From Judge Dabney Friedrich (D.D.C.) Wednesday in Jewell v. Jagadesan, which generally seems correct to me:
In December 2022, Jewell joined [the U.S. Development Finance Corporation] as its Chief Diversity and Inclusion Officer (CDIO). After DFC’s Equal Employment Opportunity (EEO) Officer resigned, Jewell took on the EEO Director position in addition to CDIO. Her “position description” stated that she was the “principal advisor” on DFC’s EEO program; its Diversity, Equity, Inclusion, and Accessibility (DEIA) program; and its Justice, Equity, Diversity, and Inclusion program. She was also responsible for “government-wide policy to advance equity across the federal government.”
On January 20, 2025, President Trump signed an executive order entitled “Ending Radical and Wasteful Government DEI Programs and Preferencing.” The following day, the Office of Personnel Management (OPM) issued a memorandum directing agency heads to place employees of DEIA offices on administrative leave while each “agency takes steps to close and end all DEIA initiatives, offices and programs.” On January 22, 2025, Jewell was placed on paid administrative leave, along with her deputy director of DEIA. Jewell’s other team members, whose position titles referenced only EEO responsibilities, were not placed on leave.
On January 28, 2025, DFC’s Chief Human Capital Officer gave Jewell a choice between resigning immediately or being terminated on February 22, 2025. Jewell was eventually terminated “without payment of the reduction in force severance pay contained in her contract.” Jewell later learned that “other non-DEIA Administratively Determined DFC employees” were presented with a deferred resignation option that she was not offered.
Jewell sued, arguing, among other things, that the firing violated her First Amendment rights; but the court disagreed:
Jewell fails to state a First Amendment claim because she does not identify any speech made outside of her duties as Chief Diversity and Inclusion Officer at DFC. Jewell “did not act as a citizen” for “First Amendment purposes” when performing her “official duties” as CDIO. Garcetti v. Ceballos (2006). And her complaint lacks factual allegations about her speech “as a citizen” or any other activity protected by the First Amendment. See id. (“Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.”).
Jewell’s conclusory argument that her “claim arose not from the content of her official duties, but from the government’s act of punishing her for an assumed political viewpoint,” is unsupported by her factual allegations and therefore fails to “state a claim to relief that is plausible on its face.” Jewell alleges that the President’s Executive Order broadly disparaged DEIA programs. But she does not allege any facts to show that she was punished for her own protected speech or perceived beliefs about DEIA work. In fact, Jewell’s complaint implies that she was terminated because DFC’s DEIA program, which she headed, was shut down….
Jewell also argued “that she was deprived of her ‘liberty interest in her name and reputation’ without due process when the government made disparaging public statements about DEIA programs and then erroneously ‘designated’ her a ‘DEIA employee’ without giving her an opportunity to challenge that designation.” The court rejected this claim as well:
“This Circuit has recognized two theories under which federal employees may pursue a liberty interest claim based on adverse employment action taken against them.” “The first, known as ‘reputation-plus,’ consists of defamation by the government ‘accompanied by a discharge from government employment or at least a demotion in rank or pay.'” Jewell’s claim fails on this theory because she does not allege sufficient facts to show that she was defamed in connection with her termination. The President’s general disparagement of DEIA initiatives in an executive order as “wasteful,” “shameful,” and “divisive” did not specifically defame Jewell. And Jewell fails to allege a public statement that identified her and tarnished her personal reputation. Because Jewell does not allege facts demonstrating that DFC, or anyone else in the government, “actually revealed [her] identity in any defamatory public statement,” her reputation-plus claim fails.
The second theory, known as “stigma,” “arises from the combination of ‘an adverse employment action and a stigma or other disability arising from official action.'” A plaintiff must allege a “continuing harm associated with the employment action that either bars the individual (formally) from future government employment or that precludes him (formally or informally) from such a broad range of opportunities that it interferes with his constitutional right to pursue his chosen career.”
Jewell’s stigma claim also fails. She does not allege any facts demonstrating that she is barred from future government employment…. And Jewell neither alleges facts demonstrating that her “ability to pursue her chosen profession [outside of government] has been seriously affected, if not destroyed,” nor satisfies the Circuit’s “require[ment] that there be some statement of an attempt to obtain subsequent employment and a rejection for the job resulting from the alleged stigma.” …
Dimitar Georgiev-Remmel represents the government.
