     Case: 17-40161    Document: 00514453768      Page: 1   Date Filed: 05/01/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT

                                                                United States Court of Appeals

                                  No. 17-40161
                                                                         Fifth Circuit

                                                                       FILED
                                                                    May 1, 2018

VANITY BENSON,                                                    Lyle W. Cayce
                                                                       Clerk
             Plaintiff - Appellant

v.

TYSON FOODS, INCORPORATED,

             Defendant - Appellee




                 Appeal from the United States District Court
                      for the Eastern District of Texas


Before WIENER, GRAVES, and HO, Circuit Judges.
PER CURIAM:
      Plaintiff Vanity Benson (“Benson”) appeals from a jury verdict in favor
of defendant Tyson Foods, Inc. (“Tyson”) for disability claims that Benson
brought under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101
et seq. On October 14, 2016, a jury ruled in favor of Tyson at trial. At that time,
Benson’s counsel did not move for judgment as a matter of law. Final judgment
was entered on December 8, 2016.
      On January 4, 2017—almost three months after the jury had been
dismissed—Benson’s lawyer filed a motion for leave to interview jurors post-
trial. The next day, Benson moved for a new trial, arguing that the jury
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ignored the evidence when it concluded that she was not disabled. The district
court denied both requests, and Benson appealed.
      We turn first to her motion for a new trial under Federal Rule of Civil
Procedure 59, and review the district court’s denial of that motion for abuse of
discretion. Lincoln v. Case, 340 F.3d 283, 290 (5th Cir. 2003). Where a jury
verdict is at issue, “there is no . . . abuse of discretion unless there is a complete
absence of evidence to support the verdict.” Sam’s Style Shop v. Cosmos Broad.
Corp., 694 F.2d 998, 1006 (5th Cir. 1982). Here, the jury had ample evidence
that Benson was not disabled. Dr. Jeremy Urbanczyk testified about the
extent of Benson’s injury, including that her foot had healed correctly and that
she required no further treatment. Benson acknowledged that she was able to
play basketball and work two jobs that required her to stand on her feet. And
Benson admitted to fictionalizing details in the initial account of her foot
injury, thus undermining the credibility of her testimony. From this evidence,
the jury could reasonably conclude that she was not disabled. The district
court did not abuse its discretion in denying the motion for a new trial.
      We also consider the appeal of the district court’s order denying her
counsel’s request to speak to jurors in order to learn the basis of the verdict
and improve his trial advocacy. In Haeberle v. Texas International Airlines,
739 F.2d 1019, 1022 (5th Cir. 1984), we held that “[t]he first-amendment
interests of both the disgruntled litigant and its counsel in interviewing jurors
in order to satisfy their curiosity and improve their advocacy are limited. . . .
[T]hose interests are not merely balanced but plainly outweighed by the jurors’
interest in privacy and the public’s interest in well-administered justice.”
Since Benson’s First Amendment claim is squarely foreclosed by our precedent,
we find that the district court committed no error in denying her attorney’s
request.


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      While we are bound by our court’s rule of orderliness to follow Haeberle,
we note that that opinion is not without its flaws. In particular, Haeberle
suggests a distinction between the First Amendment rights of the press and
those of the public at large. Id. at 1021–22. Such a division finds no support
in either constitutional text or precedent. See Branzburg v. Hayes, 408 U.S.
665, 684 (1972) (“It has generally been held that the First Amendment does
not guarantee the press a constitutional right of special access to information
not available to the public generally.”). In re Express-News Corp., 695 F.2d
807, 809 (5th Cir. 1982), which Haeberle purports to apply, similarly recognized
that the right to gather news does not “guarantee journalists access to sources
of information not available to the public generally.”
      To be sure, we are mindful that the government may have an interest in
regulating the speech of attorneys, given their unique role as officers of the
court. See, e.g., Gentile v. State Bar of Nevada, 501 U.S. 1030, 1074 (1991) (“[A
lawyer is] an officer of the court, and, like the court itself, an instrument . . . of
justice. . . . [T]he speech of lawyers representing clients in pending cases may
be regulated under a less demanding standard than that established for
regulation of the press[.]” (citations and internal quotation marks omitted)).
But here, as in Haeberle, the district court articulated no such interest. In
light of the First Amendment interests at stake here, which Haeberle did not
appear to fully appreciate, district courts in the future would be wise to
consider seriously whether there exists any genuine government interest in
preventing attorneys from conversing with consenting jurors—and if so,
whether that interest should be specifically articulated, in order to facilitate
appellate review and fidelity to the Constitution.




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     Reviewing the facts and record before us under Haeberle, however, we
conclude that the district court did not err in denying Benson’s counsel’s
request to interview the jurors. The district court’s judgment is AFFIRMED.




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                                  No. 17-40161

JAMES E. GRAVES, JR., Circuit Judge, concurring in part and concurring in
the judgment:

      I join the decision to affirm the district court’s order denying Plaintiff
Vanity Benson’s motion for a new trial. I write separately because, while I agree
with the conclusion that Benson should not prevail on the motion seeking access
to the jurors, I do not reach that conclusion through adherence to Haeberle v.
Texas International Airlines, 739 F.2d 1019 (5th Cir. 1984), a decision which, in
my view, does not constrain us in these circumstances.
      A few months after the trial in this case, Benson filed a motion seeking
the district court’s leave to allow her counsel to interview the jurors “for the
purpose of improving future trials.” Counsel attested that they were not seeking
to discover information to impeach the jury’s verdict, but rather to educate
themselves and improve their trial advocacy. The motion was filed pursuant to
Eastern District of Texas Local Rule 47(b), which provides, “After a verdict is
rendered, an attorney must obtain leave of the judge before whom the action
was tried to converse with members of the jury.” The district court denied the
motion in a one-sentence order.
      In Haeberle, like here, the district court denied an attorney leave to
interview jurors for purposes of educating counsel and improving advocacy
techniques. 739 F.2d at 1021–22. The rule upon which the district court relied
dealt with communications with jurors about deliberations and verdicts:
      [N]either the attorney nor any party to an action nor any other
      person shall himself or through any investigator or other person
      acting for him to interview, examine or question any juror, relative,
      friend or associate thereof either during the pendency of the trial
      or with respect to the deliberations or verdict of the jury in any
      action, except on leave of Court granted upon good cause shown.
Id. at 1020–21. Despite the narrow scope of this rule, this court upheld the
district court’s denial of leave, holding, broadly, “The first-amendment interests
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of both the disgruntled litigant and its counsel in interviewing jurors in order
to satisfy their curiosity and improve their advocacy are limited. We agree with
the district court’s implicit conclusion that those interests are not merely
balanced but plainly outweighed by the jurors’ interest in privacy and the
public’s interest in well-administered justice.” Id.
       Haeberle does not bind us here. The case is distinguishable on two grounds.
First, the attorney’s petition, though framed in terms of improving advocacy,
actually sought to “determine on what basis [the verdict] was reached,” the very
subject the rule sought to guard against. Id. at 1020. 1 Second, and more impor-
tantly, Local Rule 47(b) is not as narrowly tailored as the rule at issue in Hae-
berle. Quite the contrary, Local Rule 47(b) is very likely impermissibly overbroad,
as the rule, on its face, bars all speech on any subject in perpetuity between an
attorney and any juror on a case previously tried by that attorney without first
seeking leave of court. Cf. Serafine v. Branaman, 810 F.3d 354, 363 (5th Cir.
2016) (explaining that a statute is overbroad under the First Amendment “if ‘a
substantial number of its applications are unconstitutional’” (quoting United
States v. Stevens, 559 U.S. 460, 473 (2010))). And it gives a district judge
unfettered discretion to deny that leave for any reason or no reason at all,



       1 Compare Haeberle, 739 F.2d at 1020 (quoting the motion: “It was obvious that the jury’s
verdict was so contrary to plaintiffs [sic] and defendant’s expectations as to the result, that some
lesson for both counsel and plaintiffs could be learned from such an inquiry. . . . [Without] an
opportunity to chat with jurors who were agreeable to do so, . . . Plaintiffs and their counsel
[would be] left with no more than idle speculation as to the basis on which the result was
reached.”), with Plaintiff’s Unopposed Motion for Leave to Interview Jurors Post-Trial 1–2,
Benson v. Tyson Foods, Inc., No. 14-0121 (E.D. Tex. Jan. 4, 2017), ECF No. 115 (“The interest
is in what influenced the jurors the most to improve trial strategy. . . . The attorneys have the
jury’s verdict, but they need the whole story: how they felt initially, what helped, what didn’t,
and what changed their mind along the way. The attorneys need a broad view of the whole
process, not just the result. Counsel will likely try similar cases and face similar challenges in
the future. Getting the direct feedback and advice from the jurors themselves will help
attorneys communicate better to factfinders and do better the next time.”).
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which too raises palpable First Amendment concerns. Cf. City of Lakewood
v. Plain Dealer Publ’g Co., 486 U.S. 750, 757 (1988) (“[T]he mere existence of
the licensor’s unfettered discretion, coupled with the power of prior restraint,
intimidates parties into censoring their own speech, even if the discretion
and power are never actually abused.”).
       This problem is not unique to the Eastern District of Texas. The Middle
and Western Districts of Louisiana and the Northern District of Texas have all
promulgated rules that are even more restrictive of speech than is Local Rule
47(b), barring in perpetuity communications on all subjects between attorneys
and some nonjurors without prior leave. See M.D. La. L.R. 47(e)(1) (“No party
or their attorney shall, personally or through another person, contact, interview,
examine, or question any juror or alternate or any relative, friend or associate
thereof, except on leave of court granted upon good cause shown.”); W.D. La. L.R.
47.5(d) (same); N.D. Tex. L.R. 47.1 (“A party, attorney, or representative of a
party or attorney, shall not, before or after trial, contact any juror, prospective
juror, or the relatives, friends, or associates of a juror or prospective juror,
unless explicitly permitted to do so by the presiding judge.” (emphases added)). 2
On this ground, I agree that the district courts of this Circuit should take a hard
look at these juror communication rules to avoid potentially running afoul of the



       2 Other districts’ rules are more narrowly tailored, by preventing only communications
regarding the jury’s deliberations or verdict (like the rule in Haeberle), see S.D. Tex. L.R. 47
(“Except with leave of Court, no attorney, party, nor agent of either of them may communicate
with a former juror to obtain evidence of misconduct in the jury’s deliberations.”); N.D. Miss.
L.R. 48 (“After the jury has been discharged, neither the attorneys in the action nor the parties
may at any time or in any manner communicate with any member of the jury regarding the
verdict,” except with leave of court); S.D. Miss. L.R. 48 (same), or regarding the proceedings in
general, see E.D. La. L.R. 47.5(b) (“Attorneys and parties to an action, or anyone acting on their
behalf, are prohibited from speaking with, examining or interviewing any juror regarding the
proceedings, except with leave of court. If leave of court is granted, it shall be conducted only
as specifically directed by the court.”). The Western District of Texas has no rule on the subject.
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First Amendment.
      On the question of how to dispose of Benson’s appeal of the denial of the
juror communication motion, I find the Tenth Circuit’s approach in Clyma v.
Sunoco, Inc., 594 F.3d 777 (10th Cir. 2010), to be instructive. There, an
association of lawyers challenged Northern District of Oklahoma Rule 47.2,
which is facially similar to Local Rule 47(b)—see N.D. Okla. L. R. 47.2 (“At no
time, including after a case has been completed, may attorneys approach or
speak to jurors regarding the case unless authorized by the Court, upon
written motion.”)—after a district court, in a minute entry with no explanation,
denied leave. The association raised First Amendment concerns with the rule,
but the Tenth Circuit felt “uncomfortable” deciding in the first instance
“[w]hether the First Amendment requires the district court in this case to craft
a narrowly tailored order utilizing the least restrictive means to protect the
jury and the administration of justice, thereby allowing [the association] some
form of access to the jurors.” Clyma, 594 F.3d at 782–83. The court found that
such a ruling was ultimately unnecessary to make, however, and decided that
the district court’s “failure to exercise meaningful discretion” in the
application of the rule constituted an abuse of discretion. Id. at 783.
      Like the Tenth Circuit, we also review a district court’s application of its
local rules for abuse of discretion. United States v. Moreno, 857 F.3d 723, 726
(5th Cir. 2017). A district court abuses its discretion where it “has acted
arbitrarily or irrationally, . . . has failed to consider judicially recognized
factors constraining its exercise of discretion, or when it has relied on erroneous
factual or legal premises.” United States v. Welsh, 879 F.3d 530, 536 (4th
Cir. 2018) (citations and internal punctuation marks omitted). Following the
guidance of Clyma, I would find that the district court here abused its
discretion by summarily denying counsel’s motion for leave under Local Rule

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47(b). But that finding is not the end of the matter; a necessary prerequisite for
reversal is a finding that the abuse of discretion “affected the complaining
party’s substantial rights.” United States v. Murra, 879 F.3d 669, 678 (5th
Cir. 2018) (emphasis added). This second step is fatal to Benson’s argument:
her rights would be unaffected by a decision that the district court abused its
discretion in not giving her counsel sufficient justification for denying their
request. Though she may have had a theoretical stake in her attorneys being
afforded an opportunity to interview jurors to improve their trial advocacy
skills in the event they represented her in a new trial, because we have affirmed
the denial of her motion for a new trial, she certainly has no stake now.
      It is on this alternate ground that I concur in the decision to affirm the
district court’s denial of the motion for leave to communicate with the jurors.




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