Listenbee v. City of Milwaukee
| Decision Date | 28 September 1992 |
| Docket Number | No. 91-2097,91-2097 |
| Parties | , 7 IER Cases 1382 Dorothy J. LISTENBEE, Plaintiff-Appellant, v. CITY OF MILWAUKEE and Milwaukee City Service Commission, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Arthur Heitzer, Kurt C. Kobelt (argued), Previant, Goldberg, Uelman, Gratz, Miller & Brueggeman, Milwaukee, Wis., for plaintiff-appellant.
Grant F. Langley, Rudolph M. Konrad (argued), Mary M. Rukavina, Office of the City Atty., Milwaukee, Wis., defendants-appellees.
Before CUMMINGS and EASTERBROOK, Circuit Judges, and SHADUR, District Judge. *
Dorothy J. Listenbee, a personnel analyst in the classified service of the City of Milwaukee, was suspended without pay for a period of ten days during July of 1987. Listenbee requested a hearing from the Milwaukee City Service Commission ("the Commission"), the administrative agency responsible for resolving personnel disputes involving City of Milwaukee civil service employees. The Commission advised Listenbee that under Wis.Stat. § 63.43, it would not afford her a hearing since she had been suspended for a period of less than fifteen days and since she had not been previously suspended within the preceding six months.
Listenbee filed suit against the City of Milwaukee and the Commission pursuant to 42 U.S.C. § 1983. Although Listenbee agrees that her suspension lasted for less than fifteen days and that neither of her previous suspensions had occurred within the preceding six months, she nonetheless claims that she possesses a right to a hearing by the Commission under the Due Process Clause of the United States Constitution. For the deprivation of this alleged right, Listenbee seeks compensatory and punitive damages including lost pay, benefits, and attorney's fees. She also seeks injunctive relief requiring the Commission to provide evidentiary hearings to future suspended employees.
Senior District Judge John Reynolds held that Listenbee did not have a property interest in continuous employment, and that she therefore had no right to a hearing regarding her suspension. He dismissed the case pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. The court entered this judgment for the defendants on February 19, 1991.
Due to some apparent communication failure, the plaintiff's attorney stated, by way of an affidavit, that he did not learn of the judgment until April 10, 1991. Thus on April 11, 1991, at the plaintiff's request, the district court granted plaintiff an extension of time in which to file her notice of appeal. That court permitted a 30-day extension of time under Fed.R.App.P. 4(a)(5). Plaintiff filed a formal notice of appeal on May 10, 1991, one day preceding the May 11, 1991, deadline set by the court.
Rule 4(a)(1) of the Federal Rules of Appellate Procedure requires that notice of appeal in a civil case be filed in the district court within thirty days of the entry of the judgment being appealed. In this case, plaintiff did not file her notice of appeal within the thirty days provided for appeals as of right because she had not received notice that the district court's judgment had been entered against her. Current Rule 4(a)(6) of the Federal Rules of Appellate Procedure explicitly provides for a situation in which a party does not receive notice of a judgment. However, the pertinent portion of that rule was only recently added. At the time of this case, Rule 4(a)(5) governed such situations.
Under Rule 4(a)(5), the district court may extend the date required for filing a notice of appeal "upon a showing of excusable neglect or good cause," as long as a motion to extend the filing date is made within sixty days of the entry of judgment. Here Listenbee requested an extension of time on April 11, more than thirty but less than sixty days after the judgment was entered. On April 15, the district court granted plaintiff's timely filed motion and told plaintiff that it had granted her an additional thirty days in which to file her notice of appeal--until May 11, 1991. Plaintiff complied with that deadline by filing her formal notice of appeal on May 10, 1991.
However, under Rule 4(a)(5), the district court should only have extended plaintiff's filing deadline until April 25, 1991, not May 10, 1991. The Rule itself states:
The district court, upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time prescribed by this Rule 4(a). Any such motion which is filed before expiration of the prescribed time may be ex parte unless the court otherwise requires. Notice of any such motion which is filed after expiration of the prescribed time shall be given to the other parties in accordance with local rules. No such extension shall exceed 30 days past such prescribed time or 10 days from the date of entry of the order granting the motion, whichever occurs later (emphasis added).
It appears that the district court read "30 days past such prescribed time" to mean thirty days past the filing of a motion to extend the time for filing a notice of appeal, rather than as thirty days past the more limited thirty-day time period for filing appeals as of right. Such a reading, though incorrect, is understandable due to the awkward wording of the rule. This Court has noted that the time limits in Rule 4(a)(5) "have often tripped up experienced federal practitioners." Bernstein v. Lind-Waldock & Co., 738 F.2d 179, 183 (1984).
Plaintiff contends that because she relied on the district court's extension until May 11, 1991, and would otherwise have timely filed her notice of appeal before April 25, 1991, her May 10 notice of appeal should be considered timely filed. This Circuit, as well as the Supreme Court, has recognized a limited exception to filing requirements where the litigant relied on a district court's error. See, e.g., Bernstein, 738 F.2d at 182-183; Thompson v. INS, 375 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404. But we need not confront the thorny questions posed by that doctrine, which has divided this Court before, Varhol v. National R.R. Passenger Corp., 909 F.2d 1557 (7th Cir.1990) (en banc), since a recent Supreme Court case permits jurisdiction on other grounds.
In Smith v. Barry, --- U.S. ----, ----, 112 S.Ct. 678, 682, 116 L.Ed.2d 678, the Supreme Court held that "[i]f a document filed within the time specified by Rule 4 gives the notice required by Rule 3, it is effective as a notice of appeal." Smith rejected a formalistic approach to determining what constitutes a notice of appeal and instead opted for a liberal construction of the requirements of Rule 3. Thus the Court decided that an inmate's informal pro se brief could act as the functional equivalent of a notice of appeal as long as it conveyed information adequate to afford notice to the other party. Id. (citing Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285).
In this case, plaintiff's April 11 motion for an extension of time, filed within the time constraints of an approved Rule 4(a)(5) motion, qualifies as a notice of appeal under Smith. That April 11 motion specified the party taking the appeal, the order appealed from, and the court in which the appeal was to be taken. Moreover, the defendant was served with a copy of the filing, and the motion was succeeded by a subsequent formal notice of appeal. Therefore, we conclude that the motion requesting an extension of time in which to file an appeal notified the defendants of plaintiff's intent to appeal the judgment, and consequently was a document which acted as a notice of appeal under the reasoning of Smith.
Listenbee claims that the City of Milwaukee's decision to suspend her for ten days without a pre- or post-termination hearing deprived her of her constitutional right to due process of law. As the Supreme Court stated in Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494, a court confronting a procedural due process question must make two separate inquiries. First, the court determines whether the plaintiff possesses a protected life, liberty or property interest as a matter of substantive law. If that first inquiry yields an affirmative response, the court proceeds with a second inquiry--what process is due before the plaintiff can be deprived of that protected entitlement? Thus we first determine the nature of Listenbee's interest.
A. Property Interest
The existence of a substantive property interest in state employment is ordinarily a question of state law. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548. 1 When called upon to decide the question whether an employee possesses a state law property interest in employment, Wisconsin courts have generally resolved the matter by providing a simple yes or no answer based on whether the employment is at-will or for cause. For example, in Vorwald v. School Dist. of River Falls, 167 Wis.2d 549, 482 N.W.2d 93 (1992), the Wisconsin Supreme Court held that because a school custodian was an at-will employee, he had no property interest in his continued employment. The Vorwald court stated that Accordingly, Wisconsin courts have also held that "[t]he rights of an employee terminable only for cause are considered property rights." Dane County v. McCartney,...
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