Judges: Easterbrook
Filed: Aug. 03, 2020
Latest Update: Aug. 03, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ Nos. 19-2534 & 19-3269 DENEAN ADAMS, Plaintiff-Appellee, Cross-Appellant, v. BOARD OF EDUCATION OF HARVEY SCHOOL DISTRICT 152, et al., Defendants-Appellants, Cross-Appellees. _ Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 15 CV 8144 — Sharon Johnson Coleman, Judge. _ ARGUED JUNE 4, 2020 — DECIDED AUGUST 3, 2020 _ Before SYKES, Chief Judge, and EASTERBROOK and BARRETT, Cir
Summary: In the United States Court of Appeals For the Seventh Circuit _ Nos. 19-2534 & 19-3269 DENEAN ADAMS, Plaintiff-Appellee, Cross-Appellant, v. BOARD OF EDUCATION OF HARVEY SCHOOL DISTRICT 152, et al., Defendants-Appellants, Cross-Appellees. _ Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 15 CV 8144 — Sharon Johnson Coleman, Judge. _ ARGUED JUNE 4, 2020 — DECIDED AUGUST 3, 2020 _ Before SYKES, Chief Judge, and EASTERBROOK and BARRETT, Circ..
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 19-2534 & 19-3269
DENEAN ADAMS,
Plaintiff-Appellee, Cross-Appellant,
v.
BOARD OF EDUCATION OF HARVEY SCHOOL DISTRICT 152, et al.,
Defendants-Appellants, Cross-Appellees.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15 CV 8144 — Sharon Johnson Coleman, Judge.
____________________
ARGUED JUNE 4, 2020 — DECIDED AUGUST 3, 2020
____________________
Before SYKES, Chief Judge, and EASTERBROOK and BARRETT,
Circuit Judges.
EASTERBROOK, Circuit Judge. Denean Adams was superin-
tendent of the Harvey, Illinois, public schools from July 2013
through June 2016. Her tenure ended unhappily: in July 2015
the Board of Education revoked an offer to extend her three-
year contract; later that educational year it blocked her email
account and tried to pretend that she did not exist. Indeed,
the Board told state education officials in spring 2016 that
2 Nos. 19-2534 & 19-3269
she was no longer superintendent. These and related events
put her under a lot of stress. She took medical leave in
March 2016 and never returned to work. But she did file this
suit under 42 U.S.C. §1983. A jury awarded $400,000 in dam-
ages after concluding that the Board and its members had
violated the First Amendment (applied to the states through
the Fourteenth). The district court declined to set aside that
award, see
2019 U.S. Dist. LEXIS 117428 (N.D. Ill. July 15,
2019), and added about $190,000 in aiorneys’ fees. 2019 U.S.
Dist. LEXIS 122282 (N.D. Ill. July 23, 2019). Both sides have
appealed.
Adams’s problems began in spring 2015, when she asked
the Board to approve a forensic audit of the District’s ex-
penditures. The Board allowed Adams to ask auditing firms
to propose the scope and cost of work (this is called a “re-
quest for proposals” in government procurement). But the
afternoon of July 9, after Adams submiied the paperwork to
the Board, member Tyrone Rogers called her on her District-
issued cell phone and said that she was “itching for an ass-
kicking”. (So Adams testified, and given the jury’s verdict
we must accept her account.) Someone called the police, and
a detective met with Adams in her office on July 10 to dis-
cuss the report. Adams discussed the subject with the
Board’s president and later filed a formal complaint with the
police. (The parties disagree about how the subject initially
came to the aiention of the police.) Janet Rogers, another
member of the Board (and Tyrone’s wife), also came to Ad-
ams’s office on July 10 and stated that she had some con-
cerns about Adams’s performance as superintendent. By the
Board’s July 22 meeting relations between Adams and the
Board had soured and a contract extension was off the table.
In December 2015 Adams suspended the District’s business
Nos. 19-2534 & 19-3269 3
manager for financial irregularities. That was apparently the
last straw. Later that month the Board served Adams with a
notice that her contract would not be renewed and, though it
did not fire her, began to bypass her whenever possible.
Adams asks us to dismiss the Board’s appeal for lack of
jurisdiction. The judgment was entered on November 6,
2018, and on December 4 the Board filed a motion seeking
relief under Fed. R. Civ. P. 50 and 59. (The Board filed two
documents, one captioned with each rule, but this was effec-
tively one motion relying on two rules, and the district court
so treated it.) The district court denied the motion on July 15,
2019, and the Board appealed on August 8. No problem so
far. But Adams contends that the December 4 motion re-
hashed arguments that the Board had made, and the district
judge had rejected, earlier. That makes it equivalent to a se-
quential post-judgment motion, according to Adams—and
because only one post-judgment motion extends the time for
appeal under Fed. R. App. P. 4(a)(4)(A), see Charles v. Daley,
799 F.2d 343 (7th Cir. 1986), Adams contends that the appeal
of August 8 is late and must be dismissed.
This argument misunderstands the point of decisions
such as Charles, which dealt with successive post-judgment
motions. The Board is not seeking multiple delays of the
time to appeal. That another Rule 50 motion had been filed
and denied before the entry of final judgment does not affect
the calculation of time under Rule 4(a)(4), which deals with
post-judgment motions. A motion to reconsider under Rule
59 is—well, there’s no beier name than a motion to reconsid-
er. A litigant is entitled to ask a court to change decisions
that influenced the judgment. It is new arguments that get a
litigant into trouble, for those have been waived or forfeited;
4 Nos. 19-2534 & 19-3269
repeating old arguments is a standard practice, part of what
the Supreme Court recently called a unitary process to pro-
duce one complete and correct adjudication. Banister v. Da-
vis,
140 S. Ct. 1698 (2020). That a given district judge tele-
graphed a disposition to deny such a post-judgment motion
does not affect appellate jurisdiction; litigants are entitled to
ask judges to change their minds.
The Board’s principal argument on the merits is that a
report to the police is a personal grievance, not a maier of
public concern, and therefore falls outside the scope of the
First Amendment. That personal grievances are the subject
of state law (torts and contracts) rather than the First
Amendment is well established. See, e.g., Connick v. Myers,
461 U.S. 138 (1983); Pickering v. Board of Education,
391 U.S.
563 (1968). Yet the district court did not rule otherwise.
Suppose we look at the police report in isolation. This
was not a straightforward report of crime—for example, no-
tice of a burglary or robbery. It was a report by the superin-
tendent of a school district that she had been threatened
with violence by a member of the school board. The mem-
bers are elected officials, whose constituents could be influ-
enced by news that one of their representatives proposed to
substitute violence for the normal process of voting. And a
potential for physical altercations between public officials
(the superintendent and an elected member) implies that an
important public institution was not working properly. This
is a legitimate subject of public concern. Cf. Chrzanowski v.
Bianchi,
725 F.3d 734 (7th Cir. 2013) (testimony in a civil or
criminal case, or grand jury investigation, is protected
speech).
Nos. 19-2534 & 19-3269 5
More: it would be a mistake to look at the police report in
isolation. The problem began when Adams proposed a fo-
rensic audit, as Adams told the police. The very idea of such
an audit seems to have unseiled at least one member of the
Board, who wanted the audit’s proponent gone (or the pro-
posal withdrawn) before anyone could delve deeply into the
school district’s finances. This led to a dispute about the su-
perintendent’s tenure and to what a reasonable observer
could understand as the superintendent’s constructive dis-
charge before her contractual term ended. All of these are
subjects of public interest. When the superintendent sus-
pended the business manager, the gap between superinten-
dent and Board became unbridgeable. Parents and others
who vote for members of school boards need to know how
their institutions are working. The police report, and the
controversy within the Board more generally, readily could
have affected the outcome of elections as well as the daily
management of the school system.
The link between the potential audit and the threat was
reported to the police. If this means that Adams had a mixed
motive—personal in part and professional in part—that does
not render her speech unprotected. See, e.g., Kristofek v. Or-
land Hills,
712 F.3d 979, 984 (7th Cir. 2013). It is not enough
that the public have some interest—many a newspaper has
been sold by exposing private maiers to an inquisitive pub-
lic. Instead the question is whether the speech concerns pub-
lic affairs as Connick understands the public/private distinc-
tion. That the detective recalls the report differently from
Adams does not take it outside the scope of the First
Amendment. They agree that the report mentioned the audit
as well as the threat; that’s enough to put her speech on the
public-concern side of Connick’s line.
6 Nos. 19-2534 & 19-3269
The best contrary argument for the Board is not that the
public is unconcerned about such maiers, but that every-
thing (except the police report) concerned the litigants’ offi-
cial duties. GarceFi v. Ceballos,
547 U.S. 410 (2006), holds that
the First Amendment does not regulate how public employ-
ers manage their workforces, even when that management
involves telling others what to say or avoid saying. Words
said, or omiied, as part of official duties are the subject of
state rather than federal law under Ceballos. Almost every-
thing that happened in this dispute is on-the-job speech
within the scope of the superintendent’s and members’ du-
ties. But the Board did not press in the district court any ar-
gument under Ceballos, and its opening brief on appeal does
not even cite that decision. The Board’s reply brief does rely
on it, but that’s too late. Litigants must present their argu-
ments in their opening briefs, so that the other side can re-
ply. We put Ceballos to one side.
Our conclusion that Adams’s speech is within the scope
of the First Amendment means that the evidence presented a
jury question about whether her statements caused the end
of her employment. The record permiied a reasonable jury
to find that they did. Likewise a reasonable jury could con-
clude that an ordinary employee in Adams’s position would
be deterred from speaking by the prospect of losing her job.
The Board’s other arguments are feeble. It contends, for
example, that Adams lacks a good claim because the pro-
posal to extend her contract through June 2017 was properly
rescinded (or never properly made in the first place). But the
jury did not award damages under a contract theory, nor did
the district judge permit the jury to consider Adams’s con-
tention (under the Due Process Clause of the Fourteenth
Nos. 19-2534 & 19-3269 7
Amendment) that the Board should have offered a hearing
before rescinding the proposed contract extension. The jury
was permiied to consider the possibility that Adams would
have remained on the job longer had she kept silent, but that
concerns damages on her First Amendment theory. Damages
for a violation of the First Amendment are not limited by the
duration of contracts.
The Board also asserts that the award of $400,000 is ex-
cessive, but our standard of review is highly deferential to
the jury’s evaluation. The district judge explained why this
award is similar to those in other, comparable cases. No
more need be said.
This brings us to Adams’s cross-appeal, which concerns
the award of aiorneys’ fees under 42 U.S.C. §1988. The dis-
trict court determined the number of hours that counsel
properly devoted to the claims on which Adams prevailed
(she lost on several claims against all defendants and lost
outright against some defendants) and multiplied this by the
hourly rate for the services of Jerome M. Davis, who repre-
sented her. Davis told the judge that he has charged some
paying clients as much as $265 per hour, but he asked for
what he called an “enhancement” to $550 to reflect the risk
of loss. Multiplying $550 by the number of hours Davis said
he devoted to the case produced roughly $550,000. The
judge awarded some $190,000, derived from multiplying
$265 per hour by a smaller base of compensable hours. Ad-
ams contends in the cross-appeal that Davis should have re-
ceived credit for more hours and a rate of at least $385 per
hour, plus a 25% bonus, for a total of roughly $485,000.
Only a few words are necessary to dispose of this out-
landish request—outlandish because the request for two en-
8 Nos. 19-2534 & 19-3269
hancements (a higher hourly rate and a bonus) contradicts
the Supreme Court’s ruling that enhancements are not per-
miied under fee-shifting statutes. See Burlington v. Dague,
505 U.S. 557 (1992). They may be appropriate in common-
fund cases, in which the fee comes out of the prevailing
side’s winnings, but are forbidden when the defendant pays.
The district court thought it a stretch to award even $265 per
hour, given the weakness of the evidence supporting that
rate for Davis’s time; the judge did not abuse her discretion
or commit a legal error in declining to award more. Nor did
the judge abuse her discretion or make a clearly erroneous
finding in counting the number of hours reasonably devoted
to pursuing the claims on which Adams prevailed.
AFFIRMED