UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1715
AGAPITA ROSA VELAZQUEZ, ET AL.,
Plaintiffs, Appellants,
v.
EDNA J. FIGUEROA-GOMEZ, ET AL.,
Defendants, Appellees.
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No. 92-2155
AGAPITA ROSA VELAZQUEZ, ET AL.,
Plaintiffs, Appellees,
v.
EDNA J. FIGUEROA, ET AL.,
Defendants, Appellants.
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No. 92-2223
AGAPITA ROSA VELAZQUEZ, ET AL.,
Plaintiffs, Appellants,
v.
EDNA J. FIGUEROA-GOMEZ, ET AL.,
Defendants, Appellees.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Roberto Schmidt-Monge, U.S. Magistrate Judge]
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Before
Breyer, Chief Judge,
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Torruella and Cyr, Circuit Judges.
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Eliezer Aldarondo-Ortiz, with whom Miguel Pag n and
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Aldarondo, L pez Bras, Pag n & Ortiz Ballester, were on brief for
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appellants.
Zuleika Llovet, with whom Juan B. Soto-Balbas and Mercado &
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Soto, were on brief for appellees.
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June 9, 1993
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TORRUELLA, Circuit Judge. In this appeal, we review
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the district court's denial of a Motion to Alter or Amend
Judgment pursuant to Federal Rule of Civil Procedure 59(e). This
is a run of the mill political discrimination case brought
against appellants, Municipality of Luquillo, Puerto Rico and
several officials of the Municipality, under 42 U.S.C. 1983 for
violation of appellees' First Amendment rights under the United
States Constitution. The jury found that the appellants
discriminated against appellees, thirty-eight former employees of
the Municipality, and awarded damages in favor of twenty-seven
appellees. Appellants request that we vacate the judgment of the
district court entirely because the evidence was insufficient to
support the jury's verdict that appellants terminated appellees
because of their political affiliation. Alternatively,
appellants pray that we reduce the damage awards because they are
allegedly excessive. Plaintiff-appellees, in a cross-appeal,
request that they be reinstated in their employment.
I
I
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Normally, to challenge the sufficiency of the evidence
on appeal, a party must move for a directed verdict at the close
of all the evidence and follow it by a motion for judgment
notwithstanding the verdict. See Fed. R. Civ. P. 50 (a) & (b);
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Wells Real Estate, Inc. v. Greater Lowell Board of Realtors, 850
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F.2d 803, 810 (1st Cir.), cert. denied, 488 U.S. 955 (1988).
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Motions for directed verdict and judgment n.o.v. must be made
with sufficient particularity to alert the trial judge as to why
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the evidence is insufficient. The moving party may appeal only
from the grounds stated in the motion. Id.; Pstragowski v.
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Metropolitan Life Ins. Co., 553 F.2d 1, 3 (1st Cir. 1977). Since
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appellants failed to move for a directed verdict and judgment
n.o.v., we may not consider this ground of appeal. Wells Real
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Estate, 850 F.2d at 810; La Forest v. Autoridad de las Fuentes
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Fluviales, 536 F.2d 443, 445 (1st Cir. 1976).
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However, waiver of the right to request a judgment
n.o.v. does not prevent a party from moving for a new trial under
Fed. R. Civ. P. 59(a), alleging that the verdict is against the
weight of the evidence. Wells Real Estate, 850 F.2d at 810.
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"[A] motion for a new trial must be made in the first instance
before the trial court, particularly where the weight of the
evidence is at issue." Id., 850 F.2d at 811 (citing 6A James WM.
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Moore, Moore's Federal Practice 59.15[3], at 326-27 (2d ed.
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1987)). Failure to move for a new trial also waives the issue on
appeal. Id.
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In this case, appellants once again failed to make an
appropriate motion for a new trial before the district court.
Instead, they moved under Fed. R. Civ. P. 59(e) to set aside or
amend the verdict.1 The purpose of the motion, however, was
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1 Courts have interpreted Rule 59(e) to allow a motion to vacate
a judgment entirely, rather than just alter it. See 11 Charles
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A. Wright & Arthur R. Miller, Federal Practice and Procedure
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817 at 111 n.31, Supp. at 39 n.31 (1973 & Supp. 1992) and cases
cited therein. These courts, however, considered whether a Rule
59(e) motion was functionally equivalent to a motion to
reconsider under Rule 60, pursuant to which a district court may
vacate a judgment for certain specified errors. See, e.g., A.D.
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Weiss Lithograph Co. v. Illinois Adhesive Products Co., 705 F.2d
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indisputably to challenge the verdict as against the weight of
the evidence. While we do not condone lax, self-styled motions,
or disregard of the Rules, our examination of the character of a
motion is functional: "nomenclature should not be exalted over
substance." Echevarr a-Gonz lez v. Gonz lez-Chapel, 849 F.2d 24,
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26 (1st Cir. 1988) (quoting Lyell Theatre Corp. v. Loews Corp.,
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682 F.2d 37, 41 (2d Cir. 1982)). We therefore cannot conclude
that appellants failed to raise the issue before the district
court.
The district court apparently did not pay much
attention to the rule under which the motion was filed, or the
caption that titled appellants' plea. The magistrate judge
addressed the sufficiency argument directly and denied
appellants' motion because he believed that "[t]he jury received
abundant testimonial and documentary evidence with which to
support their conclusion of political discrimination." Rosa-
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Vel zquez v. Figueroa-G mez, No. 90-1192, slip op. at 1 (D.P.R.
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Apr. 15, 1992). In addition, appellees did not object to the
styling of the motion and seemed to assume that sufficiency of
the evidence could be assailed in a motion under Rule 59(e).
Thus, while the district court ought to have reformed the
challenge as one pursuant to Rule 59(a) earlier in this
proceeding, we will treat the motion as one for a new trial.
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249, 250 (7th Cir. 1983); Huff v. Metropolitan Life Ins. Co., 675
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F.2d 119, 122 (6th Cir. 1982). We have found no authority
supporting the proposition that a motion under Rule 59(e) may be
used to reevaluate the weight of the evidence after a jury's
verdict.
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The decision to grant a new trial is squarely within
the trial court's discretion. Allied Chemical Corp. v. Daiflon,
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Inc., 449 U.S. 33, 36 (1980). "Only an abuse of discretion will
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trigger reversal of a denial of a motion for new trial." Wells
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Real Estate, 850 F.2d at 811; see also Conway v. Electro Switch
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Corp., 825 F.2d 593, 598 (1st Cir. 1987). Such deference to the
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trial court is particularly appropriate in cases in which the
jury's verdict is challenged as against the weight of the
evidence because "a jury's verdict on the facts should only be
overturned in the most compelling circumstances." Wells Real
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Estate, 850 F.2d at 811; Keeler v. Hewitt, 697 F.2d 8, 11 (1st
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Cir. 1982).
Moreover, the trial court's discretion is quite limited
concerning motions for new trials. A trial judge may not upset
the jury's verdict merely because he or she might have decided
the case differently. On the contrary, a trial judge may grant a
new trial only if she "believes that the outcome is against the
clear weight of the evidence such that upholding the verdict will
result in a miscarriage of justice." Conway, 825 F.2d at 598-99;
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see also Coffran v. Hitchcock Clinic, Inc., 683 F.2d 5, 6 (1st
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Cir.), cert. denied, 459 U.S. 1087 (1982). We assume, and we do
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not review for, sufficiency of the evidence. Valm v. Hercules
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Fish Products, Inc., 701 F.2d 235 (1st Cir. 1983).
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We thus review the evidence to determine whether the
district court abused its discretion. The evidence showed that
all the plaintiffs were members of the Popular Democratic Party
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("PDP"); that all defendants were members of the New Progressive
Party ("NPP"); that many of the plaintiffs were politically
active for the PDP during the 1988 campaign which brought the NPP
to power; that defendants knew of the plaintiffs' political
affiliation prior to termination; that plaintiffs' work
responsibilities were altered with the change in administration;
and that plaintiffs' positions in the Municipal government were
filled with members of the NPP after termination. Given this
evidence, the district court did not abuse its discretion in
finding the evidence sufficient to support the jury's verdict and
denying appellants' motion.
II
II
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Appellants' second argument fails for similar reasons.
Appellants urge that if the evidence is deemed sufficient, the
damage awards be reduced because they are excessive. The
standard of review of damage awards places an enormous burden on
the party challenging the award. To begin with, the evidence is
viewed in the light most favorable to the prevailing party. See,
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e.g., Betancourt v. J.C. Penney Co., 554 F.2d 1206, 1207 (1st
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Cir. 1977). In addition, it is exceedingly "difficult on the
basis of an algid appellate record to quantify damages for
intangible losses." Ruiz v. Gonz lez-Caraballo, 929 F.2d 31, 34
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(1st Cir. 1991). Indeed, "[t]ranslating legal damage into money
damages -- especially in cases which involve few significant
items of measurable economic loss -- is a matter peculiarly
within a jury's ken." Wagenmann v. Adams, 829 F.2d 196, 215 (1st
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Cir. 1987). Therefore, unless we can say that the award is
"'grossly excessive,' 'inordinate,' 'shocking to the conscience
of the court,' or 'so high that it would be a denial of justice
to permit it to stand,'" Segal v. Gilbert Color Systems, Inc.,
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746 F.2d 78, 80-81 (1st Cir. 1984) (quoting Grunenthal v. Long
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Island R.R. Co., 393 U.S. 156, 159 & n.4 (1968)), we will not
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"overrule a trial judge's considered refusal to tamper with the
damages assessed by a jury." Ruiz, 929 F.2d at 34; see also
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Wagenmann, 829 F.2d at 215. We certainly cannot say that these
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awards for political discrimination in employment fall outside
this broad standard for acceptable jury verdicts.2
III
III
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The last issue that we must confront is whether the
district court properly denied plaintiffs' request for
reinstatement. This circuit has determined previously that
"[o]ne of the remedies available for a political discharge in
violation of First Amendment rights is reappointment." Santiago-
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Negr n v. Castro-D vila, 865 F.2d 431, 437 (1st Cir. 1989). As
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reinstatement is an equitable remedy, we have stressed that its
flexible application "seems particularly desirable in cases
involving important private rights and public institutions" such
as those involving political discrimination. Rosario-Torres v.
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Hern ndez-Col n, 889 F.2d 314, 320-21 (1st Cir. 1989). We have
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rejected the notion that finding a violation of first amendment
rights leads a fortiori to reinstatement, and recognized that the
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2 The jury awarded sums ranging between $14,200 and $33,500.
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application of the remedy lies within the district court's
discretion. Id. at 321-22. The court must apply that discretion
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on a case by case basis with a keen eye to the many factors in
the balance.
The trial court's discretion is not unbounded, however.
In fact, we have cautioned that the incidental burdens on a
public employer accompanying reinstatement -- i.e., "tension (or
even hostility) between parties when forcibly reunited" -- are
"usually insufficient, without more, to tip the scales against
reinstatement when first amendment rights are at stake in a
section 1983 action." Id. at 322 (citing Banks v. Burkich, 788
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F.2d 1161, 1165 (6th Cir. 1986)). Thus, "equitable
considerations different in kind or degree from those regularly
accompanying reinstatement must be present if reinstatement is to
be withheld from the victim of a first amendment infraction."
Rosario-Torres, 889 F.2d at 323.
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In the past, we have indicated a number of special
considerations that influence the district court determination in
specific cases, including: (1) the strength of the evidence
proving the first amendment violation; (2) whether the discharged
employee has found comparable work; (3) the absence of a property
right in the position because the employee was hired in violation
of local law; and (4) the ineligibility of the employee for the
position, due to failure to meet established qualifications,
which would permit immediate discharge for no reason or for any
permissible reason. See Hiraldo-Cancel v. Aponte, 925 F.2d 10,
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13-14 (1st Cir.), cert. denied, 112 S. Ct. 637 (1991); Rosario-
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Torres, 889 F.2d at 322-24. Although ineligibility for
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appointment "neither suspend[s] their first amendment rights nor
undercut[s] their entitlement to legal relief under section
1983," it is a factor weighing against reinstatement if a
reappointee would be immediately discharged. Hiraldo-Cancel, 925
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F.2d at 14. This list does not canvass all the relevant factors
but rather highlights several that are particularly important.
With these principles in mind, we review the choice of equitable
remedies for abuse of discretion while recognizing that the trial
court views the evidence from a better vantage point than we do
on the appellate record. Id.
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In this case the trial court denied reinstatement to
all prevailing plaintiffs. The scant evidence supporting the
first amendment claims, the amount of the damage awards, and the
fact that these employees were hired illegally in violation of
Puerto Rico's personnel laws provided sufficient justification
for denying reinstatement. We readily find no abuse of
discretion.
IV
IV
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In conclusion, we affirm the trial court's denial of
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the Rule 59(e) motion and plaintiffs' request for reinstatement.
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