Wilburn, Nadine C. v. Robinson, Kelvin

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.