Bowie v. Maddox

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.