Supreme Court Rejects David Bowie

The Supreme Court rejected two petitions for certiorari on Monday, refusing to resolve an inter-circuit dispute over government employees' free speech rights. Appellants in both the D.C. and Second Circuit Courts of Appeals had asked the Court to clarify its 2006 Garcetti v. Ceballos decision that government employees are not protected by the First Amendment for statements made in their official capacity.

The two denied petitions were David Bowie v. Maddox and Jackler v. Byrne. And no, it's not that David Bowie.

In David Bowie v. Maddox, David M. Bowie, a former official of the District of Columbia Office of the Inspector General (OIG), claimed he was fired in retaliation for exercising his free speech 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 fire the subordinate in question.

The D.C. Circuit Court of Appeals affirmed summary judgment in favor of OIG on Bowie's First Amendment retaliation claim, because Bowie's speech was "pursuant to his official duties" under Garcetti.

In Jackler v. Byrne, a police officer claimed that he was fired for refusing to retract a truthful report and make false statements to conceal a colleague's use of excessive force. 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; therefore Jackler's conduct was therefore protected by the First Amendment.

In Bowie, the D.C. Circuit refused to apply the Second Circuit's earlier Jackler decision, finding that the Second Circuit got Garcetti "backwards," and that the critical question under Garcetti was not whether the speech at issue has a civilian analogue, but whether it was performed "pursuant to ... official duties."

We're surprised that the Supreme Court opted against resolving the circuit split, particularly after the D.C. Circuit specifically called out the Second Circuit for misinterpreting Garcetti. We're not the only ones surprised either; SCOTUSblog predicted that Bowie and Byrne petitions would be the most likely grants for Monday.

Related Resources:

• February 27, 2012 Order List (Supreme Court)
• David Bowie Loses First Amendment Retaliation Claim (FindLaw's DC Circuit blog)
• David Bowie: If 2nd Cir. is Wrong, I Don't Want to Be Right (FindLaw's Second Circuit blog)