Filed: Jun. 21, 2005
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 04-14573 JUNE 21, 2005 _ THOMAS K. KAHN D. C. Docket No. 99-00002-CV-D-N CLERK BRIAN M. CAMPBELL, and all others similarly situated, Plaintiff-Appellant, CHRISTOPHER C. SHAW, and all others similarly situated, Plaintiff, versus CIVIL AIR PATROL, Defendant-Appellee, PAUL J. ALBANO, SR., individually and in his official capacity as Executive Director of Civil Air Patro
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 04-14573 JUNE 21, 2005 _ THOMAS K. KAHN D. C. Docket No. 99-00002-CV-D-N CLERK BRIAN M. CAMPBELL, and all others similarly situated, Plaintiff-Appellant, CHRISTOPHER C. SHAW, and all others similarly situated, Plaintiff, versus CIVIL AIR PATROL, Defendant-Appellee, PAUL J. ALBANO, SR., individually and in his official capacity as Executive Director of Civil Air Patrol..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-14573 JUNE 21, 2005
________________________ THOMAS K. KAHN
D. C. Docket No. 99-00002-CV-D-N CLERK
BRIAN M. CAMPBELL, and all
others similarly situated,
Plaintiff-Appellant,
CHRISTOPHER C. SHAW, and
all others similarly situated,
Plaintiff,
versus
CIVIL AIR PATROL,
Defendant-Appellee,
PAUL J. ALBANO, SR., individually
and in his official capacity as
Executive Director of Civil Air
Patrol, et al.,
Defendants.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(June 21, 2005)
Before BLACK and HULL, Circuit Judges, and O’KELLEY *, District Judge.
PER CURIAM:
This employment discrimination case is before this Court for the second
time. On the previous occasion, this Court vacated judgment for the defendants on
plaintiff Campbell’s Title VII retaliation claim because the evidence at trial was
insufficient to support the defendants’ affirmative defense. On remand, the district
court reinstated judgment for the defendants. After review and oral argument, we
reverse the district court’s judgment for the defendants and remand to the district
court with instructions to conduct a new trial on plaintiff Campbell’s Title VII
retaliation claim.
I. BACKGROUND
A. Prior Appeal
After they were fired, plaintiffs Brian M. Campbell and Christopher Shaw
sued their former employer, the Civil Air Patrol (CAP), and various of its
employees (collectively the “defendants”), alleging numerous violations of federal
law. Plaintiff Campbell also brought a Title VII retaliation claim, alleging that he
was fired in retaliation for his engagement in protected conduct under 42 U.S.C. §
2000e-3(a).
*
Honorable William C. O’Kelley, United States District Judge for the Northern District
of Georgia, sitting by designation.
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On February 13, 2001, the district court granted summary judgment to the
defendants on all claims other than Campbell’s Title VII retaliation claim. This
claim proceeded to trial.
At trial, the defendants attempted to prove a “mixed-motive” affirmative
defense under the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490
U.S. 228,
109 S. Ct. 1775 (1989). Specifically, the defendants argued that even if
Campbell’s firing was motivated in part by the impermissible motive of retaliation,
the defendants were still not liable because Campbell would have been fired even
absent such an impermissible motive. See
id., 490 U.S. at
258, 190 S. Ct. at 1795.
The jury returned a special verdict form, finding: (1) that Campbell had
engaged in protected activity; (2) that such activity was a motivating factor in the
defendants’ decision to fire him; and (3) that the defendants would have made the
same firing decision even absent the impermissible motive. As a result of this
verdict, the defendants prevailed based upon Price Waterhouse, and the district
court entered final judgment for the defendants on Campbell’s Title VII retaliation
claim. As noted above, the district court had already entered summary judgment
on all other claims.
The plaintiffs appealed. On May 15, 2003, this Court affirmed the district
court’s grant of summary judgment on all of the plaintiffs’ original claims except
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Campbell’s Title VII retaliation claim. Campbell v. Civil Air Patrol, No. 02-15117
(11th Cir. May 15, 2003). As to Campbell’s retaliation claim, this Court concluded
that the evidence presented at trial was “insufficient . . . to establish that Campbell
was in fact fired for [any legitimate reason].” Id. Instead, this Court concluded
that the legitimate reason offered by the defendants to show that Campbell would
have been fired absent the impermissible motive was constructed “after-the-fact.”
In doing so, we determined that “[t]here is no evidence in the record that . . . at the
time of the decision to terminate Campbell, [the defendants were] motivated to do
so [for a legitimate reason].”
Id. Because such “after-the-fact” motivations are
insufficient as a matter of law to support a Price Waterhouse affirmative defense,
we concluded that “[t]he judgment on [Campbell’s retaliation claim] is therefore
reversed and that count is remanded for further proceedings not inconsistent with
this decision.”
Id. We thus concluded that the judgment for the defendants on
Campbell’s Title VII retaliation claim was “VACATED and REMANDED for
further proceedings.”
Id.
Before discussing what happened on remand in the district court, we point
out additional matters referenced in the prior appeal. With respect to Campbell’s
Title VII retaliation claim, the defendants’ initial brief in the first appeal contained
a Section III.B, which emphasized the plaintiff’s failure to make certain required
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motions in the district court, such as a motion for judgment as a matter of law or
directed verdict [Rule 50], or for a new trial [Rule 59], as follows:
Scope of Review[;] Jury Verdict
Because Plaintiff Campbell did not move for judgment as a
matter of law after either the close of Plaintiff’s evidence or the close
of all evidence, or move for a directed verdict or a new trial, the scope
of review of the jury’s verdict ‘is exceedingly confined, being limited
to whether there was any evidence to support the jury’s verdict,
irrespective of its sufficiency . . .’. [cit.].
Later in their initial brief, the defendants reiterated this argument, stating that
“[t]he scope of this Court’s review of the jury verdict is exceedingly confined,
being limited to whether there was any evidence to support the jury’s verdict,
irrespective of sufficiency . . . , because Plaintiff Campbell failed to make certain
motions at or after trial regarding the sufficiency of the evidence.” (quotation
marks and citation omitted).
Further, after this Court vacated judgment for the defendants, the defendants
petitioned this Court for rehearing. In their petition, the defendants again
referenced the plaintiff’s failure to make certain motions in the district court.
Specifically, the defendants’ petition outlines the plaintiff’s failure to file certain
motions under Rule 50 for judgment as a matter of law and under Rule 59 for a
new trial, and the impact of this failure, as follows:
As noted in Appellee/Defendant’s principal brief, Plaintiff’s failure to
file a Federal Rule of Civil Procedure Rule 50 motion for judgment as
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a matter of law or a Federal Rule of Civil Procedure Rule 59 motion
for a new trial severely limits this Court’s review of the sufficiency of
the evidence – the only issue remaining in this appeal. . . . Absent a
Rule 50 motion, the court can disturb the jury’s verdict only if the
error is so obvious that the failure to notice it would seriously affect
the fairness or integrity of the judicial proceeding. . . . If there is any
evidence to support the verdict, regardless of its sufficiency, the court
must affirm the judgment on the jury verdict.
(Quotation marks and citations omitted.)
Thus, in the prior appeal, the defendants expressly addressed the plaintiff’s
failure to make certain motions under Rules 50 and 59.
B. Remand in District Court
When the case returned to the district court, the plaintiff requested a trial on
damages only. The defendants responded that the plaintiff was not entitled to
judgment as to liability and a trial limited to damages because the plaintiff had
failed to make the required motions for judgment as a matter of law under Rule 50.
In addition, defendants argued that the plaintiff waived his right to a new trial by
failing to timely file a Rule 59 motion. Alternatively, the defendants argued that
any new trial on remand should address both liability and damages anew.
Despite this Court’s determination that as a matter of law the defendants
were not entitled to judgment, the district court on remand did not conduct a new
trial on Campbell’s Title VII retaliation claim as to either liability or damages.
Rather, the district court entered an order reinstating judgment for the defendants
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as a matter of law. The district court based this decision on Campbell’s failure to
make certain motions for (1) judgment as a matter of law under Rule 50 of the
Federal Rules of Civil Procedure, and (2) a new trial under Rule 59.1 According to
the district court, because Campbell had failed to file these motions for relief under
the Federal Rules of Civil Procedure, the district court was powerless to grant any
relief to the plaintiff at all. The district court felt that its hands were tied and that it
had no option but to reinstate judgment for the defendants as a matter of law.
As discussed in more detail later, the district court on remand did not take
into account that any alleged failure by Campbell to file these motions occurred
prior to the first appeal and that this Court itself had already granted the plaintiff
relief from the judgment in favor of the defendants.
Plaintiff Campbell now appeals arguing that the district court’s entering
judgment as a matter of law for the defendants on remand violated this Court’s
mandate, and the law of the case doctrine. For the reasons outlined below, we
agree.
II. DISCUSSION
It is well settled that “a district court is not free to deviate from the appellate
1
In addition, the district court sua sponte considered relief under Rule 60(b), and
determined that Campbell was entitled to no relief because the Rule’s one-year time limitation
had expired.
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court’s mandate.” Wheeler v. City of Pleasant Grove, 746 F.2d 1437, 1440 n.2
(11th Cir. 1984) (citations omitted); see also Pelletier v. Zweifel,
987 F.2d 716,
718 (11th Cir. 1993); Barber v. Int’l Bhd. of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers, and Helpers, Dist. Lodge #57,
841 F.2d 1067, 1070 (11th
Cir. 1988). The trial court must strictly comply, “implement[ing] both the letter
and the spirit of the mandate taking into account the appellate court’s opinion, and
the circumstances it embraces.” Piambino v. Bailey,
757 F.2d 1112, 1119 (11th
Cir. 1985) (internal citations omitted); see also United States v. Mesa,
247 F.3d
1165, 1170 (11th Cir. 2001). In addition, although on remand the district court
may address issues “not disposed of on appeal, it is bound to follow the appellate
court’s holdings, both expressed and implied.”
Piambino, 757 F.2d at 1119
(internal citations omitted).
In this case, this Court’s prior opinion made clear that, as a matter of law, the
defendants were not entitled to judgment based upon the evidence at trial. Further,
this Court vacated that judgment and thereby granted the plaintiff relief from that
judgment. Thus, the district court’s grant of judgment to the defendants was
inconsistent with our mandate.
We recognize that on remand, the district court concluded that judgment for
the defendants as a matter of law was appropriate because “the procedural
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underpinnings in this case . . . preclude the district court from granting Campbell a
remedy.” As noted above, the district court based this conclusion on Campbell’s
failure to file certain motions under Rule 50 and 59.
At oral argument in this second appeal, counsel for the defendants claimed
that these issues were not raised in the first appeal, had not been ruled upon by this
Court, and thus were properly decided by the district court on remand. While we
have doubts about this proposition, the result here does not change in either event.
We explain why the issues were arguably raised and necessarily decided.
Alternatively, even if the issues were not raised, we explain why the result does not
change.
As discussed earlier, the defendants in the prior appeal repeatedly
emphasized to this Court the plaintiff’s failure to file motions under Rules 50 and
59. While the defendants did claim only that the result of the plaintiff’s failure to
file these motions was to limit our scope of review, the defendants nonetheless
raised the issue of plaintiff’s failure to file these same motions and what impact
that had on the plaintiff’s appeal of the judgment for the defendants. Thus, the
issue of the plaintiff’s failure to file this motions was necessarily decided by this
Court’s decision, at least implicitly. The disposition of these issues was thus
included in this Court’s mandate and could not be revisited by the district court.
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See e.g., Piambino, 757 F.2d at 1121-22 (concluding that district court violated the
mandate rule, and stating that “[a]lthough our opinion did not explicitly address
[certain] procedural requirements . . ., its command . . . necessarily implied that any
procedural noncompliance . . . was inconsequential”) (citations omitted).
In the alternative, if the argument that the plaintiff’s failure to file the
required motions was not sufficient to raise the remedy impact based on that
failure, and thus this remedy impact was not raised by the defendants in the first
appeal, it clearly could have been raised in the prior appeal as an alternative basis
for affirming the judgment for the defendants.2 Indeed, in the first appeal, the
defendants argued extensively regarding the plaintiff’s alleged failure to make
certain motions, and the impact that failure had on the judgment for the defendants.
Specifically, in the first appeal, the defendants argued that the plaintiff’s failure
narrowed the scope of review and required us to affirm the jury verdict for the
defendants. Now, in the second appeal, the defendants argue that the very same
failure by the plaintiff has an additional impact that entitles the defendants to
judgment as a matter of law.
Allowing the defendants to modify an argument clearly available to them in
the earlier appeal would lead to numerous appeals as parties each time offer a new
2
At oral argument, defense counsel conceded, as he must, that the defendants could have
raised all of these issues in the first appeal.
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gloss on a prior argument, or an alternative basis for judgment in their favor. As
we have stated before, “[w]e cannot try cases piecemeal simply because after a
[remand] and in writing a brief on a second appeal, the attorneys generate an idea
they should have advanced . . . on the first appeal.” United States v.
Fiallo-Jacome, 874 F.2d 1479, 1482 (11th Cir. 1989) (quoting Martin v. Atl. Coast
Line R.R. Co.,
289 F.2d 414, 416 (5th Cir.1961)); see also McFarlin v. Conseco
Services, LLC,
381 F.3d 1251, 1256-57 (11th Cir. 2004) (noting judicial system’s
strong interest in avoiding “piecemeal appeals”).
In sum, either the issues raised on remand were decided by this Court in its
first opinion or were waived by the defendants on appeal, and thus were not
available in the district court on remand. In either event, it was error for the district
court to revisit the plaintiff’s failure to file motions under Rules 50 and 59 and to
grant judgment to defendants in violation of this Court’s mandate.
Therefore, we again vacate the entry of judgment for the defendants and
remand this case to the district court with instructions to conduct a new trial as to
both liability and damages on Campbell’s Title VII retaliation claim.3
3
We recognize that plaintiff Campbell also contends that the district court on remand
erred by denying the plaintiff’s request for judgment as to liability as a matter of law, and a new
trial limited to the amount of damages. We disagree for several reasons. First, in the prior
appeal, plaintiff’s brief, dated December 26, 2002, expressly requested that this Court vacate the
judgment entered for the defendants and remand this case to the district court “for a trial on all
counts.” Plaintiff did not ask this Court for the additional bifurcated relief of entry of judgment
for the plaintiff as a matter of law as to liability based on the jury’s findings and a trial as to only
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VACATED, REVERSED and REMANDED.
damages. Thus, as with the defendants, plaintiff waived issues that could have been raised in the
prior appeal but were not.
Second, to the extent plaintiff contends that his alternative request in his December 26,
2002 brief for “other, further and different relief as to which Appellant[] may be entitled”
somehow encompassed an implied request for judgment for the plaintiff as a matter of law as to
liability and a trial as to damages and sufficiently raised the issue, we reject that contention.
Third, in any event, the trial evidence as to liability and damages overlapped and was
extensively intertwined. Further, the defendants’ closing argument as to liability relied heavily
(if not exclusively) on their affirmative defense and given this Court’s prior rejection of that
defense as a matter or law, the defendants are entitled to a new trial on both liability and
damages regarding the plaintiff’s Title VII retaliation claim, and an opportunity to present and
advocate its position and other defenses, if any.
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