UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


KIDD, PATRICIA

v.

DC


98-7075a

D.C. Cir. 2000


*	*	*


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


* * *


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


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


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


* * *


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.


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.


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


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


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 


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 




__________

n 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


Dismissed.




__________

n 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


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


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


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 


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


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


"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


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


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


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.