Wilburn v. Robinson

Decision Date20 March 2007
Docket NumberNo. 05-7110.,05-7110.
Citation480 F.3d 1140
PartiesNadine Chandler WILBURN, Appellant v. Kelvin ROBINSON, Chief of Staff to Mayor Anthony Williams, Individually and his Official Capacity, et al., Appellees.
CourtU.S. Court of Appeals — District of Columbia Circuit

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.

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 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. § 1983.1

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 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 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) 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 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 and "have more than occasionally used the term `jurisdictional' to describe emphatic time prescriptions in rules of court," id. at 454, 124 S.Ct. 906.

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....

To continue reading

Request your trial
120 cases
  • Coulibaly v. Kerry, Civil Action No.: 14-0189 (RC)
    • United States
    • U.S. District Court — District of Columbia
    • 30 Septiembre 2016
    ..."as a citizen on a matter of public concern," Bowie v. Maddox , 642 F.3d 1122, 1133 (D.C. Cir. 2011) (quoting Wilburn v. Robinson , 480 F.3d 1140, 1149 (D.C. Cir. 2007). See generally Garcetti , 547 U.S. at 417, 126 S.Ct. 1951 ("[T]he First Amendment protects a public employee's right, in c......
  • Gates v. Dist. of Columbia
    • United States
    • U.S. District Court — District of Columbia
    • 29 Agosto 2014
    ...that would be admissible at trial.” America v. Mills, 654 F.Supp.2d 28, 36 (D.D.C.2009) (emphasis added) (citing Wilburn v. Robinson, 480 F.3d 1140, 1143 n. 2 (D.C.Cir.2007) ; Richards v. Option One Mortg. Corp., Civil Action No. 08–0007(PLF), 2009 WL 2751831, at *1–2 n. 3 (D.D.C. Aug. 28, ......
  • Dahlia v. Rodriguez
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 21 Agosto 2013
    ...behavior” as unprotected speech and comments on, e.g., “staffing levels” at the school as protected speech); Wilburn v. Robinson, 480 F.3d 1140, 1150–51 (D.C.Cir.2007) (conducting factual inquiry into nature of plaintiff's particular professional responsibilities). Since Posey, the Fourth C......
  • Bowyer v. District of Columbia
    • United States
    • U.S. District Court — District of Columbia
    • 20 Diciembre 2012
    ...Rights “The speech of public employees enjoys considerable, but not unlimited, First Amendment protection.” Wilburn v. Robinson, 480 F.3d 1140, 1149 (D.C.Cir.2007). Public employees seeking to make out a claim for retaliation in violation of their First Amendment rights must satisfy four el......
  • Request a trial to view additional results
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT