Kidd v. District of Columbia

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.