Kayser v. Sacramento City Unified School Dist.

• Decision Date: 07 February 2001
• Docket Number: No. 99-17562,99-17562
• Citation: 238 F.3d 1132
• Parties: (9th Cir. 2001) LILY KEYSER; MARIA SOFIA ROBLEDO; RICHARD M. CISNEROS, Plaintiffs-Appellants, v. SACRAMENTO CITY UNIFIED SCHOOL DISTRICT, a public entity; and JAMES SWEENEY, Defendants-Appellees
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1132

238 F.3d 1132 (9th Cir. 2001)

LILY KEYSER; MARIA SOFIA ROBLEDO; RICHARD M. CISNEROS, Plaintiffs-Appellants, v. SACRAMENTO CITY UNIFIED SCHOOL DISTRICT, a public entity; and JAMES SWEENEY, Defendants-Appellees.

No. 99-17562

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted October 31, 2000

Filed February 7, 2001

NOTE: SEE AMENDED OPINION AT 265 F.3d 741.

[Copyrighted Material Omitted] Matthew J. Smith, Wilke, Fleury, Hoffelt, Gould & Birney, Sacramento, California, for the plaintiffs-appellants.

Michael W. Pott, Porter, Scott, Weiberg & Delehant, Sacramento, California, for the defendants-appellees.

Appeal from the United States District Court for the Eastern District of California Garland E. Burrell, Jr., District Judge, Presiding. D.C. No.CV-97-02002-GEB

Before: Betty B. Fletcher, Diarmuid F. O'Scannlain, and Ronald M. Gould, Circuit Judges.

Opinion by Judge O'Scannlain; Dissent by Judge B. Fletcher

O'SCANNLAIN, Circuit Judge:

We must decide whether a public employee has qualified immunity from suit for allegedly retaliating against subordinates who accused him of illegally using federal money.

I

The Sacramento City Unified School District ("District") has a total kindergarten through twelfth grade enrollment of approximately 50,000 students. Defendant Jim Sweeney was hired by the District in August 1994 as Deputy Superintendent of the District. As Deputy Superintendent, he supervised thirteen high level administrators who comprised the Deputy Superintendent's Cabinet. Until July 1997, among these thirteen administrators were plaintiffs Lily Keyser, who served as Administrator, Consolidated Programs, and Maria Sofia Robledo, who served as Administrator, Curriculum. The third plaintiff, Richard Cisneros, served until July 1997 as Administrator, Employee Relations.

In January 1995, Sweeney conducted mid-year formative evaluations with each of the Cabinet members under his supervision. Several administrators, including Keyser and Robledo, believed the evaluations violated District policy.

In February 1995, Keyser, Robledo, and Cisneros met with three then-members of the District's Board of Trustees ("Board"), Ida Russell, Mary Wimberly, and Louise Perez, to complain about Sweeney's evaluation practices. Keyser, Robledo, and Cisneros also charged Sweeney and two other administrators with spending federal Title I money to pay for consultants and other personnel in violation of federal guidelines on the use of the money. On February 13, 1995, Robledo and Keyser met with then-Board member Gasper Garcia to complain again about the misuse of federal money. Garcia stated in his declaration that he told Sweeney about these complaints. Several Board members also questioned Sweeney about his evaluation practices. Sweeney denies learning about the complaints regarding his evaluation practices and his alleged misuse of funds until Keyser, Robledo, and Cisneros filed this lawsuit.

On March 3, 1995, Sweeney recommended to the Superintendent that Keyser be reassigned. Although the reassignment was approved by the Board, Keyser kept her position because the personnel office gave her improper notice of the reassignment. Also in March 1995, Robledo, Keyser, and several other administrators formed the Sacramento City Schools Management Association ("Association") and hired an attorney to complain to the Board about the evaluation practices. Two letters were sent to the Board on behalf of the Association.

Between November 1995 and February 1996, Sweeney was elevated from Deputy Superintendent to Acting Superintendent. In February 1996, he resumed his position as Deputy Superintendent. In November 1996, an election replaced three members of the Board with an allegedly pro-Sweeney slate. After the election, but prior to the time at which the new members took office, the Board unanimously voted to call for a federal investigation into Sweeney's alleged misuse of federal money.

In February 1997, Sweeney was elevated to Interim Superintendent. Around this time the Board commissioned an outside consultant, Vogel & Associates, to prepare an organizational study of the administration of the District.

In March 1997, Sweeney instructed Keyser and Robledo to refocus their efforts on tasks that ranked as higher priorities for the District. Shortly thereafter, Vogel & Associates issued its report to Sweeney and recommended that several existing administrative positions be eliminated and that a new organizational structure be created. Upon receiving this report, Sweeney decided to recommend to the Board that it adopt the new administrative structure. In addition, Sweeney recommended to the Board who among then-existing administrators should occupy the positions in the new structure, and who should be demoted to other positions. Sweeney recommended to the Board that Keyser and Robledo be among those administrators who were demoted, with Keyser demoted to a teaching position and Robledo demoted to a position as a principal. In addition, Sweeney recommended that Cisneros occupy a position in the new administrative structure, suggesting that he serve as Director, Employee Relations. The Board adopted all of these recommendations.

Keyser, Robledo, and Cisneros filed a complaint in federal district court on October 23, 1997. Among other things, they alleged 1) that Sweeney violated 42 U.S.C. 1983 by depriving them of Equal Protection because he demoted them in retaliation for joining the Association, and 2) that Sweeney violated 42 U.S.C. 1983 by depriving them of their First Amendment rights because he demoted them in retaliation for alerting the Board to his alleged misuse of federal money. On October 27, 1999, the district court granted summary judgment in favor of Sweeney on these two claims. First, the district court concluded that Sweeney did not know that Keyser, Robledo, and Cisneros were members of the Association and therefore could not have retaliated against them for joining it. Second, the district court concluded that Sweeney was entitled to qualified immunity because it was not clearly established that it was illegal to retaliate against Keyser, Robledo, and Cisneros for bringing charges of misuse of public funds to light.

On November 29, 1999, thirty-three days after the district court's judgment, Keyser, Robledo, and Cisneros filed their notice of appeal.

II

The first issue we must confront is a jurisdictional one: whether the notice of appeal was timely filed. Under Federal Rule of Appellate Procedure 4(a)(1)(A), a notice of appeal must be filed within thirty days of entry of the judgment from which the appeal would be taken. In this case, the judgment was entered on October 27, 1999. The thirtieth day was Friday, November 26, 1999, which was the day after Thanksgiving. The notice of appeal was not filed until Monday, November 29, 1999. Thus, the notice of appeal is timely only if the time for filing was extended three days.

The key determination in this regard is whether the time for filing was extended beyond the day after Thanksgiving, November 26, 1999.¹ The Federal Rules of Appellate Procedure state the following rule for the purposes of computing the time for filing under Rule 4: "Include the last day of the period unless it is . . . a day on which the weather or other conditions make the clerk's office inaccessible. " Fed. R. App. P. 26(a)(3). In this case, it is undisputed that the Clerk's Office was officially closed on November 26. Regardless of whether the day after Thanksgiving counts as a legal holiday in California, the fact that the Clerk's Office was closed was sufficient to make it "inaccessible" within in the meaning of Rule 26. See Latham v. Dominick's Finer Foods , 149 F.3d 673, 674 (7th Cir. 1998) (holding that, where Chief Judge closed the clerk's office even though it was not a holiday, "Rule 6(a) (and its counterpart appellate rule Fed. R. App. P. 26(a) . . . ) should be read to exclude any day on which the district court is either officially closed . . . , as here, or (as also here) inaccessible as a practical matter without heroic measures"). This conclusion is not altered by the fact that the Clerk's Office made available an after-hours "drop box" in which Keyser, Robledo, and Cisneros could have left their notice of appeal. See Telephone and Data Sys., Inc. v. Amcell F Atlantic City, Inc., 20 F.3d 501, 502 (D.C. Cir. 1994) ("We reject appellees' contention that the clerk's office was not `inaccessible' because it was physically possible to file papers in the district court's 24-hour `drop box.' "). Thus, we hold that the notice of appeal was timely filed.

III

With respect to the merits, Keyser, Robledo, and Cisneros challenge the conclusion that Sweeney has qualified immunity from suit due to the fact that it was not clearly established in 1997 that it is illegal to retaliate against a public employee for exposing his employer's alleged illegal use of federal funds.

In order to show that Sweeney was not entitled to qualified immunity on their retaliation claims, Keyser, Robledo, and Cisneros must show that two things were clearly established in 1997: 1) that their speech involved a matter of public concern, and 2) that the interests served by allowing them to express themselves outweighed the state's interest in promoting workplace efficiency and avoiding workplace disruption. Brewster v. Board of Educ., 149 F.3d 971, 978 (9th Cir. 1998). This balancing test between free speech and workplace disruption was first announced in Pickering v. Board of Edu-cation, 391 U.S. 563, 568 (1968).

There is no dispute that Keyser, Robledo, and Cisneros can make the first showing. "Courts have . . . identified the misuse of public funds, wastefulness, and inefficiency in managing and operating government entities as matters of public concern." Roth v. Veteran's Admin., 856 F.2d 1401, 1405 (9th Cir. 1988) (emphasis added).

Moreover, we hold that they can make...