For Immediate Release:
Monday, August 24, 2026                                                              
Contact: Kevin Lampe - Kurth Lampe Worldwide
(312) 617-7280 or kevin@kurthlampe.
Federal Court Clears Path for First Amendment Retaliation Lawsuit Against Texas Military Department

Ruling Denies State’s Motion to Dismiss Core Constitutional Claim, Affirming Public Employees’ Right to Engage in Political Speech
 

AUSTIN, TEXAS — In a major victory for free speech and public employee rights, a federal court has denied the Texas Military Department’s (TMD) motion to dismiss a First Amendment retaliation lawsuit brought by computer programmer and Texas State Guard Master Sergeant John Gately. With the federal court's rejection of the motion to dismiss, the case now advances to discovery.
 

The court’s ruling clears the way for Gately’s lawsuit to proceed against TMD leaders  Major General Thomas M. Suelzer, Adjutant General of Texas, and Mike W. Gorby, Executive Director of the Office of State Administration, in their official capacities, allowing Gately to pursue full reinstatement to his position as well as attorney’s fees and court costs.

The lawsuit, Gately v. Suelzer et al. (Case No. 1:26-cv-01480-ABD), filed by David Sergi of Sergi & Associates, San Marcos, TX, challenges Gately’s wrongful termination after he refused to censor political statements he authored in his personal capacity as a Republican Precinct Chair.
Key Highlights of the Federal Court Order

• First Amendment Retaliation Claim Validated: The federal court explicitly ruled that Gately adequately pleaded all four legal elements required to establish a First Amendment retaliation claim under 42 U.S.C. § 1983.
• Core Political Speech Recognized: The judge affirmed that Gately’s statements regarding a local political election fell "squarely into the 'public concern' bucket," emphasizing that his comments as Republican Precinct Chair represented core political speech in which he maintained a powerful constitutional interest.
• Presumption in Favor of Free Speech: The court applied the Pickering balancing test and determined that Gately’s interest in speaking about a public election outweighed the department’s interest in suppressing the speech. The court rejected TMD’s claim that the speech disrupted workplace "harmony," noting that Gately's political release relied entirely on publicly available sources.
• Reinstatement Remedy Preserved: While sovereign immunity limits certain retrospective claims, the court confirmed that a state official's continued refusal to re-employ an individual following a retaliatory discharge constitutes an ongoing constitutional violation under Ex parte Young. Consequently, Gately's claim for prospective reinstatement remains fully intact.
   

"This decision is a decisive victory for John Gately and a vital safeguard for every public servant across Texas," said David Sergi, Gately’s attorney. "The state tried to bury this case under technical immunity defenses, but the court saw through it. The judge confirmed what we have said from day one: government agencies cannot weaponize employment power to punish employees for participating in political speech outside the workplace."
 

"John acted entirely within his rights as a private citizen and party official," Sergi added. "By keeping our claim for reinstatement alive, the federal court has signaled that Texas state agencies will be held accountable when they violate the United States Constitution."
 

Gately served as a computer programmer for the Texas Military Department for more than ten years, consistently earning "Exceeded Job Expectations" performance reviews and receiving numerous state awards. In January 2026, he was sworn in as Republican Precinct Chair for Precinct 338.
 

On March 12, 2026, acting in his personal role as a Republican Precinct Chair, Gately issued a public press release addressing local election candidates. TMD supervisors then demanded that Gately remove the political post, claiming the instructions came from "higher-ups." When Gately refused to comply with the unconstitutional order, TMD terminated his employment on March 19, 2026.
 

For media interviews with David Sergi, Attorney, please contact Kevin Lampe at (312) 617-7280 or kevin@kurthlampe.com.