Kidd v. District of Columbia

206 F.3d 35, 340 U.S. App. D.C. 362, 46 Fed. R. Serv. 3d 845, 2000 U.S. App. LEXIS 4684, 82 Fair Empl. Prac. Cas. (BNA) 731

• Court: Court of Appeals for the D.C. Circuit
• Decided: March 24, 2000
• Docket: 98-7075, 98-7100
• Status: Published

Opinions

Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.

Dissenting opinion filed by Circuit Judge TATEL.

STEPHEN F. 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 1968 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, 93 S.Ct. 1562, 36 L.Ed.2d 202 (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 returned 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 entertained the District’s motion to dismiss. It construed Kidd’s complaint as alleging retaliation and constructive discharge in violation of § 704(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a) (1994), discrimination in violation of the Equal Pay Act, 29 U.S.C. § 206(d), and 42 U.S.C. § 1981, and denial of her constitutional rights to equal protection and due process made actionable under 42 U.S.C. §§ 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 § 704 of the Rehabilitation Act of 1973, 29 U.S.C. § 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 recommendation in favor of the District’s summary judgment motion 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 judgment in the District’s favor on March 19, 1998. As a consequence, 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 dismiss 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 Committee 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 memorandum — which provides the basis for the entry of judgment.” Fed.R.Civ.P. 58, Advisory Committee’s Note to the 1968 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 directive 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 Robinson’s Report and Recommendation addressing Plaintiffs 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 Recommendation. Therefore, it is hereby

ORDERED that Magistrate Judge Robinson’s Report and Recommendation dated February 23, 1998 is AFFIRMED by the Court.

Consequently, it is

ORDERED that Defendant’s Motion to Dismiss is DENIED, and that Defendant’s alternative Motion for Summary 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 /a/

United States District Judge

The Supreme Court has said that Rule 58 is to be “mechanically” applied, Indrelunas, 411 U.S. at 221-22, 93 S.Ct. 1562, 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 Diamond 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 Robinson 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 recommendation 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 ordering 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, 113 S.Ct. 2625, 125 L.Ed.2d 239 (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. § 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, 113 S.Ct. 2625, 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 judgnent was not necessary for appeala-bility 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 appeal-ability 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, 113 S.Ct. 2625, citing Bankers Trust Co. v. Mollis, 435 U.S. 381, 385-87, 98 S.Ct. 1117, 55 L.Ed.2d 357 (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 magistrate’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 certainly excessive under Diamond.

We also note that Chief Judge Robinson’s view — -treating an order as Rule 58-qualifying where it recites that a magistrate’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 granted 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, 98 S.Ct. 1117. 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 infer-enees from the panel’s opinion in Diamond.

Accordingly the district court’s order qualifies as a judgment under Rule 58.¹ We emphasize, however, that when a 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” corresponding 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.

1 . On finding jurisdiction, our dissenting colleague understandably 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 opposing side may be deemed admitted. See Twist v. Meese, 854 F.2d 1421, 1424-25 (D.C.Cir.1988). The magistrate judge did not 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 defen-danls 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 "Order” rather than "Judgment.” Dissent at 37. 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 characteristics of an elaborate opinion. See United States v. Perez, 736 F.2d 236, 237-38 (5th Cir.1984) (cautioning against "mindless" application of Rule 58).” Spann v. Colonial Village, Inc., 899 F.2d 24, 32 n. 4 (D.C.Cir.1990) (Ruth Bader Ginsburg, J.).