Ramirez v. U.S. Customs and Border Protection

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
JAIME RAMIREZ, )
)
Plaintiff, )
)
v. ) Civil Action No. 07-65 (GK)
)
U.S. CUSTOMS AND BORDER )
PROTECTION, et. al., )
)
Defendants. )
______________________________)
MEMORANDUM OPINION
Plaintiff Jaime Ramirez, an officer for the U.S. Customs and
Border Protection, Department of Homeland Security brings this
action against Defendants U.S. Customs and Border Protection,
Commissioner W. Ralph Basham, and District Field Officer Louis
Garcia. The Complaint alleges that Defendants violated Ramirez’s
First Amendment rights to engage in political speech and to
associate, as well as the Administrative Procedure Act, 5 U.S.C. §
706(2)(A)-(B) (“APA”), by denying authorization for Ramirez to
serve on the City Council in Presidio, Texas. This matter is
presently before the Court on Defendants’ Motion to Dismiss
Plaintiff’s Second Amended Complaint [Dkt. No. 34] pursuant to
Federal Rule of Civil Procedure 12(b)(1). Upon consideration of the
Motion, Opposition, Reply, and the entire record herein, and for
the reasons set forth below, the Motion to Dismiss is granted in
part, and denied in part.
I. Background
Plaintiff Jaime Ramirez is an officer for the U.S. Customs and
Border Protection (“CBP”), Department of Homeland Security at the
Presidio, Texas port of entry. His primary duty is to inspect
vehicles and persons entering the United States in order to
interdict terrorists, illegal immigrants, persons suspected of
other criminal offenses, and illegally imported goods. 2d Am.
Compl. ¶¶ 3, 7 [Dkt. No. 33].
In 2004, Plaintiff was elected to an unpaid, two-year term on
the non-partisan Presidio City Council. Id. ¶¶ 8, 12. The City
Council is responsible for hiring the City Administrator and for
enacting local ordinances, regulations, and resolutions regarding
zoning, street repair, sanitation, and emergency services issues.
Id. ¶ 14. At the end of that term, and after running for re-
election unopposed, Plaintiff was installed by the City Council for
a second two-year term running from 2006-2008. Id. ¶ 10.
Plaintiff submitted a Request to Engage in Outside Employment
or Business Activities to gain CBP’s authorization for the 2004-
2006 term, which CBP’s Director of Field Operations (“DFO”), Luis
Garcia, approved. However, Ramirez did not submit a request for
authorization for the second term commencing in 2006. After
learning of Plaintiff’s unauthorized reappointment in 2006, Garcia
sent Plaintiff a memorandum informing him that he had been
authorized to serve on the City Council for only the 2004-2006
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term, and ordering him to resign his position due to an appearance
of a conflict of interest. The memorandum, dated December 22, 2006,
stated that the appearance of a conflict of interest arose from the
CBP’s relationship with the City Council regarding a variety of
“business issues, i.e. housing, zoning, municipal services, port
operations, etc.” Id. ¶¶ 14, 20; Ex. 1 to Compl [Dkt. No. 1].
Plaintiff alleges that the December 22, 2006 memorandum was
the result of a policy change by CBP. CBP had issued a new
directive on outside employment on December 1, 2006, just weeks
prior to Garcia’s 2006 memorandum to Ramirez. Under the new
directive, an employee seeking public office was required to
receive authorization from headquarters in Washington, D.C.,
instead of from local DFOs. 2d Am. Compl. ¶ 19.
In a second memorandum to Plaintiff dated January 5, 2007,
Garcia instructed him to decide whether to resign his position on
the City Council by January 21, 2007. The memorandum advised
Plaintiff that failure to respond would result in “further action
by this agency, up to and including removal from your position.”
Ex. 1 to Compl.
One week later, Ramirez filed suit in this Court, alleging
that the 2006-20081 Orders violated his First Amendment rights to
engage in political speech and to associate. Ramirez also alleges
1
For the purposes of this Order, the December 22, 2006 and
January 5, 2007 memorandums will be referred to collectively as the
“2006-2008 Orders”.
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that this violation of his First Amendment rights was “arbitrary,
capricious, an abuse of discretion, not in accordance with law, and
contrary to a constitutional right, power, privilege or immunity”
under the APA, 5 U.S.C. § 706(2)(A)-(B).
A short time later, Ramirez filed a formal complaint with the
Office of Special Counsel (“OSC”), pursuant to 5 U.S.C. § 2302(b)
of the CSRA. The OSC dismissed Ramirez’s complaint because it
concluded that no personnel action had been taken by CBP at that
point, and that CBP’s threatened action against Ramirez was
insufficient to warrant further inquiry. Letter from the U.S.
Office of Special Counsel to Robert Shriver, Feb. 22, 2007, Pls.’
Reply on Mot. for Preliminary Injunction [Dkt. No. 5], Ex. 2.
Following the expiration of Ramirez’s 2006-2008 City Council
term, he was re-elected for another two-year term commencing in May
2008. In response to Ramirez’s request for CBP’s authorization for
this term, the Acting DFO issued a memorandum denying him
permission to serve on the City Council (“2008-2010 Order”).
Ramirez subsequently amended his Complaint to add a challenge to
the 2008-2010 Order. 2d Am. Compl. ¶ 3. On May 1, 2008, Defendants
filed the present Motion to Dismiss on the grounds that Ramirez
cannot establish this Court’s subject matter jurisdiction over his
claims under Federal Rule of Civil Procedure 12(b)(1).
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II. Standard of Review
Under Rule 12(b)(1), the plaintiff bears the burden of proving
by a preponderance of the evidence that the Court has subject
matter jurisdiction to hear her case. See Jones v. Exec. Office of
President, 167 F. Supp. 2d 10, 13 (D.D.C. 2001). In reviewing a
motion to dismiss for lack of subject matter jurisdiction, the
Court must accept as true all of the factual allegations set forth
in the Complaint; however, such allegations “will bear closer
scrutiny in resolving a 12(b)(1) motion than in resolving a
12(b)(6) motion for failure to state a claim.” Wilbur v. CIA, 273
F. Supp. 2d 119, 122 (D.D.C. 2003) (citations and quotations
omitted). The Court may consider matters outside the pleadings. See
Herbert v. Nat’l Acad. of Sciences, 974 F.2d 192, 197 (D.C. Cir.
1992). The Court may also rest its decision on the Court's own
resolution of disputed facts. Id.III. Analysis
In their Motion to Dismiss, Defendants argue that Ramirez has
failed to establish subject matter jurisdiction for three reasons.
First, they claim that § 7121(a) of the CSRA precludes federal
court jurisdiction over Plaintiff’s APA claim. Second, Defendants
argue that § 7121(a) requires Ramirez to exhaust the negotiated
grievance procedure established in the parties’ collective
bargaining agreement before bringing his constitutional claim in
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federal court.2 Third, Defendants argue that Ramirez’s claims
challenging the 2006-2008 Orders are moot, as the period of time
they covered has expired. The Court will first address whether §
7121(a) governs Ramirez’s claims before turning to the merits of
Defendants’ arguments.
A. Section 7121(a) of the Civil Service Reform Act, 5 U.S.C.
§ 1101, et seq, Applies to Plaintiff’s Claims.
On March 12, 2007, in its Order granting Plaintiff a
preliminary injunction, this Court concluded that Ramirez exhausted
his administrative remedies under the Civil Service Reform Act, 5
U.S.C. § 1101, et seq (“CSRA”), when he filed a formal complaint
with the OSC pursuant to 5 U.S.C. § 2302. March 12, 2007 Order at
6-7 [Dkt. No. 12]. Based on the OSC’s conclusion that Ramirez’s
claims did not involve a personnel action under § 2302, Defendants
now argue that only § 7121(a) of the CSRA--which addresses
“employee grievances” instead of the “personnel actions” addressed
in § 2302--applies,3 and that it requires Ramirez to exhaust the
2
It is not clear what, if any, non-constitutional claims
are raised in the Second Amended Complaint--apart from the APA
claim--that might also be subject to the CSRA’s exhaustion
requirement.
3
Defendants raised similar preclusion and exhaustion
arguments in opposing Plaintiff’s Motion for a Preliminary
Injunction. See Defs.’ Opp’n to Mot. for Preliminary Injunction
[Dkt. No. 4]. Defendants argued that Ramirez could “pursue his
claim either by bringing a complaint to the U.S. Office of Special
Counsel or by raising a grievance under the collective bargaining
agreement with the government that covers him,” but not by first
bringing suit in this Court. Defs.’ Opp’n to Mot. for Preliminary
Injunction at 1 (emphasis added). Defendants have abandoned this
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grievance procedures under the governing collective bargaining
agreement, which he has not done.
Section 7121(a) falls under Chapter 71 of the CSRA, which
governs Labor-Management Relations. Its provisions concern the
resolution of employee “grievances,” which are defined differently
from the “personnel actions” addressed in part in 5 U.S.C. § 2302,
the authority under which the OSC operates. See, e.g., Weaver v.
U.S. Info. Agency, 87 F.3d 1429, 1432 (D.C. Cir. 1996) (“Non-
judicial remedies for adverse personnel decisions by government
employers stem from two sources: the Civil Service Reform Act
(“CSRA”) of 1978, and provisions of collective bargaining
agreements affording grievance rights to covered employees (the
latter strongly bolstered by the CSRA itself).”). In contrast to
§ 2302 which defines “personnel actions,” the definition of
“grievance” in § 7103 of the CSRA broadly includes “any complaint
by any employee concerning any matter relating to the employment of
the employee . . . or any claimed violation, misinterpretation, or
misapplication of any law, rule, or regulation affecting conditions
of employment.” 5 U.S.C. § 7103(a)(9) (2009).
As noted above, when the OSC dismissed Ramirez’s complaint it
determined that no personnel action, as that term is defined in 5
position and now argue that, because only § 7121(a) governs
Ramirez’s claims, Ramirez must exhaust the negotiated grievance
procedures in the applicable collective bargaining agreement before
bringing his claims in federal court.
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U.S.C. § 2302(a)(2)(A), had been taken by CBP. See Letter from the
U.S. Office of Special Counsel to Robert Shriver, Feb. 22, 2007,
Pls.’ Reply to Opp’n to Mot. for Preliminary Injunction [Dkt. No.
5], Ex. 2. One it was determined by OSC that no personnel action
was taken, the provisions of the CSRA establishing more formal
procedures for challenging the substance of the employees’ claims,
such as review by the OSC, would obviously not apply. Instead,
Ramirez’s claims would fit within the broad definition of
“grievance” under the CSRA, and § 7121(a) would apply to make the
negotiated grievance procedure in the governing collective
bargaining agreement the exclusive administrative procedure for
resolving his claims.4 Thus, this Court “[is] required first to
4
Section 7121(a) requires collective bargaining agreements
to include grievance procedures that, with limited exceptions,
constitute “the exclusive administrative procedures for resolving
grievances which fall within [the agreement’s] coverage.” 5 U.S.C.
§ 7121(a) (2008).
The parties’ collective bargaining agreement applicable to
this case establishes a three-step grievance process. First, the
employee must file a grievance with the “first level of
supervision” within twenty-two workdays after the incident occurs.
Next, if dissatisfied with the result, the employee may file a
written complaint with a superior agency official--in this case,
the Deputy Regional Director--within ten days of receiving the
decision in step one. The third and final step is to submit another
written complaint to an even higher agency official--the Regional
Director--within ten days of receiving a response from the official
in step two.
After the three-step grievance process, an employee may
request the union to seek binding arbitration, which is in turn
reviewable by the Federal Labor Relations Authority (“FLRA”). The
decision to seek arbitration may be made by either the union or the
agency, but never by the employee. See Agreement 2000 Between U.S.
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ascertain where [Ramirez’s] claims fit within the statutory scheme,
as the CSRA provides different treatment for grievances depending
on the nature of the claim.” Whitman v. Dep’t of Transp., 547 U.S.
512, 514, 126 S.Ct. 2014, 2015 (2006).
The Court agrees with the OSC that no personnel action, as
that term is defined under the CSRA, was taken. “Personnel action”
means “(i) an appointment; (ii) a promotion; (iii) . . .
disciplinary or corrective action; (iv) a detail, transfer, or
reassignment; (v) a reinstatement; (vi) a restoration; (vii) a
reemployment; (viii) a performance evaluation . . .; (ix) a
decision concerning pay, benefits, or awards . . .; (x) a decision
to order psychiatric testing or examination; and (xi) any other
significant change in duties, responsibilities, or working
conditions.” 23 U.S.C. § 2302(a)(2)(A) (2009). The CBP’s decision
not to authorize Ramirez’s outside political activities does not
fall within this definition.
Given this conclusion, the Court must now determine whether
Ramirez’s claims fall within the broad definition of “grievance” in
§ 7121(a). They do, given the fact that a “grievance” includes
“any claimed violation, misinterpretation, or misapplication of any
law . . . affecting conditions of employment.” 5 U.S.C.
Immigration and Naturalization Serv. and Nat’l Immigration and
Naturalization Serv. Council, Articles 47-48, available at
http://www.ncisc119.net/Agreement_2000.doc (“Agreement 2000”).
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§ 7103(a)(9). The Court will now turn to the application of
§ 7121(a) to Ramirez’s APA and constitutional claims.
B. Plaintiff’s APA Claim Is Precluded by the CSRA.
While the APA grants jurisdiction to federal district courts
to review agency action in certain cases, it also states that
“[n]othing herein . . . confers authority to grant relief if any
other statute that grants consent to suit expressly or impliedly
forbids the relief which is sought.” 5 U.S.C. § 702 (2008). See
also Transohio Savings Bank v. OTS, 967 F.2d 598, 607 (D.C. Cir.
1993) (Section 702 does not establish jurisdiction over “claims for
which an adequate remedy is available elsewhere, and . . . claims
seeking relief expressly or impliedly forbidden by another
statute”).
Defendants argue that Plaintiff’s APA claim should be
dismissed because 5 U.S.C. § 7121(a) of the CSRA precludes this
Court’s subject matter jurisdiction. In response, Plaintiff relies
on a Federal Circuit case that interprets § 7121(a), as amended in
1994, to permit federal employees to bring suit in a district court
despite the availability of a negotiated grievance process. See
Mudge v. United States, 308 F.3d 1220 (Fed. Cir. 2002); see also
Asociacion De Empleados Del Area Canalera (ASEDAC) v. Panama Canal
Comm’n, 329 F.3d 1235, 1241 (11th Cir. 2003) (adopting analysis in
Mudge).
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Before 1994, § 7121(a) provided that the negotiated grievance
procedures constitute the “exclusive procedures for resolving
grievances.” However, Congress amended § 7121(a) in 1994 to provide
that they constitute “the exclusive administrative procedures for
resolving grievances which fall within [the agreement’s] coverage.”
5 U.S.C. § 7121(a) (2008) (emphasis added). Ramirez argues that
this amendment modifies the CSRA to permit judicial review of
employee grievances, assuming jurisdiction is otherwise established
by statute.
This view was adopted by both the Federal Circuit and the
Eleventh Circuit. In Mudge, a case brought under the Tucker Act,
the Federal Circuit engaged in a thorough analysis of § 7121(a) and
the legislative history behind the 1994 amendment, concluding that
the plain language of the CSRA required it to interpret
“administrative” to “mean what it says.” Mudge, 308 F.3d at 1228.
Thus, the Federal Circuit found that § 7121(a) “does not limit a
federal employee’s right to avail him or herself of alternative,
non-administrative avenues of redress.” Id. at 1230.
However, our Circuit, borrowing language from the Supreme
Court, recently explained that the question is properly framed as
“‘whether § 7121 (or the CSRA as a whole) removes the jurisdiction
given to the federal courts or otherwise precludes employees from
pursuing’ a claim under the APA.” Filebark v. Dep’t of
Transportation, 555 F.3d 1009, 1012-13 (D.C. Cir. 2009) (quoting
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Whitman v. Dep’t of Transportation, 547 U.S. 512, 513 (2006)
(emphasis in original)). As this Circuit has made clear, the
comprehensive scheme of the CSRA almost always precludes district
court jurisdiction under the APA to review agency actions related
to employment. Id. at 1014-15.
In Carducci v. Regan, 714 F.2d 171, 174-75 (D.C. Cir. 1983),
our Court of Appeals concluded that “an APA remedy beyond that
provided in the CSRA [was] precluded by the comprehensiveness of
the CSRA itself.” See also Fornaro v. James, 416 F.3d 63, 67 (D.C.
Cir. 2005) (“[W]hat you get under the CSRA is what you get.”);
Graham v. Ashcroft, 358 F.3d 931 (D.C. Cir. 2004) (finding
preclusion of APA claim even where CSRA left plaintiff without any
remedy).
In Filebark, the Court of Appeals concluded that Carducci
applied to claims based on employee grievances subject to § 7121 as
well. The Court recognized that “[i]t may be true that in amending
section 7121(a)(1) Congress intended no longer to preclude all
judicial review for employees with negotiated grievance
procedures.” Filebark, 555 F.3d at 1012. However, relying on
Carducci, the Filebark Court concluded that jurisdiction under the
APA was precluded by “the structure of Congress’s employment
statutes and the CSRA as a whole.” Id. at 1014-15. Otherwise, “the
exhaustive remedial scheme of the CSRA would be impermissibly
frustrated” by allowing more immediate judicial review of lesser
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claims than is permitted under the CSRA for major adverse actions
involving suspension or removal. Id. at 1013 (quoting Carducci, 714
F.2d at 174).
Given this Circuit’s repeated emphasis that the CSRA as a
whole precludes the jurisdiction granted under the APA, Ramirez’s
APA claim is dismissed for lack of subject matter jurisdiction.5
C. Plaintiff Is Not Required to Exhaust His Constitutional
Claim.
Defendants wisely limit their preclusion argument to Ramirez’s
statutory claim since Federal courts have subject matter
jurisdiction over constitutional claims for equitable relief in the
absence of a clear statement by Congress to the contrary. Carlson
v. Green, 446 U.S. 14, 18-19, 100 S.Ct. 1468, 1471-1472, 64 L.Ed.2d
15 (1980). It is well established that the CSRA, in particular,
does not preclude federal court jurisdiction over First Amendment
claims for equitable relief. Nat’l Federation of Federal Employees
v. Weinberger, 818 F.2d 935 (D.C. Cir. 1987). However, Defendants
argue that “the CSRA precludes initial judicial review over
constitutional claims that are cognizable under the Act,” and
therefore Ramirez must first exhaust the procedures established in
the Agreement 2000. Reply at 1 (emphasis added).
5
While it is clear that the Federal Circuit in Mudge, 308
F.3d 1220, disagrees with our Circuit, in the face of such
conflicts the law of this Circuit must be followed.
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In Andrade v. Lauer, 729 F.2d 1475, 1484 (D.C. Cir. 1984), our
Court of Appeals explained that:
Exhaustion of available administrative
remedies is in general a prerequisite to
obtaining judicial relief for an actual or
threatened injury. However, the exhaustion
requirement is not in general jurisdictional
in nature, but rather must be applied in
accord with its purposes.
The four primary purposes of the exhaustion requirement are “(1) to
carry out congressional intent in granting authority to the
agencies; (2) to protect agency autonomy; (3) to aid judicial
review by developing a factual record; and (4) to avoid repetitive
adjudication or to avoid judicial involvement at all.” Weinberger,
818 F.2d at 940 n.6. Given the wide authority granted to federal
agencies to resolve employee disputes under the CSRA and the
importance of agency autonomy, the Court concludes that, on
balance, the primary purposes of exhaustion are met by requiring
Ramirez to first pursue his claim through the applicable grievance
procedures.6
6
It must be acknowledged that use of the grievance
procedure in this case is not likely to advance the third purpose
of exhaustion--to aid judicial review by developing a fuller
factual record--since formal hearings, witnesses, and documentary
evidence are only present at the arbitration stage, and the
arbitration stage is only reached if Ramirez’s union or CBP decides
to pursue the grievance through arbitration. See McCarthy v.
Madigan, 503 U.S. 140, 153-56, 112 S.Ct. 1081, 1090-92, 117 L.Ed.2d
291 (1992) (concluding that interest in judicial economy not
advanced by similar grievance procedure). This factor alone,
however, does not change the Court’s conclusion that the primary
purposes of exhaustion are met by requiring Ramirez to pursue his
constitutional claim through the applicable grievance procedures.
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In addition, this Circuit’s precedent strongly supports
requiring Ramirez to first exhaust his constitutional claim under
the CSRA. See Weaver, 87 F.3d at 1433; Steadman v. Governor, United
States Soldiers’ and Airmen’s Home, 918 F.2d 963 (D.C. Cir. 1990).
While there is a general presumption of judicial review for
constitutional claims, Weaver, 87 F.3d at 1433, this Circuit has
made clear that the exhaustion requirement applies to
constitutional claims for equitable relief which are subject to
CSRA remedies, except in “the unusual case in which the
constitutional claim raises issues totally unrelated to the CSRA
procedures.” Steadman, 918 F.2d at 967; Weaver, 87 F.3d at 1433-34.
Far from presenting such an unusual case, Ramirez’s
constitutional claim and the claim subject to the CSRA’s remedies
are one and the same. In Weaver, the D.C. Circuit addressed the
exhaustion requirement in a similar context. The plaintiff, a Voice
of America employee, sought equitable and declaratory relief on
First Amendment grounds for both a regulation restricting employee
speech and an oral admonishment she received for refusing to follow
the regulation. In considering whether exhaustion of administrative
remedies was required, the court distinguished between the claim
related to the oral admonishment and the claim challenging the
agency regulation. It found the former claim subject to exhaustion
because the CSRA established an administrative review process for
personnel actions such as admonishments--namely, review by the OSC.
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The claim challenging the agency regulation, however, was not based
upon the admonishment and did not challenge any other personnel
action. Thus, the Weaver court concluded that the administrative
remedy under the CSRA did not apply. Instead, this claim amounted
to a “simple pre-enforcement attack on a regulation restricting
speech,” and thus did not require exhaustion. Id. at 1434.
Ramirez contends that Weaver stands for the broad proposition
that only those claims challenging a personnel action are subject
to the exhaustion requirement. Because his claim was not found to
constitute a personnel action by the OSC, he argues, it need not be
exhausted. Pl.’s Opp’n at 14. However, the Court of Appeals in
Weaver was careful to point out that the parties’ collective
bargaining agreement did not apply to the agency action, since the
agreement expressly excluded “admonishments” from its coverage. Id.
at 1432. In this case, the negotiated grievance procedures do
constitute a CSRA remedy for Ramirez’s grievance, just as in Weaver
the OSC review process constituted a CSRA remedy for the oral
admonishment. Weaver’s logic--that exhaustion is required for
constitutional claims for equitable relief under the CSRA when an
administrative process is available--thus compels the conclusion
that the administrative remedy found in § 7121(a) must be exhausted
before a claim based on an employee grievance may be brought in
federal court.
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However, there are three exceptions to the exhaustion
requirement for constitutional claims. Randolph-Sheppard Vendors of
America v. Weinberger, 795 F.2d 90, 104-07 (D.C. Cir. 1986); see
also McCarthy, 503 U.S. at 146 (“Administrative remedies need not
be pursued if the litigant’s interests in immediate judicial review
outweigh the government’s interests in the efficiency or
administrative autonomy that the exhaustion doctrine is designed to
further.”) (citations omitted).
First, exhaustion is not required where the administrative
procedure is futile, meaning an adverse decision is certain either
because the agency will conclude it lacks jurisdiction over the
matter or because the agency has “articulated a very clear position
on the issue which it has demonstrated it would be unwilling to
reconsider.” Randolph-Sheppard, 795 F.2d at 105. Second, exhaustion
is not required where the administrative procedure is inadequate,
or where “the agency has expressed a willingness to act, but the
relief it will provide through its action will not be sufficient to
right the wrong.” Id. at 107. Third, and most relevant to this
case, exhaustion is not required when the plaintiff will be
irreparably harmed if immediate judicial review is not permitted.
A finding of irreparable injury is more likely when injuries
of constitutional magnitude are threatened, as they are here. See
id. at 108 (distinguishing Smith v. Illinois Bell Telephone Co.,
270 U.S. 587, 591, 46 S.Ct. 408, 409, 70 L.Ed. 747 (1926), which
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found the irreparable harm exception to the exhaustion requirement
to apply, in part because the threatened injury was of
constitutional magnitude in Smith). In addition, this Court has
already found with regard to irreparable injury that “the balance
tips totally in Plaintiff’s favor.” March 12, 2007 Order at 8.
Should Ramirez’s case be dismissed at this point for lack of
subject matter jurisdiction, then the March 12, 2007 preliminary
injunction would be vacated ipso facto on the same grounds. Even if
Defendants were to voluntarily abstain from enforcing the 2008-2010
Order until final resolution of Ramirez’s grievance (which they are
not willing to do, see Defs.’ Status Report of April 27, 2010 [Dkt.
No. 53] at 4), there is always the possibility that the grievance
procedure--which may or may not continue into arbitration,
depending on the decision of the union and/or CPB--would, in the
end, uphold the Order and require Ramirez to resign his seat.
In that event, if Ramirez is correct in arguing that the 2008-
2010 Order violates the Constitution, then “[n]ot only will
[Ramirez] lose his elected seat on the City Council, to which this
Court surely would not have the power to re-appoint him even if he
prevails on the merits, but his Constitutional rights will have
been violated.” March 12, 2007 Order at 13. And, “[a]s the Supreme
Court has said on many occasions, any violation of one’s First
Amendment rights constitutes irreparable harm.” Id.-18-
Because irreparable harm will result from a decision that
requires Ramirez to first pursue his First Amendment claim through
the negotiated grievance procedure, Defendants’ Motion to Dismiss
Plaintiff’s constitutional claim for failure to exhaust
administrative remedies is denied.
D. Plaintiff’s Challenge to the 2006-2008 Orders Is Moot.
Finally, Defendants argue that Ramirez’s claims challenging
the 2006-2008 Orders are moot, as the 2006-2008 term has expired.
Defs.’ Mot. to Dismiss at 4. Ramirez seeks a declaration that the
2006-2008 Orders are unconstitutional, as well as a permanent
injunction ordering CBP to rescind both the 2006-2008 Orders and
the 2008-2010 Order. Because Ramirez’s APA claim has been dismissed
pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter
jurisdiction, the argument will be addressed only as it pertains to
Ramirez’s remaining constitutional claim.
“The mootness doctrine, deriving from Article III, limits
federal courts to deciding ‘actual, ongoing controversies.’” Clarke
v. United States, 915 F.2d 699, 700-01 (D.C. Cir. 1990), quoting
Honig v. Doe, 484 U.S. 305, 317, 108 S.Ct. 592, 600-01, 98 L.Ed.2d
686 (1988). A case is moot “‘when the issues presented are no
longer ‘live’ or the parties lack a legally cognizable interest in
the outcome.’” United States Parole Comm’n v. Geraghty, 445 U.S.
388, 396, 100 S.Ct. 1202, 1208, 63 L.Ed.2d 479 (1980), quoting
Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1950, 23
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L.Ed.2d 491 (1969). This Court concludes that Ramirez’s challenge
to the 2006-2008 Orders is moot because the issues presented “are
no longer ‘live.’”7
Ramirez argues that the 2006-2008 Orders should not be
dismissed as moot because they uniquely raise the issue of the
agency’s reversal of position on how employees’ Requests to Engage
in Outside Employment or Business Activities are treated. While the
2006-2008 Orders are particularly relevant to CBP’s reversal,
7
An exception to the live controversy requirement is found
when a claim is capable of repetition, yet evading review. The
exception applies if “(1) the challenged action was in its duration
too short to be fully litigated prior to its cessation or
expiration, and (2) there was a reasonable expectation that the
same complaining party would be subjected to the same action
again.” Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 1183, 71
L.Ed.2d 353 (1982) (citations omitted). Ramirez argues that this
exception saves his constitutional challenge to the expired 2006-
2008 Orders, even though declaring the Orders unconstitutional and
ordering their rescission would have no practical effect on the
parties. Pl.’s Opp’n at 33-36.
Because CBP denied Ramirez’s request to serve on the City
Council for the 2008-2010 term, “the same complaining party” has
been “subjected to the same action again.” Murphy, 455 U.S. at 482.
Ramirez’s Second Amended Complaint added a challenge to this
denial, which permits this Court’s review of the same agency
action--denial of Ramirez’s request to serve on the Presidio City
Council--in the form of a live controversy. Thus, his claim cannot
be said to evade review. Cf. Fund for Animals, Inc. v. Hogan, 428
F.3d 1059, 1064 (D.C. Cir. 2005) (affirming dismissal of moot
challenge to environmental assessment because future assessments
could be litigated, and so claim did not evade review); Northwest
Airlines, Inc. v. Federal Aviation Administration, 675 F.2d 1303,
1307 (D.C. Cir. 1982) (refusing to apply exception where it was
“reasonable to believe that the legality of the . . . [challenged]
policy will be challenged in other cases”). This is therefore not
the “exceptional situation” where Article III’s live controversy
requirement need not be followed. DeFunis v. Odegaard, 416 U.S.
312, 319, 94 S.Ct. 1704, 1707, 40 L.Ed.2d 164 (1974).
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nothing prevents Ramirez from introducing them as evidence in
support of his constitutional challenge to the 2008-2010 Order and
to the shift in policy. Ramirez’s argument does not justify a
departure from the live controversy requirement by granting
declaratory and injunctive relief as to agency orders that have
expired.
For all these reasons, the Court concludes that the issues
raised in Ramirez’s challenge to the 2006-2008 Orders are not live
and do not present actual, ongoing controversies, but that such
issues are raised in the Second Amended Complaint and therefore
will not evade review. Consequently, the Defendants’ Motion to
Dismiss Plaintiff’s challenge to the 2006-2008 Orders as moot is
granted.
IV. CONCLUSION
For the reasons set forth above, the Defendants’ Motion to
Dismiss under Federal Rule of Civil Procedure 12(b)(1) is granted
with respect to Plaintiff’s APA claim, and denied with respect to
Plaintiff’s constitutional claim. The Motion to Dismiss Plaintiff’s
claims related to the 2006-2008 Orders as moot is granted. An Order
will accompany this Memorandum Opinion.
/s/
May 5, 2010 Gladys Kessler
United States District Judge
Copies to: attorneys on record via ECF
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