I am pleased to report that last Friday the U.S. Court of Appeals for the District of Columbia Circuit vacated a sanction against DC employee rights attorney John Karl, and held that attorneys are free to make arguments based on inferences. I submitted an amicus brief in the case on behalf of the National Employment Lawyers Association (NELA).Together we prevailed in arguing that inferences are key to employment discrimination cases, and attorneys need to be free to make arguments based on inferences, without labeling them as inferences. The Court also held that parties opposing a motion for summary judgment have no duty to present material adverse facts.
John Karl had represented Theodore Lucas in an age discrimination case against the Secretary of Education. That claim survived summary judgment, but lost at the bench trial. After deciding the motion for summary judgment, the Magistrate Judge issued a sua sponte motion for sanctions under FRCP 11(b)(3). The magistrate judge eventually imposed sanctions of $3,000. See Lucas v. Spellings, 408 F. Supp. 2d 8 (D.D.C. 2006). The Magistrate Judge imposed sanctions on Karl for the alleged offense of failing to label his inferences as inferences, and for failing to present material adverse facts in his opposition to the motion for summary judgment.
On appeal, I submitted an amicus brief for the NELA Ethics and Sanctions Committee. The amicus focused on the important role of inferences in employment discrimination cases, and the sufficiency of showing support in the record for the claims made. Here are some of my favorite excerpts from the Court’s opinion, starting at page 9 of the slip opinion:
There is no basis in the text of Rule 11(b)(3) for the legal proposition that an attorney must separately identify “fact” and “inference.” The Rule merely requires an attorney to certify that the factual contentions in a paper he presents to the court “have evidentiary support.” FED. R. CIV. P. 11(b)(3). “Inferences” — which are commonly described as “circumstantial evidence” — are as capable of providing evidentiary support as “facts” — which are commonly described as “direct evidence.” See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714 n.3 (1983) (“As in any lawsuit, the plaintiff may prove his case by direct or circumstantial evidence.”); Doe v. U.S. Postal Serv., 317 F.3d 339, 343 (D.C. Cir. 2003) (“[W]e generally draw no distinction between the probative value of direct and circumstantial evidence.”). As a consequence, “juries are routinely instructed that ‘[t]he law makes no distinction between the weight or value to be given to either direct or circumstantial evidence.’” Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003) (quoting 1A K. O’MALLEY, J. GRENIG & W. LEE, FEDERAL JURY PRACTICE AND INSTRUCTIONS, CRIMINAL § 12.04 (5th ed. 2000)). “The reason for treating circumstantial and direct evidence alike,” the Supreme Court has explained, “is both clear and deep rooted: ‘Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.’” Id. (quoting Rogers v. Mo. Pac. R.R. Co., 352 U.S. 500, 508 n.17 (1957)).
He may not have proof by a preponderance, but he certainly has “support.” Accordingly, a lawyer does not violate Rule 11 by saying so.
. . . The magistrate judge also imposed sanctions on the premise that, when an attorney makes a factual contention, he must simultaneously disclose evidence that is contrary to that contention. The judge thought that Karl’s failure to do so violated Rule 11, notwithstanding that he did have affirmative evidentiary support for his contentions.
. . . There is nothing in the text of Rule 11(b)(3) to suggest that any of these statements violated that rule. In each case, the “factual contentions” in Karl’s pleadings had “evidentiary support,” and that is all the rule requires. See Navarro-Ayala v. Hernandez-Colon, 3 F.3d 464, 467 (1st Cir. 1993) (“Rule 11 normally does not require one party to uncover and to set forth the facts that support the other side’s position.”). This is not to say that it may never be misleading to assert that something has evidentiary support without advising the court of contrary facts. But once again, context is relevant.
The pleading at issue here was an opposition to the defendant’s motion for summary judgment. The defendant’s motion asserted that “there is no genuine issue of material fact precluding the entry of judgment for defendant as a matter of law.” Def.’s Mem. in Supp. of Its Mot. for Summ. J. at 1. Under Local Rules 7(h) and 56.1, Karl’s obligation in opposing the defendant’s motion was to file a separate statement “setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated.” To do that, Karl was obliged to do no more than set forth facts in contravention of the defendant’s claims. The rules do not require him to rehearse the government’s evidence, and nothing in Rule 11 imposes that added burden. Nor could the omission of that evidence have been misleading to the reader. Many of the facts that the magistrate judge criticized Karl for failing to disclose in his opposition were contained in the government motion to which he was responding.
. . . We have examined each of the eleven statements at issue on this appeal. In light of the foregoing analysis, we conclude that none warranted the imposition of Rule 11 sanctions. Accordingly, the sanctions order is
. . . It is also relevant that Karl filed his opposition to summary judgment pursuant to Local Rules 7(h) and 56.1. Those rules require that “[a]n opposition to such a motion shall be accompanied by 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, which shall include references to the parts of the record relied on to support the statement.” D.D.C. LOCAL RULE 7(h) (emphasis added); id. 56.1 (same). Karl adhered to the rules, and each of the criticized sentences in Karl’s Rule 7(h) Statement was followed by record citations indicating which evidence Karl thought supported the statement. Thus, there was no hiding of the ball. Even if it mattered whether the supporting evidence was direct or circumstantial (and it does not), there was no possibility that the reader would be misled.