Code Red on Judicial Restraint

A jury found that the San Diego Police Department (SDPD) illegally forced a 25-year veteran sergeant to quit because of the military leave he took to fulfill his duties as a Navy reservist. On August 25, a 2-1 Ninth Circuit majority deferred to that verdict. Controversial Bush II appointee Jay Bybee – author of the infamous "torture memo" while at the Justice Department – didn’t. As the majority repeatedly had to point out, Judge Bybee simply substituted his own reading of the facts for the jury’s, barely even paying lip service to the legal standard that forbids appellate judges from doing so.

Sergeant James Wallace spent more than 25 years at the SDPD, almost 20 of them as a Navy reservist. He began experiencing discriminatory and retaliatory treatment in 1991, after a seven-month tour of duty in Iraq, when the department began declining even to consider his applications for promotion. In 1996, after three more standard, annual tours, Wallace was reassigned to an undesirable, remotely-located division of the SDPD, despite his seniority and the availability of more desirable assignments. He also came under the supervision of Jorge Guevara and Cheryl Ann Meyers. Over the next four years, Guevara and Meyers put Wallace through a series of investigations, disciplinary proceedings, adverse actions, negative performance evaluations, supplemental performance reviews, denials of standard requests, and ultimately a termination proceeding. All of these actions, according to Wallace, were a pretext for discriminating against him because of his military status and, indeed, most of them stemmed expressly from the military leave he had to take.

Wallace successfully appealed his termination and received a transfer to a division nearer to his home. But the adverse treatment followed him, in the form of another negative performance evaluation from Guevara, which was based on the already-discredited basis for termination; a supplemental performance review; and a lingering threat from the police chief that “‘further instances…’ would be grounds for ‘more stringent action,’ including ‘termination’” – a threat issued despite the Chief's acknowledgement that there had been no permissible grounds for punishing Wallace in the first place. A month after Wallace received the negative evaluation and while he was still subject to the supplemental performance review and the Chief’s warning, a citizen threatened to lodge a complaint against Wallace if he didn’t substantiate charges she’d made against another officer. Given all the pretexts Department officials had previously – and recently – used to make his life difficult, Wallace quit.

The Uniformed Services Employment and Reemployment Rights Act prohibits employers from retaliating or discriminating against workers required to take leave to fulfill their military duties. Wallace sued the SDPD for violating that law, arguing that the treatment he received because of his military status ultimately left him no choice but to quit. The jury agreed, awarding him $256,800. But the district court threw out the verdict, saying the facts didn’t support it.

On appeal, Ninth Circuit Judges James Browning (Kennedy appointee) and Raymond Fisher (Clinton appointee) rejected the district court’s decision, finding that it “usurped the jury’s basic fact-finding authority.” In dissent, however, Judge Bybee chose to take the same tack as the lower court. He said that because Wallace quit three months after being transferred to a division he admittedly liked and immediately after an event precipitated by someone outside the Department, whatever discriminatory treatment he suffered (and Judge Bybee made clear he didn't think it amounted to much) is not what forced his hand.

There's one little problem with that conclusion: it is Judge Bybee's, and Judge Bybee, by law, may not substitute his own rendering of the facts for the jury's unless the jury's is completely unreasonable. And as the majority explained, the jury's decision here was not completely unreasonable. In fact, it was supported by substantial evidence showing that the pattern of demonstrably discriminatory actions taken against Wallace by his SDPD superiors finally forced Wallace from his career-long service in law enforcement. These included improper adverse actions, glossed over by Judge Bybee, that followed Wallace to his last assignment and that the jury very well could have concluded contributed to his decision to quit.

The majority admonished Judge Bybee several times for drawing "impermissible inferences from the evidence ... in favor of the SDPD," in violation of the court's mandate not to overturn any verdict on the basis of "evidence favorable to the [defendant] that the jury [was] not required to believe." The majority also had to remind Judge Bybee:

Although the evidence could be viewed to support a finding that Wallace’s working conditions were “favorable” to the point of barring a constructive discharge claim, as the dissent would conclude, the jury saw it differently, and substantial evidence supports its finding. We cannot disregard the jury’s verdict simply because we would have weighed the evidence differently.

Particularly noteworthy is the fact that, with the exception of a lone footnote tacked on simply to accuse the majority of “making up evidence,” Judge Bybee never even refers to his obligation to respect the jury's findings of fact. But maybe that shouldn't come as a surprise. Movement conservatives’ commitment to the principle of judicial restraint often seems to disappear when it comes to reviewing jury verdicts favoring wronged workers.

Wallace v. City of San Diego, No. 03-56552, slip op. (Aug. 25, 2006).