                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


                                                )
JOSHUA NESBITT                                  )
                                                )
               Plaintiff,                       )
                                                )
        v.                                      )   Civil No. 12-717 (RCL)
                                                )
ERIC H. HOLDER, JR.,                            )
ATTORNEY GENERAL,                               )
U.S. DEPARTMENT OF JUSTICE                      )
                                                )
              Defendant.                        )
                                                )


                                 MEMORANDUM OPINION

        Before the Court is the defendant’s Motion to Strike Jury Demand [29].             Upon

consideration of that motion, the plaintiff’s Opposition [32] thereto, and the Reply [35], the

Court DENIES the defendant’s motion.

   I.        BACKGROUND

        Joshua Nesbitt, an African-American attorney, filed suit against his employer, the United

States Department of Justice (“the Department”), alleging one count of race discrimination in

violation of Title VII of the Civil Rights Act of 1964. On September 5, 2013, the Court denied

the Department’s motion for summary judgment and provided a lengthy account of the facts in

that opinion. Nesbitt v. Holder, Civil No. 12-717, ECF No. 26, 2013 WL 4763416 (D.D.C. Sept.

5, 2013). For purposes of the present opinion, the Court will highlight only those facts relevant

to the Department’s motion.
       In his Complaint, Mr. Nesbitt sought compensatory damages and demanded a trial by

jury on all claims. Complaint, ECF No. 1, at 7. As part of discovery, the Department deposed

Mr. Nesbitt on December 4, 2012, and the following exchanged occurred:

       Q. Anything else you wish to amend or complete? This is your chance to
       give us complete answers.
       A. I've been doing that.
       Q. That's great. No, no, I mean, if there's anything missing here, you're
       welcome to.
       A. Okay.
       Q. So on page six, question number seven, we had asked you to identify
       each and every physical, emotional or mental illness, injury, ailment, loss,
       disability and/or condition for which you have sought or received
       treatment at any time within the last ten years. I presume that all your
       answers are
       listed here, all the information that would be responsive to that question
       are listed here?
       A. No, because I don't believe that any medical ailments that I may have
       had in the last ten years are relevant to this employment discrimination
       claim. I've had a TS, top secret, SCI, sensitive compartmented
       information, clearance since before I joined the Office of Intelligence and
       so I would not have been able to obtain and maintain that level of
       clearance had I had any psychiatric or psychological issues and I've not
       seen a psychiatrist or psychologist or any other mental health professional.
       Q. Let's back up a second. You're telling me that there may be conditions,
       medical conditions, not psychiatric or psychological, not mental illness,
       but physical illness, there may be issues there, may or may not be issues
       there, but you feel like they're irrelevant to this litigation?
       A. I'm telling you that medical issues -- I'm not talking about the existence
       or nonexistence -- I'm just saying medical issues, my physical health, is
       not relevant to this investigation.
       Q. I'm not doing an investigation, sir, you've brought --
       A. Well, this case is regarding employment discrimination. There's
       nothing in the allegations that I've made that put my health at issue.
       MS. MOMENI [government counsel]: Rani, can we speak outside,
       please? Let's go off the record.
       MS. ROLSTON: Sure.
       (Brief recess taken)


                                                2
         MS. ROLSTON [plaintiff’s counsel]: Back on the record.       After
         speaking with Mr. Nesbitt, he is going to withdraw the seeking of
         compensatory damages.
         MS. MOMENI: Okay, so we won't pursue that line of questioning
         anymore then. We're done with that. Are you going to amend the
         complaint to let the court know or just file a notice? However you want to
         do it.
         MS. ROLSTON: Right.
         MS. MOMENI: But it's now on the record as well. Okay, thank you very
         much.
Mot. to Strike Jury Demand, ECF No. 29, Ex. 1 (Dep. of Joshua Nesbitt, Dec. 4, 2012) at 135–37

[hereinafter Gov’t’s Mot. & Nesbitt Dep.].

         The Department argues that Mr. Nesbitt has withdrawn his claim for all compensatory

damages and—as Title VII permits a jury trial only when the plaintiff seeks compensatory

damages—filed the present motion to strike the plaintiff’s jury demand. For the reasons outlined

below, the Court denies the Department’s motion.

   II.      LEGAL STANDARD

         “The United States, as sovereign, is immune from suit save as it consents to be sued . . .

and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the

suit.” Lehman v. Nakshian, 453 U.S. 156, 160 (1981). As such, rights normally attendant to

civil trials, including the Seventh Amendment right to a jury trial, do not apply in suits against

the federal government without the unequivocal and express consent of the United States. Id.

         Although Title VII waives sovereign immunity in federal employment discrimination

cases, the statute limits the availability of a jury trial to cases in which the plaintiff seeks

compensatory damages. 42 U.S.C. § 1981a(b)(1); § 1981a(c). Compensatory damages are

defined as “future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish,

loss of enjoyment of life, and other nonpecuniary losses.” Id. § 1981a(b)(3).



                                                  3
           If a Title VII plaintiff seeks compensatory damages and desires a jury trial, Federal Rule

of Civil Procedure 38 requires that the jury trial demand be specified in the pleadings. Once a

demand is made, Rule 39(a) requires a jury trial unless “the parties or their attorneys file a

stipulation to a nonjury trial or so stipulate on the record.” If no demand is made, Rule 39(b)

provides that “the court may, on motion, order a jury trial on any issue for which a jury might

have been demanded.”

           Based upon Rule 39, 1 the government argues that Mr. Nesbitt’s deposition statements

effectively “withdrew his claim for compensatory damages, thus relinquishing any right to a jury

trial.” Gov’t’s Mot. 6. Because statements made during depositions are insufficient to satisfy

Rule 39(a), the Court disagrees.

    III.      ANALYSIS

           In order to retract a prior jury trial demand, Rule 39(a) requires either (1) a filed

stipulation to a bench trial; or (2) an oral stipulation “on the record.” The first method does not

apply here, and courts examining the latter have uniformly held that “stipulate on the record”

means an express waiver in open court. See, e.g., Solis v. Cnty. of Los Angeles, 514 F.3d 946,

954 (9th Cir. 2008) (Rule 39(a) waiver must “be made by written stipulation filed with the court

or by an oral stipulation made in open court and entered in the record.”); Black, Sivalls &

1
  Though the government purports to make its motion under Rule 39(b), the Court agrees with the plaintiff that Rule
39(a) is the applicable provision. Under the plain language of the statute, section (a) applies where, as here, a
demand has been properly made, while (b) applies when no demand has been made. Even if the Court construed
Mr. Nesbitt’s statements as analogous to situations where the plaintiff fails to make a demand and thus waives the
right to a jury trial, “[r]elief from that waiver [must] be found, if available at all, in an exercise of discretion” by this
Court. Bush v. Allstate Ins. Co., 425 F.2d 393, 396 (5th Cir. 1970). And, “when the discretion of the court is
invoked under Rule 39(b), the court should grant a jury trial in the absence of strong and compelling reasons to the
contrary.” Id. The government has provided no such reasons. Title VII was intended to provide “the most complete
makewhole relief possible” to discrimination plaintiffs, Peyton v. DiMario, 287 F.3d 1121, 1126 (D.C. Cir. 2002).
Without compelling reasons to do so, the Court will not interpret one isolated statement as an unequivocal waiver of
all compensatory damages.




                                                             4
Bryson, Inc. v. Keystone Steel Fabrication, Inc., 584 F.2d 946, 949 (10th Cir. 1978) (finding

Rule 39(a) satisfied where party “specifically waived in open court its right to a jury”); Taylor v.

Gulf States Utilities Co., 375 F.2d 949, 950 (5th Cir. 1967) (Rule 39(a) waiver “requires the

concurrence by oral stipulation in court of all counsel”); Collins v. Gov’t of Virgin Islands, 366

F.2d 279, 286 (3d Cir. 1966) (Rule 39(a) requires “oral stipulation made in open court

consenting to trial by the court sitting without a jury.”) DeGioia v. U.S. Lines Co., 304 F.2d 421,

427 (2d Cir. 1962) (“[O]nce a demand for jury trial has been properly made it can be waived

only by an oral stipulation made in open court.”). Indeed, prior to the 2007 amendments, the

Rule stated that a waiver was valid only upon a “written stipulation filed with the court or by an

oral stipulation made in open court and entered in the record.” Though the current version does

not spell out that “on the record” means “in open court,” the advisory committee noted that this

change was “intended to be stylistic only” and was “part of the general restyling of the Civil

Rules to make them more easily understood and to make style and terminology consistent

throughout the rules.” Fed. R. Civ. P. 39 advisory committee’s notes; see also Solis, 514 F.3d at

954 & n.8 (holding that notwithstanding the change in the statutory language, a valid retraction

of a properly-made jury demand must be made in open court).

        Thus, even assuming that Mr. Nesbitt expressed intent to withdraw his jury trial demand,

that intent was not manifested in the method required by the Federal Rules of Civil Procedure.

Government counsel appeared to recognize the incomplete nature of the withdrawal when she

asked whether the plaintiff would “amend the complaint to let the court know or just file a

notice.” Mot. to Strike, Ex. 1 (Excerpt of Dep. of Joshua Nesbitt, Dec. 4, 2012), at 137. Mr.

Nesbitt has done neither. The Court therefore finds that he has not retracted his demand for a

jury trial.



                                                 5
       Moreover, as always, context is key.         Read in the proper context, Mr. Nesbitt’s

statements at the deposition do not amount to a complete waiver of compensatory damages.

Consistent with his statements at the deposition, Mr. Nesbitt maintains that he is not pursuing

damages based upon any medical diagnosis. Pl.’s Opp., ECF No. 32, at 10. Throughout the

deposition, Mr. Nesbitt answered several questions relevant to compensatory damages. It was

not until the questions waded into his mental and physical health that Mr. Nesbitt became

uncomfortable, apparently because of the potential effect of such ailments on his security

clearance. Nesbitt Dep. 135. Mr. Nesbitt repeatedly stated his view that “medical ailments,”

“medical issues,” and his “physical health” were irrelevant to this litigation. Id. at 135–36; see

also id. at 136 (“[T]his case is about employment discrimination. There is nothing in the

allegations I’ve made that put my health at issue.”). It is in this context that Mr. Nesbitt’s

attorney stated that he would “withdraw the seeking of compensatory damages.” Id. Declining

to seek compensatory damages for diagnosed physical and mental ailments has no effect on the

plaintiff’s ability to seek the other compensatory relief permitted under Title VII, including

future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of

enjoyment of life, and other nonpecuniary losses.

       Finally, to the extent that Mr. Nesbitt intends to seek compensatory damages for

undiagnosed mental anguish or emotional distress, the government is entitled to discovery.

Additionally, given Mr. Nesbitt’s statement during his deposition, the government is also entitled

to discovery as to all other forms of compensatory damages sought by Mr. Nesbitt. In its brief,

the government argues that, having forgone all discovery regarding compensatory damages after

the deposition, it would be prejudiced if Mr. Nesbitt is permitted to seek such damages at trial.




                                                6
At the pretrial conference, the government should be prepared to detail what additional discovery

it would seek regarding compensatory damages.

       A separate Order consistent with this Memorandum Opinion shall issue this date.

       Signed by Royce C. Lamberth, United States District Judge, on April 2, 2014.




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