United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA COURT
Argued January 10, 2000 Decided March 24, 2000
No. 98-7075
Patricia Kidd,
Appellant
v.
District of Columbia, et al., Appellees
Consolidated with
No. 98-7100
Appeals from the United States District Court
for the District of Columbia
(No. 92cv02897)
(No. 95cv00611)
Michael J. Haungs, appointed by the court, argued the
cause as amicus curiae on the side of appellant. With him on
the briefs was Daniel G. Jarcho.
Patricia Kidd, appearing pro se, was on the briefs for
appellant.
James C. McKay, Jr., Assistant Corporation Counsel, ar-
gued the cause for appellees. With him on the brief were
Robert R. Rigsby, Interim Corporation Counsel, and Charles
L. Reischel, Deputy Corporation Counsel. Lutz A. Prager,
Assistant Deputy Corporation Counsel, and Sharlene E.
Williams, Attorney, entered appearances.
Before: Silberman, Williams and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Williams.
Dissenting opinion filed by Circuit Judge Tatel.
Williams, Circuit Judge: Rule 58 of the Federal Rules of
Civil Procedure specifies that every "judgment shall be set
forth on a separate document" and that "[a] judgment is
effective only when so set forth." The Advisory Committee's
Note to the 1963 Amendment adding the provision states that
its purpose is to eliminate "uncertainties" that occur when a
court has written "an opinion or memorandum containing
some apparently directive or dispositive words." See also
United States v. Indrelunas, 411 U.S. 216, 219 (1973) (per
curiam). The problem with such combination documents, said
the Advisory Committee, was that they left doubt "whether
the purported entry of judgment was effective, starting the
time running ... for the purpose of appeal." Under our
decisions a single document that disposes of all remaining
claims can satisfy Rule 58 so long as it is sufficiently terse.
We find that the order in question here satisfied Rule 58. As
a result the notice of appeal was filed out of time, and the
appeal must be dismissed.
* * *
In October 1990 a jury in the District of Columbia Superior
Court awarded Patricia Kidd $300,000 in compensatory and
punitive damages on charges that her supervisors at the
District of Columbia's Department of Administrative Services
had engaged in discrimination and intentional infliction of
emotional distress. Immediately after the trial, Kidd re-
turned to work at the Department under the supervision of
some of the defendants who had been found personally liable
to her. (In fact the judgments were ultimately paid by the
District.) Unsurprisingly, she found the work environment to
be tense and hostile. And after the District denied her
repeated requests for transfer and promotion, reassigned
many of her job responsibilities to other employees, denied
her requests for additional training, and gave her what she
considered unfair performance evaluations, Kidd resigned
from District employment on July 12, 1993.
Kidd complained to the EEOC. It found no evidence of
retaliation but issued a right-to-sue letter in September 1992.
She filed suit in December 1992. The district court made
several attempts to appoint counsel for Kidd, but all failed.
After instructing Kidd to proceed pro se, the court enter-
tained the District's motion to dismiss. It construed Kidd's
complaint as alleging retaliation and constructive discharge in
violation of s 704(a) of Title VII of the Civil Rights Act of
1964, 42 U.S.C. s 2000e-3(a) (1994), discrimination in viola-
tion of the Equal Pay Act, 29 U.S.C. s 206(d), and 42 U.S.C.
s 1981, and denial of her constitutional rights to equal protec-
tion and due process made actionable under 42 U.S.C.
ss 1983 and 1985. After examining each claim, the court
dismissed all counts with prejudice except for the claims of
retaliation and constructive discharge, which it instructed
Kidd to replead with greater specificity. Kidd included these
claims in amended complaints filed in September and October
1994 and filed a complaint in a second suit in March 1995,
alleging violation of s 704 of the Rehabilitation Act of 1973,
29 U.S.C. s 794.
The district court consolidated the two actions and referred
the case both to mediation and to a magistrate judge. In
February 1998, the magistrate issued a report and recom-
mendation in favor of the District's summary judgment mo-
tion and against Kidd's motion for partial summary judgment.
Kidd filed an objection to the magistrate's report, but the
district court adopted the report and granted summary judg-
ment in the District's favor on March 19, 1998. As a conse-
quence, no claim of Kidd's survived.
Kidd appeals from the district court's grant of summary
judgment and the dismissal of her other claims. But the
threshold problem is the District of Columbia's challenge to
our jurisdiction. The District argues that the district court's
order of March 19, 1998, stating that the District's "Motion
for Summary Judgment ... is GRANTED," qualified as a
judgment under Rule 58, so that Kidd's appeal, filed 41 days
after its entry, was untimely under Rule 4(a) of the Federal
Rules of Appellate Procedure. We agree and therefore dis-
miss Kidd's appeal.
* * *
The time limits established by Rule 4(a) are "mandatory
and jurisdictional." Moore v. South Carolina Labor Bd., 100
F.3d 162, 163 (D.C. Cir. 1996). Kidd offers two theories
either of which, if correct, would moot the Rule 58 issue. She
first argues that she has shown good cause for her failure to
file within the ordinary appeal period. See Fed. R. App. P.
4(a)(5) ("The district court, upon a showing of excusable
neglect or good cause, may extend the time for filing a notice
of appeal upon motion filed not later than 30 days after the
expiration of the time prescribed by this Rule 4(a)."). Kidd
points to compelling evidence--indeed, evidence not disputed
by the District--that she received no notice of the district
court's order until April 14, 1998 at the earliest, and received
no copy until April 28. But Rule 4(a)(5) requires appellants
to file a motion requesting an extension of time with the
district court. Kidd filed no such motion, and therefore Rule
4(a)(5) is inapplicable. Rule 4(a)(6) also provides an avenue of
relief for a party receiving notice as belated as was Kidd's,
but also requires a motion asking the district court to reopen
the time for appeal. See Fed. R. App. P. 4(a)(6).
Kidd's second theory is that the district court's order failed
to satisfy Rule 58's "separate document" requirement, so that
the time for appeal never started running. Before looking at
the order, we should explain what a document setting forth
judgment must be "separate" from. The Advisory Commit-
tee Notes to the 1963 amendment say that the "amended rule
... require[s] that there be a judgment set out on a
separate document--distinct from any opinion or memoran-
dum--which provides the basis for the entry of judgment."
Fed. R. Civ. P. 58, Advisory Committee's Note to the 1963
amendment (emphasis added). They also say that Rule 58
was designed chiefly to distinguish an actual judgment from
"an opinion or memorandum containing some apparently di-
rective or dispositive words." Id. The Rules insist in other
spots on simplicity and brevity in judgments. See Fed. R.
Civ. P. 54(a) (" 'Judgment' as used in these rules includes a
decree and any order from which an appeal lies. A judgment
shall not contain a recital of pleadings, the report of a master,
or the record of prior proceedings."); id. app. Form 31
Advisory Committee's Note 3 ("The Rules contemplate a
simple judgment promptly entered."). In light of all this,
we've understood Rule 58 as requiring that "the inclusion of
legal reasoning and authority" not go to the point of making
"an order into a combined decision and order." Diamond v.
McKenzie, 770 F.2d 225, 230 n.10 (D.C. Cir. 1985).
In its entirety the order here reads as follows:
ORDER
Pending before the Court is Magistrate Judge Robin-
son's Report and Recommendation addressing Plaintiff's
Partial Motion for Summary Judgment (Docket No. 174)
and Defendants' Motion to Dismiss or in the Alternative for
Summary Judgment (Docket No. 175). Plaintiff has filed
an objection to this Report and Recommendation. (Docket
No. 219). In her objection, Plaintiff still fails to raise any
genuine issues of material fact in this recent filing and does
not set forth any arguments that would cause the Court to
reject Magistrate Judge Robinson's Report and Recom-
mendation. Therefore, it is hereby
ORDERED that Magistrate Judge Robinson's Report
and Recommendation dated February 23, 1998 is AF-
FIRMED by the Court.
Consequently, it is
ORDERED that Defendant's Motion to Dismiss is DE-
NIED, and that Defendant's alternative Motion for Sum-
mary Judgment (Docket No. 175) is GRANTED; and it is
further
ORDERED that Plaintiff's Partial Motion for Summary
Judgment (Docket No. 174) is DENIED.
March 19th 1998 Thomas F. Hogan /s/
United States District Judge
The Supreme Court has said that Rule 58 is to be "mechan-
ically" applied, Indrelunas, 411 U.S. at 221-22, and we have
understood that as intended to advance the purpose of
"avoid[ing] speculation" on the running of the time limits,
Diamond, 770 F.2d at 230. But it is one thing to say that
Rule 58 creates a straightjacket, another to define the
straightjacket's precise measurements. Our decision in Dia-
mond itself endorses decisions of other circuits allowing
inclusion of at least one citation to legal authority and at least
a one-sentence explanation of the court's reasoning. See id.
at 230 n.10. We said that "at some point, the inclusion of
legal reasoning and authority makes an order into a combined
decision and order," id., confirming that some explanation is
acceptable--so long as it is very sparse. Chief Judge Robin-
son went on to observe in his concurrence that to enforce
mechanically did not require enforcing "mindlessly," citing
Weinberger v. United States, 559 F.2d 401, 402 (5th Cir.
1977), and that "trivial departures [from the official judgment
forms, see Fed. R. Civ. P. app. Forms 31, 32] must be
tolerated in the name of common sense." Diamond, 770 F.2d
at 234. He specifically mentioned several examples of trivial
departures--not only the inclusion of a single sentence of
explanation or citation to authority (both of which were
acceptable to the panel), but also "a recital that a magistrate's
report and recommendation are being adopted." Id. at 234.
The latter seems on its face consistent with the "separate
document" requirement, as the magistrate's report and rec-
ommendation are as separate from the judgment as a district
court's opinion.
Chief Judge Robinson also said that "orders combining the
court's directives with its statement of factual findings or
legal conclusions plainly cannot pass muster as separate
documents." Id. But in context this statement cannot be
read to preclude a single sentence of explanation because the
entire panel, with Judge Robinson in full agreement, had
already found some minimal amount of legal reasoning to be
consistent with Rule 58. See id. at 230 n.10. Although our
single-citation, single-sentence standard for Rule 58 may well
seem arbitrary, see Dissent at 3-5, we think it most proper to
follow Diamond's analysis.
Under Diamond, the order here is a Rule 58 judgment.
Apart from a reference to the motions being decided, and one
conclusory sentence of justification, it consists simply of or-
dering clauses. It is even free of the single citation to
authority that Diamond allows.
In the wake of Shalala v. Schaefer, 509 U.S. 292 (1993),
however, a number of circuits have concluded that orders
adopting magistrate's reports cannot serve as judgments for
purposes of Rule 58. See, e.g., Kadelski v. Sullivan, 30 F.3d
399, 400-02 (3d Cir. 1994); Yang v. Shalala, 22 F.3d 213, 216
(9th Cir. 1994). The Eleventh Circuit announced a similar
rule but explicitly confined its reasoning to Social Security
cases in general and more specifically to "the narrow facts of
this case," Newsome v. Shalala, 8 F.3d 775, 775, 778-80 (11th
Cir. 1993). The Ninth Circuit noted the Eleventh Circuit's
caution, but took "no position with regard to this limitation."
Yang, 22 F.3d at 216 n.5.
We are uncertain how these decisions can be extracted
from Schaefer. The case dealt with the seemingly endless
snarl of district court dispositions under various sentences of
42 U.S.C. s 405(g), and claims for attorneys' fees under the
Equal Access to Justice Act ("EAJA"). The Court, after
having rejected various arguments of the Social Security
claimant as to why his application for attorney's fees was not
out of time, finally accepted his claim that the district court
had not entered a judgment complying with Rule 58. The
Court said that it was "clear from the record" that no
" 'separate document' of judgment" had been entered, 509
U.S. at 303, but also explicitly noted that the government had
not claimed that the order in question qualified under Rule
58. See id. Indeed, confining the issue to a single footnote
in its brief, the government had argued only that the claimant
had waived his Rule 58 argument and that a Rule 58 judg-
ment was not necessary for appealability to commence. See
Brief for Petitioner, 1993 WL 290124, at *19 n.12 (U.S. Jan.
14, 1993). The Court implicitly rejected the waiver idea. As
for the appealability argument, it pointed out that under
EAJA the issue was not when appealability began (which in
practice happens before the time limit on appealability starts
to run), see Schaefer, 509 U.S. at 303, citing Bankers Trust
Co. v. Mallis, 435 U.S. 381, 385-87 (1978), but rather whether
the appealability time limit had run. Thus the decision rested
on the Court's assumption--entirely valid in view of the
positions of the parties--that the order's compliance with
Rule 58 was not before it. It cannot be read as having
resolved the question of whether the adoption of a magis-
trate's report prevents an order from serving as a judgment.
Moreover, as the claimant's contention that there was no Rule
58 judgment rested on its (mistaken) view that there was no
judgment at all, see Respondent's Br., 1993 WL 476403, at *8,
*23-*24 (U.S. Feb. 18, 1993), his brief sheds no light on the
Court's possible thinking.
We note that in fact, under Diamond, the Schaefer order
might well not have satisfied Rule 58. (The text is printed in
Newsome, 8 F.3d at 779 n.19.) The Schaefer order contains
three sentences of "reasoning," couched in the form of a
paraphrase of the magistrate's order. This is almost certain-
ly excessive under Diamond.
We also note that Chief Judge Robinson's view--treating
an order as Rule 58-qualifying where it recites that a magis-
trate's report is being adopted--rested on the Fifth Circuit's
decision in United States v. Perez, 736 F.2d 236, 237 n.3 (5th
Cir. 1984). It might be objected that in Perez the Fifth
Circuit distinguished cases where the district court had grant-
ed summary judgment, and arguably confined the decision to
the habeas corpus context. But the Fifth Circuit so limited
its opinion only because its prior cases had established that a
single document granting summary judgment could never
satisfy Rule 58's requirements, see Perez, 736 F.2d at 237 n.3;
Calmaquip Eng'g West Hemisphere Corp. v. West Coast
Carriers, Ltd., 650 F.2d 633, 635-36 (5th Cir. 1981); Nunez v.
Superior Oil Co., 535 F.2d 324, 324 (5th Cir. 1976) (per
curiam), a view hard to reconcile with our acceptance in
Diamond of judgments containing an order of dismissal, see
770 F.2d at 229-30. Judge Robinson clearly did not qualify
his view that a judgment could recite the adoption of a
magistrate's report without becoming a memorandum and
order, and neither did the Tenth Circuit in Laidley v.
McClain, 914 F.2d 1386, 1390 (10th Cir. 1990), where it
explicitly accepted under Rule 58 a document that granted
summary judgment. (In Laidley a timely notice of appeal
had been filed, and thus the question before the court was
whether it had jurisdiction over a technically premature
appeal--an issue that had already been resolved by the
Supreme Court in Bankers Trust, 435 U.S. at 385-87. But
the court stated its interpretation without dependence on that
proposition.)
Thus we see no reason to abandon Chief Judge Robinson's
view of the natural inferences from the panel's opinion in
Diamond.
Accordingly the district court's order qualifies as a judg-
ment under Rule 58.1 We emphasize, however, that when a
__________
1 On finding jurisdiction, our dissenting colleague understand-
ably goes on to examine the merits. But even with an assumption
of jurisdiction, defendants' contentions as to Kidd's non-compliance
with Local Rule 108(h) pose an obstacle to doing so. Both the
district court and the magistrate judge informed Kidd of her
obligation under Local Rule 108(h) to provide "a separate concise
statement of genuine issues setting forth all material facts as to
which it is contended there exists a genuine issue necessary to be
litigated," but the magistrate judge's report concluded that Kidd
had not complied with the rule. The rule expressly provides that in
the event of non-compliance material facts identified by the oppos-
ing side may be deemed admitted. See Twist v. Meese, 854 F.2d
1421, 1424-25 (D.C. Cir. 1988). The magistrate judge did not
district court enters its final order disposing of the remaining
claims in a case before it, it should ideally enter a second,
separate document specifically labeled "judgment" corre-
sponding as closely as possible to Forms 31 and 32 attached
to the Federal Rules of Civil Procedure.2 Such a practice
would save this court from having to make the kinds of
distinctions that Rule 58 sought to eliminate. We have
previously suggested that pro se litigants be given a simple
form explaining the timing requirements for appeal when a
final adverse judgment is entered. See Moore, 100 F.3d at
164. The same concerns suggest the wisdom of courts' using
judgment forms that lie well within the heartland of Rule 58.
But on the present record Kidd's appeal must be
Dismissed.
__________
explicitly deem the District's statement of material facts admitted,
but she did base her recommendation in part on a finding that Kidd
failed to comply with Local Rule 108(h). Compare App. Amicus
Curiae 940-41 (finding non-compliance by plaintiff with Local Rule
108(h)), with id. at 941-42 (finding defendants entitled to judgment
as a matter of law "on the basis of the foregoing findings"). In
affirming the magistrate judge's report and recommendation, the
district court said that Kidd had neither provided any genuine issue
of material fact in her objection to the report nor put forth an
argument that would cause the Court to reject the report; it did not
explicitly discuss the magistrate's ruling as to Local Rule 108(h).
2 The Dissent notes that the judgment here was labeled "Or-
der" rather than "Judgment." Dissent at 3. While we agree that
the better practice is to label judgments as such, we have previously
said that "a document labeled 'Order' rather than 'Judgment' may
satisfy Rule 58 sufficiently to start the appeal clock running, if the
order is succinctly to the point, and does not have the characteris-
tics of an elaborate opinion. See United States v. Perez, 736 F.2d
236, 237-38 (5th Cir. 1984) (cautioning against "mindless" applica-
tion of Rule 58)." Spann v. Colonial Village, Inc., 899 F.2d 24, 32
n.4 (D.C. Cir. 1990) (Ruth Bader Ginsburg, J.).
Tatel, Circuit Judge dissenting: Although the issue in this
case--what precisely constitutes a judgment within the mean-
ing of Rule 58--seems technical, perhaps even formalistic, the
stakes are actually quite high. For litigants, knowing with
certainty whether a district court has entered a Rule 58
judgment is critically important. Not only does entry of a
Rule 58 judgment start the clock for filing a notice of appeal,
Fed. R. App. P. 4(a)(1), but a timely notice of appeal is
jurisdictional; parties who fail to file a timely notice of appeal
because they are unaware that Rule 58 judgments have been
entered lose their right to appeal. See, e.g., Moore v. South
Carolina Labor Bd., 100 F.3d 162, 163 (D.C. Cir 1996).
"Prior to 1963, there was considerable uncertainty over
what actions of the District Court would constitute an entry
of judgment, and occasional grief to the litigants as a result of
this uncertainty." United States v. Indrelunas, 411 U.S. 216,
220 (1973) (per curiam). "To eliminate these uncertainties,
which spawned protracted litigation over a technical proce-
dural matter," id., Rule 58 was amended in 1963 to read:
"Every judgment shall be set forth on a separate document.
A judgment is effective only when so set forth...." Fed. R.
Civ. P. 58. Known as the "separate document rule," amended
Rule 58 makes "clear that a party need not file a notice of
appeal until a separate judgment has been filed and entered."
Bankers Trust Co. v. Mallis, 435 U.S. 381, 385 (1978) (per
curiam). As the Supreme Court has recognized, the rule
change "would be subject to criticism for its formalism were it
not for the fact that something like this was needed to make
certain when a judgment becomes effective, which has a most
important bearing ... on the time for appeal." Indrelunas,
411 U.S. at 220 (internal quotation marks omitted). Accord-
ingly, the Court has held, the Rule must be "mechanically
applied in order to avoid new uncertainties." Id. at 222.
The Supreme Court has recognized only one exception to
the rule's "mechanical" application. In Bankers Trust, the
Court confronted the issue whether the absence of a conform-
ing Rule 58 judgment rendered a notice of appeal premature,
depriving the appeals court of jurisdiction even though the
district court had clearly intended to enter final judgment.
Because "[t]he rule should be interpreted to prevent loss of
the right of appeal, not to facilitate loss," the Court held that
"[t]he need for certainty as to the timeliness of an appeal ...
should not prevent the parties from waiving the separate-
judgment requirement where one has accidentally not been
entered." Bankers Trust, 435 U.S. at 386 (emphasis added)
(internal quotation marks omitted).
Heeding the Supreme Court's directive to apply Rule 58
strictly to protect appeal rights, we have held that "a com-
bined decision and order" cannot serve as a "judgment"
within the meaning of Rule 58. See Diamond v. McKenzie,
770 F.2d 225, 230 n.10 (D.C. Cir. 1985) (distinguishing be-
tween "decisions" of the district court and Rule 58 final
judgments). In Pack v. Burns Int'l Security Svc., 130 F.3d
1071, 1071-72 (D.C. Cir. 1997) (per curiam), we found that a
document "stating that the motion to dismiss would be treat-
ed as conceded and granted" and giving several reasons for
dismissal failed to comply with Rule 58. We reached the
same conclusion in Diamond, 770 F.2d at 229-30, with re-
spect to a document captioned "order" that gave the "basis,
albeit briefly, of the court's reasoning, along with citations to
legal authorities." The caption and the presence of the
court's reasoning (including its citation to authority), we
noted, meant that the order differed in "at least two signifi-
cant respects" from Model Forms 31 and 32, which were
passed contemporaneously with the amendment to Rule 58.
Id. at 229 n.9.
It is precisely this kind of uncertainty about whether the
District Court intended to enter a final order that war-
rants the mechanical application of Rule 58. By mechan-
ically applying this rule, as the Supreme Court has
taught us to do, a court may avoid speculation as to
whether an appellant should or should not have known
that the time for appeal had begun to run.
Id. at 230 (footnote omitted). We concluded: "While we do
not mean to suggest that the model form of judgment is the
only means of complying with Rule 58, adherence to [that]
format ... would be of considerable assistance in eliminat-
ing uncertainty as to the nature of the District Court's
action." Id. at 229 n.9.
Applying Diamond and Pack and taking account of Rule
58's purpose, I believe that the district court's order in this
case represents a combined decision and order, not a Rule 58
judgment. As in Diamond, the order differs from Form 32
in two respects. See id. First, it is not labeled "Judgment."
Instead, as were fifty-nine other documents issued by the
district court and the magistrate judge in this case, some of
which did no more than grant extensions of time, it was
labeled "Order." Were this the order's only flaw, I would
agree with the court that this insignificant departure from the
model forms would not prevent us from finding that the order
complies with Rule 58. See Maj. Op. at 10 n.2. But the order
departs from the Model Forms in a second, "most critical[]"
(Diamond's words) respect: it contains the district court's
reasoning. Because Kidd had objected to the magistrate's
recommendation and because Fed. R. Civ. P. 72 requires the
district court to "make a de novo determination upon the
record, or after additional evidence, of any portion of the
magistrate judge's disposition to which specific written objec-
tion has been made," the district court explained its reason-
ing: "In her objection, Plaintiff still fails to raise any genuine
issues of material fact in this recent filing and does not set
forth any arguments that would cause the Court to reject
Magistrate Judge Robinson's Report and Recommendation."
The only difference I can discern between this order and
the order in Diamond, which we concluded was a combined
decision and order, is that the Diamond order contained
three sentences of reasoning, not one, together with several
citations. In view of Rule 58's purpose--providing certain-
ty--and our obligation to interpret Rule 58 "to prevent loss of
the right of appeal, not to facilitate loss," Bankers Trust, 435
U.S. at 386 (emphasis added), these two differences cannot
serve as a basis for distinguishing this case from Diamond.
From a Rule 58 standpoint, the critical point is that the
orders in both cases contained the district court's reasoning.
It makes no difference that the district court in this case sets
forth its reasoning in one sentence whereas the district court
in Diamond used three. Suppose that instead of stating its
reasoning in a single sentence, the district court here had
broken its one sentence into two: "In her objection, Plaintiff
still fails to raise any genuine issues of material fact[. I]n this
recent filing[, she] does not set forth any arguments that
would cause the Court to reject Magistrate Judge Robinson's
Report and Recommendation." Would this departure from
the "one sentence" rule my colleagues seem to adopt have
persuaded them that the order was a combined decision and
order?
This court also says that the order is a Rule 58 judgment
because it lacks even the single citation it reads Diamond to
permit. Although this "single citation" standard presumably
means that the order would have passed as a Rule 58
judgment even if the district court had cited, for example,
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), the oft-
used authority for Rule 56's summary judgment standard,
suppose the district court had also included a citation to one
of our cases for the same proposition or even to Rule 56
itself? Would my colleagues then have concluded this was
not a Rule 58 judgment? Rule 58's amendment was intended
to end just this type of uncertainty.
The court quotes Chief Judge Robinson's admonition that
"trivial departures must be tolerated in the name of common
sense." See Maj. Op. at 6 (quoting Diamond, 770 F.2d at 234
(Robinson, C. J., concurring)). I agree. They also point to
his statement that an order "does not lose its character as a
separate document simply because it includes a one-sentence
explanation of what the order is all about, or a recital that a
magistrate's report and recommendation are being adopted."
Diamond, 770 F.2d at 234 (Robinson, C. J., concurring)
(footnote omitted). I agree with this too. But the Kidd
order goes beyond both "a one-sentence explanation of what
the order is all about" and a "recital" that Magistrate Judge
Robinson's report and recommendation are being adopted.
Id. It sets forth the district court's reasons for adopting the
report. Indeed, Chief Judge Robinson distinguished between
the simple recitals he referred to as "trivial departures," i.e.,
"explanation[s] of what the order is all about," and the court's
reasoning: "On the other hand, orders combining the court's
directives with its statement of factual findings or legal
conclusions plainly cannot pass muster as separate docu-
ments." Id.
Suggesting that Chief Judge Robinson could not possibly
have meant what he said, my colleagues conclude that the
sentence "cannot be read to preclude a single sentence of
explanation because the entire panel, with Judge Robinson in
full agreement, had already found some minimal amount of
legal reasoning to be consistent with Rule 58." Maj. Op. at 7.
But listen again to Chief Judge Robinson's words. "[S]tate-
ment[s] of factual findings or legal conclusions," he said,
"plainly cannot pass muster as separate documents." Dia-
mond, 770 F.2d at 234 (Robinson, C. J., concurring). And far
from tolerating "minimal" reasoning, the Diamond court
concluded that the order was not a Rule 58 judgment because
it "provid[ed] the basis, albeit briefly, of the court's reasoning,
along with citations to legal authorities." Diamond, 770 F.2d
at 229-230.
The standard my colleagues now adopt--an order is a Rule
58 judgment so long as it contains only "sparse" reasoning,
Maj. Op. at 6--will require this court, contrary to the Su-
preme Court's warning against "case-by-case tailoring of the
'separate document' provision," Indrelunas, 411 U.S. at 221,
to develop a common law of "sparseness." This will in turn
produce the very uncertainty and "protracted litigation over a
technical procedural matter" that Rule 58's amendment was
designed to end. Id. at 220.
In my view, litigants, district courts, and this court would
be better served by a bright line rule: Orders containing the
district court's reasoning, three sentences or one, several
citations or none, are not judgments within the meaning of
Rule 58. To comply with such a rule, the district court need
only instruct its clerk to issue judgments that adhere to the
essence of Model Forms 31 and 32. Such a procedure would
provide the certainty Rule 58 demands, prevent accidental
loss of appeal rights, and ensure that this court will never
again have to address this issue.
* * *
Because I would hold that Kidd's appeal is timely, I would
reach the merits of her case and reverse. Even a cursory
review of Kidd's pro se filings should have demonstrated to
the magistrate judge who disposed of Kidd's case in three
conclusory sentences that Kidd's primary allegation--that she
was denied a promotion by the very District of Columbia
officials against whom she had just won a substantial verdict
for intentional infliction of emotional distress stemming from
sexual harassment and forced sodomy by her supervisor--
presented a strong prima facie case of retaliatory failure to
promote as well as sufficient evidence of pretext to survive
summary judgment.
In response, my colleagues offer still another reason why
this court cannot reach the merits of Kidd's case. They point
out that the magistrate judge found that Kidd had failed to
comply with Local Rule 108(h); citing Twist v. Meese, 854
F.2d 1421, 1424 (D.C. Cir. 1988), they also point out that
"[t]he rule expressly provides that in the event of non-
compliance material facts identified by the opposing side may
be deemed admitted." Maj. Op. at 9 n.1 (emphasis added).
But unlike in Twist, where the district court "relied on Rule
108(h) to hold that the material facts identified by the govern-
ment were deemed admitted," 854 F.2d at 1424, the magis-
trate judge here chose not to deem the District's facts
admitted, much less to rest her summary judgment recom-
mendation on Kidd's failure to comply with Local Rule 108(h).
Instead, the magistrate judge considered Kidd's evidence:
"[T]he undersigned finds that plaintiff has failed to identify
even a single material fact as to which a genuine issue for
trial exists. Rather, both her motion and her opposition to
defendants' motion are almost entirely comprised of her
opinions of defendants' actions and characterizations of vari-
ous statutes and decisions." The district court likewise did
not rely on Local Rule 108(h): "In her objection, Plaintiff still
fails to raise any genuine issues of material fact in this recent
filing and does not set forth any arguments that would cause
the Court to reject Magistrate Judge Robinson's Report and
Recommendation." Because neither the magistrate judge
nor the district court relied on Kidd's failure to comply with
the rule, nothing bars this court from reaching the merits of
her case.
The D.C. Court of Appeals described the facts leading up to
Kidd's sexual harassment lawsuit as follows. Shortly after
Kidd began working for the Department of Administrative
Services, her immediate supervisor, one Melvin Carter, "be-
gan calling her at home and once asked her when she would
make love to him." King v. Kidd, 640 A.2d 656, 659 (D.C.
1993). "Carter showed Kidd documents demonstrating that
she was a probationary employee" and told her that "because
of her probationary status, she could be fired at his recom-
mendation and that no one would question anything." Id.
He then called her and "ordered her to come to a nearby
hotel." Id. Kidd hung up, but he called back, reminding her
of her probationary status. She went to the hotel where they
had sex. Id. Carter continued to "pursu[e] her," becoming
"angry and loud" when she refused to have sex with him
again. Carter also "took away her computer and her clerical
assistant." Id. at 660. Kidd gave in and again had sex with
Carter. "According to Kidd's testimony, Carter ... forcibly
sodomized her, rupturing her anal tissues and causing her to
fear AIDS." Id.
Kidd complained to Carter's direct supervisor, Robert
King, about "stress, harassment and mistreatment." Id. Re-
ceiving no relief, Kidd filed suit in Superior Court against
Carter, King, Raymond Lambert (the director of the Depart-
ment of Administrative Services), and the District alleging
sexual harassment and intentional infliction of emotional dis-
tress. A jury found Carter, King, and Lambert personally
liable for intentional infliction of emotional distress and Car-
ter liable for sexual harassment as well. The jury awarded
Kidd $300,000 in compensatory and punitive damages.
Kidd then returned to work. Believing the environment of
the Department to be hostile--King and Lambert, both of
whom had been found personally liable to her, were still
there--Kidd applied for a transfer. Her request was denied.
Kidd also applied for a promotion to a level DS-12. This
request also was denied, and record evidence suggests that
Lambert, one of the defendants in the Superior Court lawsuit
who at the time was personally liable to Kidd for $260,000,
took part in the decision to deny the promotion.
To establish a prima facie case of retaliation, Kidd must
show that she engaged in activity protected by Title VII, that
the District took an adverse employment action against her,
and that the adverse action was causally related to the
exercise of her rights. See Cones v. Shalala, 199 F.3d 512,
521 (D.C. Cir. 1999). Kidd satisfies all three elements of this
standard: Her prior sexual harassment lawsuit is protected
activity under Title VII; the District failed to promote her;
and her evidence of causal connection--that the person deny-
ing her the promotion was personally liable to her for
$260,000 at the time he denied the promotion--is overwhelm-
ing. Indeed, because Kidd's prima facie case "strongly sug-
gests intentional discrimination[, it] may be enough by itself
to survive summary judgment." Aka v. Washington Hosp.
Ctr., 156 F.3d 1284, 1289 n.4 (D.C. Cir. 1998) (en banc). See
also Texas Dep't of Community Affairs v. Burdine, 450 U.S.
248, 255 n.10 (1981) ("[T]here may be some cases where the
plaintiff's initial [prima facie] evidence, combined with effec-
tive cross-examination of the defendant, will suffice to dis-
credit the defendant's explanation.").
Even if Kidd's prima facie case standing alone were insuffi-
cient, her evidence that the District's asserted nondiscrimina-
tory reasons were pretextual, when considered in combination
with the strength of her prima facie case, was enough to
preclude summary judgment. See Aka, 156 F.3d at 1289
("Assuming then that the employer has met its burden of
producing a nondiscriminatory reason for its actions, the
focus of proceedings at trial (and summary judgment) will be
whether the jury could infer discrimination from the combina-
tion of (1) the plaintiff's prima facie case; (2) any evidence
the plaintiff presents to attack the employer's proffered ex-
planation for its actions; and (3) any further evidence of
discrimination that may be available to plaintiff ... ").
Responding to the District's contention that she was not
promoted from DS-11 to DS-12 because the Mayor had
frozen hiring and promotions, Kidd submitted a sworn state-
ment that her supervisor "requested a waiver of the Mayor's
Order to promote another employee." She also stated that
"[t]he freeze apparently was arbitrary because Gary Hicka
was brought on board as a DS-12 realty specialist ... to fill
one of the vacant positions." From this evidence that the
Department made exceptions to the freeze for other employ-
ees, a jury could have concluded that the District's explana-
tion was pretext for retaliation. See Cones, 199 F.3d at 519.
The District also claimed that Kidd was unqualified for a
promotion to the DS-12 level, but Kidd provided evidence
that in her DS-11 position, she performed work normally
assigned to DS-12 employees. In fact, the District does not
dispute that after a restructuring of the Department, many of
the tasks she had been performing were taken from her and
reassigned to employees at the DS-12, 13, 14, and 15 levels.
I have no idea whether a jury would have returned a
verdict in Kidd's favor. But viewing the record in the light
most favorable to Kidd and drawing all inferences in her
favor, as we must at this stage of the case, I have no doubt
the case should have gone to a jury.
In reaching this conclusion, I recognize the indications in
the record that Kidd may have been a difficult plaintiff--the
district court tried repeatedly to appoint counsel, and in each
instance, counsel withdrew. I also recognize, as the magis-
trate judge found, that Kidd's pro se opposition to defendants'
motion for summary judgment was neither succinct nor par-
ticularly successful at separating her legal arguments from
her factual assertions. In contrast, we have had the benefit
of amicus's masterful appellate brief. But even without that
brief, had the magistrate judge carefully reviewed Kidd's
pleadings, as she is required to do in pro se cases, see Haines
v. Kerner, 404 U.S. 519, 520 (1972) (per curiam) (holding pro
se pleadings to less stringent standards than formal pleadings
drafted by lawyers), she too would have seen that Kidd had a
strong prima facie case of retaliation and sufficient evidence
of pretext to preclude summary judgment.
I respectfully dissent.