# Opposition Brief — Fogarty v. Evans (No. 07-980) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0559%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2007 ## Text GO (3) FILED No. 07-980 MAR 28 2008 OFFICE OF THE CLERK Su Whe SUPREME COURT, U.S. Supreme Court of the Gnited States Sd MICHAEL FOGARTY AND TERRIE FRITZ, Petitioners, V. ALFRED MILTON EVANS; SOUTHEASTERN OKLAHOMA FAMILY SERVICES, INC.; RUSTLING WINDS, INC.; MORNING STAR MENTAL HEALTH SERVICES, INC.; DIVERSIFIED FAMILY SERVICES, INC.; SERENITY SPRINGS MENTAL HEALTH SERVICES, L.L.C.; JCH, INC.; NEAL THRIFT; NANCY GRAVES-THRIFT; JOHN MAJORS; CYNTHIA MAJORS; CHARLES PARKHURST; MARY PARKHURST; LEROY WHEELER; AND JOEL HOLCOMB, Respondents. * On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Tenth Circuit ¢ BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF CERTIORARI ¢ MICHAEL L. CARR Counsel of Record HOLDEN, CARR & SKEENS 9 East 4th Street 200 Reunion Center Tulsa, OK 74103 (918) 295-8888 STEVEN FE. HOLDEN REAGAN L. MADISON HOLDEN, CARR & SKEENS HOLDEN, CARR & SKEENS 9 East 4th Street 9 East 4th Street 200 Reunion Center 200 Reunion Center Tulsa, OK 74103 Tulsa, OK 74103 (918) 295-8888 (918) 295-8888 Counsel for Respondents March 2008 COCKLE LAW BRIEF PRINTING CO. (800; 226 6964 OR CALL COLLECT (402) 342 2831 CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 29.6 of the Rules of the Su- preme Court of the United States, Respondents Alfred Milton Evans, Neal Thrift, Nancy Graves- Thrift, John Majors, Cynthia Majors, Charles Park- hurst, Mary Parkhurst, Leroy Wheeler, and Joel Holcomb state that they are not stock-issuing corpo- rations and that they have no parent corporations or other corporate stockholders. Respondents Southeastern Oklahoma Family Services, Inc.; Rustling Winds, Inc.; Morning Star Mental Health Services, Inc.; Diversified Family Services, Inc.; and JCH, Inc. are Oklahoma corpora- tions. The parent company of Rustling Winds, Inc. is Tiinber Winds, Inc. No publicly-held corporation owns any of Rustling Winds, Inc.’s stock. Diversified Fam- ily Services, Inc.; JCH, Inc.; Morning Star Mental Health Services, Inc.; and Southeastern Oklahoma Family Services, Inc. do not have parent corporations, and no publicly-held corporation owns ten percent (10%) or more of their stock. Serenity Springs Mental Health Services, L.L.C. is an Oklahoma limited liability company and not a stock-issuing corporation. il TABLE OF CONTENTS Page CORPORATE DISCLOSURE STATEMENT....... i TABLE OF AUTHORITIES ...................cc cece eeeeeee v STATEMENT OF THE CASE................ccceesseeeeees 1 REASONS FOR DENYING THE WRIT.............. 2 I. This Court Should Deny The Petition For A Writ Of Certiorari As To The Qualified Immunity Issue Because The Issue Is Moot, The Tenth Circuit’s Finding Of Waiver Does Not Conflict With The Deci- sions Of Other Circuits, And Petitioners Are Not Entitled To The Protection Af- forded By Qualified Immunity .................. 3 A. Whether Petitioners Should Have Been Allowed To Assert Qualified Immunity At The Second Trial Is Moot, Because The District Court Abused Its Discretion In Granting A I, MN eek a ciuanociewinavad grveseul texans 3 B. The Tenth Circuit Correctly Found That Petitioners Had Waived Their Qualified Immunitv Defense For Purposes Of The First Trial, And The Tenth Circuit’s Finding Of Waiver Does Not Conflict With The Decisions Of Other Circuit Court ................00008. 5 ill TABLE OF CONTENTS - Continued Page C. Even If The Tenth Circuit Erred In Concluding That Petitioners Had Waived Their Qualified Immunity De- fense For Purposes Of The First Trial, The Error Was Harmless Be- cause Petitioners Are Not Entitled To The Protection Afforded By Qualified ROI uct ikaccravtuistnssicceaneunuseen iy II. The Alleged Split Among The Circuit Courts With Regard To The Proper Stan- dard Of Review Of A Trial Court’s Grant Of A New Trial Is Merely One Of Seman- tics And Not Of Substance......................065 20 III. The Tenth Circuit Correctly Reinstated The Punitive Damages Awards Against Petitioners, Because The Amount Of The Punitive Damages Awards Is Nearly Three Times Less Than The Probable Amount Of Compensatory Damages That Will Be Awarded After Remittitur............. 30 Ree eI RPO Gs athens Lignan clacaehaguiecéemetodeasninealer@als 36 lv APPENDIX TABLE OF CONTENTS Page Defendants’ Motion to Dismiss and Brief in Support, Evans v. Fogarty (W.D. Okla. Apr. 4, Is chai aiaucatnn seks ane cece acai cas App. 1 State Defendants’ Answer to Third Amended Complaint, Evans v. Fogarty (W.D. Okla. By URI erent nena ne a en App. 40 Order Granting Plaintiffs’ Motion for a Pre- liminary Mandatory Injunction, Evans ov. Fogarty (W.D. Okla. Feb. 12, 2001)............... App. 50 Order and Judgment Dismissing Defendants’ Interlocutory Appeal of the District Court’s Order Denying Their Request to File a Third Motion for Summary Judgment Based on Qualified Immunity, Evans v. Fogarty (10th Rie I I cer crisis tikecccacazeaaxscisoaniabbuania App. 75 Order Denying Defendants’ Request to File Motions for Summary Judgment Based on Qualified Immunity, Evans v. Fogarty (W.D. Pes Rie le MII Races shchdcaits sincessnnccuceUarwiadneccones App. 82 Defendants’ Joint and Combined Motion for Leave to File Motions for Summary Judg- ment Based on Qualified Immunity, Evans v. Fogarty (W.D. Okla. Nov. 12, 2003)............... App. 84 Defendants’ Answer, Evans v. Fogarty (W.D. ois ONO See, IEE Biri ican con ncasisiconiatntcvasasuaibons App. 91 Vv TABLE OF AUTHORITIES Page CASES Ace v. Aetna Life Ins. Co., 139 F.3d 1241 (9th SG II dildos atic ck caa tulad ice eit cea utan ale eam aatal 29 Alexander v. Fulton County, Ga., 207 F.3d 1303 OR NE I iicsiienissiahbncinsckncdnakaceanabinbanenenuennibaniion 15 Amorgianos v. Natl R.R. Passenger Corp., 303 Be Be ae Ge I esc c ha ccenpanessoatnrnncionniatensonanns 25 Apostol v. Gallion, 870 F.2d 1335 (7th Cir. I Siig teccadicniteantishsuasunccisaaaycs nite ipkasdatdaadacianbaadamins 11 Auster Oil & Gas, Inc. v. Stream, 835 F.2d 597 I ENED sith sicsikncicictpnusccnaiiicaadoneimiinsabadiaideamenianam 8 Behrens v. Pelletier, 516 U.S. 299 (1996)................... 10 Bennett v. Hendrix, 423 F.3d 1247 (11th Cir. BI cixiatstnltsieeiasniihotansonsccssnatescneeelicisasannaclauaebasbeateatuiaaiieuaniie 18 BMW of N. Am., Inc. v. Gore, 517 U.S. 559 II sic. cass nied dich tus accmuiohconnva anaeasmvaneiaiae maaan 30, 31 Calderon v. Witvoet, 999 F.2d 1101 (7th Cir. BED sti ise igncen Suecieaneuncaueh taco dsdcandiicanadinncaeihidaanaasnanminaae 6 Carbo Ceramics, Inc. v. Keefe, 166 Fed. Appx. 714 (5th Cir. 2006) (not selected for publica- tion in the Federal Reporter)........................008 26, 27 Crane v. Consol. Rail Corp., 731 F.2d 1042 (2d Se TTY tdiasettnscnshetecinnlsicaipausdhaciapiakciinntinboionmsabiiannanaiianns 25 Creech v. Nguyen, 153 F.3d 719 (4th Cir. 1998) IIT III 6 dc cannccinnnceianennsinewewunssexanianan’ 26 Denhof v. City of Grand Rapids, 494 F.3d 534 I I or eas waar cis redenensiabasencnanckes 27 vi TABLE OF AUTHORITIES - Continued Page Eddy v. Virgin Islands Water & Power Auth., Be Be Be Ce Cy BIT) nvcsesccncssccsasncstssacressssesecss 7 English v. Dyke, 23 F.3d 1086 (6th Cir. 1994) ............. 7 Farquhar v. Jones, 141 Fed. Appx. 539 (9th Cir. NEE cok dals ls ct eel cdi haiehe tal danieahanmieniabucatinienaddeieiasnaiies 7 Gasperini v. Ctr. for Humanities, Inc., 518 U.S. RE Gatti ha sicuendisdntensd canbe sinipienavaiione 20, 21, 22, 27 Guzmdn-Rivera v. Rivera-Cruz, 98 F.3d 664 I IIc casos sancpaunancunimnnieiosknucenson 11, 12, 13 Harlow v. Fitzgerald, 457 U.S. 800 (1982) ............ a3 4? Kelly v. City of Oakland, 198 F.3d 779 (9th Cir. Niland decent daria aad aaa ube Nasuns 15 Langevine v. Dist. of Columbia, 106 F.3d 1018 a ao elias La teatna 29 Malandris v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 703 F.2d 1152 (10th Cir. 1981) ........... 32 Marshall v. Columbia Lea Reg'l Hosp., 474 F.3d Fe CE el EES itinctsciiowineetnsninceycasannbsndicencccannann 16 Maul v. Constan, 928 F.2d 784 (7th Cir. 1991)............ 8 McGreevy v. Stroup, 413 F.3d 359 (3d Cir. 2005) ...... 18 Medcom Holding Co. v. Baxter Travenol Lab., Inc., 106 F.3d 1388 (7th Cir. 1997)................... 27, 28 Nagy v. Riblet Prod. Corp., 79 F.3d 572 (7th ne at aii dae acunnacsdeessabapeiansessianiawnel 6 O’Connor v. Huard, 117 F.3d 12 (ist Cir. I eg es 13, 14, 15 vil TABLE OF AUTHORITIES - Continued Page Philip Morris USA v. Williams, 127 S. Ct. 1057 PF ac SINT Dididecssichccothunaataestacaliaseldcaaibtabeusuibiaiibnei decane etacnianide 31 Sales v. Grant, 224 F.3d 293 (4th Cir. 2000)................ 7 Skrtich v. Thornton, 280 F.3d 1295 (11th Cir. EE Sc hicilicieicabiecnnsstakaeecblsduinscuaniplailaipuiaiciadtadieaiciuabadeisccbii 7 Spann v. Rainey, 987 F.2d 1110 (5th Cir. 1993)....14, 15 Stephenson v. Doe, 332 F.3d 68 (2d Cir. 2008)............. 7 United States v. Bertling, 510 F.3d 804 (8th Cir. RC RS NS ACFE NP A TN ARTO Ne Eee eT 28 United States v. Hernandez, 433 F.3d 1328 GR TR RR in TO RL t eT ae Oe ON 5 Rea 29 United States v. Rivera Rangel, 396 F.3d 476 i te esi ccknk cs cocttpnconcckceennc pasty acenietbaciess 24, 25 United States v. Robinson, 430 F.3d 537 (2d I ee eater as eee ae ra 25 Wilburn v. Maritrans GP Inc., 139 F.3d 350 (3d ee he es 25, 26 Wulf v. City of Wichita, 883 F.2d 842 (10th Cir. SI cocci tusicke uaa iuadeabise ami vesadeinattaminmne anal ndiahakenaes 33 CONSTITUTIONAL PROVISIONS ere ee I Boog, cho crceenccnveceiaussaavanrsanesiods 2,18 U.S. Const. amend. VII.......................c000 20, 22, 23, 26 STATUTES OKLA. STAT. ANN. tit. 51, § 162(A)(2).......0000000. ee. 1 Vili TABLE OF AUTHORITIES - Continued Page OTHER 11 CHARLES A. WRIGHT, ARTHUR R. MILLER, & Mary Kay KANE, FEDERAL PRACTICE AND PRO- CEDURE §§ 2818-19 (2d ed. 1995) ............. ee. 22, 24 Michelle Migdal Gee, Annotation, What Stan- ‘ dards Govern Appellate Review of Trial Court’s Conditional Ruling, Pursuant to Rule 50(c)(L) of Federal Rules of Civil Procedure on Party’s Motion for New Trial, 52 A.L.R. FED. 494 (originally published in 1981)........... 22, 23 1 STATEMENT OF THE CASE Respondents adopt the facts as set forth in the Tenth Circuit’s Order and Judgment filed August 22, 2007, Pet’r App. pp. la-53a, and as set forth in the Tenth Circuit’s Order and Judgment filed January 26, 2005. See infra App. 78-81. With regard to Petitioners’ Statement of the Case, Respondents object to any and all facts suggest- ing that Petitioners’ conduct toward Respondents was based on a budgetary, as opposed to a retaliatory, motive. Petitioners’ facts are slanted in their own favor and are premised primarily on the District Court’s grant of Petitioners’ motion for judgment as a mz.er of law after the second jury trial. Petitioners do not discuss, in detail, the findings of either jury or the findings of the Tenth Circuit. Additionally, Petitioners do not make this Court aware of OKLA. StTaT. ANN. tit. 51, § 162(A\(2), which impacts Petitioners’ personal liability for the compen- satory damages awarded. That statute states, in pertinent part: A. The state or any political subdivision, subject to procedural requirements imposed by this section, other applicable statute, ordinance, resolution, or written policy, shall: 2. Pay or cause to be paid any judgment entered in the courts of the United States, the State of Oklahoma or any 2 other state against any employee or po- litical subdivision. ... a. vv REASONS FOR DENYING THE WRIT Petitioners are high-ranking state officials who abused their positions and implemented a regime of lawless conduct by retaliating against Respondents for speaking publicly about the State of Oklahoma’s Medicaid system. Respondents’ only means of vindi- cating their First Amendment right to free speech are damages. The Tenth Circuit’s opinion does not, as Petitioners contend, unfairly impose liability on state officials who were simply doing their job but, rather, holds high-ranking state officials accountable for their intentional abuse of power and deprivation of Respondents’ First Amendment right to free speech. The Tenth Circuit’s finding that Petitioners had waived their qualified immunity defense does not conflict with the decisions of other circuit courts and is not in tension with the principles of qualified immunity established by this Court. The standard of review applied by the Tenth Circuit to the District Court’s grant of a new trial is not contrary to this Court’s decisions and does not exacerbate an existing conflict among the courts of appeals. And finally, the Tenth Circuit’s reinstatement of the punitive damages awards against Petitioners 3 after the first trial does not merit review, as a rea- sonable relationship exists between the amount of punitive damages that were awarded after the first trial and the probable amount of compensatory damages that will be awarded after remittitur. I. This Court Should Deny The Petition For A Writ Of Certiorari As To The Qualified Im- munity Issue Because The Issue Is Moot, The Tenth Circuit’s Finding Of Waiver Does Not Conflict With The Decisions Of Other Circuits, And Petitioners Are Not Entitled To The Protection Afforded By Qualified Immunity. A. Whether Petitioners Should Have Been Allowed To Assert Qualified Immunity At The Second Trial Is Moot, Because The District Court Abused Its Discre- tion In Granting A Second Trial. In their Petition for a Writ of Certiorari, Peti- tioners try to blur the true issue on appeal to this Court with regard to qualified immunity. Petitioners did not argue to the Tenth Circuit that the District Court had erred in prohibiting them from asserting qualified immunity at the first trial, as Petitioners had not even attempted to assert the defense at the pre-trial/post-discovery phase, at the trial phase, or at the post-trial phase of the first trial. Nor did Petition- ers argue to the Tenth Circuit that the District Court had erred in denying their motion to dismiss, in which they had asserted qualified immunity at the a pleading phase of the first trial. The actual issue that Petitioners presented to the Tenth Circuit was whether the District Court had erred in not allowing them to rely on the defense subsequent to the first trial but prior to the second trial. The Tenth Circuit abstained from answering that question, however, because it found that the District Court had abused its discretion in granting a second trial at all, thus rendering moot the question of whether the District Court had erred in denying Petitioners use of the defense in advance of the second trial. As explained more fully in Subsection (IT) below, the Tenth Circuit correctly held that the District Court had abused its discretion in granting a second trial. For that reason, this Court need not now ad- dress whether the District Court should have allowed Petitioners to assert qualified immunity in advance of the second trial, as the issue continues to be moot. Because the Tenth Circuit reinstated the first jury verdict, the real issue before this Court is whether the Tenth Circuit erred in finding that Petitioners had waived their qualified immunity defense for purposes of the first trial. The Tenth Circuit did not err in finding that Petitioners had waived their qualified immunity defense for purposes of the first trial. And, even if the Tenth Circuit improperly overturned the District Court’s grant of a new trial, the District Court did not abuse its discretion in prohibiting Petitioners from asserting qualified immunity in advance of the second trial, because Petitioners’ failure to press qualified 5 immunity at the first trial effectuated waiver for purposes of the second trial, as well. B. The Tenth Circuit Correctly Found That Petitioners Had Waived Their Qualified Immunity Defense For Pur- poses Of The First Trial, And The Tenth Circuit’s Finding Of Waiver Does Not Conflict With The Decisions Of Other Circuit Courts. By presenting a distorted version of the Tenth Circuit’s finding and by providing incomplete ac- counts of other circuit courts’ opinions, Petitioners give the appearance that a circuit split exists with regard to waiver of qualified immunity, hoping that this Court will grant a writ of certiorari to resolve the supposed conflict among the circuit courts. In actual- ity, however, the issue on which the circuit courts are supposedly split was not the basis of the Tenth Cir- cuit’s finding of waiver. Specifically, Petitioners argue that the Tenth Circuit departed from the decisions of other circuit courts when it found that Petitioners had waived their qualified immunity defense for failure to include it in the pretrial order. But, the Tenth Circuit did not find that Petitioners had waived their qualified immunity defense solely because they had failed to include it in the pretrial order. Rather, the Tenth Circuit found that Petitioners had waived the defense because they had neglected to press it at every oppor- tunity. They had “failed to assert qualified immunity 6 in their motions for summary judgment, the pretrial order, or in their oral motions for [judgment as a matter of law] at the close of the plaintiffs’ case.” Pet’r App. pp. 16a-17a n.9. Therefore, any authority cited by Petitioners as standing for the proposition that qualified immunity is not waived if not included in the pre-trial order (i.e., Calderon v. Witvoet, 999 F.2d 1101 (7th Cir. 1993); Nagy v. Riblet Prod. Corp., 79 F.3d 572 (7th Cir. 1996)), is wholly irrelevant in determining whether the Tenth Circuit erred in finding that Petitioners had waived their qualified immunity defense. Moreover, even if the Tenth Cir- cuit’s finding had been premised solely on Petitioners’ failure to include the defense in the pre-trial order, Calderon and Nagy would lend no support to Peti- tioners’ position, as those cases held that an affirma- tive defense must generally be included in the pre- trial order to be preserved but that an exception exists when the district court has foreclosed the defense from trial. As explained more fully below, the District Court did not foreclose Petitioners’ qualified immunity defense from the first trial. At first blush, it appears that Petitioners are arguing that failure to include qualified immunity in the pretrial order should not result in waiver; how- ever, a closer look reveals that Petitioners are, in fact, arguing that qualified immunity lives forever and that it may be pressed for the first time seven (7) months after the conclusion of a jury trial. Petitioners’ position, however, is simply untenable, as even the First and Fifth Circuits, which Petitioners cite as 7 allowing the defense to be raised at any time, hold that, at some point, qualified immunity must be cut off. This Court has stated that qualified immunity is an affirmative defense that must be raised by the defendant. Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982) (citing Gomez v. Toledo, 446 U.S. 635, 640 (1980)). As an affirmative defense, qualified immu- nity may be waived if not properly raised. See Farqu- har v. Jones, 141 Fed. Appx. 539, 540 (9th Cir. 2005) (not published in the Federal Reporter) (holding that qualified immunity had been waived when raised for the first time in an objection to the magistrate judge’s report); Stephenson v. Doe, 332 F.3d 68, 76 (2d Cir. 2003) (explaining that qualified immunity can be waived by failure to raise it in a timely fashion or by failure to raise it with sufficient particularity); Eddy v. Virgin Islands Water & Power Auth., 256 F.3d 204, 209-10 (3d Cir. 2001) (stating that a district court has discretion to determine whether the defendant diligently raised quali- fied immunity); Skrtich v. Thornton, 280 F.3d 1295, 1306-07 (11th Cir. 2002) (“Qualified immunity is an affirmative defense to personal liability, which must be pled, and if it is not, it is deemed waived.”); Sales v. Grant, 224 F.3d 293, 294-96 (4th Cir. 2000) (hold- ing that the defendants, who had only cursorily referenced qualified immunity in their answer, could not pursue the defense for the first time on remand for a new trial); English v. Dyke, 23 F.3d 1086, 1090 (6th Cir. 1994) (“(TJhe trial court has 8 discretion to find a waiver if a defendant fails to assert the defense within time limits set by the court or if the court otherwise finds that a de- fendant has failed to exercise due diligence or has asserted the defense for dilatory purposes.”) (citation omitted); Maul v. Constan, 928 F.2d 784, 785-86 (7th Cir. 1991) (holding that the defen- dants, who had asserted “good faith immunity” in their answer, had not sufficiently preserved the defense and could not urge it for the first time in a post-trial motion); Auster Oil & Gas, Inc. vu. Stream, 835 F.2d 597, 601 (5th Cir. 1988) (declin- ing to review whether appellants were entitled to qualified immunity, because they had not “squarely posed” the issue until filing a motion for new trial). The point at which qualified immunity is deemed waived may vary, depending on the deciding court and the circumstances of the case. But, the fact that qualified immunity may be waived is undisputed, and as noted in the above parentheticals, district courts have discretion in deeming the defense waived. Respondents recognize that qualified immunity may be asserted at various stages of litigation and that failure to assert the defense at one stage does not necessarily preclude the defendant from asserting the defense at a later stage. However, a defendant may not casually assert the defense at the beginning of a lawsuit and then rely on that one assertion for the duration of the case, which is exactly what Peti- tioners are urging. 9 Petitioners asserted qualified immunity prior to the first trial in a motion to dismiss, which the Dis- trict Court denied, and then again in their answers. See infra App. 15-23, 48, 97; Pet’r App. pp. 115a-18a. Thereafter, Petitioners failed to press the defense. They did not assert it in their motions for summary judgment. They did not include it in the pre-trial order. They did not submit it with their proposed jury instructions. And, they did not raise it in their mo- tions for judgment as a matter of law at trial. See infra App. 77-81. In fact, Petitioners did not forcefully press the defense again until seven (7) months after the first trial, when they retained new counsel to represent them at the second trial and requested leave of court to file a motion for summary judgment on the ground of qualified immunity, which request the District Court denied. See infra App. 82, 84-88. Petitioners now argue that they did not need to press their qualified immunity defense subsequent to the District Court’s denial of their motion to dismiss, claiming that the denial was a final resolution of Petitioners’ entitlement to the defense for the entire duration of the litigation. Petitioners, however, may not use the District Court’s denial of their motion to dismiss at the pleading stage of the first trial as an excuse for their failure to reassert the defense at later stages of the litigation. Whether a defendant is entitled to qualified immunity is analyzed differently at the summary- judgment phase than it is at the motion-to-dismiss phase. “At that earlier stage, it is the defendant’s 10 conduct as alleged in the complaint that is scrutinized for ‘objective legal reasonableness. On summary judgment, however, the plaintiff can no longer rest on the pleadings, ... and the court looks to the evidence before it (in the light most favorable to the plain- tiff)....” Behrens v. Pelletier, 516 U.S. 299, 309 (1996). Simply because the District Court found that Petitioners could not be dismissed from suit at the pleading stage of the first trial, because Respondents had sufficiently alleged a violation of a clearly estab- lished constitutional right in their complaint, was no guarantee that the District Court would find that the evidence produced during discovery was sufficient to support the violation alleged in Respondents’ com- plaint. Therefore, if Petitioners had thought that the evidence produced during discovery did not support the violation alleged in Respondents’ complaint, then Petitioners could, and should, have asserted qualified immunity in a motion for summary judgment at the pre-trial/post-discovery phase of the first trial. See id. (“It is no more true that the defendant who has unsuccessfully appealed denial of a motion to dismiss has no need to appeal denial of a motion for summary judgment, than it is that the defendant who has unsuccessfully made a motion to dismiss has no need to make a motion for summary judgment.”). Because Petitioners did not assert qualified immunity in their motions for summary judgment, they did not even give the District Court the opportunity to evaluate whether they were immune from facing the burden of 11 trial. Moreover, because they did not bother to press the defense at trial, they did not give the District Court the opportunity to evaluate whether they were immune from liability. Petitioners cite Guzmdn-Rivera v. Rivera-Cruz, 98 F.3d 664 (1st Cir. 1996) to support their position that the Tenth Circuit erred in finding waiver. Guz- man-Rivera, however, actually provided the basis of the Tenth Circuit’s finding. Pet’r App. p. 17a n.9. The defendants in Guzmdn-Rivera asserted qualified immunity on the eve of trial. Although the First Circuit held that the defendants had not waived the defense for trial, it did hold that they had waived it for the pre-trial/post-discovery phase, meaning the defendants were not immune from suit, even if they might later be found immune from liability. The First Circuit expressed concern in Guzmdn- Rivera with regard to a defendant’s intentional delay in asserting qualified immunity for the purpose of prejudicing the plaintiff. To help reduce such tactical delay, the First Circuit encouraged district courts to enter scheduling orders, stating: Delay generated by claims of qualified im- munity may work to the disadvantage of the plaintiff. Witnesses may become unavailable, memories may fade, attorneys fees accumu- late, and deserving plaintiffs’ recovery is de- layed. See Apostol v. Gallion, 870 F.2d 1335, 1338 (7th Cir. 1989) (“Defendants may seek to stall because they gain from delay at 12 plaintiffs’ expense, an incentive yielding un- justified appeals.”). Delay is also costly to the court system, demanding more time and en- ergy from the court and retarding the dispo- sition of cases... . In order to reduce the potential for abuse by defendants, we believe that the defense of qualified immunity may be deemed to have been waived if it is not raised in a diligent manner during the post-discovery, pre-trial phase. To find otherwise is to invite strategic use of the defense by defendants who stand to benefit from delay. .. . [Djistrict courts are encouraged to enter scheduling orders to prevent dilatory tactics on the part of defendants with qualified im- munity defenses. Absent an abuse of discre- tion, this court will enforce those scheduling deadlines by affirming a finding of waiver and awarding double costs. Id. at 667-69. Petitioners are not similar to the defendants in Guzmdn-Rivera, because not only did Petitioners fail to diligently press qualified immunity at the pre- trial/post-discovery phase of the first trial, they also failed to diligently press qualified immunity at the trial itself and at the post-trial phase of the first trial. Moreover, Petitioners did not appeal the District Court's denial of their motion to dismiss premised on qualified immunity. See infra App. 78. The first time that Petitioners diligently reasserted their qualified immunity defense was approximately seven 13 (7) months after the first trial, when they filed a motion seeking leave of court to file a motion for summary judgment based on qualified immunity. See infra App. 84-88. Petitioners’ failure to press the defense prior thereto is the very type of prejudicial delay about which the First Circuit expressed concern in Guzmdn-Rivera. And, even if the purpose of Peti- tioners’ delay was not to intentionally prejudice Respondents, prejudice would have resulted had the Tenth Circuit allowed Petitioners to escape liability for their misdeeds after a jury verdict. Petitioners’ delay in asserting the defense appears to be one last- ditch attempt to escape liability after gambling and losing on the jury’s verdict. As explained by the Tenth Circuit in its opinion, however, qualified immunity “is not a parachute to be deployed only when the plane has run out of fuel.” Pet’r App. p. 17a n.9. Petitioners also cite to O’Connor v. Huard, 117 F.3d 12 (1st Cir. 1997) to support their contention that the Tenth Circuit erred in not considering the substantive elements of their qualified immunity defense on appeal. Like Guzmdan-Rivera, however, O’Connor is distinguishable. In O'Connor, also a First Circuit case, the defen- dant waited to assert qualified immunity until filing a motion notwithstanding the verdict. On appeal, the First Circuit reviewed the district court’s denial of the defendant’s motion. But, the First Circuit reviewed the denial for plain error only, because it found that the defendant had not properly preserved the defense 14 by raising it for the first time after the verdict. Jd. at 17. The case Spann v. Rainey, 987 F.2d 1110 (5th Cir. 1993), also cited by Petitioners, is somewhat similar to the instant case in that the Fifth Circuit had to decide whether to review the district court’s denial of the defendant’s motion for summary judgment based on qualified immunity, which had not been filed until after a new trial had been granted. The Fifth Circuit ultimately decided to review the denial. But, it noted that it was not deciding whether a defendant who has not presented qualified immunity at the first trial may present it at the second trial, because the Fifth Circuit found that the defendant had sufficiently presented qualified immunity at the first trial. Al- though the defendant had not moved to dismiss on the ground of qualified immunity in advance of the first trial and had not specifically included qualified immunity in the pre-trial order, he had (1) incorpo- rated into the pre-trial order all of the defenses asserted in his answer to the complaint, which in- cluded qualified immunity; (2) argued immunity at the close of plaintiff’s case and at the close of evi- dence; and (3) included in the jury instructions ele- ments for immunity. Unlike the defendant in Spann, Petitioners did not assert qualified immunity at the first trial. Rather, they reasserted it seven (7) months after the first trial. Thus, the Fifth Circuit’s decision to review the district court’s denial of the defendant’s motion for summary judgment in Spann lends no support to 15 Petitioners’ contention that the Tenth Circuit erred in not considering the substantive elements of their qualified immunity defense, as the defendant in Spann had sufficiently preserved his qualified immu- nity defense for appeal by asserting it at the first trial. Petitioners also cite Alexander v. Fulton County, Ga., 207 F.3d 1303, 1320 & n.10 (11th Cir. 2000) and Kelly v. City of Oakland, 198 F.3d 779, 784 (9th Cir. 1999) to support their contention that qualified immunity may be reviewed on appeal even if it was not raised at trial. Once again, however, Petitioners mischaracterize the facts of the authority they cite. Like the defendant in Spann, the defendant in Alexander raised qualified immunity at rial, as she raised it at the close of the plaintiff’s case. And in Kelly, the defendants asked for a jury instruction containing elements of qualified immunity and then raised qualified immunity again by motion after the verdict, which the district court denied on the ground that the defendant had not asserted qualified immu- nity in a motion prior to jury deliberation. Like the First Circuit in O'Connor, 117 F.3d at 17, the Ninth Circuit in Kelly found that the defendant had waited too long to assert the defense. Although the Ninth Circuit reviewed the district court’s denial, it did so only for plain error and only in the interest of justice, stating: “We have ... occasionally reviewed for plain error even when no motion for judgment as a matter of law was made.” The Ninth Circuit, in no way, stated that a denial of qualified immunity must be 16 reviewed on appeal if not properly preserved, how- ever. As stated hereinabove, the stage at which quali- fied immunity is deemed waived varies, depending on the court and the circumstances of the case. Some courts allow defendants to assert qualified immunity for the first time very late into the proceedings, while others deem the defense waived. The Tenth Circuit is actually quite lenient. If the defendant has properly raised qualified immunity in an answer, in a motion to dismiss, or in a motion for summary judgment but then does not reassert the defense until after trial, the Tenth Circuit will still review the district court’s denial of the defense. Marshall v. Columbia Lea Reg'l Hosp., 474 F.3d 733, 739 (10th Cir. 2007) (“[A] post- trial grant of immunity would still confer a benefit by shielding [defendants] from any liability for the monetary damages awarded by the jury.”) (citing Acevedo-Garcia v. Monroig, 351 F.3d 547, 562 n.6 (1st Cir. 2003)). It will just review the evidence in the light “most hospitable” to the party that prevailed at trial. /d. (citing Jacobucci v. Boulter, 193 F.3d 14, 23 (1st Cir. 1999)). The Tenth Circuit did not review the substantive elements of Petitioners’ qualified immunity defense for purposes of the first trial, because although Peti- tioners had raised the defense in their motions to dismiss and in their answers, they had not reasserted it at the first trial or during the post-trial phase of the first trial. Reasserting it seven (7) months after the first trial is simply too late. Despite Petitioners’ 17 wishes, qualified immunity does not live forever. Petitioners had numerous opportunities to assert the defense: (1) they could have asserted it prior to the first trial in a motion for summary judgment; (2) they could have included it in the pre-trial order; (3) they could have submitted it with their proposed jury instructions; (4) they could have asserted it at the first trial after the Respondents’ case-in-chief; (5) they could have asserted it after presenting their own case at the first trial; and (6) they could have asserted it in a motion notwithstanding the verdict. Petitioners failed to take advantage of all of these opportunities. For that reason, the Tenth Circuit was not unreason- able in deeming the defense waived for purposes of the first trial, and the District Court did not abuse its discretion in deeming the defense waived for purposes of the second trial. C. Even If The Tenth Circuit Erred In Concluding That Petitioners Had Waived Their Qualified Immunity De- fense For Purposes Of The First Trial, The Error Was Harmless Because Peti- tioners Are Not Entitled To The Protec- tion Afforded By Qualified Immunity. Qualified immunity is just that — qualified. It does not protect from civil damages government officials performing discretionary functions whose conduct violates a clearly established statutory or constitutional rmght of which a reasonable person would have known. Harlow, 457 U.S. at 818. 18 There is no doubt that Respondents were en- gaged in protected First Amendment activity when they were speaking publicly about the State of Okla- homa’s Medicaid system, and Petitioners did not dispute this fact on appeal to the Tenth Circuit. Pet’r App. p. 18a. The First Amendment right to free speech is a clearly established right. Bennett v. Hendrix, 423 F.3d 1247, 1255 (11th Cir. 2005); McGreevy v. Stroup, 413 F.3d 359, 366-67 (3d Cir. 2005); Pet’r App. pp. 115a-18a. Respondents presented a lot of evidence at trial proving that Petitioners had retaliated against them for speaking publicly about Oklahoma’s Medicaid System. For example, Respondent Cynthia Majors testified that Petitioner Fogarty had threatened that if her husband, Respondent John Majors, continued to lobby at the Capitol, “he could send someone down to investigate [her] nursing home for fraudulent billing.” Pet’r App. p. 36a. And, even before the first trial, the District Court found that the evidence presented by Respondents demonstrated “an uncanny correlation” between Respondents’ exercise of free speech rights and the administrative actions taken by the Oklahoma Health Care Authority. See infra App. 59-63. The District Court also found that Respon- dents were “likely to succeed in showing that the [Petitioners] took certain retaliatory actions in re- sponse to the exercise of First Amendment rights. .. .” See infra App. 638. Then, two different juries con- cluded that Petitioners had retaliated against Re- spondents for speaking publicly about the State of Oklahoma’s Medicaid system and that Petitioners’ 19 conduct had not been for a budgetary purpose. Even in the District Court’s February 23, 2005 order after the second trial, the District Court denied Petitioner Fogarty’s motion for judgment as a matter of law as to all individual Respondents, except for Mary Parkhurst and Joel Holcomb. And, if that is not enough to prove that Petitioners’ violated Respondents’ First Amend- ment right to free speech, the Tenth Circuit, after reviewing all of the evidence on appeal, stated: [W]e are satisfied that a reasonable juror could conclude that Fritz and Fogarty acted with “reckless or callous indifference,” if not “evil motive or intent,” to the rights of the [Respondents]. Hardeman |[v. City of Albu- querque), 377 F.3d [1106,] 1121. Plaintiffs met with persistent hostility from Fritz and Fogarty, and were subject to a wide variety of injuries in relation for their political activi- ties. A reasonable juror could conclude, based on the evidence before it, that Fogarty and Fritz wanted to silence members of the Asso- ciation, were embarrassed by their lobbying efforts, and acted to starve them of Medicaid funding in an effort to put them out of busi- ness. This type of behavior is the sort that is properly answered by punitive damages, which act “to punish what has occurred and to deter its repetition.” Youren v. Tintic Sch. Dist., 343 F.3d 1296, 1309 (10th Cir. 2003). Based on the foregoing, Petitioners certainly violated a clearly established constitutional mght of which any reasonable person would have known. No reasonable person in Petitioners’ position would have 20 thought that it was legal to intentionally deny Medi- caid reimbursement to deserving individuals simply because they had engaged in public speech regarding Oklahoma’s Medicaid system. Qualified immunity does not protect government officials from civil damages for such malicious conduct. Therefore, whether the Tenth Circuit erred in finding waiver for purposes of the first trial or whether the District Court abused its discretion in finding waiver for purposes of the second trial is completely irrelevant, because Petitioners would not have been immune from liability in any event. As such, this Court should deny the Petition for a Writ of Certio- rari as to the qualified immunity issue. II. The Alleged Split Among The Circuit Courts With Regard To The Proper Stan- dard Of Review Of A Trial Court’s Grant Of A New Trial Is Merely One Of Seman- tics And Not Of Substance. Petitioners quote the following statement from the United States Supreme Court case Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 435 (1996) as support for their contention that the Tenth Circuit reviewed the District Court’s grant of a second trial too stringently: “[Alppellate review for abuse of discretion is reconcilable with the Seventh Amend- ment as a control necessary and proper to the fair administration of justice.” Petitioners have taken this statement from Gasperini out of context, however, as Gasperini concerned what standard of review, if any, a federal appellate court should apply to a district court’s dental of a motion for a new trial premised on 21 excessive damages. Thus, Petitioners’ argument that Gasperini lowered the standard of review for the grant of a new trial premised on insufficient evidence is without merit. Furthermore, while Petitioners primarily cite pre-Gasperini cases, in which a more exacting scrutiny was applied, to bolster their argu- ment that a more exacting scrutiny is a thing of the past, the truth is that since Gasperini, the circuit courts have continued to subject the grant of a new trial to more exacting scrutiny, particularly when the grant was premised on the ground that the evidence did not support the jury’s verdict. The precise issue presented in Gasperini was whether federal appellate courts could apply a New York state law that gave them the power “to review the size of jury verdicts and to order new trials when the jury’s award ‘deviate[d] materially from what would [have] be[en] reasonable compensation.” Jd. at 418. Stated more simply, the issue was whether appellate judges, who were not present at the trial, possess the power to vacate a jury verdict on the ground of excessiveness and to order a new trial when the district judge, who was present at the trial, declined to do so. On appeal to the United States Supreme Court, this Court held that appellate judges do possess such power, but only if the district judge abused his discretion in denying a new trial. The reason why the holding in Gasperini is significant is because, at one time, it was the law that the trial court’s denial of a motion for a new trial, based on the ground that the verdict was against the weight of the evidence or that the verdict was 22 excessive or inadequate, was not reviewable at all, because such review was “deemed inconsonant with the Seventh Amendment’s Reexamination Clause.” Id. at 434; 11 CHARLES A. WRIGHT, ARTHUR R. MILLER, & Mary Kay KANE, FEDERAL PRACTICE AND PROCEDURE § 2818, p. 197, § 2819, p. 200 (2d ed. 1995). The holding in Gasperini finally put to rest all doubt that appellate judges, who were not present at the trial, have the power to set aside a jury verdict and to order a new trial, despite the trial judge’s refusal to do so. Id. at § 2819, p. 204. Thus, this Court’s statement that “appellate review for abuse of discretion is reconcilable with the Seventh Amendment as a control necessary and proper to the fair administra- tion of justice” simply means that appellate judges do not violate the Reexamination Clause of the Seventh Amendment when they review a district court’s denial of a new trial. Despite Petitioners’ assertion that Gasperini should have governed the Tenth Circuit’s review of the District Court’s grant of a new trial, “[dJifferent considerations apply when the trial court has denied [a] motion [for a new trial] than when it has granted it and the problems must be considered separately.” Jd. at § 2819, p. 198-99 (emphasis added). See also Michelle * The Seventh Amendment of the United States Constitu- tion provides: “In Suits at common law, where the value in controversy shal] exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” 23 Migdal Gee, Annotation, What Standards Govern Appellate Review of Trial Court’s Conditional Ruling, Pursuant to Rule 50(c)(1) of Federal Rules of Civil Procedure on Party’s Motion for New Trial, 52 A.L.R. Fep. 494 § 2 (originally published in 1981) (“It has been recognized that closer appellate scrutiny is required when a new trial has been granted ... than when it has been denied ... , since in the latter situation the trial judge has left standing the jury’ determination and, therefore, has in no way abridged the parties’ right to a jury trial.”). “It has also gener- ally been held that the degree of appellate scrutiny depends on the reasons for the ruling. ... Where the stated reason for granting a new trial was the weight of the evidence ... , the appellate courts ... scruti- nize{[ ] the ruling more closely....” Id. (emphasis added). The reason why appellate courts scrutinize the grant of a new trial that is premised on insuffi- cient evidence more closely than they scrutinize the dental of a new trial is because: There is no Seventh Amendment problem... if the appellate court reverses the trial court’s grant of a new trial [on the ground that the verdict was against the weight of the evidence]. In this instance the appellate court is not reexamining facts found by a jury but is reinstating the jury’s findings as against the contrary findings of the judge. Appellate action in this context protects the role of the jury, as envisioned by the Seventh Amendment, rather than running contrary to it. 24 11 FEDERAL PRACTICE AND PROCEDURE § 2819, p. 205 (emphasis added). By quoting more-stringent-scrutiny language from the opinions of certain circuit courts, Petitioners try to give the appearance that a split exists among the circuit courts with regard to the proper standard of review for the grant of a new trial. However, the circuit courts unanimously agree that the proper standard of review is abuse of discretion. Simply because some circuit courts examine the evidence more closely than others does not mean that those courts are not giving proper deference to the district court’s decision or that a substantive circuit split exists. At best, the split among the circuit courts is one of semantics. Petitioners cite no case law from the First Cir- cuit, but as stated above, the articulated standard of review in the First Circuit for the grant of a new trial is abuse of discretion. United States v. Rivera Rangel, 396 F.3d 476, 485-86 (lst Cir. 2005). Although the First Circuit does not use the same terminology that the Tenth Circuit uses to define “abuse of discretion,” the standard of review employed by the First Circuit appears to be very much like the one employed by the Tenth Circuit, because the First Circuit will find an abuse of discretion if there was merely “ample” evi- dence to support the jury’s verdict and if the jury’s verdict was not “seriously erroneous.” Jd. at 486 (stating that “[t]here are ‘definite limits upon a 25 >» district court’s right to upset a jury verdict’ ”) (citation omitted). Like the First Circuit, the Second Circuit ac- knowledges “the need [for] particularly close appel- late scrutiny where the trial judge grants a new trial solely because the judge regards the verdict as against the weight of the evidence.” See Crane uv. Consol. Rail Corp., 731 F.2d 1042, 1048 (2d Cir. 1984). The Second Circuit even uses the same lan- guage that the First Circuit used in Rivera Rangel to describe the circumstances under which a trial judge has authority to grant a new trial. See Amorgianos uv. Natl R.R. Passenger Corp., 303 F.3d 256, 261 (2d Cir. 2002) (stating that a district court may grant a new trial on the basis that the verdict was against the weight of the evidence only if the jury reached a “seriously erroneous” result or if allowing the verdict to stand would result in a miscarriage of justice) (citation omitted). See also United States v. Robinson, 430 F.3d 537, 543 (2d Cir. 2005) (stating that “the court may not wholly usurp the jury’s role” and that the trial judge may intrude upon the jury function only where exceptional circumstances can be demon- strated) (citation omitted). Like the First and Second Circuits, the articu- lated standard of review for the grant of a new trial in the Third Circuit is abuse of discretion. Wilburn v. Maritrans GP Inc., 139 F.3d 350, 363 (3d Cir. 1998) (citation omitted). At the same time, however, the Third Circuit exercises a “closer degree of scrutiny” when the district court grants a motion for a new trial 26 on the ground that the verdict is against the weight of the evidence, because the Third Circuit is cognizant of the potential for a district court to substitute its judgment for that of the jury. Jd. (citation omitted). See also id. at 364 (“[T]his court has held that ‘new trials because the verdict is against the weight of the evidence are proper only when the record shows that the jury’s verdict resulted in a miscarriage of justice or where the verdict, on the record, cries out to be overturned or shocks our conscience.’”) (citation omitted). Similarly, the Fourth Circuit’s articulated stan- dard of review for the grant of a new trial is abuse of discretion. Creech v. Nguyen, 153 F.3d 719, 1998 WL 486354, at *8 (4th Cir. 1998) (unpublished opinion) (citation omitted). Yet, like the First, Second, and Third Circuits, the Fourth Circuit exercises a “closer degree of scrutiny and supervision” when reviewing the grant of a new trial on the ground that the verdict was against the weight of the evidence. Jd. “A closer degree of scrutiny is warranted to protect the liti- gant’s Seventh Amendment right to a jury trial.” Jd. Petitioners list the Fifth Circuit as being one of five circuit courts to apply a lower standard of federal appellate review to the grant of a new trial. It is no surprise, then, that the Fifth Circuit’s articulated standard of review is abuse of discretion. Carbo Ceramics, Inc. v. Keefe, 166 Fed. Appx. 714, 717, 2006 WL 197340, at *1 (5th Cir. 2006) (not selected for publication in the Federal Reporter) (citation omit- ted). Nevertheless, just like the First, Second, Third, 27 and Fourth Circuits, the Fifth Circuit scrutinizes the grant of a new trial more closely than it scrutinizes the denial of a new trial, and unless the Fifth Circuit is able to independently satisfy itself that the jury verdict was against the great weight of the evidence, it will not affirm the grant of a new trial. /d. As in the other circuits, abuse of discretion is the articulated standard of review in the Sixth Circuit for the grant of a new trial. Denhof v. City of Grand Rapids, 494 F.3d 534, 543 (6th Cir. 2007). In practice, however, the Sixth Circuit exercises a “closer degree of scrutiny and supervision” when reviewing the grant of a new trial premised on insufficient evidence than it exercises when reviewing the grant of a new trial premised on some other basis, such as “some undesirable or pernicious influence obtruding into the trial.” Id. (citations omitted). Therefore, unless the jury’s verdict is unreasonable, the Sixth Circuit will not affirm the grant of a new trial. 7d. With regard to the Seventh Circuit, Petitioners cite Medcom Holding Co. v. Baxter Travenol Lab., Inc., 106 F.3d 1388 (1997). In Medcom, the Seventh Circuit stated that it had, at one time, applied a “somewhat more exacting” standard of review than ordinary abuse of discretion to the grant of a new trial but that such practice is no longer necessary in light of Gasperini. Id. at 1397. Despite that state- ment, however, the Seventh Circuit went on to hold in Medcom that the district court had abused its discretion in vacating the first jury’s verdict and in ordering a new trial. Jd. at 1405-06. What is more, 28 the justification given for its holding was that the evidence was “sufficient” to support the verdict and that the jury awards had “a reasonable basis.” Id. at 1402, 1405-06. “Sufficient” and “reasonable” suggest that the Seventh Circuit does not, in practice, give any more deference to the district court’s grant of a new trial than the other circuit courts give. Therefore, even though the Seventh Circuit claims that it no longer applies a “somewhat more exacting” standard of review to the grant of a new trial, in actuality&t does. Petitioners list the Eighth Circuit as being an- other one of five circuit courts to apply a lower stan- dard of federal appellate review to the grant of a new trial. As in all of the other circuits, the articulated standard of review in the Eighth Circuit is abuse of discretion. United States v. Bertling, 510 F.3d 804, 807 (8th Cir. 2007) (citation omitted). Although the Eighth Circuit does not speak in terms of “closer scrutiny” or “more stringent scrutiny” with regard to the grant of a new trial premised on insufficient evidence, the Eighth Circuit has stated that “(motions for new trials based on the weight of the evidence are generally disfavored” and that “the district court must grant a new trial ‘sparingly and with caution.’” Jd. at 808. Thus, the Eighth Circuit will overturn a district court’s decision to grant a new trial if “the evidence in a particular case does not ‘preponderate [] heavily against the verdict, such that it would be a miscarriage of justice to let the verdict stand.’” Jd. at 808 (citation omitted). 29 Like the First Circuit, Petitioners cite no author- ity from the Ninth Circuit with regard to the pr per standard of appellate review for the grant of a new trial premised on insufficient evidence. As in all of the other circuits, though, the articulated standard of review in the Ninth Circuit is abuse of discretion. Ace v. Aetna Life Ins. Co., 1389 F.3d 1241, 1248 (9th Cir. 1998) (citations omitted). However, the Ninth Circuit is one of several circuit courts that actually uses the “stringent standard” language to describe the stan- dard of review that is applied to the grant of a new trial based on insufficient of evidence. Id. The articulated standard of appellate review in the Eleventh Circuit for the grant of a new trial premised on insufficient evidence is also abuse of discretion. United States v. Hernandez, 433 F.3d 1328, 1337 (11th Cir. 2005). And, like the Ninth Circuit, the Eleventh Circuit speaks in terms of “close scrutiny.” Id. The District of Columbia Circuit is no different. Like all of the circuit courts of appeals, the articu- lated standard of review for the grant of a new trial is abuse of discretion, and “a more searching inquiry” is made when reviewing the district court’s grant of a new trial, particularly when the grant was premised on insufficient evidence. Langevine v. Dist. of Colum- bia, 106 F.3d 1018, 1023 (D.C. Cir. 1997) (citations omitted). In the instant case, the Tenth Circuit expressly stated that it reviews a trial judge’s decision on a 30 motion for new trial for abuse of discretion but that it examines the grant of a new trial based on insuffi- cient evidence more closely than it examines the denial of a new trial to ensure that the district court does not substitute its judgment for that of the jury. Pet’r App. pp. 15a-16a. In light of the foregoing authority, it could not be any clearer that the Tenth Circuit applied the very same standard of review that the other circuit courts apply when reviewing the grant of a new trial based on insufficient evidence. Although the terminology used to describe the standard of review differs some- what between circuits, the standard of review actu- ally applied is the same. As such, this Court should deny the Petition for a Writ of Certiorari with regard to the standard-of-review issue. Ill. The Tenth Circuit Correctly Reinstated The Punitive Damages Awards Against Petitioners, Because The Amount Of The Punitive Damages Awards Is Nearly Three Times Less Than The Probable Amount Of Compensatory Damages That Will Be Awarded After Remittitur. Petitioners’ argument that the Tenth Circuit erred in reinstating the punitive damages awards while remitting or remanding most of the compensa- tory damages is extremely weak. Respondents recog- nize that “|t)he Due Process Clause of the Fourteenth Amendment prohibits a State from imposing a ‘grossly excessive’ punishment on a tortfeasor.” BMW 31 of N. Am., Inc. v. Gore, 517 U.S. 559, 562 (U.S. 1996) (citing TXO Pred. Corp. v. Alliance Resources Corp., 509 U.S. 443 (U.S. 1993)). Respondents further recognize that the ratio of the punitive damages award to the actual harm inflicted on the plaintiff is a factor to consider in determining whether a punitive damages award violates the Due Process Clause. BMW of N. Am., Inc., 517 U.S. at 581. Even further, Respondents recognize that setting a punitive dam- ages award at “two, three, or four times the size of compensatory damages, while ‘not binding,’ is ‘in- structive,’ and that ‘s]ingle-digit multipliers are more likely to comport with due process.’” Philip Morris USA v. Williams, 127 S. Ct. 1057, 1061-62 (U.S. 2007) (citing State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003)). However, the punitive damages awarded in the instant case are not even remotely close to violating the single-digit multiplier rule, as the punitive damages award of $900,000 is nearly three (3) times Jess than the probable individ- ual damages that will be awarded after remittitur. And, although corporate damages have yet to be determined, Petitioners’ liability to the corporate Respondents has been determined, so the corporate Respondents are certain to be awarded some com- pensatory damages, which will further increase the compensatory damages award over the mere $900,000 punitive damages award. The first jury awarded Respondent Alfred Milton Evans $300,000 in compensatory damages against Fogarty and $150,000 in compensatory damages 32 against Fritz. The Tenth Circuit reinstated both of those awards, holding that a combined award of $450,000 did not shock the judicial conscience. With regard to Respondents John Majors, Joel Holcomb, Neal Thrift, Nancy Thrift, and Charles Parkhurst, the first jury awarded compensatory damages against Petitioners as follows: Award Against Award Against Fogarty Fritz John Majors $825,000 $375,000 Joel Holcomb $780,000 $390,000 Neal Thrift $900,000 $450,000 Nancy Thrift $900,000 $450,000 Charles Parkhurst $600,000 $300,000 TOTAL $4,005,000 $1,965,000 The Tenth Circuit held that these awards were ap- propriate for remittitur. Although the Tenth Circuit did not dictate the amount by which these awards should be reduced, it noted that the reduction in Malandris v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 703 F.2d 1152 (10th Cir. 1981) was two-thirds. Thus, reducing each of these five (5) Respondents’ awards by two-thirds, Respondents will recover the following amounts after remittitur: 33 Award Against Award Against Fogarty Fritz John Majors $275,000 $125,000 Joel Holcomb $260,000 $130,000 Neal Thrift $300,000 $150,000 Nancy Thrift $300,000 $150,000 Charles Parkhurst $200,000 $100,000 TOTAL $1,335,000 $655,000 Hence, even after remittitur, these five (5) Respon- dents will still receive a combined total of $1,990,000 ($1,335,000 + $655,000) in compensatory damages. With regard to Respondent Leroy Wheeler, the first jury awarded $177,000 in compensatory dam- ages against Fogarty and $88,500 in compensatory damages against Fritz. The Tenth Circuit remanded the verdict and directed the trial court to enter a remittitur order of $1.00 in nominal damages against Fogarty and $1.00 in nominal damages against Fritz, for a total damages award of $2.00. The first jury awarded Respondent Cynthia Majors $300,000 in compensatory damages against Fogarty and $150,000 in compensatory damages against Fritz. The Tenth Circuit recommended that Cynthia Majors’ damages be reduced to $50,000, as was done to the plaintiff’s emotional damages in Wulf v. City of Wichita, 883 F.2d 842, 875 (10th Cir. 1989). With regard to Respondent Mary Parkhurst, the first jury awarded $600,000 in compensatory damages 34 against Fogarty and $300,000 in compensatory dam- ages against Fritz. The Tenth Circuit did not suggest the amount of remittitur for Ms. Parkhurst’s award but stated that it may counsel a reduction greater than two-thirds. Thus, assuming that the District Court reduces her award by an amount between three-fourths and four-fifths, Ms. Parkhurst will likely receive a total award of approximately $200,000. Based upon the foregoing, the total individual damages — after remittitur — will most likely be somewhere in the neighborhood of $2,690,002 ($450,000 + 1,990,000 + $2.00 + $50,000 + $200,000). A $900,000 punitive damages award is almost three (3) times less than the amount of probable total individual damages that will be awarded after remit- titur. And, although the corporate damages have yet to be determined, Petitioners’ liability to the corpo- rate Respondents has been determined and, there- fore, the total compensatory damages for both the corporate Respondents and the individual Respon- dents will be even greater than $2,690,002, further widening the gap between the total compensatory damages awarded to Respondents and the mere $900,000 punitive damages awarded against Peti- tioners. Thus, Petitioners’ argument that the Tenth Circuit should have remanded the punitive damages award to ensure that a reasonable relationship ulti- mately exists between the compensatory damages award and the punitive damages award is extremely weak. 35 Petitioners try to gain this Court’s sympathy by stating that neither the State of Oklahoma nor insur- ance will pay the punitive damages awarded against them. However, Petitioners’ own conduct necessitated punitive damages, and while the second jury awarded fewer punitive damages than the first jury did, the fact that two different juries, as well as the Tenth Circuit, have found Petitioners’ conduct deserving of punitive damages is indicative of the reprehensibility of Petitioners’ conduct. Petitioners’ having to pay the cost of acting with reckless or callous indifference, or with evil motive or intent, to the Respondents’ rights to free speech does not arouse much sympathy from Respondents and should not arouse much sympathy from this Court, either. During the course of this seven-year litigation, Petitioners have avoided serving their punishment, and Respondents have gone without retribution. It is time for Petitioners to finally realize the magnitude of their actions, which can only be accomplished by payment of the first jury’s punitive damages award. As such, this Court should deny the Petition for a Writ of Certiorari as to the punitive damages issue. ¢ 36 CONCLUSION The Petition for a Writ of Certiorari should be denied. Respectfully submitted, MICHAEL L. CARR Counsel of Record HOLDEN, CARR & SKEENS 9 East 4th Street 200 Reunion Center Tulsa, OK 74103 (918) 295-8888 STEVEN E. HOLDEN REAGAN L. MADISON HOLDEN, CARR & SKEENS HOLDEN, CARR & SKEENS 9 East 4th Street 9 East 4th Street 200 Reunion Center 200 Reunion Center Tulsa, OK 74103 Tulsa, OK 74103 (918) 295-8888 (918) 295-8888 Counsel for Respondents March 2008 App. 1 No. CIV-01-252-W IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (1) ALFRED MILTON EVANS, et al., Plaintiff, vs. (1) MIKE FOGARTY, et al., Defendants. DEFENDANTS’ MOTION TO DISMISS AND BRIEF IN SUPPORT (Filed Apr. 4, 2001) GREG S. ELDRIDGE, OBA #14950* ASSISTANT ATTORNEY GENERAL LITIGATION SECTION 4545 N. Lincoln Blvd., Suite 260 Oklahoma City, OK 73105 (405) 521-4274 FAX (405) 528-1867 and HOWARD J. POLLOTTA GENERAL COUNSEL OKLAHOMA HEALTH CARE AUTHORITY P.O. DRAWER 18497 OKLAHOMA CITY, OK 73154-0497 ATTORNEYS FOR DEFENDANTS April 4, 2001 *Attorney of Record App. 2 INDEX STATEMENT OF THE CASE...................ccessceesees CONCLUSION........: OTR rere Ce Ne OREO IDIOT TOOTS PROPOSITION I THE ELEVENTH AMENDMENT PRE- VENTS THIS COURT FROM EXERCISING JURISDICTION OVER STATE OFFICIALS IN THEIR OFFICIAL CAPACITY WHEN THE PLAINTIFF IS SEEKING RELIEF OTHER THAN PROSPECTIVE INJUNC- PROPOSITION II THE PLAINTIFF’S COMPLAINT SHOULD BE DISMISSED REGARDING COUNTS I, II, IV AGAINST DEFENDANTS FOGARTY, FRITZ, BROWN AND ALL OHCA BOARD MEMBERS BECAUSE THE ALLEGATIONS IN THE COMPLAINT LACK ANY ALLEGA- TION OF PERSONAL PARTICIPATION AND LACK ANY SPECIFICITY REGARD- ING RETALIATION FOR PLAINTIFFS EVAN’S ALLEGED STATEMENT ..........c00000 App. 3 PROPOSITION Iil DEFENDANTS FOGARTY, FRITZ, MITCHELL AND BROWN ARE ENTITLED TO QUALIFIED IMMUNITY IN THEIR IN- DIVIDUAL CAPACITIES ON PLAINTIFFS’ FIRST AMENDMENT CLAIMG........ « © A. Presumption in favor of Qualified Neen ie bin kasaveaninnapsenaeunan 8 ane 8 C. How “clear” must the law be to be “Clearly established?” ....................00008 9 D. State of the “clearly established” law relating to the First Amendment pro- tections of a government contractor.... 9 E. Summary Judgment and Qualified ES 12 PROPOSITION IV THE COURT SHOULD ABSTAIN FROM DECIDING PLAINTIFF’S CLASS CLAIMS BASED UPON THE BURFORD ABSTENTION DOCTRINE..........cccccccsseesssees 12 PROPOSITION V THE COURT SHOULD DISMISS COUNT lil BECAUSE THERE IS NO CONSTITU- TIONAL PROPERTY INTEREST THAT WOULD NECESSITATE DUE PROCESS RIGHTS TO PLAINTIPFES. ..........cccccccsescceseees 16 App. 4 PROPOSITION VI THE COURT SHOULD DISMISS PLAIN- TIFF’S CLAIMS IN COUNT V BECAUSE PLAINTIFFS DO NOT STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTEE cccocccccoscesseccocsocecccccscoccssocccscocccooccooses 18 PROPOSITION VII PLAINTIFF CLAIMS IN VII SHOULD BE DISMISSED BECAUSE BASED UPON THE MEDICAID REQUIREMENTS OF AMOUNT, SCOPE AND DURATION NO VIOLATION OF LAW CAN OCCUR AS- SUMING THE ALLEGATIONS IN THE COMPLAINT ARE TRUE ..................ccsececeesees 19 PROPOSITION VIII PLAINTIFF’S CLAIM UNDER COUNT VIII FOR A VIOLATION OF 42 U.S.C. § 6009 SHOULD BE DISMISSED BE- CAUSE THIS LAW HAS BEEN RE- iF MERPERINEED acerasencncssssescncnseancscooccscssnscccssaccossonsssesse 21 PROPOSITION IX THE CLASS PLAINTIFFS’ FREEDOM OF ASSOCIATION CLAIM IS WITHOUT App. 5 PROPOSITION X THE CLASS PLAINTIFFS’ CLAIM FOR REASONABLE ACCESS AND ADEQUATE QUALITY IS WITHOUT MERIT................06 22 Cases Cited Alfaro Motors, Inc. v. Ward, 814 F.2d 883 (2nd RN ME I hi Arai hcic aaicer nce rina tiated hati va esitcdlneseaniecindanl 4 Anderson v. Creighton, 483 U.S. 635, 107 S. Ct. ee ey 5 8,9 Applewhite v. U.S. Air Force, 995 F.2d 997 AIG TIE selina dass sssseuidecddicnstictnpnmtrannsbiniectimiieninbaninninse 8 Barr v. Abrams, 810 F.2d 358 (2nd Cir. 1987)............. 4 Bethphage Lutheran Service, Inc. v. Weicker, 966 F.2d 1239 (2nd Cir. 1902Z)........0.0