McCuller v. Riese Organization Motion for Leave to File Brief Amicus Curiae and Brief Amicus Curiae in Support of Petitioner
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January 1, 1992

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Brief Collection, LDF Court Filings. McCuller v. Riese Organization Motion for Leave to File Brief Amicus Curiae and Brief Amicus Curiae in Support of Petitioner, 1992. 98278384-bc9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/b9e4b4d6-9e5f-4a37-af5c-8fe32b929668/mcculler-v-riese-organization-motion-for-leave-to-file-brief-amicus-curiae-and-brief-amicus-curiae-in-support-of-petitioner. Accessed July 09, 2025.
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No. 92-8206 In The Supreme Court of tt)e Untteti States. October Term, 1992 J ames Dunlap-McCuller, Petitioner, v. Riese Organization, et a l, Respondents. On Petition for Writ of Certiorari to the United States Court of Appeals for the Second Circuit MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE AND BR IEF AMICUS CURIAE IN SUPPORT OF PETITIONER OF THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. E laine R. Jones E ric Schnapper* NAACP Legal Defense and E ducational F und, Inc. 16th Floor 99 Hudson Street New York, N.Y, 10013 (212) 219-1900 Counsel for Amicus * Counsel o f Record PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203 No. 92-8206 In The Suprem e C o u rt of tljc fHmteti i£>tateg October Term , 1992 James D unlap-McCuller , Petitioner, v. R iese Organization, et al, Respondents. On Petition for Writ of Certiorari to the United States Court of Appeals for the Second Circuit MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE OF THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. The NAACP Legal Defense and Educational Fund, Inc., hereby moves this Court, pursuant to Rules 21 and 37.2 of the Supreme Court, for leave to file a brief amicus curiae in support of petitioner, and in support thereof states as follows: The petition in this case has been filed pro se by the plaintiff in this action. Although this Court grants pro se petitions only infrequently, the decision of the Second Circuit below does in fact present an important issue 2 regarding which a conflict exists among the circuits. The pro se petition lists six proposed questions presented, the last of which contains ten subparts. (Pet. i-iv) We suggest in our proposed amicus brief that review need be granted on only a single issue. The pro se petition includes as one of the issues presented by petitioner whether the 1991 Civil Rights Act should be applied retroactively. (Pet. ii) If the claims of petitioner indeed turned on that issue, the appropriate disposition of the petition would be to defer action until the Court has decided the two cases presenting that question in which certiorari has already been granted. Rivers v. Roadway Express, Inc., No. 92-938; Landgraf v. USI Film Products, No. 92-757. We set out in our proposed brief an assessment of the relevance of the 1991 Civil Rights Act to the instant case, based in part on our familiarity with that issue as counsel for petitioners in Rivers. For the above reasons, the motion for leave to file a brief amicus curiae should be granted. CONCLUSION Elaine R. Jones Eric Schnapper* NAACP Legal Defense and Educational Fund, Inc. 16th Floor 99 Hudson Street New York, NY 10013 (212) 219-1900 Counsel for Amicus *Counsel of Record 1 QUESTION PRESENTED Where a district court sets aside a jury verdict and orders a new trial, under what circumstances may that order be overturned on appeal following the second trial? TABLE OF CONTENTS QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . i TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . iii REASONS FOR GRANTING THE WRIT . . . . . . . . . 1 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 i i Ill TABLE OF AUTHORITIES Cases: Pages: Binder v. Commercial Travelers Mt. Acc. Ass’n, 165 F.2d 896 (2d Cir. 1947) ............................. 2 Binder v. Commercial Travelers Mut. Acc. Ass’n, 166 F.2d 896 (2d Cir. 1948) . . . . . . . . . . . . . . 4 Borras v. Sea-Land Service, Inc., 586 F.2d 881 (1st Cir. 1978)........................ 3, 4, 7 Coffran v. Hitchcock Clinic Inc., 683 F.2d 5 (1st Cir. 1982) ...................... .. 3, 4 Continental Air Lines, Inc. v. Wagner-Morehouse, Inc., 401 F.2d 23 (7th Cir. 1968) ............................... 3 Conway v. Chemical Leaman Tank Lines, Inc., 610 F.2d 360 (5th Cir. 1980) ........................ 3, 5 Digidyne Corp. v. Data General Corp., 734 F.2d 1336 (9th Cir. 1984) .......................... 3 Duncan v. Duncan, 377 F.2d 49 (6th Cir. 1967) ___ _ _____ 3, 4, 6, 7 Fireman’s Fund Insurance Co. v. AALCO Wrecking Co., Inc., 466 F.2d 179 (8th Cir. 1972) ............................. 3 Ford Motor Co. v. Summit Motor Products, Inc., 930 F.2d 277 (3d Cir. 1991) ............................. 3 Hewitt v. B.F. Goodrich Co., 732 F.2d 1554 (11th Cir. 1984)........................... 3 IV Hobson v. Wilson, 737 F.2d 1 (D.C. Cir. 1984) . . . . . . . . . . . . . 4, 5 Hutchinson v. Stuckey, 952 F.2d 1418 (D.C. Cir. 1992) . . . . . . . . . . 4, 5, 6 Jones v. Wal-Mart Stores, Inc., 870 F.2d 982 (5th Cir. 1989) . . . . . . . . . . . . . . 3 Kay v. Ehrler, __ U.S.___ , 113 L. Ed. 2d 486 (1991) . . . . . . . 8 Kirschner v. Office of the Comptroller of the City of New York, 973 F.2d 88 (2d Cir. 1992) . . . . . . . . . . . . . . . . 2 Landgraf v. USI Film Products, No. 92-757 ......................................................... 2 Lind v. Schenley Industries, Inc., 278 F.2d 79 (3d Cir. 1960) . . . . . . . . . . . . . 3, 6, 7 McGee v. South Pemiscot School District R-V, 712 F.2d 339 (8th Cir. 1983) . . . . . . . . . . . . 3, 7 McNeal v. Hi-Lo Powered Scaffolding, Inc., 836 F.2d 637 (D.C. Cir. 1988) .................... . 4, 5 Newmont Mines Limited v. Hanover Insurance Co., 784 F.2d 127 (2d Cir. 1986) ................ .. 2 Norfolk Southern Ry. Co. v. Davis Frozen Foods, Inc., 195 F.2d 662 (4th Cir. 1952) ....................... . 3, 5 Perez v. Hospital del Maestro, 910 F.2d 1004 (1st Cir. 1990) ......... ............. 3, 4 Pool v. Leone, 374 F.2d 961 (10th Cir. 1967) . . . . . . . . . . . 3, 5 Portman v. American Home Products Corp., 201 F.2d 847 (2d Cir. 1953) ...................... .. 2 Redd v. City of Phenix City, Ala., 934 F.2d 1211 (11th Cir. 1991)...................... 3, 6 Rivers v. Roadway Express, Inc., No. 92-938 ................................................... 2 Roberts v. Consolidated Rail Corp., 893 F.2d 21 (2d Cir. 1989).................... 2 Shows v. Jamison Bedding, Inc., 671 F.2d 927 (5th Cir. 1982) .................. 3, 5, 6, 7 Watts v. Great Atlantic and Pacific Tea Co., 842 F.2d 307 (11th Cir. 1988) . . . '..................... 3 Williams v. City of Valdosta, 689 F.2d 964 (11th Cir. 1982) ...................... 3, 7 Statutes: Pages: 42 U.S.C. §1981 ........................ -.................................... 8 Miscellaneous: Pages: 11 Charles A. Wright & Arthur A. Miller, Federal Practice & Procedure, sec. 2819 (1973)................. 6 No. 92-8206 In The Supreme Court of tfje Umteb ikateg October Term , 1992 James D unlap-McCuller, Petitioner, v. R iese Organization, et al, Respondents. On Petition for Writ of Certiorari to the United States Court of Appeals for the Second Circuit BRIEF AMICUS CURIAE IN SUPPORT OF PETITIONER OF THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. REASONS FOR GRANTING THE WRIT This case presents an inter-circuit conflict of substantial, indeed constitutional, importance. The Second Circuit, unlike every other circuit to consider this question, holds that a district court order setting aside a jury verdict, and ordering a new trial, can never be reviewed on appeal, even where, as here, the appellant advances a substantial 2 claim that the new trial order violates the Seventh Amendment. For some forty-six years1 the Second Circuit has refused to consider on appeal the propriety of a district court order granting, or denying, a new trial. The Second Circuit, of course, recognizes that there are legal standards controlling when a new trial may and may not be granted; in some circumstances the granting of a new trial would violate the Seventh Amendment. But in the Second Circuit these are "errors that are not reviewable at all." Portman v. American Home Products Corp., 201 F.2d 847, 848 (2d Cir. 1953). A generation ago the Second Circuit asserted that its rule was "too well established to justify discussion." Id. The opinion below candidly conceded that this Second Circuit rule has now been almost universally rejected by the other circuits.2 Nonetheless, the Second Circuit panel which heard this case regarded itself as bound by the precedent in that circuit3 to follow this aberrational rule.4 1 Since Binder v. Commercial Travelers Mt. Acc. Ass’n, 165 F.2d 896, 902 (2d Cir. 1947). 2 Pet. App., majority opinion, p. 11 ("most other circuits review the grant of a new trial"); concurring opinion, p. 1 ("most other circuits . . . reject our rule and review these nullifications of jury verdicts . . ."). 3 In addition to Binder and Portman, see Kirschner v. Office of the Comptroller of the City of New York, 973 F.2d 88, 96 (2d Cir. 1992); Roberts v. Consolidated Rail Corp., 893 F.2d 21, 26 (2d Cir. 1989); Newmont Mines Limited v. Hanover Insurance Co., 784 F.2d 127, 133 (2d Cir. 1986). 4 Pet. App., majority opinion, p. 12. 3 The Second Circuit rule has been rejected by eleven other circuits. The First,5 Third,6 Fourth,7 Fifth,8 Sixth,9 Seventh,10 Eighth,11 Ninth,12 Tenth,13 Eleventh,14 and 5 Perez v. Hospital del Maestro, 910 F.2d 1004, 1006 (1st Cir. 1990); Coffran v. Hitchcock Clinic Inc., 683 F.2d 5, 6 (1st Cir. 1982); Borras v. Sea-Land Sendee, Inc., 586 F.2d 881, 886-87 (1st Cir. 1978). 6 Ford Motor Co. v. Summit Motor Products, Inc., 930 F.2d 277, 290 (3d Cir. 1991); Lind v. Schenley Industries, Inc., 278 F.2d 79, 90 (3d Cir. 1960). 7 Norfolk Southern Ry. Co. v. Davis Frozen Foods, Inc., 195 F.2d 662, 664 (4th Cir. 1952). 8 Jones v. Wal-Mart Stores, Inc., 870 F.2d 982, 986 (5th Cir. 1989); Shows v. Jamison Bedding, Inc., 671 F.2d 930-31 (5th Cir. 1982); Conway v. Chemical Leaman Tank Lines, Inc., 610 F.2d 360, 362 (5th Cir. 1980). 9 Duncan v. Duncan, 377 F.2d 49, 53-54 (6th Cir. 1967). 10 Continental Air Lines, Inc. v. Wagner-Morehouse, Inc., 401 F.2d 23, 30 (7th Cir. 1968). 11 McGee v. South Pemiscot School District R-V, 712 F.2d 399, 344 (8th Cir. 1983); Fireman’s Fund Insurance Co. v. AALCO Wrecking Co., Inc., 466 F.2d 179, 185-88 (8th Cir. 1972). 12 Digidyne Corp. v. Data General Corp., 734 F.2d 1336, 1347 (9th Cir. 1984). 13 Pool v. Leone, 374 F.2d 961, 963-64 (10th Cir. 1967). 14 Redd v. City ofPhenix City, Ala., 934 F.2d 1211, 1214-15 (11th Cir. 1991); Watts v. Great Atlantic and Pacific Tea Co., 842 F.2d 307, 310-11 (11th Cir. 1988); Hewitt v. B.F. Goodrich Co., 732 F.2d 1554, 1556 (11th Cir. 1984); Williams v. City o f Valdosta, 689 F.2d 964, 972- 74 (11th Cir. 1982). 4 District of Columbia15 Circuits all will review on appeal a district court decision granting or denying a new trial. One of the District of Columbia Circuit decisions holding such decisions reviewable on appeal was joined by then Judge Scalia. Hobson v. Wilson, 737 F.2d 1, 58 n.160 (D.C. Cir. 1984). The Second Circuit bases its refusal to review new trial orders, in part, on the view that the district judge sits "as a thirteenth juror." Binder v. Commercial Travelers Mut. Acc. Ass’n, 166 F.2d 896, 902 (2d Cir. 1948). It is difficult to see how this reasoning could be reconciled with the plain language of the Seventh Amendment, which expressly distinguishes between the role of a "jury" and the role of a "court." The First Circuit has emphatically rejected the Second Circuit’s suggestion that a district judge could be treated like simply another juror. "[A] trial judge should not act merely as a T3th juror’ . . ." Borras v. Sea-Land Service, Inc., 586 F.2d 881, 887 (1st Cir. 1978).16 Among the eleven circuits which, unlike the Second Circuit, will review an order granting or denying a new trial, there is a widespread conflict regarding what standard of review should be applied. Three circuits, the First,17 15 Hutchinson v. Stuckey, 952 F.2d 1418, 1420-21 (D.C. Cir. 1992); McNeal v. Hi-Lo Powered Scaffolding, Inc., 836 F.2d 637, 646 (D.C. Cir. 1988); Hobson v. Wilson, 737 F.2d 1, 58 n.160 (D.C. Cir. 1984). 16 See also Perez v. Hospital del Maestro, 919 F.2d 1004, 1006 (1st Cir. 1990) ("the district court ’should not act merely as a "thirteenth juror"’"); Coffran v. Hitchcock Clinic Inc., 683 F.2d 5, 6 (1st Cir. 1982) ("trial judge should not act merely as a ’13th juror’"); cf. Duncan v. Duncan, 377 F.2d 49, 54 (1st Cir. 1967) (Tennessee practice under which trial judge sits as thirteenth juror "inapplicable" in federal court). 17 Perez v. Hospital del Maestro, 910 F.2d at 1006. 5 Fourth,18 and Tenth,19 will overturn a district court decision granting or denying a new trial only if there is an abuse of discretion; these circuits appear not to have developed any more specific standard, or to have adopted any of the rules followed in the other eight circuits. Two circuits expressly apply a different, more searching standard of review where the district court granted a new trial than where the lower court refused to set aside the jury verdict. As the Fifth Circuit explained, "[Cjases in our circuit apply a somewhat broader review . . . to orders that grant new trials . . . . We do so to assure that the judge does not simply substitute his judgment for that of the jury, thus depriving the litigants of their right to trial by jury." Conway v. Chemical Leaman Tank Lines, Inc., 610 F.2d 360, 362-63 (5th Cir. 1980) (Emphasis in original).20 This is the standard of review the panel below apparently would have used had it not been constrained by Second Circuit precedent to refuse to consider petitioner’s claim.21 This 18 Norfolk Southern Ry. Co. v. Davis Frozen Foods, Inc. 195 F.2d at 664. 19 Pool v. Leone, 374 F.2d at 964. 20 See also Hobson v. Wilson, 737 F.2d 1, 58 n.160 (D.C. Cir. 1984) ("plainly less" deference where district court disagrees with jury verdict); Shows v. Jamison Bedding, Inc., 671 F.2d 927, 930 (5th Cir. 1982) (broader review necessary where new trial granted because deference to judge in such a case would be "in opposition to the deference due the jury"). Hutchinson v. Stuckey, 952 F.2d 1418, 1420- 21 (D.C. Cir. 1992); McNeal v. Hi-Lo Powered Scaffolding, Inc., 836 F.2d 637, 646 (D.C. Cir. 1988). 21 "We believe . . . that different considerations are at issue when a district court grants a motion for a new trial because it finds the verdict to be clearly against the weight of the evidence. . . . Specifically, ’[appellate action in this context protects the role of the jury, as envisioned by the Seventh Amendment, rather than running 6 is also the view taken by the District of Columbia Circuit decision joined by then Judge Scalia. Five circuits apply a yet more stringent standard of review where, as here, a new trial has been granted by the district court on the ground that the jury’s verdict was assertedly against the weight of the evidence. Those circuits "exercise particularly close scrutiny, to protect the litigants’ right to jury trial." Shows v. Jamison Bedding, Inc., 671 F.2d 927, 930 (5th Cir. 1982). [T]he trial judge in negating the jury’s verdict has, to some extent at least, substituted his judgment of the facts . . . for that of the jury. Such an action affects a denigration of the jury system and to the extent that new trials are granted the judge takes over, if he does not usurp, the prime function of the jury as the trier of the facts. It then becomes the duty of the appellate tribunal to exercise a closer degree of scrutiny and supervision. . . . Lind v. Schenley Industries, Inc., 278 F.2d 79, 90 (3d Cir. I960).22 Among the circuit courts which follow the majority rule, there is a conflict regarding whether the existence of credibility issues requires a greater or lesser degree of appellate scrutiny. Five circuits hold that where credibility contrary to it.’" Pet. App., majority opinion, p. 11, quoting 11 Charles A. Wright & Arthur A. Miller, Federal Practice & Procedure, sec. 2819 (1973). 22 Duncan v. Duncan, 377 F.2d 49, 53-54 (6th Cir. 1967) (quoting Lind)', Redd v. City o f Plienix City, Ala., 934 F.2d 1211, 1215 (11th Cir. 1991) (Where new trial granted based on insufficiency of the evidence, "this court’s review will be extremely stringent to protect a party’s right to a jury trial"); Hutchinson v. Stuckey, 952 F.2d 1418, 1421 (D.C. Cir. 1992) (quoting Lind). 7 is a factor, the granting of a new trial should be given particularly searching appellate scrutiny, because credibility issues are the sole responsibility of the jury, "The trial judge may not usurp the functions of a jury. The jury weighs the . . , credibility of witnesses." McGee v. South Pemiscot School District R-V, 712 F.2d 339, 344 (8th Cir. 1983)23. On the other hand, the First Circuit holds that a trial judge may grant a new trial if he or she finds "more credible" the witnesses relied on by the losing party. Borras v. Sea-Land Service, Inc., 586 F.2d 881, 886 (1st Cir. 1978). The question presented is of substantial constitutional significance. When, as here, a district court grants a new trial on the ground that a verdict is "against the weight of the evidence"24, that action raises serious Seventh Amendment issues. Assuming, arguendo, that a federal trial judge may in some instances grant such an order without violating the Seventh Amendment, whether the granting of a new trial was proper in a particular case invariably raises a substantial constitutional question. The Seventh Amendment, unique among the provisions of the Bill of Rights, is directed at judges-, ordinarily only a federal judge can violate its mandatory commands. The Second Circuit rule declares, without apparent limitation, that the requirements of the Seventh Amendment, insofar as they apply to new trial orders in that circuit, simply will not be enforced. Where, as here, a petitioner contends that a district judge violated the requirements of the Seventh Amendment, the appellate courts abdicate their 23 Lind v. Schenley Industries, Inc., 278 F.2d 79, 90-91 (3d Cir. 1960)(judge should not substitute his view of the "credibility of the witnesses for that of the jury"); Shows v. Jamison Bedding, Inc., 671 F.2d 927, 931 (5th Cir. 1982); Duncan v. Duncan, 377 F.2d 49, 54 (6th Cir. 1967)(quoting Lind)-, Williams v. City o f Valdosta, 689 F.2d 964, 973 n.7 (11th Cir. 1982)(noting "disagreement"on this issue). 24 Pet. App., Memorandum and Order of June 5, 1991, p.l. 8 constitutional responsibility when they refuse even to entertain such a claim. Certiorari should be granted to resolve the conflict among the circuits regarding this important issue. The first, second and third questions set forth in the pro se petition clearly seek review of the Second Circuit rule that new trial orders cannot be reviewed on appeal. In the interest of clarity, the Court may wish to delineate in the order granting certiorari the question to be decided; in the alternative, certiorari should be granted on the first three questions set forth in the petition. The fourth question presented concerns whether the 1991 Civil Rights Act is retroactive. In this case, however, petitioner's race and retaliation claims were indeed tried to the jury, apparently because they were based on 42 U.S.C. §1981 as well as Title VII.25 Although the new right to trial by jury for certain Title VII claims is an important aspect of the 1991 Civil Rights Act, it is of no consequence in this particular case whether the Act applies retroactively, since petitioner did indeed receive a jury trial, and can invoke the Seventh Amendment in seeking to reinstate the verdict of the first jury. Petitioner challenges in his fifth question the apparent failure of the courts below to award him counsel fees for having represented himself pro se. This argument appears to be foreclosed by this Court’s decision in Kay v. Ehrler, __ U.S.___ , 113 L.Ed.2d 486 (1991). Finally, petitioner sets forth a variety of arguments suggesting that the district court’s decision awarding a new trial was erroneous and unconstitutional. These are issues which can be considered in the first instance on remand if this Court holds that new trial orders may indeed by challenged on appeal. 25 Pet. App., majority opinion, p.2. 9 CONCLUSION For the above reasons, a writ of certiorari should be granted to review the judgment and opinion of the Second Circuit. We suggest that the Court delineate the issue to be decided on certiorari as follows: "When a district court sets aside a jury verdict and orders a new trial, under that circumstances may that order be overturned on appeal following the second trial?" Eric Schnapper* NAACP Legal Defense and Educational Fund, Inc. 16th Floor 99 Hudson Street New York, NY 10013 (212) 219-1900 Counsel for Amicus *Counsel of Record