularly true given that (1) Wilson urged his new trial
motion on grounds of sufficiency of the evidence only, i.e., that
the verdict was against the great weight of the evidence, (2) the
reasons given by the district court in ordering a new trial were
entirely different from the reasons espoused in Wilson’s motion,
thereby confirming that the order was sua sponte despite the
court’s statement that it was granting Wilson’s motion, and (3) a
district court’s grant of a new trial can be appropriate, even in
the total absence of a motion from the aggrieved party.2 We shall
therefore review an abbreviated version of the facts and inferences
in the light most favorable to the verdict, then examine the reason
stated by the district court as the basis for granting a new trial,
and conclude with a determination whether a new trial or j.m.l.
could have been granted on any other ground and thus rescue the
court’s ruling from reversal.
1
“Subject to the foregoing Motion for Judgment as a Matter
of Law, Defendant files this Motion for New Trial in the above
referenced case. Pursuant to Rule 59 of the Fed.R.Civ.P.,
Defendant Wilson moves for a new trial in this matter on all issues
tried before the jury.”
2
“No later than 10 days after entry of judgment the court,
on its own, may order a new trial for any reason that would justify
granting one on a party’s motion.” Fed.R.Civ.P. 59(d).
3
B. Proceedings in the First Trial
Peterson filed this suit in district court under 42 U.S.C.
§§ 1983 and 1988, as well as the First, Fifth, and Fourteenth
Amendments of the United States Constitution after he was fired as
grant director at Texas Southern University (TSU). He claims that
his property interest in his employment at TSU was damaged or
destroyed when it was arbitrarily and capriciously terminated. In
addition to Wilson, Peterson named Llayron L. Clarkson, James Race,
and William H. Harris, individually, and the Board of Regents of
TSU, as defendants in his August 1991 complaint. By the time that
Peterson’s case finally went to trial, however, TSU had been
dismissed as a defendant, Peterson’s claims against Clarkson, Race,
and Harris had been dismissed, and all his claims against Wilson
(with the exception of the substantive due process claim under
§ 1988 and the several amendments to the Constitution) had been
dismissed as well. After five days of trial, conducted by the
magistrate judge with the consent of the parties, the jury found
for Peterson and awarded him $152,235 for lost pay and benefits and
$35,000 for past and future mental anguish. Following the verdict,
Wilson renewed his motion for j.m.l. and supplemented it with his
bare-bones alternative motion for a new trial.
Some four months later, in January 1996, the district court
granted the new trial, ostensibly in response to Wilson’s motion,
but in actuality on its own motion: The substantive language of
the district court’s order granting a new trial eschews any
conclusion other than that the ruling was granted sua sponte, and
4
that it was not granted for insufficiency of the evidence or
because the jury verdict was against the great weight of the
evidence, but rather for the following reason:
The court concludes, based on the jury’s verdict and
comments the jurors made to the court after returning the
verdict [and outside the presence of the parties and
their respective counsel], that the jury completely
disregarded the Court’s instructions. Instead, it
appears that the jury considered improper factors in
reaching its verdict. Accordingly, the Court deems it in
the interest of justice to grant a new trial (emphasis
added).
This ruling not only dispels Wilson’s contention that the court
found the jury’s verdict to be against the great weight of the
evidence or lacking in evidence sufficient to support the verdict;
it demonstrates beyond cavil that the court met with and
interrogated the jurors after the verdict (concededly, outside the
presence of the parties and counsel), and then acted on the
comments of some of the jurors as though their remarks were newly
discovered evidence. The inference is inescapable that, to impeach
the jury’s verdict, the district court relied on information
gleaned from the jurors themselves during the court’s post-verdict,
ex parte meeting with the jury. The court voided the verdict
because, in the court’s own words, the jury “completely disregarded
the Court’s instructions.” Indeed, the above-quoted language of
the court’s order is preceded immediately by its citation to our
key “newly discovered evidence” opinion regarding new trials.3
Peterson timely filed a motion for reconsideration, which the
3
Government Fin. Serv. One Ltd. Partnership v. Peyton Place,
Inc., 62 F.3d 767 (5th Cir. 1995).
5
district court did not grant. The case was re-tried in June 1996,
and ended in a jury verdict in favor of Wilson, rejecting
Peterson’s claims. Peterson timely filed the notice of appeal that
places the case before us today, but Wilson did not cross-appeal.
C. Facts
The jury, as the finder of facts and the maker of all
credibility calls, reached its verdict in the first trial on the
basis of the following record facts and inferences.
Peterson is well educated, well trained, and widely
experienced in his field of concentration, which is grant
administration for institutions of higher education.4 When
Peterson joined TSU in 1983 he assumed responsibility for
administering grants, principally Title III grants. In addition,
he was in charge of student affairs and was responsible for
determining the residency status of foreign students.5 Peterson
also supervised finances of the university and was in charge of
Institutional Research. As Title III Director, Peterson generally
reported directly to the Vice President for Academic Affairs: first
4
Peterson received a Ph.D. in Development and Planning from
Ohio State University, was certified by that institution as a
“grant administrator,” participated in post-doctoral study in
Management at Harvard University and Georgetown University, and
investigated problems experienced by colleges and universities in
connection with receipt of grants for the National Institute of
Education (NIE). In addition to consulting for the United States
Department of Education, Peterson held jobs as Director of Title
III (federal grants to educational institutions with predominantly
minority or foreign student enrollments) at Wilberforce University
in Ohio and Kentucky State University.
5
At that time TSU’s foreign student enrollment was the
largest in the nation.
6
Clarkson, then Moore, and eventually, Wilson.6 The programs
supported by Title III grants included faculty development,
equipment purchases, and institutional research, providing millions
of dollars annually for expenditures at TSU.
Wilson expressly acknowledged that Peterson’s employment at
TSU was controlled by the Staff Manual. Wilson corroborated the
testimony of TSU President Harris that Peterson’s employment could
only be terminated for cause. In fact, in his January 3, 1991,
termination letter to Peterson, Wilson stated that if Peterson’s
“proposed termination” was determined to be without cause, he would
be fully reinstated with back pay.
Without reiterating every detail of the relevant testimony and
documents, it suffices that the evidence heard and obviously
credited by the jury painted a picture of Peterson as a highly
principled, apolitical, objective grant administrator who
repeatedly refused to “play ball” with high ranking TSU
administrators when they attempted to obtain expensive equipment
for unauthorized personal use or sought to have unauthorized job
positions created and funded with grant money for their special
“friends.”7 The jury also heard and obviously credited testimony
of both direct and implied threats by Wilson of adverse job
6
TSU had several different presidents during the course of
Peterson’s tenure: Leonard Spearman; William Harris; and E. O.
Bell.
7
While Peterson served under Wilson (June 1990 - January
1991), Peterson refused Wilson’s requests for, inter alia, (1) a
camera, TV monitor, and VCR for his personal use, and (2) Title III
funding to create secretary/receptionist positions in Wilson’s
office for two of his “lady friends.”
7
actions, including firing, that Peterson was in jeopardy of
incurring if, on reflection, he should fail or refuse to accede to
requests that would require the unauthorized expenditure of grant
funds.
The termination letter of January 3, 1991, from Wilson to
Peterson purported to outline nine items constituting “cause” for
the firing, each of which was set forth in a report prepared and
submitted on request by one Joyce Deyon with whom, it turned out,
Wilson never conferred after receiving the report. Wilson
testified that he accepted the report and made his judgment based
on it. The jury heard testimony and saw documents which, if
believed —— as the jury apparently did —— methodically refuted or
explained away each of the nine purported causes for termination
and revealed that Wilson did not even understand some of the items.
The jury also heard evidence which, if credited, was sufficient to
support a conclusion that the termination and its purported causes
were pretext intended to cover Wilson’s retaliation and desire to
accomplish his actual or implied threats of getting rid of Peterson
and replacing him with a grant director who would be more of a team
player, i.e., would be more amenable to funding equipment purchases
and job creations for “friends” of the higher-ups in the TSU
administration with grant money.
That the jury unquestionably credited the testimony and
documentation supporting Peterson’s version of the facts and
rejected Wilson’s is confirmed by the “Yes” answer to Interrogatory
No. I-A, “Do you find from a preponderance of the evidence that Dr.
8
Bobby Wilson acted arbitrarily and capriciously in terminating Dr.
Peterson?” In the interrogatory that followed, the jury awarded
Peterson $152,235 in lost pay and benefits, and $35,000 for past
and future mental anguish.
II
ANALYSIS
A. Standard of Review
We review the district court’s grant of a new trial for abuse
of discretion.8 “It is a well-settled rule in this circuit that `a
verdict can be against the “great weight of the evidence,” and thus
justify a new trial, even if there is substantial evidence to
support it.’”9 What courts cannot do —— and what the district
court here never purported to do —— is to grant a new trial “simply
because [the court] would have come to a different conclusion then
the jury did.”10
B. The District Court’s Ruling
The district court’s succinct but cryptic, three-sentence
explanation for granting a new trial demonstrates beyond question
that, following the verdict, the court impermissibly met with and
interrogated the jurors outside the presence of the parties and
their respective counsel, and then proceeded to act in direct
8
Peyton Place, 62 F.3d at 774 (citing United States v.
Flores, 981 F.2d 231, 237 (5th Cir. 1993)).
9
Rousseau v. Teledyne Movible Offshore, Inc., 812 F.2d 971,
972 (5th Cir.) (citing Shows v. Jamison Bedding, Inc., 671 F.2d
927, 930 (5th Cir. 1982)), cert. denied, 484 U.S. 827, 108 S. Ct.
95, 98 L. Ed. 2d 56 (1987).
10
25 Fed. Proc., L. Ed. § 58.13 (1984).
9
reliance on the jurors’ comments as though they constituted newly
discovered evidence of a kind that the court could properly
consider. It was not. The conclusion is inescapable that, in
impeaching the jury’s verdict in this case, the district court
relied on information obtained from the jurors in the court’s post-
verdict, ex parte meeting with them and that, by definition, any
information thus obtained had to come directly from their internal
deliberations qua jurors.11
1. Jury Impeachment
Rule 606(b) of the Federal Rules of Evidence (F.R.E.) tightly
controls impeachment of jury verdicts. This rule states, in
pertinent part:
Upon an inquiry into the validity of a verdict . . ., a
juror may not testify as to any matter or statement
occurring during the course of the jury’s deliberations
or to the effect of anything upon that or any other
juror’s mind or emotions as influencing the juror to
assent to or dissent from the verdict . . . or concerning
the juror’s mental processes in connection therewith,
except that a juror may testify on the question whether
11
We find it perplexing that the statement in the court’s
conclusional ruling to the effect that the jury “completely
disregarded the Court’s instructions” is not supported by any
explanation of (1) precisely which instructions were disregarded by
the jury and how; (2) precisely what “comments the jurors made”
that led the court to conclude that its instructions had been
disregarded; (3) precisely what “improper factors” the jury
considered in its deliberations; or (4) precisely what “interest of
justice” was so trampled by the jury’s verdict that it had to be
scrapped. Without considerably more, such a bare, enigmatic
platitude can never provide the kind of support needed by an
appellate court if it is to conclude that a trial court ——
particularly one that has presided over the pre-trial proceedings,
motion practice, and full-blown jury trial of a civil case, has
denied motions for a j.m.l., has met with the jury after the
verdict out of the presence of counsel, and has then granted a new
trial —— exercised its discretion at all, much less did so without
abusing it.
10
extraneous prejudicial information was improperly brought
to the jury’s attention or whether any outside influence
was improperly brought to the jury’s attention or whether
any outside influence was improperly brought to bear upon
any juror. Nor may a juror’s affidavit or evidence of
any statement by the juror concerning a matter about
which the juror would be precluded from testifying be
received for these purposes.12
Wilson does not contest Peterson’s assertion that the trial court
met with the jury after the verdict, off the record and outside the
presence of counsel. We agree with Peterson that —— with the
possible exception of an instance in which the court’s professional
curiosity has been piqued but on which no subsequent action is
taken by the court —— such a meeting is highly irregular if not
absolutely impermissible, and, more importantly, that impeachment
of the jury verdict on the basis of information obtained in such a
discussion constitutes abuse of discretion per se.
The landmark Supreme Court case on this issue is Tanner v.
United States.13 After acknowledging that “[b]y the beginning of
this century, if not earlier, the near-universal and firmly
established common-law rule in the United States flatly prohibited
the admission of juror testimony to impeach a jury verdict,”14 the
Court observed that “Federal Rule of Evidence 606(b) is grounded in
the common-law rule against admission of jury testimony to impeach
a verdict and the exception for juror testimony relating to
12
Fed. R. Evid. 606(b).
13
483 U.S. 107, 107 S. Ct. 2739, 97 L. Ed. 2d 90 (1987).
14
Id. at 117, 107 S. Ct. at 2745.
11
extraneous influences.”15 Following Tanner, and more closely on
point, we held in Robles v. Exxon Corp.16 that receiving testimony
from the jurors after they have returned their verdict, for the
purpose of ascertaining that the jury misunderstood its
instructions, is absolutely prohibited by F.R.E. 606(b).17 We
underscored that holding by noting that “the legislative history of
the rule unmistakably points to the conclusion that Congress made
a conscious decision to disallow juror testimony as to the jurors’
mental processes or fidelity to the court’s instructions.”18 What
is pellucid here, from the court’s own unequivocal and unambiguous
words, is that the jurors’ statements to the court related directly
to matters that transpired in the jury room, that these matters
comprehended the mental processes of the jurors in their
deliberations on the case, and that the jurors’ statements formed
the foundation of the court’s impeachment of the verdict grounded
in the jury’s lack of “fidelity to the court’s instructions.”19 We
cannot conceive of an example more explicitly violative of Robles.
2. Great Weight of the Evidence
As the bald “interest of justice” reason given by the district
court, impermissibly grounded in the jury’s purported disregard of
15
Id. at 121, 107 S. Ct. at 2748.
16
Robles v. Exxon Corp., 862 F.2d 1201 (5th Cir.), cert.
denied, 490 U.S. 1051, 109 S. Ct. 1967, 104 L. Ed. 2d 434 (1989).
17
Id. at 1204.
18
Id. at 1205 (emphasis added).
19
Id.
12
the court’s instructions, cannot sustain the order granting a new
trial, reversal can only be avoided if we determine that the order
itself can be affirmed on appeal for reasons other than those
proffered by the trial court. Of the alternative reasons for
granting a new trial, only a determination that the verdict is
against the great weight of the evidence is viable here; clearly,
the record and the applicable law demonstrate that a j.m.l. could
not have been granted. So, for the trial court’s abuse of
discretion to be harmless and its order of a new trial to be
sustained, we would have to conclude that, viewing all the evidence
in the light most favorable to Peterson, the verdict is against the
great weight of the evidence or the evidence is insufficient to
support the verdict. The instant record cannot support any such
conclusion.
The district court’s explanation for granting a new trial
expressly refutes the wholly unsupported statement in Wilson’s
appellate brief that the trial court found the jury’s verdict to be
against the great weight of the evidence (or lacking in evidence
sufficient to support the verdict). No conceivable reading of the
court’s ruling permits such a conclusion. As that ruling makes no
mention of the merits of the case or the evidence considered by the
jury, we have had to conduct the kind of exercise that we are
compelled to engage in when motions for summary judgments for
qualified immunity are denied because a genuine dispute of material
fact exists, but the district court fails to specify its factual
assumptions for the record: Here, as in those instances, we had to
13
“‘undertake a cumbersome review of the record. . . .’”20
As noted above, the jury in this case was presented with
extensive evidence, principally testimonial evidence, much of which
was in direct conflict, i.e., a “swearing match.” Classically, the
jury had the opportunity to view the witnesses’ demeanor, look them
in the eye, observe their body language, hear the timbre of their
voices, and, finally, exercise the ultimate responsibility of the
finder of fact by making credibility calls and deciding whom to
believe and whom to disbelieve. We have now conducted the
obligatory “cumbersome review” of the multi-volume trial record
and find that both sides of the case —— Peterson’s and Wilson’s ——
are supported by substantial evidence. One thing that is palpably
absent from the record of the first trial, however, is a “great
weight of evidence” either way. Indeed, we speculate that if there
had been, the district court would have granted a new trial
expressly on that ground and would never have resorted to that
amorphous, will-of-the-wisp that we call “interest of justice.21
20
Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 531-32
(5th Cir. 1997) (quoting Johnson v. Jones, 515 U.S. 304, 319, 115
S. Ct. 2151, 2159, 132 L. Ed. 2d 238 (1995)).
21
In apparent desperation, Wilson on appeal also seeks to
support the district court’s grant of a new trial by urging that a
j.m.l. in his favor would have been appropriate on the basis of
qualified immunity. But not only did the case proceed through a
full merits jury trial, thereby negating the principal purposes of
qualified immunity; Wilson failed to cross appeal and thus
forfeited his right to assert such an alternative ground.
“[W]ithout the filing of a cross-appeal, an appellee ‘may not
attack the decree with a view either to enlarging his own rights
thereunder or of lessening the rights of his adversary, whether
what he seeks is to correct an error or to supplement the decree
with respect to a matter not dealt with below.’” Miller v. Butcher
Distribs., 89 F.3d 265, 267 (5th Cir. 1996) (citing Robichaux v.
14
Because our review of the entire record of the first trial
eschews any possibility that the jury verdict was against the great
weight of the evidence, or that the evidence is insufficient to
support Peterson’s claims, this ground cannot serve as a substitute
basis for affirming the district court’s grant of a new trial. It
follows inescapably, then, that the court’s abuse of discretion in
violating F.R.E. 606(b) and of our rule in Robles, grounded in the
Supreme Court’s pronouncements in Tanner, was not harmless error.
Rather, it was reversible error.
III
CONCLUSION
Our meticulous review of the record of the first trial of this
case and our parsing of the ruling of the district court in
granting a new trial satisfy us that such ruling must be reversed
and a judgment must be rendered on the basis of the original jury
verdict in favor of Peterson. The operable language of the
district court’s ruling dispels any doubt that the court purported
to grant a new trial “in the interest of justice” and did so as a
direct result of its impermissible post-trial colloquy with the
jurors, in direct violation of Rule 606(b) of the F.R.E. and
Radcliff Material, Inc., 697 F.2d 662, 668 (5th Cir. 1983) (quoting
Morley Constr. Co. v. Maryland Cas. Co., 300 U.S. 185, 191, 57
S. Ct. 325, 328, 81 L. Ed. 593 (1937)). Moreover, were we to
consider Wilson’s immunity claim at this post-trial, post-verdict
late hour, we would see not only that Peterson’s constitutional
rights in his employment were clearly established before Wilson
fired him, see, e.g., Russell v. Harrison, 736 F.2d 283, 288 (5th
Cir. 1984); Honore v. Douglas, 833 F.2d 565 (5th Cir. 1987), but
also that at all times there was, at a minimum, a genuine issue of
material fact as to the objective reasonableness of Wilson’s
actions —— an issue resolved against Wilson by the jury.
15
likewise in violation of jurisprudential rules of this court and
the Supreme Court that proscribe such an impeachment of the jury’s
verdict. That same language from the district court demonstrates
that, despite words to the contrary, a new trial was granted sua
sponte on grounds that can only be cubbyholed as “new evidence,”
not on the basis of Wilson’s motion for a new trial expressly
grounded in the contention that the verdict was against the great
weight of the evidence or lacking in sufficient evidence.
Any effort to salvage the ruling of the district court is
stymied by the record itself which reflects neither a “great
weight” of evidence in favor of either party, nor a basis on which
the trial court could have granted a j.m.l. Rather, it contains
more than sufficient evidence, when credited by the jury, to
support the determination that Peterson’s termination by Wilson was
arbitrary and capricious, in direct retaliation for Peterson’s
refusal to authorize the expenditure of federal grant funds for
improper or illicit purposes. The evidence obviously credited by
the jury also supports a finding of pretext, as the nine items
listed in the Deyon report evaporate when exposed to the spotlight
of credible explanations, including the revelation that Wilson
never conferred with the author of the report and did not even
fully understand some of the unsustainable charges in this “hatchet
job” on which he so readily relied. The firing thus violated
Peterson’s substantive due process property right in his employment
at TSU, which could only be terminated for cause.
We are thus left with no choice but to reverse the district
16
court’s grant of a new trial, vacate the court’s judgment rendered
on the basis of the jury verdict in the second trial, and reinstate
the results of the first trial. We therefore remand this case to
the district court for entry of judgment in favor of Peterson and
against Wilson in the principal sum of $187,235 ($152,235 for lost
pay and benefits and $35,000 for past and future mental anguish),
and for the assessment of appropriate interest and costs, including
reasonable attorneys’ fees incurred by Peterson in both trials and
on appeal.
REVERSED and REMANDED with instructions.
17