Bush v. District of Columbia

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).