Wednesday, August 31, 2011
A three-judge panel of the D.C. Circuit today denied a petition for rehearing of a public employee who claimed he was fired in retaliation for exercising his First Amendment free speech rights. The panel ruled that the employee's speech was not covered by the First Amendment, because it wasn't "pursuant to his official duties." The ruling puts the D.C. Circuit in tension with a recent Second Circuit ruling that would protect similar speech.
The D.C. case, Bowie v. Maddox, arose when Bowie, an employee of the D.C. Office of the Inspector General, refused to sign an affidavit drafted for him in response to a former subordinate's employment discrimination claim against the Office. Bowie instead rewrote the affidavit in a manner critical of the Office's decision to fire the employee. In response, Bowie was fired. The D.C. Circuit previously ruled that Bowie's speech was pursuant to his official duties and therefore, under Garcetti v. Ceballos, not protected by the First Amendment.
But the day after Bowie filed a petition for rehearing, the Second Circuit ruled in Jackler v. Byrne that similar speech by a public employee was protected by the First Amendment. (We previously posted on Jackler here.) In Jackler, the employee, Jackler, filed a report documenting another officer's use of excessive force. The chief of police and two administrative officers pressured Jackler to withdraw his report and file a false one. Jackler refused, and he was fired. The Second Circuit ruled that Jackler had a strong First Amendment interest in his refusal to file a dishonest report.
The D.C. Circuit panel saw it differently. The panel said that the Second Circuit got Garcetti wrong. It wrote that the Second Circuit erroneously ruled that Jackler's refusal was protected because it had a civilian analogue--a private citizen's right to refuse to file a false police report. Instead, the D.C. panel ruled, Garcetti asks whether the speech was pursuant to an employee's official duties. The panel affirmed that Bowie's speech was.
(In fact, the Second Circuit ruled first that Jackler's non-speech was on a matter of public concern (an officer's use of excessive force) and only second that Jackler's non-speech had a civilian analogue. Jackler at 21-22. The Second Circuit also distinguished Garcetti--which held that a deputy DA had no First Amendment interest in a memorandum he wrote as part of his official duties--because there was no pressure in that case to falsify anything. "In the context of the demands that Jackler retract his truthful statements and make statements that were false, we conclude that his refusals to accede to those demands constituted speech activity that was significantly different from the mere filing of his initial Report." Jackler at 23-24.)
The ruling puts the two circuits in tension on the application of Garcetti to a public employee's refusal to provide false statements in the course of their official duties. For D.C., Garcetti means that any speech within a public employee's official duties is unprotected, even if it has a civilian analogue; for the Second Circuit, a public employee's refusal to file a false report on officers' use of excessive force is protected, because it is a matter of public concern and because it has a civilian analogue.