This morning, the Supreme Court declined to hear two cases that raise a conflict among the circuits about whether the First Amendment protects government employees who refuse to make false statements.  The Court denied petitions for certiorari by David Bowie, a former official of the District of Columbia (DC) Office of Inspector General (OIG), and by Matthew Byrne, Police Chief of Middletown, New York.  Bowie had lost his First Amendment case in the District of Columbia Circuit.  Meanwhile, the Second Circuit held that Byrne had to answer Jason Jackler’s claim that he suffered retaliation for refusing to make false statements in an excessive force investigation.  The Supreme Court’s decision to avoid the issue means that public employees in New York, Vermont and Connecticut will have protection when they refuse to make false statements, but those in DC will not.  The rights of public employees in other states remains undecided.

The outcome for David Bowie is particularly troubling.  According to the Second Circuit, Bowie was the Assistant Inspector General of the Investigations Division at the OIG from November 1997 until his termination in August 2002. DC officials say they fired Bowie for performance problems. But Bowie says his termination was to punish him for supporting Emanuel Johnson, a subordinate whom the OIG fired over Bowie’s dissent. Bowie and Johnson had worked together in a class action race discrimination lawsuit against the Federal Bureau of Investigation (FBI). Inspector General Charles C. Maddox, told Bowie that FBI Assistant Director Jimmy C. Carter had threatened not to "provide any assistance or cooperation with the [OIG] in investigative matters" if Johnson was involved. Maddox ordered Bowie to fire Johnson, and Bowie complied in 2000. After Johnson filed a race discrimination complaint, DC’s attorney and the OIG’s attorney ordered Bowie to sign an affidavit about Johnson’s performance problems.  Bowie refused, citing "misstatements of fact" and "language that would convey impressions that [he] would not agree with." The OIG attorney invited Bowie to prepare his own affidavit, which Bowie did.  That affidavit cited one performance issue, called Johnson an otherwise "model investigator," and recounted how Bowie wanted to keep Johnson employed. The OIG decided not to use Bowie’s affidavit in defense of Johnson’s claim. Thereafter, Bowie’s performance appraisal’s dropped, he was removed from a high-profile investigation, and a subordinate was promoted to a superior position. Management criticized Bowie for "not stepping up to the plate" and for overprotectiveness toward his subordinates. Eventually, Maddox fired Bowie in 2002.

Continue Reading Supreme Court ducks conflict on Garcetti

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U.S. District Judge Gladys Kessler has rejected employer attempts to constrict the whistleblower protections of the federal and District of Columbia False Claims Acts.  In a decision issued last week, she corrected a judgment from a jury verdict, and overruled the employer’s attempts to vacate that verdict. The case is Kakeh v. United Planning Organization, Case No. 05-1271 (GK) in the U.S. District Court for the District of Columbia.

Attorney Jason Zuckerman of The Employment Law Group writes today that, "Judge Kessler rejected several arguments by UPO that would undermine the statutory whistleblower protections under which Kakeh brought his claim, the D.C. Whistleblower Protection Act (“WPA”) and the retaliation provisions of the False Claims Act (“FCA”) and the D.C. False Claims Act (“DCFCA”)." These include attempts to apply the "but for" standard of causation that the U.S. Supreme Court applied to age discrimination cases in Gross v. FBL Fin. Svcs., Inc., 129 S.Ct. 2343 (2009), and the "duty speech" exclusion adopted for First Amendment claims in Garcetti v. Ceballos, 547 U.S. 410 (2006). Judge Kessler also rejected a proposal to require "magic words" of "waste, fraud and abuse," and held that even disclosure of public information about false claims is still protected. Jason Zuckerman’s post follows in the continuation of this blog entry, reposted here with his permission

Continue Reading DC federal court upholds jury verdict for fraud whistleblower