This story originally appeared on The Advocate.
A gay former FBI employee fired over a Pride flag asked a federal judge in Washington, D.C., on Wednesday to reject the Trump administration’s effort to dismiss key parts of his lawsuit and allow him to begin seeking internal records and testimony about the decision to end his career.
David Maltinsky filed an opposition to the Justice Department’s partial motion to dismiss, arguing that he has sufficiently alleged discrimination and retaliation under Title VII of the Civil Rights Act. In a separate filing, his attorneys asked U.S. District Judge Richard J. Leon to schedule a case management conference so discovery can begin while the dismissal motion remains pending.
Maltinsky’s lawyers argue there is no reason to delay discovery because the government has not challenged his First Amendment or Appointments Clause claims. Even if the Justice Department prevails on every issue in its motion, the lawsuit and all of its defendants would remain before the court.
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“This case must head to discovery,” Maltinsky’s attorneys wrote.
The filings mark the latest turn in a case that began after FBI Director Kash Patel fired Maltinsky on October 1, 2025, three weeks before he was expected to graduate from the FBI Academy in Quantico, Virginia.
Maltinsky had worked for the bureau for more than 16 years and completed 16 weeks of its 19-week special agent training program. Patel’s termination letter said Maltinsky had exercised “poor judgment” by displaying “political signage” at his former workstation in the FBI’s Los Angeles field office.
The signage was a Progress Pride flag.
According to Maltinsky’s lawsuit, the FBI had previously flown the flag outside the Wilshire Federal Building in Los Angeles and later entrusted it to him in recognition of his work supporting LGBTQ+ employees. He displayed it with a small placard describing its history.
When another employee complained about the flag in early 2 025, Maltinsky’s supervisor told him the display was “entirely permissible and appropriate,” according to the complaint. The field office’s chief legal counsel separately determined that the display violated no FBI policy, rule or regulation.
“David was boldly moved to a life of public service after the Pulse nightclub shooting claimed 49 lives in 2016, and in the years that followed he was an exceptional employee on track to become a Special Agent. Then Kash Patel and the Trump Administration targeted him not just for his speech, but for who he is,” attorney Nathaniel Zelinsky of the Washington Litigation Group said in a statement. “This shocking abuse of an honorable member of the federal law enforcement community cries out for justice.”
The Justice Department moved in June to dismiss Maltinsky’s discrimination and retaliation claims, his Fifth Amendment claims, his request for back pay, and an alternative claim seeking reinstatement.
Government attorneys argued that the complaint does not plausibly show Maltinsky was fired because he is gay. They said the flag and placard did not expressly identify his sexual orientation and that he had not adequately alleged that Patel or other decision-makers knew about his identity or earlier equal employment work.
The department also argued that Maltinsky’s work opposing discrimination was too far removed from his 2025 firing to establish retaliation. His formal service with the FBI’s Bureau Equality Committee ended in 2020, though the Justice Department honored him with an equal employment opportunity award in 2022.
In Wednesday’s filing, Maltinsky’s attorneys argued that the government is asking the court to ignore the obvious connection between a Pride flag and sexual orientation.
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“When an employer fires a Jew for wearing a Star of David necklace, or a person of French origin for displaying the tricolor flag, the act betrays hostility toward the employee’s protected characteristic,” they wrote. “So too, when Defendants targeted Maltinsky for displaying a pride flag.”
They also argued that this particular flag represented the internal work Maltinsky had performed to identify and oppose discrimination against LGBTQ+ FBI employees — work for which the bureau had given him the flag.
The Justice Department’s own account, they said, establishes that the display was the reason for the firing.
“Defendants freely admitted — in writing — that they fired Maltinsky because he displayed that flag,” the opposition states. “That is more than enough to make it plausible that Defendants fired Maltinsky because of the protected activity the flag commemorated, and of which they disapprove.”
His lawyers also pointed to allegations that other FBI employees were allowed to display thin blue line flags, Gadsden flags and Punisher skull imagery. The complaint alleges that Patel has distributed challenge coins bearing some of those symbols.
The filings ask Leon to let Maltinsky begin investigating the decision-making behind his dismissal, potentially including internal communications and testimony from officials involved. Under the federal court’s local rules, discovery is generally paused until defendants answer a complaint. But courts may allow it to proceed when a pending motion would not resolve the entire case.
Maltinsky’s attorneys argued that discovery into his First Amendment claims would substantially overlap with discovery into the claims the Justice Department is seeking to dismiss.
“Even if Defendants prevail on their partial motion in its entirety, the nature of discovery will essentially remain the same,” they wrote.
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His lawyers said further delay could prejudice him by allowing memories to fade and documents to become harder to locate. “He should have the opportunity to plumb the facts of his termination when witness recollections are freshest and documentary evidence is most readily available,” they wrote.
Maltinsky previously told The Advocate that his firing had an immediate effect inside the bureau.
“People immediately started scouring their desks of Pride flags, anything personal in nature, even,” he said in November. He said news of his dismissal “spread like wildfire” and warned that it had sent a “shock wave throughout the bureau,” raising fears among LGBTQ+ employees of a renewed Lavender Scare.
Christopher Mattei, one of Maltinsky’s attorneys, accused Patel and the Justice Department of trying to delay scrutiny of the firing.
“Instead of answering for their unlawful actions, Director Patel and the DOJ are making baseless arguments in an effort to delay justice and shield from public view the cruel discrimination that led to David’s firing,” Mattei said in a statement.
