Bowie v. Maddox , 642 F.3d 1122 ( 2011 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 6, 2010 Decided August 31, 2011
No. 08-5111
DAVID M. BOWIE,
APPELLANT
v.
CHARLES C. MADDOX, INSPECTOR GENERAL, IN HIS OFFICIAL
AND INDIVIDUAL CAPACITIES, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:03-cv-00948)
On Petition for Rehearing
Before: SENTELLE, Chief Judge, BROWN, Circuit Judge,
and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge BROWN.
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BROWN, Circuit Judge: David M. Bowie, a former
official of the District of Columbia Office of the Inspector
General (“OIG”), says he was fired in retaliation for
exercising his First Amendment rights. Bowie refused to sign
an affidavit his employer drafted for him in response to a
former subordinate’s employment discrimination claim;
instead, Bowie re-wrote the affidavit in a manner critical of
OIG’s decision to terminate the subordinate. We affirmed the
district court’s grant of summary judgment in favor of OIG on
Bowie’s First Amendment retaliation claim, because Bowie’s
speech was “pursuant to his official duties.” Bowie v.
Maddox, 642 F.3d 1122, 1134 (D.C. Cir. 2011) (alteration
omitted) (quoting Garcetti v. Ceballos, 547 U.S. 410, 421
(2006)). Bowie petitioned for rehearing.
In Garcetti, the Supreme Court affirmed that “[s]o long
as employees are speaking as citizens about matters of public
concern, they must face only those speech restrictions that are
necessary for their employers to operate efficiently and
effectively.” 547 U.S. at 419. But the Court also held “that
when public employees make statements pursuant to their
official duties, the employees are not speaking as citizens for
First Amendment purposes, and the Constitution does not
insulate their communications from employer discipline.” Id.
at 421. Applying that holding to the facts, the Court
concluded that Ceballos, a deputy district attorney “did not
speak as a citizen by writing a memo [to his supervisors] that
addressed the proper disposition of a pending criminal case.”
Id. at 422. Instead, “[w]hen he went to work and performed
the tasks he was paid to perform, Ceballos acted as a
government employee.” Id. Therefore, his First Amendment
retaliation claim failed.
In Bowie’s petition for rehearing, he denies that Garcetti
bars his claim. He argues that even if the relevant speech was
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ordered by his government employer, 1 it is protected by the
First Amendment because it is analogous to the speech of
1
Bowie argues in the alternative that his speech was not
pursuant to official duties. This argument fails for reasons we have
already explained:
Bowie’s efforts to produce an affidavit were
undertaken at the direction of his employer and in
his capacity as Assistant Inspector General for
Investigations and Johnson’s superior. The first
version of the affidavit was drafted for OIG’s
convenience by a Deputy Attorney General as
counsel for OIG, and it was given to Bowie for his
signature by . . . OIG’s general counsel. Bowie
revised the affidavit on a timetable approved by the
general counsel, and then submitted it to her for
submission with . . . OIG’s position statement in
the EEOC. Bowie does not allege Defendants
stymied any personal effort to submit his affidavit
to the EEOC or to Johnson directly. Indeed, Bowie
made no such effort. His affidavit, like the draft he
refused to sign, identified him in the first paragraph
and signature block as ‘Assistant Inspector General
for Investigations.’ All the speech underlying
Bowie’s First Amendment claim occurred in his
official capacity.
Bowie, 642 F.3d at 1134.
In his petition, Bowie points out that the EEOC has
administrative subpoena power. Petition at 7; see 42 U.S.C.
§ 2000e-9; 29 U.S.C. § 161. But Bowie has never alleged that the
EEOC subpoenaed his testimony individually or that he tried to
submit his affidavit to the EEOC as a private citizen. See Petition at
14 (“Neither Johnson nor the EEOC ever asked Bowie directly for
the affidavit.”). Instead, Bowie acknowledges it was OIG that, in
response to an EEOC request addressed to OIG’s personnel
director, “sought . . . to have Bowie sign [OIG’s] version” of the
affidavit. Petition at 13. Because the EEOC never subpoenaed
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private citizens who submit testimony to the EEOC. Petition
at 8–9. The Garcetti Court did observe that “[w]hen a public
employee speaks pursuant to employment responsibilities . . .
there is no relevant analogue to speech by citizens who are
not government employees.” 547 U.S. at 424 (emphasis
added). But this statement does not mean that whenever
speech has a civilian analogue it is protected by the First
Amendment. The Court made clear that only when public
employees “make public statements outside the course of
performing their official duties” do they “retain some
possibility of First Amendment protection.” Id. at 423. Only
then is the analogy to private speech “relevant.” Id. at 424.
Bowie’s argument to the contrary finds support in a
Second Circuit opinion that issued the day after he filed his
petition for rehearing. Jackler v. Byrne, No. 10-0859, 2011
U.S. App. LEXIS 15265 (2d Cir. Jul. 22, 2011). The plaintiff
in Jackler was a probationary police officer who, pursuant to
instructions from a superior, filed a report documenting a
fellow officer’s use of excessive physical force. Id. at *7. The
chief of police and two administrative officers pressured
Jackler to withdraw his report and file a false one. Id. at *8–9.
When Jackler refused, he was fired. Id. at *9–10. The court
Bowie’s individual testimony, and Bowie never composed or
submitted any such testimony except as instructed by his employer,
the only speech at issue was pursuant to his official duties. “[T]he
government as employer is free to control the content of ‘speech
that owes its existence to a public employee’s professional
responsibilities.’” Winder v. Erste, 566 F.3d 209, 215 (D.C. Cir.
2009) (quoting Garcetti, 547 U.S. at 421). Contra Fairley v.
Andrews, 578 F.3d 518, 525 (7th Cir. 2009) (“Even if offering
(adverse) testimony is a job duty, courts rather than employers are
entitled to supervise the process. A government cannot tell its
employees what to say in court, nor can it prevent them from
testifying against it.” (citation omitted)).
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concluded Jackler’s refusal to “obey [his employer’s]
instructions . . . is not beyond the scope of the First
Amendment.” Id. at *17.
The Second Circuit reasoned that Jackler’s disobedience
was analogous to a private citizen’s lawful refusal to rescind a
true accusation, to make a false one, and to file a false police
report, and that Jackler’s conduct was therefore protected by
the First Amendment. Id. at *36, 38–39. Thus, the court
elided the question whether Jackler spoke as a citizen into its
identification of a civilian analogue for the relevant speech.
Because Jackler’s speech was analogous to that of a private
citizen, the court deduced that he “was not simply doing his
job in refusing to obey those orders.” Id. at *39 (emphasis
added). The Second Circuit did not dispute the district court’s
observation that Jackler “refused to withdraw or alter his
truthful report in the belief that the proper execution of his
duties as a police officer required no less.” Id. at *14 (quoting
Jackler v. Byrne, 708 F. Supp. 2d 319, 325 (S.D.N.Y. 2010)).
Indeed, the Second Circuit agreed that “a police officer has a
duty not to substitute a falsehood for the truth.’” Id. at *37.
Even so, the court held Jackler’s attempt to fulfill that
professional responsibility by disobeying an order to the
contrary was protected speech, because private citizens also
have a duty not to file false statements. Id. at *37–38.
The Second Circuit gets Garcetti backwards. The critical
question under Garcetti is not whether the speech at issue has
a civilian analogue, but whether it was performed “pursuant
to . . . official duties.” 547 U.S. at 421; cf. Winder v. Erste,
566 F.3d 209, 215 (D.C. Cir. 2009) (“[A]lthough testimony
before a city council might otherwise be just the sort of
citizen speech protected by the First Amendment, the
uncommonly close relationship between [the plaintiff’s]
duties and his advocacy before the council precludes
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protection.”). A test that allows a First Amendment retaliation
claim to proceed whenever the government employee can
identify a civilian analogue for his speech is about as useful
as a mosquito net made of chicken wire: All official speech,
viewed at a sufficient level of abstraction, has a civilian
analogue. Certainly the district attorney’s memo in Garcetti
was analogous in some sense to private speech—for example,
testimony or argumentation on the same subject by the
criminal defendant it concerned. Critically, though,
Ceballos’s memo was composed as part of his government
job, and the Supreme Court unambiguously “reject[ed] . . . the
notion that the First Amendment shields from discipline the
expressions employees make pursuant to their professional
duties.” Garcetti, 547 U.S. at 426.
The Second Circuit concluded that, because the police
department “could not, consistent with the First Amendment,
have forced [a civilian] to withdraw his complaint,” Jackler
“was entitled to the same constitutional protection” in
disobeying the orders of his government employer. Jackler,
2011 U.S. App. LEXIS 15265 at *37. This begs the question.
Under Garcetti, the rules are different for government
employees speaking in their official capacities. An utterance
made “pursuant to employment responsibilities” is
unprotected even if the same utterance would be protected
were the employee to communicate it “as a citizen.” Garcetti,
547 U.S. at 423, 424. As all of the dissenting justices
recognized, Garcetti “categorically” denies recovery under
the First Amendment to plaintiffs who spoke “pursuant to . . .
official duties.” Id. at 430 (Souter, J., dissenting); see also id.
at 446 (Breyer, J., dissenting) (“In a word, the majority says,
‘never.’”); id. at 426 (Stevens, J., dissenting) (“The proper
answer to the question . . . is ‘Sometimes,’ not ‘Never.’”).
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Under the circumstances, it is not difficult to sympathize
with the Second Circuit’s dubious interpretation of Garcetti.
The police chief’s instruction to Jackler and the actions he
ordered Jackler to take were clearly illegal. See Jackler, 2011
U.S. App. LEXIS 15265 at *30–34. But the illegality of a
government employer’s order does not necessarily mean the
employee has a cause of action under the First Amendment
when he contravenes that order. See Winder, 566 F.3d at 216(“Some remedy, such as a properly preserved claim under the
whistleblower protection laws, may have been available to
[the plaintiff]. But . . . the First Amendment does not provide
that remedy.”).
Because Bowie spoke as a government employee, the
district court rightly granted summary judgment in favor of
Bowie’s employer on his First Amendment retaliation claim.
Therefore, the petition for rehearing is
Denied.