No. 05-80145 ___________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT __________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Respondent, v. SERRANO'S MEXICAN RESTAURANTS, LLC, Defendant-Petitioner. ____________________________________________________________ On Petition for Leave to Appeal from the United States District Court for the District of Arizona, Hon. Earl H. Carroll, United States District Judge Civil Action No. 02-1608 PHX-EHC ____________________________________________________________ SUPPLEMENTAL BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION IN OPPOSITION TO DEFENDANT SERRANO'S PETITION FOR LEAVE TO APPEAL ___________________________________________________________ JAMES L. LEE SUSAN R. OXFORD Deputy General Counsel Attorney U.S. Equal Employment LORRAINE C. DAVIS Opportunity Commission Acting Associate General Counsel 1801 L Street, NW, Room 7010 Washington, D.C. 20507 (202) 663-4791 (tel) (202) 663-7090 (fax) susan.oxford@eeoc.gov TABLE OF CONTENTS ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . .6 SUPPLEMENTAL APPENDIX Order dated April 12, 2006 (9th Cir.) . . . . . . . . . . 1a Order dated April 19, 2006 (D. Ariz.) . . . . . . . . . . 2a TABLE OF AUTHORITIES Cases page In re Cement Antitrust Litigation (MDL No. 296), 673 F.2d 1020 (9th Cir. 1982) . . . . . . . . . . . . . . .1 Landes Const. Co. v. Royal Bank of Canada, 833 F.2d 1365 (9th Cir. 1987) . . . . . . . . . . . . . . .3 Lee v. Amer. Nat'l Ins. Co., 260 F.3d 997 (9th Cir. 2001). . . .5 McFarlin v. Conseco Servs., 381 F.3d 1251 (11th Cir. 2004) . . .4 Yamaha Motor Corp. v. Calhoun, 516 U.S. 199 (1996) . . . . . . .4 Statutes and Court Rules 28 U.S.C. § 1292(b). . . . . . . . . . . . . . . . . . . .2, 3, 4 Fed. R. Civ. P. 59(a). . . . . . . . . . . . . . . . . . . . . .3 EEOC'S SUPPLEMENTAL BRIEF IN OPPOSITION TO SERRANO'S PETITION FOR PERMISSION TO APPEAL The Supplemental Brief ("Supp.Brf.") filed by Serrano's Mexican Restaurants, just like the original Petition, offers no "exceptional circumstances" for interlocutory review of a district court's non-final order (in this instance, an order granting a new trial). See In re Cement Antitrust Litigation (MDL No. 296), 673 F.2d 1020, 1026 (9th Cir. 1982). We explained in our initial opposition why neither of the two questions that Serrano's seeks to appeal – only one of which was certified by the district court – is appropriate for appellate review at this intermediate stage of the proceedings. Nothing in Serrano's supplemental brief provides any new reasons nor any persuasive basis for granting interlocutory review. The Petition should be denied. The district court granted a new trial on August 31, 2005, on two entirely separate grounds: (1) that the jury's verdict was based on inconsistent answers to interrogatories that could not be harmonized (i.e., the form of the jury verdict), and (2) that the jury's verdict was against the clear weight of the evidence. See R.224.<1> The district court certified the first ground only – the form of the jury verdict. See R.236 (Order at 1-2). In response to this Court's request, R.240, the district court clarified unequivocally that "[t]he November 28, 2005 order was limited to the question of the jury's inconsistent interrogatories. The Court's order that the verdict was against the clear weight of the evidence was not certified for appeal." R.241. Serrano's characterizes this clarification, attached hereto, see Supp.Appx. 2a- 3a, as "the district court's recent limitation of its 28 U.S.C. § 1292(b) certification." Serrano's Supp.Brf. at 1. It is clear, however, that the district court's April 20 clarification was not limiting an order that was previously broader in scope, but was explaining that its certification order was so limited from the outset. The district court apparently believed that whether the jury's inconsistent interrogatory answers could be harmonized under these facts raises a legal question that meets the criteria for interlocutory review. See 28 U.S.C. § 1292(b) (certification requires "a controlling question of law"). The district court properly recognized, however, that the second ground for its "new trial" order – that the jury's verdict was against the clear weight of the evidence – is not appropriate for interlocutory appeal given the inherently factual nature of such an order and the absence of any question or controversy concerning the legal standards that apply.<2> Serrano's supplemental arguments, responding to the district court's clarification, are as unavailing as its original arguments were. Serrano's argues, first, that this Court has the authority under 28 U.S.C. § 1292(b) to review the district court's entire new trial order, even though only the first basis was certified. Serrano's Supp.Brf. at 2-4. The EEOC agrees. See EEOC Opposition ("Opp.") at 11. This misses the point entirely, however. The issue is not whether this Court has authority, since undoubtedly it does, but whether it would be prudent to exercise this discretionary authority under these circumstances. Unlike the cases Serrano's cites in its supplemental brief, interlocutory review should be denied here because neither ground for granting a new trial satisfies § 1292(b). See EEOC Opp. at 9-19. The district court's decision to grant a new trial based on the clear weight of the evidence does not involve a "controlling question of law" concerning which there are "substantial grounds for difference of opinion." In fact, it does not involve a legal question at all. It is a straightforward exercise of the district court's discretionary authority over trial proceedings under Fed. R. Civ. P. 59(a), and this Court applies a highly deferential standard when reviewing a district court's decision to grant a new trial on this basis. Landes Const. Co. v. Royal Bank of Canada, 833 F.2d 1365, 1371- 72 (9th Cir. 1987). This deferential standard makes reversal unlikely, particularly where, as here, the EEOC's claims are supported by substantial trial evidence and there is a dearth of credible evidence to the contrary. See EEOC Opp. at 2-6. Under these circumstances, the district court's grant of a new trial based on the weight of the evidence is properly reviewable only after completion of the second trial. See EEOC's Opposition at 11-14. If the "weight of the evidence" had been the only ground offered by the district court for granting a new trial, there would be little question that interlocutory review should be denied. See, e.g., McFarlin v. Conseco Servs., 381 F.3d 1251, 1259 (11th Cir. 2004). The fact that the district court identified another basis for granting a new trial (the form of the jury verdict), does not alter this conclusion. Despite the district court's certification of this question, interlocutory review of this issue will not "advance" these proceedings within the meaning of 28 U.S.C. § 1292(b). Indeed, resolving this question is unlikely to make any difference in the proceedings because the same question is unlikely to arise in the second trial, since the court will presumably alter the form of the jury verdict to avoid any similar jury confusion in the second trial. There is no reason to review this question now rather than after entry of a final order following a second trial. Interlocutory review under § 1292(b) is properly reserved for those instances where appellate clarification will elucidate legal standards for future proceedings, enabling the case to proceed more efficiently. Appellate courts occasionally extend such interlocutory review to an ancillary legal question not certified by the district court, where the additional question is either inter-related or a necessary predicate to the question certified. In Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 202-05 (1996), for example, see Serrano's Supp.Brf. at 2-3, the Supreme Court found proper the Third Circuit's decision to consider a "pivotal" anterior legal issue, which had not been certified but was part of the same district court order, involving whether state wrongful death remedies endured or were displaced by federal maritime law. Similarly, in Lee v. Amer. Nat'l Ins. Co., 260 F.3d 997, 1000-01 (9th Cir. 2001), see Serrano's Supp.Brf. at 3, this Court addressed plaintiff's Article III standing to pursue some of his claims, even though it was not the question certified by the district court, because plaintiff's standing could affect the outcome of the question that had been certified – plaintiff's right to a remand to state court. Unlike these cases, here the district court's determination that the jury's interrogatory answers were inconsistent and irreconcilable is unrelated to the district court's determination that the jury's verdict was against the clear weight of the evidence. The detailed review of the entire factual record necessary to review the "weight of the evidence" decision would in no way assist this Court in addressing the question involving the jury verdict form. Where, as here, the legal standards are clear and the petitioning party is simply challenging the district court's exercise of routine discretionary powers to control the proceedings before it, appellate review should properly await the completion of all trial proceedings and entry of a final order. Serrano's presents no persuasive reasons for taking the exceptional step of interlocutory review. Serrano's petition should, therefore, be denied. Respectfully submitted, JAMES L. LEE Deputy General Counsel ____________________________ LORRAINE C. DAVIS SUSAN R. OXFORD Acting Associate General Counsel Attorney, U.S. EEOC 1801 L Street, N.W., Room 7010 Washington , D.C. 20507 (202) 663-4791 (tel) (202) 663-7090 (fax) May 19, 2006 susan.oxford@eeoc.gov CERTIFICATE OF SERVICE I hereby certify that an original and four copies of the EEOC's Supplemental Brief in Opposition to Serrano's Petition for Leave to Appeal were sent to the Clerk of the Court for the U.S. Court of Appeals for the Ninth Circuit this 19th day of May, 2006, by Federal Express next-business-day delivery, and a copy sent on this same day, by the same means as well as by electronic facsimile, to the following counsel: J. Mark Ogden, Esq. Peter Prynkiewicz, Esq. Kristin R. Culbertson, Esq. LITTLER MENDELSON, P.C. Camelback Esplanade 2425 East Camelback Road, Suite 900 Phoenix, Arizona 85016 Theodore A. Schroeder, Esq. Dominion Tower 625 Liberty Avenue, 26th Floor Pittsburgh, Pennsylvania 15222 (courtesy copy) _____________________________ Susan R. Oxford Attorney S U P P L E M E N T A L A P P E N D I X *********************************************************************** <> <1> “R.*” refers to the district court docket number. <2> We explained in our original opposition why even the district court’s first ground for granting a new trial does not meet the standards of “certification” under § 1292(b) given the absence of any “controlling legal question” or “substantial ground for difference of opinion” under § 1292(b). See EEOC Opposition at 14-19.