David Bowie: If 2nd Cir. is Wrong, I Don't Want to Be Right - U.S. Second Circuit
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David Bowie: If 2nd Cir. is Wrong, I Don't Want to Be Right

Warning: Second Circuit attorneys, you may have a David Bowie problem.

Sadly, we’re not talking about a problem stemming from your David Bowie obsession - as if that could be characterized as a problem - but from the D.C. Circuit Court of Appeals holding in David Bowie v. Maddox that criticizes a Second Circuit Court of Appeals holding in Jackler v. Byrne.

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 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 v. Ceballos.

Enter, Second Circuit Court of Appeals.

Bowie petitioned for rehearing based 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.

In Jackler, 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." (Their language, not ours.) The D.C. Circuit noted 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."

Because Bowie spoke as a government employee, the D.C. Circuit said summary judgment in favor of Bowie's employer on the First Amendment retaliation claim was appropriate.

Why are we telling you about this case?

Because we REALLY love David Bowie.

More importantly, because you should be aware that the D.C. Circuit just called out the Second Circuit Court of Appeals for bad reasoning.

We don't think that a snide remark from the D.C. Circuit will prompt the Second Circuit to reverse course in Jackler v. Byrne - um ... Kiobel, anyone? - but just in case the court succumbs to a rare moment of humility, you should pad your wrongful termination claims with additional support instead of relying solely on First Amendment retaliation.

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