SCOTUS denies review on question of First Amendment protection for employees

The Supreme Court of the United States denied review in two cases yesterday, without comment. Both involved government employees who were disciplined for disobeying a superior’s order to file a report with information that the employee believed was false and intended to conceal misconduct. The lower courts in the two cases had reached conflicting conclusions about whether employees had First Amendment protection in this kind of situation.

Lyle Denniston of SCOTUSblog explains:

The Court had been asked, in separate cases from New York and Washington, D.C.,  to further clarify its decision five years ago in Garcetti v. Ceballos, denying First Amendment protection to public employees for remarks they made in the course of their official duties.   Federal appeals courts have since split on whether that denial of protection extends even to a situation where a worker has been fired or otherwise disciplined for refusing to file an official report about their work, when superiors had demanded that the report be submitted in a form that would be false and could conceal wrongdoing within the agency.   The Justices’ refusal to step into that controversy leaves it to be worked out further among the lower courts, meaning that public employees will have different legal rights depending upon where they live and work.


In one of the public employee free-speech cases, Byrne, et al., v. Jackler (docket 11-517), the police chief and two other officers in Middletown, N.Y., sought to challenge a Second Circuit Court decision that they had acted illegally for their roles in the firing of a probationary officer after he had refused an order to file a report about another officer’s striking of a suspect during an arrest.  The fired officer, Jason M. Jackler, disobeyed because he knew the facts were different from those he was told to put in the report.  The Second Circuit ruled that Jackler was not acting in the role of a police officer, but rather as a private citizen resisting an official coverup, at the time he disobeyed, so the Garcetti decision did not apply.

Exactly the opposite outcome had come in the other case, Bowie v. Maddox (11-670).  David M. Bowie, a former FBI agent who had gone to work in the local Washington, D.C., government’s inspector general’s office, investigating misconduct inside the D.C. government.  Bowie was fired after he had refused to submit an affidavit that would have sided with his superiors falsely in a civil rights case involving a black employee against the IG office.  Bowie believed that the employee had been fired on demand from the FBI, which was reportedly upset by an earlier lawsuit claiming race bias in the Bureau’s policy on promoting black agents.  Bowie’s superiors wanted him to tell their version in the affidavit.  The D.C. Circuit Court, relying upon the Supreme Court’s Garcetti decision, ruled against Bowie, concluding that he was fired for refusing to carry out an order in the line of duty and thus had no First Amendment protection for his refusal.

For more commentary, see the Whistleblowers Protection Blog.