United States Court of Appeals
For the First Circuit
No. 03-2722
DR. ERNESTO TORRES-ARROYO AND MARCIAL BERRÍOS-CINTRÓN,
Plaintiffs, Appellants,
v.
DR. JOHN V. RULLÁN, ETC., ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.
Francisco R. Gonzalez, with whom F.R. Gonzalez Law Office was
on brief, for appellants.
Eduardo Vera Ramírez, with whom Roberto Sánchez Ramos,
Secretary of Justice, Salvador Antonetti Stutts, Solicitor General,
Eileen Landrón Guardiola, Courtney R. Carroll, and Landrón & Vera,
LLP were on brief, for appellees.
January 13, 2006
SELYA, Circuit Judge. Although a jury determined that
political discrimination spurred the non-renewal of the plaintiffs'
government contracts, it awarded no damages. Dissatisfied with
this Pyrrhic victory, the plaintiffs appealed. We conclude that
the plaintiffs have waived virtually all of their claims of error
and that their only properly preserved claim lacks merit.
Consequently, we affirm the judgment below.
I. BACKGROUND
The record reveals that the plaintiffs, Dr. Ernesto
Torres-Arroyo (Torres) and Marcial Berríos-Cintrón (Berríos), are
aligned with the New Progressive Party (NPP). During a period when
the NPP held the reins of power in Puerto Rico, Torres and Berríos
became contract employees of the Correctional Health Program (CHP),
a government agency. Torres served as the CHP's executive director
and Berríos as an accountant.
During the times material hereto, the United States
District Court for the District of Puerto Rico was exercising
supervisory authority over various aspects of the Puerto Rican
correctional system, including the CHP. This supervision came
about as a result of a long-running inmate class action, presided
over by Judge Pérez-Giménez, familiarly known as the Morales
Feliciano case.1 When Dr. Aida Guzmán resigned her position as
1
The reader who hungers for additional detail concerning this
class action should consult the steady stream of judicial opinions
in the Morales Feliciano case, dating back to 1979. See, e.g.,
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chief health care coordinator (CHCC), effective March 31, 2000,
Judge Pérez-Giménez, acting at the instance of the inmate class in
an order entered April 19, 2000, temporarily assigned some of
Guzmán's duties to Torres. Those duties included the
responsibility for executing and renewing certain CHP personnel
contracts.
Torres and Berríos each signed a renewed professional
services contract with the CHP on July 1, 2000. In accordance with
the usual custom, each agreement covered a one-year period.
Despite the fixed term and the stated expiration date (June 30,
2001), each agreement provided for unilateral termination by either
party on thirty days' notice.
A new administration came to power when a gubernatorial
candidate endorsed by the Popular Democratic Party (PDP) prevailed
in the November 2000 general elections. On February 6, 2001, Dr.
Pedro Ramos Hiraldo, the acting Secretary of Health, wrote to
Torres informing him that the Department of Health was exercising
its right to terminate his contract, effective thirty days hence.
That plan was foiled, however, when the inmate class opposed the
termination (due to the vacancy that then existed in the CHCC
position) and Judge Pérez-Giménez, on February 8, 2001, issued a
Morales Feliciano v. Rullán, 378 F.3d 42 (1st Cir. 2004); Morales
Feliciano v. Parole Bd. of P.R., 887 F.2d 1 (1st Cir. 1989);
Morales Feliciano v. Rosselló González, 13 F. Supp. 2d 151 (D.P.R.
1998); Morales Feliciano v. Romero Barcelo, 497 F. Supp. 14 (D.P.R.
1979).
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temporary restraining order (the TRO) preventing the Secretary from
removing Torres. Morales Feliciano v. Calderón, No. 79-4 (D.P.R.
Feb. 8, 2001) (unpublished). The judge set a hearing on
preliminary injunction for February 20, 2001.
While the TRO was in force, Dr. John Rullán took office
as Secretary of Health. Prior to the scheduled hearing, Rullán's
representatives met with the lawyers for the inmate class. On
February 20, the parties jointly proposed to Judge Pérez-Giménez
that Dr. Guzmán be reappointed as CHCC and resume her former duties
(including those that Torres had temporarily assumed). In that
capacity, Guzmán would be responsible for evaluating Torres's
performance.
Despite agreeing on these salient points, the parties
were unable to settle upon a complete job description for Guzmán.
Judge Pérez-Giménez indicated that he would approve Guzmán's
reappointment, but asked that the parties submit their versions of
her overall job description by March 2, 2001. To provide breathing
room, the judge extended the TRO until March 9, 2001.
When the parties were unable to reach an agreement by the
March 2 deadline, Judge Pérez-Giménez took the bull by the horns.
He allowed the TRO to expire and delineated the particulars of
Guzmán's position in an order entered May 23, 2001.2 Eight days
2
The Secretary appealed the May 23 order. Concluding that the
order did not modify a previous injunction but merely clarified the
CHCC's role, we dismissed the appeal for want of appellate
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later, Guzmán, acting in her official capacity as the CHCC, wrote
to both plaintiffs and informed them of her decision not to renew
their professional services contracts. The contracts expired on
June 30, 2001.
The plaintiffs thereafter sued Rullán and Guzmán in their
personal and official capacities under the First and Fourteenth
Amendments and 42 U.S.C. § 1983. They maintained that the non-
renewals were motivated by political discrimination and executed in
violation of their due process rights. The new case was assigned
to Judge Cerezo.
On October 10, 2002, Judge Cerezo dismissed the due
process claims. She relied on the plain language of the one-year
contracts and held that the plaintiffs had no property interest in
their government positions beyond the expiration date stipulated in
the contracts. Relatedly, she rejected the plaintiffs' contention
that they had a property interest in continued employment by reason
of court orders issued in the Morales Feliciano case. She noted
that the TRO had expired on March 9, 2001; that it never affected
Berríos; and that, in all events, Judge Pérez-Giménez had not
granted any relief that would have created an expectancy of
continued employment on the part of either plaintiff.
jurisdiction. Morales Feliciano v. Rullán, 303 F.3d 1, 10 (1st
Cir. 2002).
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The case proceeded solely on the plaintiffs' political
discrimination theory. The plaintiffs indicated that they planned
to offer documents from the Morales Feliciano case, including the
order of April 19, 2000, the TRO, and the transcript of the hearing
held on February 20, 2001. On the defendants' motion, Judge
Cerezo, in an in limine order, ruled the documents inadmissible.
The plaintiffs persisted. They filed a motion for
clarification, arguing that the Morales Feliciano documents
provided relevant background information, constituted
circumstantial evidence vis-à-vis their political discrimination
claims, and demonstrated that Guzmán did not have the legal
authority to terminate their employment. Judge Cerezo flatly
rejected the last of these claims but acknowledged that the
documents might constitute relevant background information for the
political discrimination claims. Judge Cerezo nonetheless worried
that, if admitted wholesale, the documents would confuse the issues
and risk unfair prejudice. Steering a middle course, she
reiterated that the documents would be excluded as full exhibits
but allowed the plaintiffs to refer to their contents at trial, as
long as they acknowledged that Torres's position enjoyed no special
legal protection once the TRO had expired.
Trial commenced on October 24, 2003. Notwithstanding the
court's pretrial ruling that Guzmán had plenary authority, as the
CHCC, to decide whether to renew their contracts, the plaintiffs
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tried to argue on no fewer than ten occasions that the Morales
Feliciano documents established the contrary. In an effort to curb
possible jury confusion resulting from the plaintiffs' repeated
misinterpretations about what had been decided in the Morales
Feliciano case, Judge Cerezo summarized the relevant portions of
the proffered Morales Feliciano documents for the jury.
Undeterred, plaintiffs' counsel continued to question
Guzmán's authority and reiterated, time and again, his request to
admit as full exhibits the Morales Feliciano documents. Judge
Cerezo repeatedly rejected these importunings and chastised
plaintiffs' counsel for attempting to mislead the jury. She also
threatened to impose sanctions should the lawyer continue to voice
improper arguments before the jury.
At the close of the plaintiffs' case in chief, Judge
Cerezo granted Rullán's motion for judgment as a matter of law.
See Fed. R. Civ. P. 50(a). That left Guzmán as the sole defendant.
In her end-of-case instructions, Judge Cerezo again summarized the
Morales Feliciano documents. She emphasized that, by May 31, 2001,
Guzmán occupied the CHCC position and possessed all the powers of
that office.
Shortly after the jurors began to deliberate, they
requested the Morales Feliciano documents. Judge Cerezo declined
the request but, in open court, reread her summary of those
documents. The jury, responding to a special verdict form,
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ultimately found Guzmán guilty of political discrimination, but
awarded the plaintiffs "$0.00" in damages. Although the plaintiffs
asked the court to poll the jurors (which request the court
honored), they did not raise any question of verdict
inconsistency. Accordingly, Judge Cerezo discharged the jury
without further inquiry. On November 24, 2003, the court entered
judgment on the jury verdict.
That same day, the plaintiffs filed a notice of appeal.
Buried deep within that document was a reference to a "Petition for
a New Trial for Compensatory and Punitive damages for a
contradictory Jury Verdict." The plaintiffs never filed a motion
for a new trial with the district court within the prescribed ten-
day period. See Fed. R. Civ. P. 59(b). On May 1, 2005 — over
seventeen months later — they attempted to rectify this omission by
filing a paper entitled "Plaintiffs' Amended Motion for a New
Trial." Four days later, they unsuccessfully requested this court
to stay the instant appeal pending the district court's resolution
of that motion.
II. DISCUSSION
On appeal, the plaintiffs offer a potpourri of arguments.
Their principal claims are that (i) the jury's special findings
(i.e., its liability finding and its finding that the plaintiffs
sustained no damages) are internally inconsistent and entitle the
plaintiffs to a new trial on the issue of damages; (ii) the
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district court improperly dismissed their due process counts; and
(iii) the district court abused its discretion when it refused to
admit the Morales Feliciano documents as full exhibits.3 The first
two claims of error were not adequately preserved. We dispose of
them first and then proceed to examine the disputed evidentiary
ruling.
A. The Waived Claims.
The "inconsistent verdict" claim is waived on at least
two levels. First, that claim is presented as a supposed ground
for a new trial. In a civil case, a motion for a new trial must be
filed in the district court within ten days after the entry of
judgment. See Fed. R. Civ. P. 59(b). That time period is
mandatory. Feinstein v. Moses, 951 F.2d 16, 19 (1st Cir. 1991).
The plaintiffs in this case did not file a new trial motion within
that window of opportunity. That omission dooms their
"inconsistent verdict" claim.
In an effort to snatch victory from the jaws of defeat,
the plaintiffs assert that their notice of appeal was, in effect,
3
The plaintiffs' other claims of error are unpreserved,
insubstantial, or both. Accordingly, we reject them without
discussion.
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a motion for a new trial.4 That assertion elevates hope over
reason.
The plaintiffs correctly observe that district courts are
not bound by labels but have discretion to reclassify mistitled
motions filed within the prescribed ten-day period as Rule 59
motions. See, e.g., Vasapolli v. Rostoff, 39 F.3d 27, 36 (1st Cir.
1994) ("If circumstances warrant, the [district] court may
disregard the movant's taxonomy and reclassify the motion as its
substance suggests."). The plaintiffs, however, did not file any
motion within the prescribed ten-day period but, rather, filed a
notice of appeal. This is an important distinction. Although
filed in the district court, a notice of appeal is addressed to the
court of appeals, not to the district court. In addition, a notice
of appeal serves an entirely different purpose than a post-judgment
motion. Thus, when a party files a notice of appeal, the district
court is under no obligation to look at it or to consider its
contents. We conclude, therefore, that just as a post-judgment
motion cannot serve as a proxy for a timely notice of appeal, see
Elias v. Ford Motor Co., 734 F.2d 463, 467 (1st Cir. 1984), so too
a notice of appeal cannot serve as a proxy for a timely Rule 59
4
We note that if the notice of appeal were construed as a
timely Rule 59 motion, as the plaintiffs now suggest, this appeal
would be a nullity. See Griggs v. Provident Consumer Disc. Co.,
459 U.S. 56, 61 (1982) (explaining that appeals "self-destruct" and
district courts regain jurisdiction in the face of a timely Rule 59
motion).
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motion. The bottom line is that the plaintiffs missed the Rule 59
deadline.5
The plaintiffs' so-called "amended" motion for a new
trial, filed over seventeen months after judgment had entered, does
not begin to fill this void. As said, Rule 59 provides for filing
a motion for a new trial within ten days of the entry of judgment
— and the plaintiffs made no such submission. It is so plain as
not to warrant citation of authority that a party is not entitled,
nunc pro tunc, to amend a non-existent motion.
It may be that a timely objection to verdict
inconsistency can be preserved in "certain circumstances" without
a subsequent motion for a new trial. Here, however, the plaintiffs
failed to object to the verdict after it was announced but before
the court discharged the jury. Silence at that juncture
constitutes a waiver. See Correia v. Fitzgerald, 354 F.3d 47, 57
(1st Cir. 2003) (holding that a failure to object to an alleged
inconsistency while the jury is still in the box waives a party's
objection); Wennik v. Polygram Group Distrib., Inc., 304 F.3d 123,
130 (1st Cir. 2002) (describing the rule that a party waives
verdict inconsistency claims by failing to object before the jury
5
The failure to file a timeous motion for a new trial not only
undermines the plaintiffs' "inconsistent verdict" claim but also
vitiates their poorly articulated claim that the take-nothing
verdict was against the weight of the evidence. See Muñiz v.
Rovira, 373 F.3d 1, 5 (1st Cir. 2004); La Amiga del Pueblo, Inc. v.
Robles, 937 F.2d 689, 691 (1st Cir. 1991).
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is dismissed as "iron-clad"); Skillin v. Kimball, 643 F.2d 19, 19-
20 (1st Cir. 1981) (explaining that the "only efficient time to
cure . . . possible problems of [verdict] inconsistency would be
after the jury announced the results of its deliberations and
before it was excused").
The plaintiffs have waived their challenge to the
district court's dismissal of their due process claims in a
different, yet equally lethal, way. Their appellate brief thunders
that this ruling should be reversed — but that remonstrance, twice
repeated, is unaccompanied by any vestige of developed
argumentation. Gauzy generalizations are manifestly insufficient
to preserve an issue for appellate review. See Ryan v. Royal Ins.
Co., 916 F.2d 731, 734 (1st Cir. 1990) (holding that "issues
adverted to on appeal in a perfunctory manner, unaccompanied by
some developed argumentation, are deemed to have been abandoned");
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("It is
not enough merely to mention a possible argument in the most
skeletal way, leaving the court to do counsel's work . . . .").
B. The Evidentiary Ruling.
This brings us to the sole claim of error that the
plaintiffs properly preserved: the challenged evidentiary ruling.
We review a district court's decision to admit or exclude evidence
for abuse of discretion. Gomez v. Rivera Rodriguez, 344 F.3d 103,
114 (1st Cir. 2003). Under this deferential standard, we cannot
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substitute our judgment for that of the district court.
Alternative Sys. Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23, 32
(1st Cir. 2004). Instead, we may overturn a challenged evidentiary
ruling only if it plainly appears that the court committed an error
of law or a clear mistake of judgment. See Gomez, 344 F.3d at 114
(noting that the idiosyncratic nature of trial practice "counsels
in favor of affording the presider some appreciable latitude in
making evidentiary findings").
Here, the trial court expressly determined that the
Morales Feliciano documents provided relevant background
information for the political discrimination claims. Relevancy,
however, is a condition precedent to admissibility, not an ironclad
guarantee of admissibility. See Blake v. Pellegrino, 329 F.3d 43,
47 (1st Cir. 2003).
The Evidence Rules give trial courts explicit authority
to exclude relevant evidence if its "probative value is
substantially outweighed by the danger of . . . confusion of the
issues, or misleading the jury." Fed. R. Evid. 403. These were
precisely the risks that the lower court sought to minimize when it
chose to summarize the contents of the documents in lieu of
allowing their introduction as full exhibits. This choice was well
within the ambit of the court's discretion.
Viewed in isolation, the documents might well have
created the false inference that, at the time Guzmán sent the non-
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renewal letters, the plaintiffs had a protectible interest in
continued employment. By the same token, the documents might have
led the jury to infer — inaccurately — that Guzmán lacked the
capacity to make contract renewal determinations. As a matter of
law, the Morales Feliciano documents do not support either such
inference — yet the plaintiffs' arguments for admitting the
documents indicate that they wished to introduce them for precisely
these (improper) purposes.
We add, moreover, that although there is some small
degree of interrelatedness, the Morales Feliciano case dealt with
different litigants and different issues than the case at hand.
These differences, coupled with the plaintiffs' refusal to abide by
the court's instructions, coalesced to create a legitimate risk
that the jury might have been confused about the import of the
proffered documents. District courts have the right — indeed, the
obligation — to guard against juror confusion in such
circumstances. See, e.g., Faigin v. Kelly, 184 F.3d 67, 80 (1st
Cir. 1999). And the need for vigilance is increased where, as
here, the trial court has had to contend with intransigence on the
part of counsel.
The concerns that we have noted might have justified the
district court in excluding the evidence entirely. Here, however,
the court settled on a less drastic remedy and opted to summarize
the pertinent portions of the documents for the jury so as to
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provide useful background information. The district court's
summary of the documents was legally and factually correct, and,
therefore, this compromise solution struck a fair balance between
the policy favoring the admission of relevant evidence and the risk
that the evidence might taint the proceedings. When a district
judge carefully reconciles conflicting considerations and reaches
a sensible solution as to the handling of volatile evidence, an
appellate court should hesitate to intervene. See id. at 80-81.
("Rule 403 controversies by their very nature present competing
considerations, and compromise is often the best solution for a
particularly knotty Rule 403 problem.").
The plaintiffs make a related argument. Citing the
jury's request for the proffered documents, they decry the
sufficiency of the trial court's summary. The fact that a jury
asks for specific evidence, however, does not strip a district
judge of her discretion to withhold it based on appropriate
concerns about potential prejudice, jury confusion, and the like.
See United States v. George, 752 F.2d 749, 757 (1st Cir. 1985).
Here, moreover, although the court denied the jury's specific
request, it did reread its summary. This accommodation adequately
apprised the jurors of the background information relevant to a
decision of the issues before them.
The sockdolager, of course, is that the evidence in
question was only relevant to liability, not to damages. Since the
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jury ultimately found for the plaintiffs on the issue of liability,
any error resulting from the court's refusal to admit the documents
as full exhibits was obviously harmless. In other words, if an
error occurred — and we discern none — it would not warrant
overturning the verdict because it would have no effect on the
plaintiffs' substantial rights. See Fed. R. Civ. P. 61; Fed. R.
Evid. 103(a); see also Macaulay v. Anas, 321 F.3d 45, 54 (1st Cir.
2003).
III. CONCLUSION
We need go no further. We uphold the district court's
discretionary decision not to admit as full exhibits certain
documents from the Morales Feliciano case. As that is the only
issue properly before us, we have no basis for disturbing the
judgment below.
Affirmed. Costs shall be taxed in favor of the
appellees.
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