Opinion for the court filed by Circuit Judge HENDERSON.
Dissenting Opinion filed by Circuit Judge BROWN.
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
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 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 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.
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
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).
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).
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 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, 98 S.Ct. 556, 54 L.Ed.2d 521 (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, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004). Noting that only the Congress possesses authority to alter the subject-matter jurisdiction of the lower federal courts, id. at 452, 124 S.Ct. 906, the Court found that confusion arose because "[c]ourts . . . have been less than meticulous" in labeling certain rules jurisdictional
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, 124 S.Ct. 906 (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, 124 S.Ct. 906. 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, 124 S.Ct. 906. 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, 124 S.Ct. 906.
In Eberhart v. United States, 546 U.S. 12, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005), the Supreme Court built upon the distinction it had made in 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.
The tolling language of Rule 4(a)(4)(A)(vi) fits the Court's description of a claim-processing rule.
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, 124 S.Ct. 906; see also Day v. McDonough, 547 U.S. 198, 126 S.Ct. 1675, 1686, 164 L.Ed.2d 376 (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-processing rule, the issue becomes whether Robinson forfeited the right to assert it.
In contrast, in United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (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, 80 S.Ct. 282. 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 judgment order.
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).
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, 105 S.Ct. 3099, 87 L.Ed.2d 114 (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 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 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, ___ U.S. ___, ___, 126 S.Ct. 1951, 1958, 164 L.Ed.2d 689 (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 v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (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, 97 S.Ct. 568, 50 L.Ed.2d 471 (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.
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) ("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
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 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
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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Wash.-Balt. Newspaper Guild, Local 35, supra.
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
The threshold question is whether the appeal may nonetheless proceed. This seemingly straightforward inquiry has, as a result of the Supreme Court's per curiam decision in Eberhart v. United States, 546 U.S. 12, 126 S.Ct. 403, 163 L.Ed.2d 14 (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, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004). Because my view of the jurisdictional question differs from that of my colleagues, I respectfully dissent.
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 postjudgment 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, 547 U.S. 198, 126 S.Ct. 1675, 164 L.Ed.2d 376 (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 respondents 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 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.
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). Similarly, 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 (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).
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.