
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 92-1715                           AGAPITA ROSA VELAZQUEZ, ET AL.,                               Plaintiffs, Appellants,                                          v.                           EDNA J. FIGUEROA-GOMEZ, ET AL.,                                Defendants, Appellees.                                 ____________________          No. 92-2155                           AGAPITA ROSA VELAZQUEZ, ET AL.,                                Plaintiffs, Appellees,                                          v.                              EDNA J. FIGUEROA, ET AL.,                               Defendants, Appellants.                                 ____________________          No. 92-2223                           AGAPITA ROSA VELAZQUEZ, ET AL.,                               Plaintiffs, Appellants,                                          v.                           EDNA J. FIGUEROA-GOMEZ, ET AL.,                                Defendants, Appellees.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                 [Hon. Roberto Schmidt-Monge, U.S. Magistrate Judge]                                              _____________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Torruella and Cyr, Circuit Judges.                                             ______________                                _____________________               Eliezer  Aldarondo-Ortiz,   with  whom   Miguel  Pag n   and               ________________________                 _____________          Aldarondo, L pez Bras, Pag n & Ortiz Ballester, were on brief for          ______________________________________________          appellants.               Zuleika Llovet, with whom Juan B.  Soto-Balbas and Mercado &               ______________            ____________________     _________          Soto, were on brief for appellees.          ____                                 ____________________                                     June 9, 1993                                 ____________________                                         -2-                    TORRUELLA,  Circuit Judge.   In this appeal,  we review                                _____________          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                                          _                    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);                                         ___          Wells Real Estate, Inc. v.  Greater Lowell Board of Realtors, 850          _______________________     ________________________________          F.2d  803, 810  (1st Cir.),  cert. denied,  488 U.S.  955 (1988).                                       ____________          Motions for  directed verdict  and judgment n.o.v.  must be  made          with sufficient particularity to alert  the trial judge as to why                                         -3-          the evidence is  insufficient.  The moving party  may appeal only          from  the grounds  stated in  the  motion.   Id.; Pstragowski  v.                                                       ___  ___________          Metropolitan Life Ins. Co., 553 F.2d 1, 3 (1st Cir. 1977).  Since          __________________________          appellants  failed to move  for a  directed verdict  and judgment          n.o.v., we may  not consider this ground  of appeal.  Wells  Real                                                                ___________          Estate, 850 F.2d at  810; La Forest  v. Autoridad de las  Fuentes          ______                    _________     _________________________          Fluviales, 536 F.2d 443, 445 (1st Cir. 1976).            _________                    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.                                     __________________          "[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.                                  ___          Moore, Moore's Federal  Practice    59.15[3], at  326-27 (2d  ed.                 _________________________          1987)).  Failure to move for a new trial also waives the issue on          appeal.  Id.                    ___                    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                                        ____________________          1  Courts have interpreted Rule 59(e) to allow a motion to vacate          a judgment entirely, rather than  just alter it.  See  11 Charles                                                            ___          A. Wright  & Arthur R.  Miller, Federal Practice and  Procedure                                            _______________________________          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.                                                            ___  ____  ____          Weiss Lithograph Co. v. Illinois Adhesive Products  Co., 705 F.2d          ____________________    _______________________________                                         -4-          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,                       ___________________    _______________          26 (1st Cir.  1988) (quoting Lyell Theatre Corp.  v. Loews Corp.,                                       ___________________     ___________          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-                                                                      _____          Vel zquez v. Figueroa-G mez,  No. 90-1192, slip op. at  1 (D.P.R.          _________    ______________          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.                                        ____________________          249, 250 (7th Cir. 1983); Huff v. Metropolitan Life Ins. Co., 675                                    ____    __________________________          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.                                         -5-                    The decision  to grant a  new trial is  squarely within          the trial court's discretion.  Allied Chemical Corp.  v. Daiflon,                                         _____________________     ________          Inc., 449 U.S. 33, 36 (1980).   "Only an abuse of discretion will          ____          trigger reversal  of a denial of a motion  for new trial."  Wells                                                                      _____          Real Estate, 850 F.2d  at 811; see also Conway v.  Electro Switch          ___________                    ________ ______     ______________          Corp., 825 F.2d 593, 598 (1st Cir.  1987).  Such deference to the          _____          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                                                                ___________          Estate, 850 F.2d  at 811; Keeler v.  Hewitt, 697 F.2d 8,  11 (1st          ______                    ______     ______          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;                                                ______          see  also Coffran v. Hitchcock  Clinic, Inc., 683  F.2d 5, 6 (1st          _________ _______    _______________________          Cir.), cert. denied, 459 U.S. 1087 (1982).   We assume, and we do                 ____________          not review  for, sufficiency of  the evidence.  Valm  v. Hercules                                                          ____     ________          Fish Products, Inc., 701 F.2d 235 (1st Cir. 1983).          ___________________                    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                                         -6-          ("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                                          __                    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,                                                                       ___          e.g., Betancourt  v. J.C.  Penney Co., 554  F.2d 1206,  1207 (1st          ____  __________     ________________          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                               ____    __________________          (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                                 _________    _____                                         -7-          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.,                                     _____    ____________________________          746 F.2d  78, 80-81 (1st  Cir. 1984) (quoting Grunenthal  v. Long                                                        __________     ____          Island R.R. Co.,  393 U.S. 156,  159 & n.4  (1968)), we will  not          _______________          "overrule a trial  judge's considered refusal to tamper  with the          damages  assessed by  a jury."   Ruiz, 929  F.2d at 34;  see also                                           ____                    ________          Wagenmann, 829 F.2d at  215.  We certainly cannot  say that these          _________          awards for  political discrimination  in employment  fall outside          this broad standard for acceptable jury verdicts.2                                         III                                         III                                         ___                    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-                                                                  _________          Negr n  v. Castro-D vila, 865 F.2d 431, 437  (1st Cir. 1989).  As          ______     _____________          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.                                                         ______________          Hern ndez-Col n, 889 F.2d  314, 320-21 (1st Cir. 1989).   We have          _______________          rejected the notion that  finding a violation of  first amendment          rights leads a fortiori to reinstatement, and recognized that the                       __________                                        ____________________          2  The jury awarded sums ranging between $14,200 and $33,500.                                         -8-          application  of the  remedy  lies  within  the  district  court's          discretion.  Id. at 321-22.  The court must apply that discretion                       ___          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                                  ___                 _____    _______          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.            ______________                    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,                                ___ ______________    ______                                         -9-          13-14 (1st Cir.),  cert. denied, 112 S. Ct.  637 (1991); Rosario-                             ____________                          ________          Torres,  889  F.2d   at  322-24.    Although   ineligibility  for          ______          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                                                        ______________          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.                                    ___                    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                                          __                    In  conclusion, we affirm  the trial court's  denial of                                       ______          the Rule 59(e) motion and plaintiffs' request for reinstatement.                                         -10-
