United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 10, 2006 Decided March 20, 2007
No. 05-7110
NADINE CHANDLER WILBURN,
APPELLANT
v.
KELVIN ROBINSON,
CHIEF OF STAFF TO MAYOR ANTHONY WILLIAMS,
INDIVIDUALLY AND HIS OFFICIAL CAPACITY, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 04cv00078)
Gregory L. Lattimer argued the cause for the appellant.
Joel P. Bennett argued the cause for appellee Kelvin
Robinson.
Before: HENDERSON, ROGERS and BROWN, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
Dissenting Opinion filed by Circuit Judge BROWN.
2
KAREN LECRAFT HENDERSON, Circuit Judge: On May 14,
2003, District of Columbia (District) Mayor Anthony Williams
appointed a new Director of the District’s Office of Human
Rights (OHR). The appellant, Nadine C. Wilburn (Wilburn),
brought suit against both the District and Williams’s former
chief of staff, Kelvin Robinson (Robinson), under 42 U.S.C.
§ 1983, alleging that she was not selected for the Director’s
position in retaliation for the exercise of her First Amendment
right to criticize the District government. After concluding that
the District was not a party to the suit, the district court granted
Robinson’s motion for summary judgment because Wilburn’s
speech had no causal connection to the subsequent adverse
employment decision. Wilburn appeals. For the reasons set
forth below, we affirm the district court on the alternative
ground that Wilburn’s non-selection did not violate her First
Amendment rights.
I.
Wilburn began serving as OHR Interim Director in June
2002. On assuming the position, Wilburn set out to staff the
OHR’s legal unit with a new general counsel and attorney
advisor, extending offers to two black females employed
elsewhere in the District government. The District Office of
Personnel (DCOP), however, refused to authorize the salaries
Wilburn requested for the two candidates, relying on a District
policy setting the salaries of candidates already employed
elsewhere in the District government below the salaries offered
to applicants employed outside the District government.
Thereafter, Wilburn requested reconsideration of the DCOP
decision, asserting that such differentiation between applicants
from inside and outside District government violated the United
States Constitution and the District’s Human Rights Act.
Specifically, Wilburn suggested that the salary denials were
3
motivated by the race and gender of the two candidates. DCOP
denied Wilburn’s reconsideration request and admonished her
for “condoning such unsubstantiated allegations” of
discrimination. Decl. of Nadine Wilburn (Wilburn Decl.),
reprinted in Joint Appendix (JA) at 116. Wilburn persisted and
the dispute with DCOP ultimately culminated in a meeting with
Deputy Mayor Carolyn Graham (Graham), Wilburn’s direct
supervisor, which meeting resolved the matter to Wilburn’s
satisfaction.
In late November 2002, the District announced its intention
to fill the directorship of OHR on a permanent basis, requesting
applications from interested individuals. Wilburn submitted an
application in December 2002. As part of the selection process,
the Mayor appointed a three-member team, including Robinson,
Graham and City Administrator John Koskinen, to advise him
on the selection of OHR’s permanent director. From an initial
pool of four hundred candidates, three finalists, including
Wilburn, were identified for interviews. Following initial
interviews, the panel recommended that the Mayor appoint
either Wilburn or Kenneth Saunders (Saunders) as OHR
Director, scheduling interviews for them with the Mayor. On
April 14, 2003, Wilburn had her final interview with Mayor
Williams. Within ten days of the interview, the Mayor
mentioned in a speech that he intended to appoint Wilburn as the
permanent OHR Director. Yet this intention proved fleeting and
the Mayor subsequently named Saunders as the new OHR
Director.
Believing that her non-selection resulted from Robinson’s
retaliation for her earlier race and gender discrimination
accusations, Wilburn filed suit in the district court. Wilburn
asserted that her discrimination allegations constituted protected
speech under the First Amendment to the United States
4
Constitution and that Robinson’s retaliation for her exercise of
protected speech violated Wilburn’s constitutional rights,
entitling her to damages under 42 U.S.C. § 1983.1
Because the district court determined that Wilburn produced
“neither competent direct evidence nor sufficient indirect
evidence to support a finding of a causal connection between her
alleged protected speech and her non-selection,” the court
granted summary judgment to Robinson. See Mem. Op.,
reprinted in JA at 36–37. The court’s conclusion largely rested
on its determination that the only direct evidence of
causation—Wilburn’s allegation that Graham told her that her
non-selection resulted from Robinson’s retaliation, Wilburn
Decl. at JA 120—constituted inadmissible hearsay because the
District was not a party to the suit and, thus, Graham’s statement
did not meet the hearsay exemption for the admission of a party-
opponent under Federal Rule of Evidence 801(d)(2). Mem. Op.
at JA 34. Further, it held that Graham’s statement could not
1
Wilburn also alleged that her non-selection as permanent OHR
Director violated the District’s Whistleblower Act. See Compl. ¶¶ 43,
45, reprinted in JA at 293, 294; D.C. Code § 1-615.53 (“A supervisor
shall not threaten to take or take a prohibited personnel action or
otherwise retaliate against an employee because of the employee’s
protected disclosure . . . .”). This claim relates to information Wilburn
provided during an investigation of a local law firm and its contracts
with the District government launched by District Council Member
Jim Graham in early 2003. Because the district court granted
summary judgment to Robinson on Wilburn’s section 1983 claim, the
sole federal cause of action, the district court dismissed—without
prejudice—the Whistleblower Act claim for lack of jurisdiction.
Wilburn subsequently refiled the claim in Superior Court.
5
convert to evidence admissible at trial2 and therefore it could not
support a reasonable jury’s finding of retaliation. See Mem. Op.
at JA 34.3 Thereafter, Wilburn moved for reconsideration under
Federal Rule of Civil Procedure 60(b) (Rule 60(b)), asserting
that the district court erred in rejecting her proffered direct
evidence. The district court denied her motion, again
concluding that the District was not a party and thus Graham’s
statements were inadmissible. See Mem. Op. on Mot. for
Recons., reprinted in JA at 8. Wilburn appeals both the grant of
2
“While a nonmovant is not required,” at the summary judgment
stage, “to produce evidence in a form that would be admissible at trial,
the evidence still must be capable of being converted into admissible
evidence.” Gleklen v. Democratic Cong. Campaign Comm., Inc., 199
F.3d 1365, 1369 (D.C. Cir. 2000) (emphasis in original). The district
court found the hearsay incapable of conversion because Graham, the
only other party to the alleged conversation, “explicitly denie[d]
making the statements.” Mem. Op. at JA 34; see also Dep. of Carolyn
Graham, reprinted in JA at 250–51; Gleklen, 199 F.3d at 1369
(“[Defendant’s] evidence about the conversation is sheer hearsay; she
would not be permitted to testify about the conversation at trial. It
therefore counts for nothing.” (internal citation omitted)).
3
The district court also found Wilburn’s indirect evidence of
causation lacking due to the time interval—nearly six
months—between her discrimination assertions and her non-selection.
See Mem. Op. at JA 34–35; see also Clark County Sch. Dist. v.
Breeden, 532 U.S. 268, 273–74 (2001) (citing cases finding temporal
proximity of three months and four months insufficient to demonstrate
causal connection); Cones v. Shalala, 199 F.3d 512, 521 (D.C. Cir.
2000) (finding sufficient temporal proximity because adverse
employment action occurred “at the same time . . . [employee] was
filing formal complaints of both discrimination and retaliation”).
6
summary judgment to Robinson as well as the denial of her
motion for reconsideration under Rule 60(b).
II.
We must first determine the timeliness of Wilburn’s notice
of appeal from the district court’s grant of summary judgment
as well as the parties defendant to this suit. Section A, infra,
resolves the timeliness of Wilburn’s notice of appeal and
Section B, infra, identifies the correct parties defendant included
in Wilburn’s suit. Because we find Wilburn’s appeal timely,
Part III proceeds to the merits of her First Amendment claim.
A.
To appeal a district court order, a party must file a notice of
appeal within thirty days of the order’s entry. See Fed. R. App.
P. (FRAP) 4(a)(1)(A).4 A timely motion for reconsideration
under Rule 60(b), however, tolls the time to appeal from the
underlying judgment. See Fed. R. App. P. 4(a)(4)(A)(vi).5 A
motion for relief under Rule 60(b) is timely if “filed no later
than 10 days after the judgment is entered.” Id. Moreover, the
district court may not extend the time for filing a Rule 60(b)
4
FRAP 4(a)(1)(A) provides that “[i]n a civil case, . . . the notice of
appeal . . . must be filed with the district clerk within 30 days after the
judgment or order appealed from is entered.” Fed. R. App. P.
4(a)(1)(A).
5
Indeed, “[i]f a party timely files in the district court any of [the
listed] motions under the Federal Rules of Civil Procedure, the time
to file an appeal runs for all parties from the entry of the order
disposing of the last such remaining motion.” Fed. R. App. P.
4(a)(4)(A). Among the listed motions tolling the time to file an appeal
is a motion “for relief under Rule 60.” Fed. R. App. P. 4(a)(4)(A)(vi).
7
motion. Fed. R. Civ. P. 6(b);6 see also Toolasprashad v. Bureau
of Prisons, 286 F.3d 576, 582 (D.C. Cir. 2002).
Here, the district court entered the order granting summary
judgment to Robinson on June 30, 2005. Wilburn did not file
her notice of appeal until August 10, 2005, however, rendering
her appeal untimely absent a timely motion for reconsideration.
Although Wilburn did file a motion for reconsideration pursuant
to Rule 60(b), see Mot. for Recons., reprinted in JA at 13, she
did so on July 18, 2005, which fell eleven business days after the
summary judgment order. Thus, the motion was not timely and
for that reason failed to toll the appeal period under FRAP
4(a)(4)(A)(vi).7 Robinson, however, did not challenge the
timeliness of Wilburn’s motion for reconsideration or notice of
appeal before the district court or in this court.
In the past, the failure to raise a timeliness objection—by a
motion to dismiss, for example—did not matter as the deadlines
provided in FRAP 4 were considered “jurisdictional.” See Ctr.
for Nuclear Responsibility, Inc. v. U.S. Nuclear Regulatory
6
Under this rule, the district court “may not extend the time for
taking any action under Rule[] . . . 60(b), except to the extent and
under the conditions stated in [the Rule].” Fed. R. Civ. P. 6(b). Rule
60(b) does not include conditions permitting a district court to grant
an extension of time. See Fed. R. Civ. P. 60(b).
7
In contrast to the tardiness of Wilburn’s appeal from the summary
judgment order, her appeal from the order denying her motion for
reconsideration was timely. The district court denied Wilburn’s
motion for reconsideration on August 4, 2005. See Mem. Op. on Mot.
for Recons. at JA 8–9. Wilburn filed a notice of appeal therefrom on
August 10, 2005, well within the thirty-day time limit prescribed by
FRAP 4(a).
8
Comm’n, 781 F.2d 935, 941 & n.10 (D.C. Cir. 1986) (citing
Browder v. Dir., Dep’t of Corr. of Ill., 434 U.S. 257, 264 (1978))
(noting that FRAP 4(a)’s time limit is “mandatory and
jurisdictional” (internal quotation omitted)). In 2004, however,
the Supreme Court rejected the term “jurisdictional” in relation
to court filing rules. See Kontrick v. Ryan, 540 U.S. 443,
454–55 (2004). Noting that only the Congress possesses
authority to alter the subject-matter jurisdiction of the lower
federal courts, id. at 452, the Court found that confusion arose
because “[c]ourts . . . have been less than meticulous” in
labeling certain rules jurisdictional and “have more than
occasionally used the term ‘jurisdictional’ to describe emphatic
time prescriptions in rules of court,” id. at 454.
At issue in Kontrick was Federal Rule of Bankruptcy
Procedure 4004(a), which limits the time for filing an objection
to the discharge of a debtor. See id. at 446–47 (describing 60-
day limit from date of first creditors’ meeting for creditor
challenge to discharge). The Supreme Court held that the sixty-
day limit did not affect the subject-matter jurisdiction of the
bankruptcy court, constituting instead a “claim-processing
rule[].” Id. at 454. Unlike subject-matter jurisdiction, the
absence of which automatically divests the court of the power to
adjudicate a claim, the effect of a claim-processing rule depends
upon the parties’ actions and may therefore be subject to
forfeiture. Id. at 456. Consequently, the Court instructed lower
courts to reserve the term “jurisdictional” “not for claim-
processing rules, but only for prescriptions delineating the
classes of cases (subject-matter jurisdiction) and the persons
(personal jurisdiction) falling within a court’s adjudicatory
authority.” Id. at 455.
In Eberhart v. United States, 126 S. Ct. 403 (2005), the
Supreme Court built upon the distinction it had made in
9
Kontrick between claim-processing rules and jurisdictional
rules. Eberhart involved the seven-day period after verdict to
file a motion for a new trial under Federal Rule of Criminal
Procedure 33(a) and (b)(2). Id. at 403. Alluding to the
confusion caused by earlier cases describing certain time limits
as “mandatory and jurisdictional,” the Court suggested that
those cases stretched the meaning of “jurisdictional” beyond that
set forth in Kontrick. See id. at 405–06. In interpreting Rule 33
as a claim-processing rule, the Court described the
characteristics of such a rule. See id. at 405. A claim-
processing rule includes a “set period of time to file with the
court” and prohibits a court from extending the time in which to
take any action under the rule, except upon a showing of good
cause. Id.8
The tolling language of Rule 4(a)(4)(A)(vi) fits the Court’s
description of a claim-processing rule.9 Similar to the rules at
issue in Kontrick and Eberhart, Rule 4(a)(4)(A)(vi) establishes
a deadline—ten days—within which a party must file a Rule
8
In this regard, the Court noted that many claim-processing
rules—including those at issue in Kontrick and Eberhart—mirror the
characteristics of Federal Rule of Civil Procedure 6(b), Eberhart, 126
S. Ct. at 407, which, as noted earlier, see supra note 6, prohibits the
district court from extending the time to file a Rule 60(b) motion.
9
Only the Sixth Circuit has expressly applied the Kontrick and
Eberhart holdings to FRAP 4, concluding that Rule 4(a)(6) is
jurisdictional rather than a claim-processing rule. See Bowles v.
Russell, 432 F.3d 668, 671 n.1 (6th Cir. 2005). But Bowles relied on
the fact that the Congress, which can alter subject-matter jurisdiction,
codified Rule 4(a)(6)’s provisions for “reopening” the time for an
appeal. See id.; 28 U.S.C. § 2107(c). In contrast, the tolling language
of Rule 4(a)(4)(A)(vi) has not been made jurisdictional by statute.
10
60(b) motion in order to toll the time limit for filing a notice of
appeal and which the district court cannot extend. See Fed. R.
App. P. 4(a)(4)(A)(vi); Toolasprashad, 286 F.3d at 582 (citing
Fed. R. Civ. P. 6(b)). In addition, as do the claim-processing
rules in Kontrick and Eberhart, Rule 4(a)(4)(A)(vi)’s time limit
“afford[s] . . . an affirmative defense to a complaint filed outside
the [time] . . . limits.” Kontrick, 540 U.S. at 456; see also
Eberhart, 126 S. Ct. at 404 (noting Kontrick involved “defenses
made available by the time limitations of Federal [Bankruptcy]
Rules”). Indeed, a claim-processing time limit gives the
opposing party the “right to object to a pleading on the ground
that it was filed out of time,” Kontrick, 540 U.S. at 446, thereby
permitting him to defeat an appeal on timeliness grounds
without reaching the merits. In the same way, Rule
4(a)(4)(A)(vi) allows the prevailing party in district court to
challenge the timeliness of a motion for reconsideration and,
consequently, the timeliness of the appeal from the underlying
judgment.10
10
Both parties mistakenly focus their timeliness discussions on the
question whether Rules of Civil Procedure 59(e) and 60(b) are claim-
processing rules. See Appellant’s Supp. Reply Br. at 1–2; Appellee’s
Supp. Br. at 4. There are several problems with that focus. First,
although the parties treat Wilburn’s motion for reconsideration as if
filed pursuant to Federal Rule of Civil Procedure 59(e), the motion
references only Rule 60(b). See Mot. for Recons. at JA 13. Unlike
Rule 59(e), which includes a set time period—ten days—within which
a party must file a motion, Rule 60(b) includes no express time limit,
compare Fed. R. Civ. P. 59(e) with Fed. R. Civ. P. 60(b), and to that
extent bears little resemblance to the rules discussed in Kontrick and
Eberhart. Second, the question in this case is whether Wilburn’s
appeal from the district court’s summary judgment order was timely.
Because the notice of appeal from that order fell outside the thirty-day
11
Although not jurisdictional, a claim-processing rule is
nonetheless mandatory and “district courts must observe the
clear limits of [time prescriptions] when they are properly
invoked.” Eberhart, 126 S. Ct. at 406. “[A] claim-processing
rule . . . can nonetheless be forfeited if the party asserting the
rule waits too long to raise the point.” Kontrick, 540 U.S. at
456; see also Day v. McDonough, 126 S. Ct. 1675, 1686 (2006)
(“We have repeatedly stated that the enactment of time-
limitation periods . . . without further elaboration, produces
defenses that are nonjurisdictional and thus subject to waiver
and forfeiture.”); Eberhart, 126 S. Ct. at 406 (“The net effect of
Robinson, viewed through the clarifying lens of Kontrick, is to
admonish [parties] that failure to object to untimely submissions
entails forfeiture of the objection . . . .”). Because we conclude
that the time limit of Rule 4(a)(4)(A)(vi) constitutes a claim-
limit, the question becomes whether Wilburn’s motion for
reconsideration tolled the thirty-day period. Tolling is governed by
Rule 4(a)(4)(A), which extends the thirty-day period via a “timely”
motion for reconsideration. See Fed. R. App. P. 4(a)(4)(A). Thus, the
underlying motion is significant only if it includes a time limit for
timely filing, which Rule 60(b) does not for the purpose of FRAP
4(a)(4)(A). See Fed. R. Civ. P. 60(b). Instead, Rule 4(a)(4)(A)(vi)
defines the timeliness of a Rule 60(b) motion—ten days—to toll an
otherwise untimely notice of appeal, see Fed. R. App. P.
4(a)(4)(A)(vi), and thereby provides a timeliness defense to a non-
moving party. Cf. Garland v. Malinich, 181 F. App’x 276, 277–78
(3d Cir. 2006) (discussing timeliness of FRCP 60(b) motion under
FRAP 4).
12
processing rule, the issue becomes whether Robinson forfeited
the right to assert it.11
A party indisputably forfeits a timeliness objection based on
a claim-processing rule if he raises the issue after the court has
issued a merits decision. In Kontrick, for example, the debtor
failed to raise a timeliness objection to his creditor’s claims until
his motion for reconsideration, see Kontrick, 540 U.S. at 451,
having made only merits arguments before the underlying
judgment was entered, id. at 449–50. The Supreme Court
considered the timeliness objection forfeited because “[n]o
reasonable construction of complaint-processing rules . . . would
allow a litigant . . . to defeat a claim, as filed too late, after the
party has litigated and lost the case on the merits.” Id. at 460;
see also Eberhart, 126 S. Ct. at 404, 407 (“[W]here the
Government failed to raise a defense of untimeliness until after
11
The dissent challenges our reading of Eberhart and resulting
conclusion that FRAP 4(a)(4)(A)(vi) is a claim-processing rule.
Dissent at 2. While there is no question that FRAP 4(a)(1)(A)’s 30-
day rule implements 28 U.S.C. § 2107(a), we do not today hold that
FRAP 4(a)(1)(A) is a claim-processing rule—instead we hold only
that FRAP 4(a)(4)(A)(vi) is. The dissent also implies that the ten-day
time limit contained in Rule 59(e) and the similar limit in Rule 60(b)
imported from FRAP 4(a)(4)(A)(vi) are jurisdictional by an attenuated
line of reasoning: (1) because 28 U.S.C. § 2107(a) is jurisdictional,
FRAP 4(a)(1)(A) must also be jurisdictional and (2) because FRAP
4(a)(1)(A) is jurisdictional, the timeliness provisions contained in
FRAP 4(a)(4)(A) must also be jurisdictional—meaning that 28 U.S.C.
§ 2107(a) renders Rule 59(e)’s ten-day period jurisdictional, at least
for the purpose of appellate tolling. See Dissent at 3–4. It is unlikely
that the Supreme Court had such jurisdictional boot-strapping in mind
when it so plainly tightened its use of the term “jurisdictional” in
relation to express time prescriptions included in the federal rules.
13
the District Court had reached the merits, it forfeited that
defense.”).
In contrast, in United States v. Robinson, 361 U.S. 220
(1960), the Supreme Court found the government’s challenge to
the defendant’s untimely filing sufficient to bar the appeal.
While the government failed to oppose the defendant’s untimely
notice of appeal in the district court, it filed a motion to dismiss
the appeal as untimely in the court of appeals. See Robinson,
361 U.S. at 220–21. Thus, the government “responded not by
contesting the merits of the appeal, but by moving to dismiss on
the basis of untimeliness.” Eberhart, 126 S. Ct. at 406. We
recently applied this precedent to permit the appellee
government to raise untimeliness as a bar to appeal for the first
time in its initial brief to us. See United States v. Singletary, 471
F.3d. 193, 195–97 (D.C. Cir. 2006). In so holding, we noted
that “no rule, order, internal procedure, or published guidance
from this court require[s] [a party] to object to the untimeliness
of [an] appeal . . . before it file[s] its initial brief,” emphasizing
the fact that the government “did not address the merits of [the]
appeal before it filed its brief setting forth its untimeliness
objection.” Id. at 196.
Unlike the Singletary appellee, Robinson did not challenge
the timeliness of Wilburn’s appeal in his initial brief to this
court. Instead, he addressed only the merits of the appeal.
Although he raised the timeliness issue in response to our order
to the parties to consider the effect of Eberhart on this appeal,
see Order (June 13, 2006), the argument comes too late.
Because Robinson failed to timely assert the timeliness defense
afforded by Rule 4(a)(4)(A)(vi), we deem Wilburn’s Rule 60(b)
motion to have tolled the period to appeal the summary
14
judgment order.12 Wilburn thus had thirty days from the district
court’s denial of her motion for reconsideration on August 4,
2005 to file a notice of appeal from the summary judgment
order, see Fed. R. App. P. 4(a)(4)(A)(vi), a requirement plainly
met by her notice of appeal filed on August 10, 2005.
Accordingly, Wilburn timely appealed the district court’s order
granting summary judgment to Robinson.
B.
We review the district court’s grant of summary judgment de
novo, see, e.g., Nat’l Ass’n of Home Builders v. Norton, 415
F.3d 8, 13 (D.C. Cir. 2005), applying the same standards as the
district court and drawing all inferences from the evidence in
favor of the non-movant. See, e.g., Shekoyan v. Sibley Int’l, 409
F.3d 414, 422–23 (D.C. Cir. 2005). We may affirm only if there
is no genuine issue as to any material fact and the moving party
is entitled to judgment as a matter of law. See Mylan Labs., Inc.
v. Thompson, 389 F.3d 1272, 1278–79 (D.C. Cir. 2004).
12
Day v. McDonough, 126 S. Ct. 1675 (2006), is not, as the dissent
suggests, inconsistent with this conclusion, see Dissent at 2–3. While
Day recognized the discretion of a district court “to consider, sua
sponte, the timeliness of a state prisoner’s habeas petition” despite the
government’s forfeiture of its timeliness argument, see Day, 126 S. Ct.
at 1684, the Supreme Court’s holding was limited to federal habeas
review, focusing on the long-standing discretion of district courts
regarding other “threshold barriers” to federal habeas review of state
court decisions, id. at 1681–82, 1684, where the “comity” interest
cautions against federal assertion of jurisdiction, id. at 1683–84.
Moreover, even if Day extends its recognition of the court’s discretion
beyond habeas review, such discretion also allows us to consider
Wilburn’s filing timely notwithstanding Robinson’s forfeiture.
15
The district court’s grant of summary judgment rested
largely upon an evidentiary ruling that was, in turn, based on its
conclusion that the District was not a party to this suit. Its
evidentiary ruling was that Wilburn’s only direct evidence of
retaliation constituted inadmissible hearsay. See Mem. Op. at
JA 34. The evidence consisted of Wilburn’s description of a
conversation she had with Graham, during which Graham
reportedly told her “‘straight up’ that the reason . . . Robinson
gave for not selecting [her] was [her] position on personnel
actions that [she] had initiated for OHR in August 2002.”
Wilburn Decl. at JA 120. This statement plainly constitutes
hearsay absent the applicability of an exemption or exception.
See Fed. R. Evid. 801(c). Whether it is admissible as an
admission of a party-opponent depends on whether or not the
District is a party. See Fed. R. Evid. 801(d)(2)(D). The district
court found Rule 801(d)(2)(D) inapplicable because Wilburn
“filed suit only against Kelvin Robinson,” not against the
District—Graham’s employer. See Mem. Op. at JA 34 (citing
Compl. ¶¶ 1, 3 at JA 281).
We believe the district court erred in its finding. Wilburn’s
complaint names Robinson as a defendant both “Individually
and [in] his Official Capacity.” See Compl. at JA 281. A
lawsuit against a government official in his official capacity is
an action against the governmental entity of which the official
is an agent. See, e.g., Kentucky v. Graham, 473 U.S. 159, 165
(1985). Given the complaint’s express reference to Robinson in
his “Official Capacity,” we conclude that the District is indeed
a party to this lawsuit, which means that Wilburn’s affidavit
testimony about her conversation with Graham is admissible
under Rule 801(d)(2)(D) as an admission of the District, a party
defendant vice Robinson in his official capacity. Consequently,
summary judgment should not have been granted on the ground
16
that Wilburn proffered no (or insufficient) evidence of
retaliation. In light of the well-settled summary judgment
standard that all evidence must be viewed in the light most
favorable to the non-moving party and all reasonable inferences
from that evidence drawn in the non-moving party’s favor, see,
e.g., Shekoyan, 409 F.3d at 422–23, Wilburn’s direct evidence
of retaliation—that is, Graham’s statement to her—precluded
summary judgment. We can, however, affirm a grant of
summary judgment on alternative grounds, if applicable. See,
e.g., Wash.-Balt. Newspaper Guild, Local 35 v. Washington
Post, 959 F.2d 288, 292 n.3 (D.C. Cir. 1992) (“We have
discretion to uphold a grant of summary judgment under a legal
theory different from that applied by the district court, resting
the affirmance on any ground that finds support in the record,
particularly one raised before the district court.” (emphasis in
original)). We therefore proceed to the merits of Wilburn’s First
Amendment claim.
III.
The speech of public employees enjoys considerable, but not
unlimited, First Amendment protection. See, e.g., O’Donnell v.
Barry, 148 F.3d 1126, 1133 (D.C. Cir. 1998). “A public official
seeking to make out a claim of retaliation in violation of her
First Amendment rights must meet a four-factor test.” Id.; see
also Hall v. Ford, 856 F.2d 255, 258 (D.C. Cir. 1988). First, the
public employee must have spoken as a citizen on a matter of
public concern. See Garcetti v. Ceballos, 126 S. Ct. 1951, 1958
(2006); Tao v. Freeh, 27 F.3d 635, 638–39 (D.C. Cir. 1994).
“Second, the court must consider whether the governmental
interest in ‘promoting the efficiency of the public services it
performs through its employees’ . . . outweighs the employee’s
interest, ‘as a citizen, in commenting upon matters of public
concern’ . . . .” O’Donnell, 148 F.3d at 1133 (quoting Pickering
17
v. Bd. of Educ., 391 U.S. 563, 568 (1968)). Third, the employee
must show that her speech was “a substantial or motivating
factor in prompting the retaliatory or punitive act.” Id. Finally,
the employee must refute the government employer’s showing,
if made, that it would have reached the same decision in the
absence of the protected speech. See id. (citing Mt. Healthy City
Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).
“The first two factors . . . are questions of law for the court to
resolve, while the latter are questions of fact ordinarily for the
jury.” Tao, 27 F.3d at 639.13
We first consider whether Wilburn spoke “as a citizen” on
a public issue in asserting that differentiation between job
applicants from inside and outside District government “violated
the Human Rights Act and the United States Constitution” and
intimating that the denial of the salaries she requested for her
two subordinates was motivated by their race and gender. See
Wilburn Decl. at JA 115; Garcetti, 126 S. Ct. at 1959–60; Mills
v. City of Evansville, 452 F.3d 646, 647 (7th Cir. 2006)
13
In moving for summary judgment below, Robinson
assumed—without conceding—that the first two factors were not in
issue, focusing instead on the evidence Wilburn proffered to support
the third factor. See Mem. Op. at JA 34. In her complaint, however,
Wilburn alleged that her salary discrimination claims were “on a
matter of public concern” and thus constituted “speech that was
entirely protected . . . under the First Amendment to the United States
Constitution.” Complaint ¶¶ 30, 31 at JA 289–90. Indeed, Wilburn’s
complaint suggests that her discrimination allegations involve matters
of particular concern to the public because exposure of discrimination
falls within her employment duties. See infra note 15. Robinson, too,
submitted evidence regarding the OHR Director’s duties, including
exposure of discrimination. See infra p. 20; JA 234.
18
(“Garcetti . . . holds that before asking whether the subject-
matter of particular speech is a topic of public concern, the court
must decide whether the plaintiff was speaking ‘as a citizen’
. . . .”). “[W]hen public employees make statements pursuant to
their official duties, the employees are not speaking as citizens
for First Amendment purposes, and the Constitution does not
insulate their communications from employer discipline.”
Garcetti, 126 S. Ct. at 1960. Garcetti involved a state deputy
district attorney, Richard Ceballos, who served as a calendar
deputy. Id. at 1955. After a defense lawyer challenged an
affidavit used to procure a search warrant, Ceballos investigated
the facts underlying that affidavit and prepared a memorandum
notifying his superiors of inaccuracies in the affidavit. Id. at
1955–56. Thereafter, Ceballos alleged, he was “reassign[ed]
from his calendar deputy position . . ., transfer[red] to another
courthouse, and deni[ed] . . . a promotion” in retaliation for
speaking up about the affidavit. Id. at 1956. “According to
Ceballos, it was not unusual for defense attorneys to ask
calendar deputies to investigate aspects of pending cases.” Id.
at 1955. The Supreme Court emphasized this fact in concluding
that Ceballos did not speak as a citizen in drafting the
memorandum and thus his memorandum and later discussions
with his supervisors did not enjoy First Amendment protection.
Instead, Ceballos investigated the affidavit and “wrote his
disposition memo because that is part of what he, as a calendar
deputy, was employed to do.” Id. at 1960. “When he went to
work and performed the tasks he was paid to perform, Ceballos
acted as a government employee. The fact that his duties
sometimes required him to speak or write does not mean his
supervisors were prohibited from evaluating his performance.”
Id. (“Official communications have official consequences
. . . .”). “When a public employee speaks pursuant to
employment responsibilities, . . . there is no relevant analogue
19
to speech by citizens who are not government employees.” Id.
at 1961. Ultimately, “[s]upervisors must ensure that their
employees’ official communications are accurate, demonstrate
sound judgment, and promote the employer’s mission,” id. at
1960, and “the First Amendment does not prohibit managerial
discipline based on an employee’s expressions made pursuant to
official responsibilities,” id. at 1961.14
In the wake of Garcetti, courts of appeals have denied First
Amendment protection to government employee speech if the
contested speech falls within the scope of the employee’s
uncontested employment responsibilities. For instance, in Battle
v. Board of Regents for Ga., 468 F.3d 755 (11th Cir. 2006), a
public employee alleging retaliation for her exposing inaccuracy
and fraud in a college’s financial aid system “admitted that she
had a clear employment duty to ensure the accuracy and
completeness of student files as well as to report any
mismanagement or fraud she encountered.” Id. at 761. The
court found the employee’s speech unprotected by the First
Amendment even though the exposure of fraud constituted an
unusual aspect of the plaintiff’s employment. Id. at 761 n.6
(“The issue in Garcetti was whether a public employee was
speaking pursuant to an official duty, not whether that duty was
part of the employee’s everyday job functions.”). In Hill v.
Borough of Kutztown, 455 F.3d 225, 242 (3d Cir. 2006), the
14
Although the Court acknowledged the importance of exposing
governmental misconduct, it noted that a “powerful network of
legislative enactments—such as whistle-blower protection laws and
labor codes—[are] available to those who seek to expose
wrongdoing.” Garcetti, 126 S. Ct. at 1962. In light of these
imperatives, the Court deemed public employees adequately protected
“apart from the First Amendment.” Id.
20
Third Circuit similarly found that the public employee’s reports
of harassment to the Borough Council lacked First Amendment
protection. Specifically, the court noted that “Hill’s complaint
states that . . . as part of his duties as Manager . . . [he] duly
reported [worker complaints].” Id. (emphasis in original).
Here, Wilburn’s allegation of discrimination in DCOP’s
refusal to approve the salaries she requested easily falls within
Wilburn’s employment responsibilities. In fact, Wilburn
described her responsibilities to include salary and hiring
matters, asserting that “D.C. regulations gave [her] authority to
handle all personnel matters in her agency,” Compl. ¶ 17 at JA
286, and suggested that exposure of discriminatory government
practices lay within her duties as “the Interim Director of the
District of Columbia’s Office of Human Rights,” Compl. ¶ 30
at JA 290.15 Moreover, the official description of the OHR
Director’s responsibilities includes “[s]ystematically
identif[ying] and eliminat[ing] discriminatory practices in
employment . . . in the District of Columbia.” Position
Description, reprinted in JA at 234; see also D.C. Code §§ 2-
1411.01(a), 2-1411.02, 2-1411.03(2)–(3) (describing authority
of OHR Director). Wilburn’s statements regarding
discrimination mirror the statements denied First Amendment
protection in Battle and Hill because they were made by public
employees expressly charged with exposing governmental
15
Wilburn’s complaint alleges that her statements were on “a
matter of public concern” because they involved “possible disparate
treatment of . . . two African American female[s] . . . and the possible
discrimination and unconstitutional application of personnel rules . . . ,
particularly when one considers that [she] was the Interim Director of
the District of Columbia’s Office of Human Rights.” Compl. ¶ 30 at
JA 289–90.
21
misconduct.16 Indeed, Wilburn was hired not only to direct
personnel matters in OHR but also to root out discrimination in
the District government and, thus, when Wilburn commented on
racial discrimination in the performance of her duties, she did
not speak as a citizen. Accordingly, the First Amendment does
not “shield[] from discipline the expressions” Wilburn made
“pursuant to [her] professional duties” and, because a public
employee cannot claim “a constitutional cause of action behind
[a] statement” made “in the course of doing his or her job,”
Wilburn cannot make out a claim of constitutional deprivation
under 42 U.S.C. § 1983. Garcetti, 126 S. Ct. at 1962 (rejecting
§ 1983 claim because plaintiff’s speech not protected by First
Amendment when uttered in performance of duty).
Because we conclude that Wilburn did not speak as a citizen,
we do not reach the remaining factors to establish a retaliation
claim. Absent protected speech, there is no cognizable
retaliation claim. We therefore affirm the district court’s grant
of summary judgment to Robinson on the alternative ground that
Wilburn has failed to “establish the existence of an element
essential to [her] case, and on which [she] will bear the burden
of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); see also Wash.-Balt. Newspaper Guild, Local 35, supra.
So ordered.
16
In contrast, in Tao the public employee spoke as a citizen on a
matter of public concern in alleging racial discrimination by the
Federal Bureau of Investigation (FBI). See Tao, 27 F.3d at 637. In
that case, the FBI employed the plaintiff as a Chinese language
translator; exposing racial discrimination in the FBI’s promotion
process fell outside her employment responsibilities. Cf. id.
(describing appellant’s duties as a translator).
BROWN, Circuit Judge, dissenting: The district court
docketed an order (“the Order”) and memorandum opinion
granting summary judgment in favor of Robinson on June 30,
2005. Wilburn filed a Rule 60 motion for reconsideration (“the
Motion”) on July 18, eleven business days after the Order was
docketed. The court denied the Motion on August 4, and
Wilburn filed a notice of appeal (“the Notice”) on August 10.
The Notice was therefore filed 41 days after the Order was
docketed. Under both 28 U.S.C. § 2107(a) and Federal Rule of
Appellate Procedure (FRAP) 4(a)(1)(A), the Notice should have
been filed within thirty days of the Order. Section 2107
provides exceptions to this time limit, but none applies here.
Similarly, FRAP 4(a)(4)(A)(vi) postpones the start of the thirty-
day window if a motion for reconsideration is filed within ten
days of entry of the order appealed from, but Wilburn did not
file the Motion within that ten-day period. Thus, if we were to
apply § 2107 and FRAP 4 strictly, we would necessarily find the
Notice untimely and dismiss the appeal.
The threshold question is whether the appeal may nonethe-
less proceed. This seemingly straightforward inquiry has, as a
result of the Supreme Court’s per curiam decision in Eberhart
v. United States, 126 S. Ct. 403 (2005), become somewhat
opaque. Before Eberhart, Wilburn’s violation of the letter of
§ 2107 and FRAP 4 would have been the end of the matter.
After Eberhart, we must decide whether these deadlines are
truly jurisdictional or rather merely claim-processing rules
subject to forfeiture, and what effect such forfeiture would have
on our jurisdiction. See Eberhart, 126 S. Ct. at 404; Kontrick v.
Ryan, 540 U.S. 443, 456 (2004). Because my view of the
jurisdictional question differs from that of my colleagues, I
respectfully dissent.
2
I
As noted, Eberhart holds various timeliness rules may be
subject to forfeiture, 126 S. Ct. at 405–06, but it does not clarify
precisely what effect forfeiture should have. The majority takes
Eberhart to mean that if a party fails to object to a late filing, the
filing is deemed timely for all purposes. I instead read Eberhart
to say that if a party fails to object to a late filing, the court may
entertain the filing, its continuing untimeliness notwithstanding.
Under my reading of Eberhart, a post-judgment motion filed
late remains late even given forfeiture of the untimeliness
defense, and therefore it does not postpone the thirty-day period
for filing an appeal, see FRAP 4(a)(4)(A). Moreover, I reach
this conclusion whether the motion is late for all purposes, or, as
here, merely late for purposes of the postponement provision in
FRAP 4(a)(4)(A)(vi).
Recent Supreme Court precedent supports this approach to
Eberhart. In Day v. McDonough, 126 S. Ct. 1675 (2006), the
Court considered the procedural effects of a one-year limitation
period on habeas corpus petitions contained in the Antiterrorism
and Effective Death Penalty Act of 1996, 110 Stat. 1214. After
Day, a habeas petition filed outside this time limit can put the
district court in three very different positions, depending on the
acts of the respondents. If the respondents actively invoke the
time limit, the court must of course give it effect. Conversely,
if the respondents actively waive the limitations defense, the
district court “would not be at liberty” to apply the rule despite
that choice. Day, 126 S. Ct. at 1684 n.11. But if the respon-
dents merely forfeit the defense without intelligently waiving it,
the district court has the option of whether to enforce the rule
and hence dismiss the petition. Id. at 1684.
Here, based on Robinson’s forfeiture of his untimeliness
defense, the majority deems Wilburn’s Motion sufficient to
3
postpone the start of the thirty-day period for filing an appeal.
But if forfeiture of the untimeliness defense rendered late filings
timely, then the district court in Day would have had no basis to
dismiss the habeas petition. Thus, to be consistent with the logic
of Day, we should reject the hypothesis that Wilburn’s Motion
postponed, under FRAP 4(a)(4)(A), the time for filing an appeal.
Courts applying Eberhart or Kontrick to time constraints
have, to date, addressed only the permissibility of late filings,
not the effect late filings would have on subsequent deadlines.
See, e.g., Huerta v. Gonzales, 443 F.3d 753 (10th Cir. 2006)
(appeal to Board of Immigration Appeals); First Ave. West
Bldg., LLC v. James (In re OneCast Media, Inc.), 439 F.3d 558
(9th Cir. 2006) (Rule 59(e) motion); Amalgamated Transit
Union Local 1309 v. Laidlaw Transit Servs., Inc., 435 F.3d 1140
(9th Cir. 2006) (petition for discretionary appeal); United States
v. Robinson, 430 F.3d 537 (2d Cir. 2005) (motion for new trial);
Brickwood Contractors, Inc. v. Datanet Eng’g, Inc., 369 F.3d
385 (4th Cir. 2004) (notice of Rule 11 motion). Such holdings
are equally valid under both readings of Eberhart and thus cast
no doubt on the reading I propose herein.
If we adopt my reading of Eberhart, application of the
timeliness rules is very simple. FRAP 4(a)(4)(A) delays official
entry of judgment only “[i]f a party timely files in the district
court any of the [listed] motions.” FRAP 4(a)(4)(A) (emphasis
added). Thus, if a plaintiff files a Rule 59(e) motion late and the
defendant does not object, the court may consider the Rule 59(e)
motion, but the motion remains untimely and hence does not
delay entry of judgment pursuant to FRAP 4(a)(4)(A). Simi-
larly, a Rule 60 motion filed outside the ten-day time limit set
forth in FRAP 4(a)(4)(A)(vi) would not postpone § 2107(a)’s
thirty-day period for filing an appeal, even if the opposing party
failed to raise a timeliness objection. This approach is thus
consistent with Moy v. Howard Univ., 843 F.2d 1504, 1506
4
(D.C. Cir. 1988) (per curiam), which calls for parallel treatment
of Rule 59(e) and Rule 60 motions for purposes of applying
FRAP 4(a).
II
Wilburn filed the Motion more than ten business days after
the Order was docketed. Therefore, the Motion does not trigger
postponement under FRAP 4(a)(4)(A), and the Order is deemed
“entered” for § 2107 purposes on June 30. As Wilburn filed the
Notice more than thirty days later, § 2107 deprives us of
jurisdiction.