David Bowie Loses First Amendment Retaliation Claim - Employment Law - DC Circuit
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David Bowie Loses First Amendment Retaliation Claim

Confession time.

We love David Bowie. Ziggy Stardust. Labyrinth. Iman. How could you not like Bowie?

Much like Samson found his strength in his hair, we believe that David Bowie finds his greatness in metallic jumpsuits. (Additional support for the jumpsuit theory? Freddie Mercury.) But we digress.

When we discovered this week that David Bowie was the appellant in a case before the D.C. Circuit Court of Appeals, there was squealing like a 12-year-old at a Justin Bieber concert. Then closer examination, it was found that it wasn't that David Bowie. The squealing ceased.

Regardless, the other David Bowie has an interesting case.

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 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.

The D.C. Circuit Court of Appeals 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" under Garcetti v. Ceballos. In his petition for rehearing, Bowie denied that Garcetti barred his claim. He argued that even if the relevant speech was ordered by his government employer, it was protected by the First Amendment because it was analogous to the speech of private citizens who submit testimony to the Equal Employment Opportunity Commission (EEOC).

Bowie based his petition arguments on Jackler v. Byrne, a Second Circuit decision from July 2011, in which 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.

The D.C. Circuit refused to apply Jackler to Bowie's case, finding that the Second Circuit got Garcetti backwards. The court noted that the critical question under Garcetti v. Ceballos was not whether the speech at issue had a civilian analogue, but whether it was performed "pursuant to ... official duties."

Here, 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.

If you're considering filing a First Amendment retaliation claim for a government employee in a similar situation, it's time to throw on your best metallic jumpsuit (under that blue suit) and prove your legal rockstar status by finding a different theory under which your client may recover.

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