VANITY BENSON v. TYSON FOODS, INCORPORATED
No. 17-40161
United States Court of Appeals, Fifth Circuit
May 1, 2018
Before WIENER, GRAVES, and HO, Circuit Judges.
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“),
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 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
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
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.
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.
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.
[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 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 importantly, Local Rule 47(b) is not as narrowly tailored as the rule at issue in Haeberle. 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,
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
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
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.