United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 14, 2009 Decided February 23, 2010
No. 08-7016
ROBERT BUSH, ET AL.,
APPELLANTS
v.
DISTRICT OF COLUMBIA AND ROBERT ATCHESON,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 05cv01120)
Donald M. Temple argued the cause and filed the briefs for
appellants.
Mary L. Wilson, Senior Assistant Attorney General, Office
of the Attorney General for the District of Columbia, argued the
cause for appellees. With her on the brief were Peter J. Nickles,
Attorney General, Todd S. Kim, Solicitor General, Donna M.
Murasky, Deputy Solicitor General, and Stacy L. Anderson,
Assistant Attorney General.
Before: GARLAND, Circuit Judge, and EDWARDS and
RANDOLPH, Senior Circuit Judges.
2
Opinion for the Court filed by Senior Circuit Judge
RANDOLPH.
Concurring opinion filed by Senior Circuit Judge
RANDOLPH.
RANDOLPH, Senior Circuit Judge: Plaintiffs are six minority
members of the Metropolitan Police Department. They sued
their supervisor, Lieutenant Robert Atcheson, and the District of
Columbia. Atcheson, who is white, allegedly insulted them
frequently and profanely, gave them unduly harsh performance
evaluations, and denied them equipment, overtime, and
promotions – all because of their race. Similarly situated white
officers serving under Atcheson allegedly did not receive such
harmful treatment. Plaintiffs claimed that Atcheson’s conduct
and the District’s complicity impaired their employment
contract (a collective bargaining agreement) for racial reasons,
in violation of 42 U.S.C. § 1981, and subjected them to adverse
employment actions on the basis of their race, in violation of 42
U.S.C. § 1983. District Judge Robertson dismissed the § 1981
claim against Atcheson. In an order not accompanied by an
opinion, he granted summary judgment against plaintiffs on
their § 1981 claim against the District and their § 1983 claims
against both defendants.
The grant of summary judgment in favor of the District was
clearly correct. Plaintiffs have assumed – as shall we – that an
element of both their § 1981 and § 1983 claims against the
District is the existence of a District policy or custom that served
as “the moving force” behind Atcheson’s alleged discriminatory
conduct. See Monell v. Dep’t of Social Servs., 436 U.S. 658,
694-95 (1978). The District’s motion for summary judgment,
and its statement of material facts not in dispute, contended that
plaintiffs had not alleged – and had not cited evidence to support
a finding – that the District had the requisite policy or custom.
3
The burden thus shifted to plaintiffs to produce admissible
evidence establishing a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986).
In opposing the District’s motion, plaintiffs relied upon
several paragraphs in their second amended complaint. This of
course did not satisfy their burden. Rule 56(e) of the Federal
Rules of Civil Procedure barred them from resting upon “mere
allegations.”1 Their obligation was to adduce evidence. But the
only supposed evidence they identified was the police chief’s
resolution of a disciplinary proceeding against Atcheson.
According to plaintiffs, the proceeding showed, first, that the
police chief knew of Atcheson’s conduct at the time and,
second, that the chief nevertheless refused to discipline
Atcheson. This was wrong on both scores. The disciplinary
proceeding took place after the events alleged in the complaint
and the police chief in fact did discipline Atcheson for his
treatment of the officers under his command.
Our de novo review of the grant of summary judgment
means that we perform the same analysis of the motion as did
Judge Robertson. See Adler v. Wal-Mart Stores, Inc., 144 F.3d
664, 671-72 (10th Cir. 1998); Doe v. Gates, 981 F.2d 1316,
1322 (D.C. Cir. 1993). As to the District, plaintiffs failed to “set
forth specific facts showing that there is a genuine issue for
trial,” as Rule 56(e) required. We therefore agree that the
District was entitled to summary judgment on plaintiffs’ § 1981
and § 1983 claims.
The grant of summary judgment in favor of Atcheson
presents a more complicated picture. Plaintiffs think the district
court erred because Atcheson did not submit a statement of
1
Throughout this opinion, references to Rule 56 are to the rule
before its amendment in 2007 and 2009.
4
undisputed material facts, as Local Rule 7(h) required. But this
was not necessarily fatal. District courts have discretion to
excuse noncompliance with Rule 7(h). See Arrington v. United
States, 473 F.3d 329, 335 (D.C. Cir. 2006); Gardels v. CIA, 637
F.2d 770, 773 (D.C. Cir. 1980). Here there was sufficient reason
for the court to do so.
As the moving party Atcheson was not bound to present
evidence. See Celotex, 477 U.S. at 322-24. In his memorandum
supporting summary judgment, he maintained that plaintiffs had
produced no evidence of racial animus. He also relied upon the
depositions of several plaintiffs and their failure to mention any
such evidence. See Celotex, 477 U.S. at 325; id. at 332
(Brennan, J., dissenting). This was enough to place plaintiffs on
notice of what they had to present in order to defeat Atcheson’s
motion. See McBride v. Merrell Dow & Pharms., Inc., 800 F.2d
1208, 1212 (D.C. Cir. 1986).
“[D]epositions, answers to interrogatories, . . . admissions
on file,” and “affidavits” are the evidentiary materials listed in
Rule 56(c) and are the materials “one would normally expect the
nonmoving party” to use in showing that there are genuine
issues of material fact. Celotex, 477 U.S. at 324 (quoting FED.
R. CIV. PRO. 56(c)). Plaintiffs referred to no such materials.
Instead they cited paragraphs from their complaint and pages
from a memorandum addressed to the Police Department’s
Assistant Chief of the Office of Professional Responsibility. An
investigator in the Department’s Office of Diversity and Equal
Employment Opportunity Compliance prepared the
memorandum. On the pages plaintiffs cited, the memorandum
summarized statements plaintiffs made to the investigator in
interviews. The summaries are not verbatim recitals and they do
not represent the investigator’s findings of fact or
recommendations.
5
Plaintiffs quite clearly failed to satisfy their obligation under
Rule 56(e). The rule states that in responding to a proper
summary judgment motion, the nonmoving party, “by affidavits
or as otherwise provided in this rule, must set forth specific facts
showing that there is a genuine issue for trial.” The material
plaintiffs cited – a police investigator’s recital of unsworn
statements plaintiffs made to her – did not meet the
requirements of Rule 56(e). The Supreme Court held in Adickes
v. S.H. Kress & Company that a court may not consider unsworn
statements in determining whether to grant summary judgment.
398 U.S. 144, 158 n.17 (1970). Relying on Rule 56(e) and
Adickes, courts regularly decline to consider such material. See,
e.g., Bozeman v. Orum, 422 F.3d 1265, 1267 n.1 (11th Cir.
2005); Woloszyn v. County of Lawrence, 396 F.3d 314, 323 (3d
Cir. 2005); Small v. Lehman, 98 F.3d 762, 764-65 & n.5 (3d Cir.
1996); Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir.
1990). We do the same.2
In addition, plaintiffs’ performance on appeal warrants
affirming the judgments against them. The parties used the
deferred joint appendix procedure set forth in Federal Rule of
Appellate Procedure 30(c). The rule enables the parties to file
a joint appendix after they have filed their briefs. In a case with
a large record, this may hold a distinct advantage because the
appendix can be pared down to contain “only matter that the
briefs show to be necessary for consideration by the judges.”
2
The district court’s Rule 12(b)(6) dismissal of the § 1981 claim
against Atcheson may be converted to a grant of summary judgment.
See, e.g., TermoRio S.A. E.S.P. v. Electranta S.P., 487 F.3d 928, 940-
941 (D.C. Cir. 2007). We therefore do not decide whether the
collective bargaining agreement between plaintiff’s union and the
District would qualify as an employment contract for purposes of
§ 1981. The Supreme Court reserved a related question in Domino’s
Pizza, Inc. v. McDonald, 546 U.S. 470, 476 n.3 (2006).
6
FED. R. APP. P. 30 advisory committee’s note (1970
amendments, subdiv. (c)). As Rule 30(c)(2) specifies, the
parties file briefs with references to the record and then, after the
joint appendix is filed, they file corrected briefs replacing their
references to the record with references to the joint appendix.
“Except for the correction of typographical errors, no other
changes may be made to the brief.” FED. R. APP. P. 30(c)(2)(B).
Plaintiffs blatantly violated Rule 30(c). Their initial brief
contained relatively few citations backing up the brief’s
evidentiary assertions and the citations it did contain were to
material outside the record. They also violated Rule 10(a),
which limits the record on appeal to “papers and exhibits filed
in the district court,” the transcript of proceedings, and the
docket sheet. See United States v. West, 392 F.3d 450, 455 n.2
(D.C. Cir. 2004); 10A C. WRIGHT ET AL., FEDERAL PRACTICE
AND PROCEDURE § 2716, at 282 (3d ed. 1998).
The District and Atcheson naturally objected in their initial
brief. Then plaintiffs filed the joint appendix, followed by a
“corrected” brief. This brief also violated the rules. Plaintiffs’
corrected brief deleted the off-record citations and, in most
instances, substituted new citations to materials in the record.
Rule 30(c)(2)(B) prohibited these alterations: the only things
they could change were “typographical errors.”3 To make
matters worse, plaintiffs’ corrected briefs referred to portions of
the record they had never brought to the district court’s
attention. See LVRC Holdings LLC v. Brekka, 581 F.3d 1127,
1137 (9th Cir. 2009); Tarpley v. Greene, 684 F.2d 1, 7 n.16
(D.C. Cir. 1982).
3
Plaintiffs also filed a corrected reply brief. This too violated
Rule 30(c)(2)(B).
7
After we eliminate all impermissible evidentiary citations,
even the most charitable reading of plaintiffs’ briefs reveals only
passing references to a vague and unsupported narrative of a
supervisor’s harsh treatment of his employees. Such assertions
cannot save the officers from summary judgment. Appellate
briefs “must contain” citations to the authorities and record that
support their arguments. FED. R. APP. P. 28(a)(9)(A). “We have
enforced this rule before and we do so here again.” Dunkin’
Donuts Mid-Atlantic Distrib. Ctr., Inc. v. NLRB, 363 F.3d 437,
441 (D.C. Cir. 2004).
Affirmed.
RANDOLPH, Senior Circuit Judge, concurring: I write
separately to address another justification for affirming the grant
of summary judgment for Atcheson. The portions of the
investigator’s memorandum plaintiffs cited in response to his
summary judgment motion contain many layers of hearsay. See
FED. R. EVID. 801, 802; United States v. Mackey, 117 F.3d 24,
28-29 (1st Cir. 1997); United States v. Smith, 521 F.2d 957, 964
(D.C. Cir. 1975). Although Judge Robertson did not issue an
opinion, I think it plain that, as an experienced trial judge, he
ruled in Atcheson’s favor at least in part because none of the
materials plaintiffs cited would have been admissible at trial.
Two propositions support this ruling. “One of the principal
purposes of the summary judgment rule is to isolate and dispose
of factually unsupported claims or defenses.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323-24 (1986). And at trial, a claim
would be “factually unsupported” if the district court refused to
admit evidence offered in support of it. Correctly understood in
the context of this case, our decision in Catrett v. Johns-
Manville Sales Corporation, 826 F.2d 33 (D.C. Cir. 1987), does
not alter either one of these propositions.
Catrett was on remand from the Supreme Court’s decision
in Celotex. The question on remand was whether the district
court had “properly granted summary judgment in favor of an
asbestos manufacturer in a suit brought by the survivor of a
victim of asbestosis.” 826 F.2d at 33. In opposition to the
company’s motion for summary judgment, the survivor-plaintiff
cited a letter purporting to show that the victim had been
exposed to asbestos. There was some doubt whether the letter
constituted admissible evidence. At a hearing on the company’s
motion, the letter was placed before the district court. This led
our court to “presume that the document was duly considered by
the [district] court in reaching its ruling.” Id. at 37. In other
words, the district court treated the letter as admissible evidence.
And since the company did not object, it could not – “in the
circumstances of this case” – object on appeal to this court’s
treating the letter as admissible. Id. Thus taking the letter into
2
account, we reversed the grant of summary judgment on the
ground that plaintiff had presented enough evidence to show that
there was a genuine issue of material fact.
Catrett is not without its detractors. A highly-regarded
monograph makes the point that denying summary judgment
because the movant did not object to inadmissible evidence “is
to equate the movant’s failure to object with a waiver of the
objection at trial. There is no basis for doing so, because
making an objection at the time of the motion is not required to
preserve the objection at trial.” WILLIAM W. SCHWARZER ET
AL., THE ANALYSIS AND DECISION OF SUMMARY JUDGMENT
MOTIONS 51 (1991). Another problem arises from the fact that
a party may move for summary judgment “at any time.” See
FED. R. CIV. PRO. 56(a).1 There is no apparent reason why a
movant, having had its motion denied in light of inadmissible
evidence, might not renew the motion and lodge an objection to
the admissibility of the nonmovant’s evidence – in which event
it would be granted the second time around.
At any rate, I do not believe that, “in the circumstances of
this case,” Catrett is controlling. The disputed letter in Catrett
was, the court thought, arguably admissible and, without
objection, considered admissible by the district judge during the
hearing. Catrett, 826 F.2d at 37. Unlike Catrett, in this case we
cannot “presume” that Judge Robertson treated the material
plaintiffs cited as admissible evidence. Because the material
was so clearly inadmissible the presumption must run the other
way. No hearing was held in which Atcheson could have
voiced an objection to plaintiffs’ material. And circuit
1
A 2009 amendment to Rule 56 provides that, unless a local rule
or court order otherwise requires, “a party may move for summary
judgment at any time until 30 days after the close of all discovery.”
FED. R. CIV. PRO. 56(c)(1)(A).
3
precedent, dating back to 1949, requires district judges to ignore
inadmissible evidence that fails to comply with Rule 56(e).
Jameson v. Jameson, 176 F.2d 58, 60 (D.C. Cir. 1949); see also
Wash. Post Co. v. Keogh, 365 F.2d 965, 970-71 (D.C. Cir.
1966); 10B C. WRIGHT ET AL., FEDERAL PRACTICE AND
PROCEDURE § 2738, at 333 (3d ed. 1998). The rule is not
optional; it is, we have stressed, “mandatory.” Jameson, 176
F.2d at 60. Absent any showing of a material fact in dispute,
district judges are also bound to grant an appropriate motion for
summary judgment. Celotex, 477 U.S. at 322; Keogh, 365 F.2d
at 967-68; 10A C. WRIGHT ET AL., FEDERAL PRACTICE AND
PROCEDURE § 2728, at 524-25 & n.11 (3d ed. 1998) (noting
circuit split).