“The D.C. Circuit did not use tweezers–it used a sledgehammer.”

Those words could describe more than one D.C. Circuit opinion, but they were used in a recent cert petition calling for resolution of a circuit split on whether a government employee fired for refusing to make a false statement in the course of his official duties has a cause of action under the First Amendment. The D.C. Circuit said no in Bowie v. Maddox. The Second Circuit said yes a month later in Jackler v. Byrne. Then, on a petition for rehearing, the D.C. Circuit took her sister circuit to task for contravening the Supreme Court’s holding in Garcetti v. Ceballos, 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.”

From the cert petition in Byrne v. Jackler, No. 11-517 (S. Ct. Oct. 20, 2011) (citations omitted):

The rehearing opinion [in Bowie] explained not only why Garcetti controlled the result, but also why the Second Circuit’s entire approach in Jackler is unfaithful to Garcetti and unsound legally. In analyzing the Second Circuit Jackler opinion, the D.C. Circuit did not use tweezers; it used a sledgehammer.

The D.C. Circuit’s Bowie decision creates a stark, immediate, and irreconcilable conflict with the Second Circuit’s Jackler decision. The two cases cannot be harmonized. . . .

In Jackler, the Second Circuit held that, because citizens can refuse the compulsion to give false testimony and evidence, Police Officer Jackler’s refusal to provide a compelled police incident report that he felt would be false, morphed him into Citizen Jackler, unaffected by Garcetti. Citizen Jackler, the Second Circuit found, “has a First Amendment right to decide what to say and what not to say, and accordingly the right to reject governmental efforts to require him to make statements that he believes are false.” That analysis dictated the result, giving Jackler a First Amendment retaliation claim, Garcetti notwithstanding.

Five weeks after the Second Circuit’s reversal, the D.C. Circuit in Bowie specifically examined Jackler, and explicitly rejected its holding.

Bowie claimed that he was the victim of First Amendment retaliation for failing to sign an affidavit for the employer in an EEOC investigation related to the OIG because he believed it was false. Relying on Jackler to change his result at the appellate rehearing stage, Bowie argued that, even if his refusal was made pursuant to his official duties, it was nevertheless protected by the First Amendment because a private citizen has an analogous right to refuse to submit false testimony to the EEOC. That is exactly the reasoning the Second Circuit adopted in Jackler.

The D.C. Circuit acknowledged the Garcetti Court’s line of dictum 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,’” but it did not take this to mean that, any time speech has a civilian analogue it is protected by the First Amendment. Rather, the D.C. Circuit wrote that Garcetti “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.’” “Only then is the analogy to private speech ‘relevant.’”

The D.C. Circuit flat out rejected the Second Circuit’s interpretation of Garcetti and its finding for Jackler on the facts of his case. Judge Janice Rogers Brown criticized that the Second Circuit “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.’”

The D.C. Circuit found this reasoning flawed especially since the Second Circuit agreed that “a police officer has a duty not to substitute a falsehood for the truth.” Judge Brown condemned the Second Circuit:

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.” 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. . . .

The D.C. Circuit continued to hammer the Second Circuit:

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. 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. As all of the dissenting Justices recognized, Garcetti categorically denies recovery under the First Amendment to plaintiffs who spoke pursuant to . . . official duties. . . .

It is impossible to square Jackler with Bowie; the law in two important and path-marking circuits is hopelessly split.



One response to ““The D.C. Circuit did not use tweezers–it used a sledgehammer.”

  1. Pingback: Supreme Court Could Reexamine the Scope of First Amendment Protection for Government Employees « D.C. Circuit Review

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