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

    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