Torres-Arroyo v. Rullan

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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