The Ninth Circuit Court of Appeals has upheld the dismissal of a First Amendment retaliation lawsuit brought by two Manhattan Beach, California fire captains who claimed city officials retaliated against them for participating in a vote of no confidence against a former fire chief.

Captains David Shenbaum and Timothy O’Brien alleged that the city retaliated against them in two ways: first by changing the compensation structure for the position of Battalion Chief in 2020, and second by administering a promotional examination for Division Chief in 2023 that they claimed was designed to ensure they would fail.

The dispute began in early 2018 when firefighters took a vote of no confidence against the department’s fire chief. Captains Shenbaum and O’Brien claimed their involvement prompted city officials to take retaliatory action against them.

Their first retaliation claim concerned a 2020 labor agreement that modified compensation for Battalion Chief, including a reduction in longevity pay. They argued the changes would result in lower compensation if they were promoted to Battalion Chief. They later amended their complaint in 2023 after they failed a promotional exam for Division Chief (the new title given to the former battalion chief’s rank) to allege that the city manipulated the promotional process to disadvantage them.

Their claims were dismissed in 2025 by the US District Court for the Central District of California. Here is our coverage of that decision. Captains Shenbaum and O’Brien appealed that decision to the Ninth Circuit.

The Ninth Circuit rejected their first claim, concluding that neither firefighter had actually held the position affected by the agreement because both were captains at the time. As the court explained:

• Appellants cannot create a triable issue based on pure speculation on a hypothetical future position that they did not hold.

The court also found insufficient evidence connecting the 2020 agreement to the 2018 vote of no confidence. While the captains pointed to text messages exchanged between the fire chief and several battalion chiefs in March 2018 as evidence of opposition to the vote, the messages preceded the compensation agreement by more than two years. As such they were not considered to be evidence of retaliatory intent.

The court rejected the firefighters’ contention that the city’s stated financial justification for the agreement was a pretext for retaliation.

• Uncertainty surrounding the COVID pandemic bolstered the City’s financial concerns about the fire chief’s compensation and overtime calculations.

Captains Shenbaum and O’Brien also pointed to the fact that the city subsequently restored the longevity pay reduction after they failed the 2023 promotional examination. The court found that the timing did not establish retaliation, noting that the restoration occurred two years after the compensation agreement and nearly five years after the vote of no confidence.

The second retaliation claim involved the 2023 promotional examination for Division Chief. Captains Shenbaum and O’Brien alleged that the city deliberately structured the examination to ensure they would fail, in retaliation for filing their lawsuit. The court rejected this claim, relying heavily on the city’s use of independent outside panelists to evaluate the candidates. All of the panelists testified that they were unaware of the firefighters’ lawsuit, and all unanimously failed the two candidates for multiple reasons unrelated to retaliation.

According to the court:

• The use of independent panelists breaks any causation here.

The court concluded that the firefighters had failed to establish a sufficient connection between their protected activities and either the compensation changes or the promotional examination results. Because the underlying First Amendment claims failed, the court also rejected the captains’ municipal liability claims against the city.

Here is a copy of the decision.