Appeal from the United States District Court for the Central District of California. D.C. No. CV-88-1352-HLH. Harry L. Hupp, District Judge, Presiding.
Before: Charles Wiggins, Alex Kozinski and Andrew J. Kleinfeld, Circuit Judges. Opinion by Judge Kozinski.
The Department of Energy (DOE) loaned $99.6 million to two subsidiaries of the Parsons Corporation so they could develop a geothermal power plant. See The Geothermal Loan Guaranty Program, 10 C.F.R. pt. 790 (1990). In return, Parsons guaranteed it would pay DOE up to $3 million if its subsidiaries defaulted. A year later that's what happened: The project collapsed, the borrowers defaulted and the government came looking for its money. At trial, Parsons managed to convince a jury that an escape clause in its guarantee agreement let it off the hook for the $3 million. The government appeals, claiming the district court asked the jury the wrong questions and the jury gave wrong answers to the questions it was asked. Parsons also appeals, claiming it's entitled to collect its attorney's fees from the government.
1. The United States challenges the special verdict form and jury instructions. It claims that even though it failed to object at trial as required by Fed. R. Civ. P. 51, it should nonetheless be able to appeal because the district court was fully aware of its position. The government says a formal objection would have been redundant. United States ex rel. Reed v. Callahan, 884 F.2d 1180, 1184 (9th Cir. 1989). See also Brown v. Avemco Inv. Corp., 603 F.2d 1367, 1371, 1373 (9th Cir. 1979).
Did the government object here in all but name? The trial Judge read paragraph 2(b)(v)*fn1 (the escape clause in the guarantee agreement) as posing three issues for the jury to address. The government would have preferred that the verdict form consist of five questions, but acknowledged that the court had just collapsed the five issues into three. RT 6/07/90 at 118. DOE appeared to accede to the three-part verdict form:
[COUNSEL FOR DOE]: . . . So if there's a no to any one of these three [special verdict questions], we win?
THE COURT: Well, if there's a no to any one of those three, [Parsons doesn't] come under 2(b)(v).
THE COURT: Whether you win depends on some other things. But still you don't come under 2(b)(v).
RT 6/07/90 at 108. DOE counsel's most vehement protest was a doe-like, "I'm thinking that it's just easier to go through my five-point checklist, Your Honor." RT 6/07/90 at 121. While the government made clear that it would have liked a different instruction than that formed by the district court, government counsel did not tell the court that it would be committing an error of law or an abuse of discretion if it did not adopt the government's approach. Thus, while the court was aware of DOE's preferences, it's hardly the case that DOE objected in all but form. See Lifshitz v. Walter Drake & Sons, Inc., 806 F.2d 1426, 1431 (9th Cir. 1986).
The United States says an objection would only have told the Judge what he already knew - that the government thought the court should use a five-point checklist. But it's one thing to tell the district Judge your preferences, and quite another to object when he disregards them. District Judges do a thousand things that call for the exercise of discretion, the wording of jury instructions being only one among them. One of the lawyer's functions is persuading the court to exercise its discretion in a way favorable to the client. Another quite different function is keeping the Judge from straying outside the ambit of his discretion by pointing out errors of law. District Judges are more likely to correct errors if they are aware the lawyer is raising legal objections, not just quibbling about matters within the court's discretion. So, in order to ...