IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-20705

SYLVESTER L. PETERSON,

Plaintiff-Appellant,

versus

BOBBY WILSON, ET AL.,

Defendants,

BOBBY WILSON,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Texas

May 18, 1998

Before KING, DUHÉ and WIENER, Circuit Judges.

WIENER, Circuit Judge.

The case we review today was twice tried to verdict by civil

juries. The first trial ended in a verdict favorable to PlaintiffApp e llant Sylvester L. Peterson and unfavorable to DefendantAppellee Bobby Wilson, but the district court granted a new trial.

The second trial ended in a verdict rejecting all of Peterson’s

claims and exonerating Wilson. This appeal turns on whether the

district court abused its discretion when, at the conclusion of the

first trial, it granted Wilson a new one: If that was error and2

was not harmless, we must reverse and remand for entry of judgment

for Peterson; but if the gran t of the new trial was not error or

was harmless e rror, then we must affirm the new trial order and

proceed to consider Peterson’s appeal from the court’s final takenothing judgment rendered in accordance with the jury verdict

against him at the conclusion of the second trial. Our review of

the record of the first trial and the applicable law leads to the

unavoidable conclusion that the district court abused its

discretion in granting a new trial after the jury found for

Peterson in the first trial, and that doing so was not harmless,

i.e., it constituted reversible error. We therefore vacate the

verdi ct and judgment from the second trial, reverse the district

court’s order granting the new trial, and remand this case to the

district court with instructions to enter judgment for Peterson in

accordance with t he first jury verdict and to award appropriate

costs, including attorneys’ fees, and interest. As such, we need

not and therefore do not reach Peterson’s assignments of error in

connection with the second trial.

I

FACTS AND PROCEEDINGS

A. Perspective

It is important that the issues before us on appeal today be

examined within the appropriate framework, for only then can we

comprehend how the district court’s new trial order constituted an

abuse of discretion that produced reversible error. And, because

Wilson moved for a judgment as a matter of law (j.m.l.) at the1 “Subject to the foregoing Motion for Judgment as a Matter

of Law, Defendant files this Motion for New Trial in the above

referenced case. Pursuant to Rule 59 of the Fed.R.Civ.P.,

Defendant Wilson moves for a new trial in this matter on all issues

tried before the jury.”

2 “No later than 10 days after entry of judgment the court,

on its own, may order a new trial for any reason that would justify

granting one on a party’s motion.” Fed.R.Civ.P. 59(d).

3 completion of Peterson’s case and again when all evidence was in

——

and coupled the latter j.m.l. motion with an alternative motion for

n ew trial 1

—— the version of the facts that is most favorable to

the jury’s verdict is sufficiently important by way of background

and context to bear reiteration, at least in pertinent part. This

is particularly true given that (1) Wilson urged his new trial

motion on grounds of sufficiency of the evidence only, i.e., that

the verdict was against the great weight of the evidence, (2) the

reasons given by the dist rict court in ordering a new trial were

entirely different from the reasons espoused in Wilson’s motion,

thereby confi rming that the order was s ua sponte despite the

court’s statement that it was granting Wilson’s motion, and (3) a

district court’s grant of a new trial can be appropriate, even in

the total absence of a motion from the aggrieved party. 2 We shall

therefore review an abbreviated version of the facts and inferences

in the light most favorable to the verdict, then examine the reason

stated by the district court as the basis for granting a new trial,

and conclude with a determination whether a new trial or j.m.l.

could have been granted on any other gr ound and thus rescue the

court’s ruling from reversal.4

B. Proceedings in the First Trial

Peterson filed this suit in district court under 42 U.S.C.

§§ 1983 and 1988, as well as the First, Fifth, and Fourteenth

Amendments of the United States Constitution after he was fired as

grant director at Texas Southern University (TSU). He claims that

his property interest in his employment at TSU was damaged or

destroyed when it was arbitrarily and capriciously terminated. In

addition to Wilson, Peterson named Llayron L. Clarkson, James Race,

and William H. Harris, individually, and the Board of Regents of

TSU, as defendants in his August 1991 complaint. By the time that

Peterson’s ca se finally went to trial, however, TSU had been

dismissed as a defendant, Peterson’s claims against Clarkson, Race,

and Harris had been dismissed, and all his claims against Wilson

(with the exception of the substantive due process claim under

§ 1988 and the several amendments to the Constitution) had been

dismissed as well. After five days of trial, conducted by the

magistrate judge with the consent of the parties, the jury found

for Peterson and awarded him $152,235 for lost pay and benefits and

$35,000 for past and future mental anguish. Following the verdict,

Wilson renewed his motion for j.m.l. and supplemented it with his

bare-bones alternative motion for a new trial.

Some four months la ter, in January 1996, the district court

granted the new trial, ostensibly in response to Wilson’s motion,

but in actuality on its own motion: The substantive language of

the district court’s order granting a new trial eschews any

conclusion other than that the ruling was granted sua sponte , and3 G overnment Fin. Serv. One Ltd. Partnership v. Peyton Place,

Inc. , 62 F.3d 767 (5th Cir. 1995).

5 that it was not granted for insufficiency of the evidence or

because the jury verdict was against the great weight of the

evidence, but rather for the following reason:

The court concludes, based on the jury’s verdict and

comments the jurors made to the court after returning the

verdict [and outside the presence of th e parties and

their respective counsel], that the jury completely

disregarded the Court’s instructions. Instead, it

appears that the jury considered improper factors in

reaching its verdict. Accordingly, the Court deems it in

the interest of justice to gr ant a new trial (emphasis

added).

This ruling not only dispels Wilson’s contentio n that the court

found the jury’s verdict to be against the gr eat weight of the

evidence or lacking in evidence sufficient to support the verdict;

it demonstrates beyond cavil that the court met with and

interrogated the jurors after the verdict (concededly, outside the

presence of the parties and counsel), and then acted on the

comments of some of the jurors as though their remarks were newly

discovered evidence. The inference is inescapable that, to impeach

the jury’s ve rdict, the district court relied on information

gleaned from the jurors themselves during the court’s post-verdict,

ex p arte meeting with the jury. The court voided the verdict

because, in the court’s own words, the jury “completely disregarded

the Court ’s instructions.” Indeed, the above-quoted language of

the court’s order is preceded immediately by its citation to our

key “newly discovered evidence” opinion regarding new trials. 3

Peterson timely filed a motion for reconsideration, which the4 Peterson received a Ph.D. in Development and Planning from

Ohio State University , was certified by that institution as a

“grant administrator,” participated in post-doctoral study in

Management at Harvard University and Georgetown University, and

investigated problems experienced by colleges and universities in

connection with receipt of grants for the National Institute of

Education (NIE). In addition to consulting for the United States

Dep artment of Education, Peterson held jobs as Director of Title

III (federal grants to educational institutions with predominantly

minority or foreign student enrollments) at Wilberforce University

in Ohio and Kentucky State University.

5 At that time TSU’s foreign student enrollment was the

largest in the nation.

6 district court did not grant. The case was re-tried in June 1996,

and ended in a jury verdict in favor of Wilson, rejecting

Peterson’s claims. Peterson timely filed the notice of appeal that

places the case before us today, but Wilson did not cross-appeal.

C. Facts

The jury, as the fin d er of facts and the maker of all

credibility calls, reached its verdict in the first trial on the

basis of the following record facts and inferences.

Peter son is well educated, well trained, and widely

experienced in his field of concentration, which is grant

administration for institutions of highe r education. 4 When

Peterson joined TSU in 1983 he assumed responsibility for

administering grants, principally Title III grants. In addition,

he was in charge of student affairs and was responsible for

determining the residency status of foreign stude nts. 5 Peterson

also supervised finances of the university and was in charge of

Institutional Research. As Title III Director, Peterson generally

reported directly to the Vice President for Academic Affairs: first6 TSU had several different presidents during the course of

Peterson’s tenure: Leonard Spearman; William Harris; and E. O.

Bell.

7 While Peterson served under Wilson (June 1990 - January

1991), Peterson refused W ilson’s requests for, i nter alia

, (1) a

camera, TV monitor, and VCR for his personal use, and (2) Title III

funding to create secretary/receptionist positions in Wilson’s

office for two of his “lady friends.”

7 Clarkson, then Moore, and eventua lly, Wilson. 6 The programs

supported by Title III gr ants included faculty development,

equipment purchases, and institutional research, providing millions

of dollars annually for expenditures at TSU.

Wilson expressly acknowledged that Peterson’s employment at

TSU was controlled by the Staff Manual. Wilson corroborated the

testimony of TSU President Harris that Peterson’s employment could

only be terminated for cause. In fact, in his January 3, 1991,

termination letter to Pet erson, Wilson stated that if Peterson’s

“proposed termination” was determined to be without cause, he would

be fully reinstated with back pay.

Without reiterating every detail of the relevant testimony and

documents, it suffices that the e vidence heard and obviously

credited by the jury painted a picture of Peterson as a highly

principled, apolitical, objective grant administrator who

repeatedly refused to “play ball” with high ranking TSU

administrators when they attempted to obtain expensive eq uipment

for unauthorized personal use or sought to have unauthorized job

positions created and funded with grant money for their special

“friends.” 7 The jury also heard and obviously credited testimony

of both direct and implied threats by Wilson of adverse job8

actions, including firing, that Peterson wa s in jeopardy of

incurring if, on reflection, he should fail or refuse to accede to

requests that would require the unauthorized expenditure of grant

funds.

The termination letter of January 3, 1991, from Wilson to

Peterson purported to outline nine items constituting “cause” for

the firing, each of which was set forth in a report prepared and

submitted on request by one Joyce Deyon with whom, it turned out,

Wilson never conferred after receiving th e report. Wilson

testified that he accepted the report and made his judgment based

on it. The jury heard testimony and saw documents which, if

believed —— as the jury apparently did —— methodically refuted or

explained away each of the nine purported causes for termination

and revealed that Wilson did not even understand some of the items.

The jury also heard evidence which, if credited, was sufficient to

support a conclusion that the termination and its purported causes

were pretext intended to cover Wilson’s retaliation and desire to

accomplish his actual or implied threats of getting rid of Peterson

and replacing him with a grant director who would be more of a team

player, i.e., would be more amenable to funding equipment purchases

and job creations for “friends” of the higher-ups in the TSU

administration with grant money.

That the jury unquestionably credited the testimony and

documentation supporting Peterson’s version of the fa cts and

rejected Wilson’s is confirmed by the “Yes” answer to Interrogatory

No. I-A, “Do you find from a preponderance of the evidence that Dr.8 P eyton Place

, 62 F.3d at 774 ( citing U nited States v.

Flores , 981 F.2d 231, 237 (5th Cir. 1993)).

9 R ousseau v. Teledyne Movible Offshore, Inc.

, 812 F.2d 971,

972 (5th Cir.) ( citing Shows v. Jamison Bedding, Inc.

, 671 F.2d

927, 930 (5th Cir. 1982)), cert. denied , 484 U.S. 827, 108 S. Ct.

95, 98 L. Ed. 2d 56 (1987).

10 25 Fed. Proc., L. Ed. § 58.13 (1984).

9 Bobby Wilson acted arbitrarily and capriciously in terminating Dr.

Peterson?” In the interrogatory that followed, the jury awarded

Peterson $152,235 in lost pay and benefits, and $35,000 for past

and future mental anguish.

II

ANALYSIS

A. Standard of Review

We review the district court’s grant of a new trial for abuse

of discretion. 8 “It is a well-settled rule in this circuit that `a

verdict can be against the “great weight of the evidence,” and thus

justify a new trial, even if there is substantial evidence to

s upport it.’” 9 What courts cannot do —— and what the district

court here never purported to do

—— is to grant a new trial “simply

because [the court] would have come to a different conclusion then

the jury did.” 10

B. The District Court’s Ruling

The district court’s succinct but cryptic, three-sentence

explanation for granting a new trial demonstrates beyond question

that, following the verdict, the court impermissibly met with and

interrogated the jurors o utside the presence of the parties and

their resp ective counsel , and then proceeded to act in direct1 1 We find it perplexing that the statement in the court’s

conclusional ruling to the effect that the jury “completely

disregarded the Court’s instructions” is not supported by any explanation of (1) precisely which instructions were disregarded by

the jury and how; (2) precisely what “comments the jurors made”

that led the court to conclude that its instructions had been

disregarded; (3) precisely what “impr oper factors” the jury

considered in its deliberations; or (4) precisely what “interest of

justice” was so trampled by the jury’s verdic t that it had to be

scrapped. Without considerably more, such a bare, enigmatic

platitude can never provide the kind of support needed by an

appellate court if it is to conclude that a trial court

—— particularly one that has presided over the pre-trial proceedings,

motion practice, and full-blown jury trial of a civil case, has

denied motions for a j.m.l., has met with the jury after the

verdict out of the presence of counsel, and has then granted a new

trial

—— exercised its discretion at all, much less did so without

abusing it.

10 reliance on the jurors’ comments as though they constituted newly

discovered evidence of a kind that the court could properly

consider. It was not. The conclusion is inescapable that, in

impeaching the jury’s verdict in this case, the district court

relied on information obtained from the jurors in the court’s postverdict, ex parte meeting with them and that, by definition, any

information thus obtained had to come directly from their internal

deliberations qua jurors. 11

1. Jury Impeachment

Rule 606(b) of the Federal Rules of Evidence (F.R.E.) tightly

controls impe achment of jury verdicts. This rule states, in

pertinent part:

Upon an inquiry into the validity of a verdict . . ., a

juror may not testify as to any matter or st atement

occurring during the course of the jury’s deliberations

or to the effect of anything upon that or any other

j uror’s mind or emotions as influencing the juror t o

assent to or dissent from the verdict

. . . or concerning

the juror’s mental processes in connection therewith,

except that a juror may testify on the question whether12 Fed. R. Evid. 606(b).

13 483 U.S. 107, 107 S. Ct. 2739, 97 L. Ed. 2d 90 (1987).

14 Id. at 117, 107 S. Ct. at 2745.

11 extraneous prejudicial information was improperly brought

to the jury’s attention or whether any outside influence

was improperly brought to the jury’s attention or whether

any outside influence was improperly brought to bear upon

any juror. Nor may a juror’s affidavit or evidence of

any statement by the juror concerning a matte r about

which the juror would b e precluded from testifying be

received for these purposes. 12

Wilson does not contest Peterson’s assertion that the trial court

met with the jury after the verdict, off the record and outside the

pr esence of counsel. We agree with Peterson that —— with the

possible exception of an instance in which the court’s professional

curiosity has been piqued but on which no subsequent action is

taken by the court

—— such a meeting is highly irregular if not

absolutely impermissible, and, more importantly, that impeachment

of the jury verdict on the basis of information obtained in such a

discussion constitutes abuse of discretion per se

.

The landmark Supreme Court case on this issue is Tanner v.

Uni ted States

. 13 After acknowledging that “[b]y the beginning of

this century, if not earlier, the near-universal and firmly

established common-law rule in the United States flatly prohibited

the admission of juror testimony to impeach a jury verdict,” 14 the

Court observed that “Federal Rule of Evidence 606(b) is grounded in

the common-law rule against admission of jury testimony to impeach

a verdict and the exception for juror testimony relating to15 Id. at 121, 107 S. Ct. at 2748.

1 6 Robles v. Exxon Corp.

, 862 F.2d 120 1 (5th Cir.), c ert.

denied , 490 U.S. 1051, 109 S. Ct. 1967, 104 L. Ed. 2d 434 (1989).

17 Id. at 1204.

18 Id. at 1205 (emphasis added).

19 Id.

12 extraneous influences.” 15 Following T anner

, and more clo sely on

point, we held in Robles v. Exxon Corp. 16 that receiving testimony

from the jurors after they have returned their verdict, for the

purpose of ascertaining that the jury misunderstood its

i nstructions, is absolutely prohibited by F.R.E. 606(b). 1 7 We

underscored that holding by noting that “the legislative history of

the rule unmistakably points to the conclusion that Congress made

a conscious decision to disallow juror testimony as to the jurors’

mental processes or fidelity to the court’s instructions .” 18 What

is pellucid here, from the court’s own unequivocal and unambiguous

words, is that the jurors’ statements to the court related directly

to matters that transpired in the jury room, that these matters

comprehended the mental processes of the jurors in their

deliberations on the case, and that the jurors’ statements formed

the foundation of the court’s impeachment of the verdict grounded

in the jury’s lack of “fidelity to the court’s instructions.” 19 We

cannot conceive of an example more explicitly violative of Robles

.

2. Great Weight of the Evidence

As the bald “interest of justice” reason given by the district

court, impermissibly grounded in the jury’s purported disregard of13

the court’s instructions, cannot sustain the order granting a new

trial, reversal can only be avoided if we determine that the order

itself can be affirmed on appeal for reasons other than those

proffered by the trial court. Of the alternative reasons for

granting a new trial, only a determination that the verdict is

against the great weight of the evidence is viable here; clearly,

the record and the applicable law demonstrate that a j.m.l. could

not have been granted. So, for the trial court’s abuse of

discretion to be harmless and its order of a new tria l to be

sustained, we would have to conclude that, viewing all the evidence

in the light most favorable to Peterson, the verdict is against the

great weight of the evidence or the evidence is insufficient to

support the verdict. The instant record cannot support any such

conclusion.

The district court’s explanation for g ranting a new trial

expressly refutes the who lly unsupported statement in Wilson’s

appellate brief that the trial court found the jury’s verdict to be

against the great weight of the evidence (or lacking in evidence

sufficient to support the verdict). No conceivable reading of the

court’s ruling permits such a conclusion. As that ruling makes no

mention of the merits of the case or the evidence considered by the

jury, we have had to conduct the kind of exercise that we are

compelled to engage in when motions for summary judgments for

qualified immunity are denied because a genuine dispute of material

fact exists, but the district court fails to specify its factual

assumptions for the record: Here, as in those instances, we had to2 0 C oleman v. Houston Indep. Sch. Dist.

, 113 F.3d 528, 531-32

(5th Cir. 1997) (quoting Johnson v. Jones , 515 U.S. 304, 319, 115

S. Ct. 2151, 2159, 132 L. Ed. 2d 238 (1995)).

2 1 In apparent desperation, Wilson on appeal also seeks to

support the district court’s grant of a new trial by urging that a j.m.l. in his favor would have been a ppropriate on the basis of

qualified immunity. But not only did the case proceed through a

full merits jury trial, thereby negating the principal purposes of

qualified immunity; Wilson failed to cross appeal and thus

forfeited his right to assert such an alternative ground.

“[W]i thout the filing of a cross-appeal, an appellee ‘may not

attack the decree with a view either to enlarging his own rights

thereunde r or of lessening the rights of his adversary, whether

what he see ks is to correct an error or to supplement the decree

with respect to a matter not dealt with below.’” M iller v. Butcher

Distribs.

, 89 F.3d 265, 267 (5th Cir. 1996) (citing Robichaux v.

14 “‘undertake a cumbersome review of the record. . . .’” 20

As noted above, the jury in this case was presented with

extensive evidence, principally testimonial evidence, much of which

was in direct conflict, i.e., a “swearing match.” Classically, the

jury had the opportunity to view the witnesses’ demeanor, look them

in the eye, observe their body language, hear the timbre of their

voices, and, finally, exercise the ultimate responsibility of the

finder of fact by making credibility calls and deciding whom to

believe and whom to disbelieve. We have now conducted the

obligatory “cumbersome review” of the multi-volume trial record

and find that both sides of the case

—— Peterson’s and Wilson’s

——

are supported by substantial evidence. One thing that is palpably

absent from the record of the first trial, however, is a “great

weight of evidence” either way. Indeed, we speculate that if there

had been, the district court would have granted a new trial

expressly on that ground and would never have resorted to that

amorphous, will-of-the-wisp that we call “interest of justice. 21Radcliff Material, Inc.

, 697 F.2d 662, 668 (5th Cir. 1983) (quoting

Morle y Constr. Co. v. Maryland Cas. Co. , 300 U.S. 185, 191, 57

S. Ct. 325, 328, 81 L. Ed. 593 (1937)) . Moreover, were we to

consider Wilson’s immunity claim at this post-trial, post-verdict

late hour, we would see not only that Peterson’s constitutional

rights in his employment were clear ly established before Wilson

fired him, see, e.g.

, Russell v. Harrison , 736 F.2d 283, 288 (5th

Cir. 1984); Honore v. Dou glas , 833 F.2d 565 (5th Cir. 1987), but

also that at all times there was, at a minimum, a genuine issue of

material fact as to the objective reasonableness of Wilson’s

actions —— an issue resolved against Wilson by the jury.

15 Because our review of the entire record of the first trial

eschews any possibility that the jury verdict was against the great

weight of the evidence, or that the evidence is insufficient to

support Peterson’s claims, this ground cannot serve as a substitute

basis for affirming the district court’s grant of a new trial. It

follows inescapably, then, that the court’s abuse of discretion in

violating F.R.E. 606(b) and of our rule in Robles

, grounded in the

Supreme Court’s pronouncements in Tanner , was not harmless error.

Rather, it was reversible error.

III

CONCLUSION

Our meticulous review of the record of the first trial of this

case and our parsing of the ruling of the district court in

granting a new trial satisfy us that such ruling must be reversed

and a judgment must be rendered on the basis of the original jury

verdict in favor of Peterson. The operable language of the

district court’s ruling dispels any doubt that the court purported

to grant a new trial “in the interest of justice” and did so as a

direct result of its impermissible post -trial colloquy with the

jurors, in direct violation of Rule 606(b) of the F.R.E. and16

likewise in violation of jurisprudential rules of this co urt and

the Supreme Court that proscribe such an impeachment of the jury’s

verdict. That same language from the district court demonstrates

that, despite words to the contrary, a new trial was granted s ua

sponte on grounds that can only be cubbyholed as “new evidence,”

not on the basis of Wilson’s motion for a new trial expressly

grounded in the contention that the verdict was against the great

weight of the evidence or lacking in sufficient evidence.

Any effort to salvage the ruling of the district court is

stymied by the record itself whic h reflects neither a “great

weight” of evidence in favor of either party, nor a basis on which

the t rial court could have granted a j.m.l. Rather, it contains

more than sufficient evidence, wh en credited by the jury, to

support the determination that Peterson’s termination by Wilson was

arbitrary and capricious, in direct retaliation f or Peterson’s

refusal to authorize the expenditure of federal grant funds for

improper or illicit purposes. The evidence obviously credited by

the jury also supports a finding of pre text, as the nine items

listed in the Deyon report evaporate when exposed to the spotlight

of credible explanations, including the revelation th at Wilson

never conferred with the auth or of the report and did not even

fully understand some of the unsustainable charges in this “hatchet

job” on which he so readily relied. The firing thus violated

Peterson’s substantive due process property right in his employment

at TSU, which could only be terminated for cause.

We are thus left with no choice but to reverse the district17

court’s grant of a new trial, vacate the court’s judgment rendered

on the basis of the jury verdict in the second trial, and reinstate

the results of the first trial. We therefore remand this case to

the district court for entry of judgment in favor of Peterson and

against Wilson in the principal sum of $187,235 ($152,235 for lost

pay and benefits and $35,000 for past and future mental anguish),

and for the assessment of appropriate interest and costs, including

reasonable attorneys’ fees incurred by Peterson in both trials and

on appeal.

REVERSED and REMANDED with instructions.