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Ramirez v. U.S. Customs and Border Protection

March 12, 2007

JAIME RAMIREZ, PLAINTIFF,
v.
U.S. CUSTOMS AND BORDER PROTECTION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gladys Kessler United States District Judge

MEMORANDUM OPINION

Plaintiff Jaime Ramirez is a U.S. Customs and Border Protection Officer. Plaintiff also serves as an unpaid member of the City Council of Presidio, Texas ("the Council"), and has served in that capacity since 2004.

On December 22, 2006, Defendant Louis Garcia, Director of Field Operations, U.S. Customs and Border Protection ("CBP" or "the Agency"), ordered Plaintiff to resign his seat on the City Council. Defendants have given Plaintiff until March 15, 2007 to decide whether he will comply with CBP's order or resign his position with the Agency.

On January 12, 2007, Plaintiff filed a Complaint in this Court seeking declaratory and injunctive relief. Plaintiff seeks a declaration that the Agency's December 22, 2006 directive unlawfully violates his First Amendment rights, and seeks an order directing CPB to rescind it.

This matter is presently before the Court on Plaintiff's Motion for a Preliminary Injunction [#3]. Plaintiff argues that entry of a preliminary injunction is appropriate and necessary in order to prevent irreparable harm. He points out that if he is forced to resign his seat before his case is resolved, his harm would be irreparable because the Court cannot return him to the City Council even if he ultimately prevails on the merits of his claim.

The Government responds that the courts have consistently upheld limitations on the ability of civil servants to serve in elective office and that such limitations do not restrict First Amendment freedoms. Moreover, the Government argues that its order only bars Plaintiff from service on the City Council but does not restrict his freedom to speak out on any civic issues of public interest. Finally, the Government justifies its position in this case on the need to avoid any appearance of conflict of interest between Plaintiff's duties and his service on the Council.

Based on the motion, opposition, reply, motion hearing, applicable case law, and the entire record herein, and for the reasons stated below, Plaintiff's motion is granted.

I. BACKGROUND

Plaintiff Ramirez is employed as a CBP Officer in Presidio, Texas. In that role, he inspects vehicles and persons entering the United States from Mexico to ensure compliance with customs and immigration laws. The Agency is the only employer from which Plaintiff receives compensation.

Presidio is a small, poor town of approximately 5,000 residents located across the border from its "sister city" of Ojinaga, on the other side of the Rio Grande in Mexico. According to the parties, over 700,000 vehicles pass through the entry port at Presidio each year. Ojinaga and Presidio can fairly be described as closely connected by culture, familial ties, and commerce. Individuals cross the border in both directions every day for employment, shopping, school, and social activities.

In May of 2004, after obtaining approval from CBP pursuant to Customs Directive No. 51735-001A, Plaintiff ran for and was elected to serve a two-year term on Presidio's City Council.*fn1 City Council elections are nonpartisan, and Council Members are not compensated for their service.

The five Council Members and the Mayor comprise Presidio's municipal government. The City Council is authorized to enact local ordinances, resolutions, and regulations. The Council is primarily responsible for traditional municipal issues relating to zoning, street repair, sanitation, and emergency services.

In 2006, at the close of Plaintiff's first term in office, Plaintiff became a candidate for a second term. None of the candidates in the 2006 election faced an opponent, including Ramirez, so the Council seated each candidate to serve the 2006-2008 term. Plaintiff did not file a request for the Agency's approval to serve a second term, thinking it unnecessary since he had obtained such approval in 2004 and, in 2005, had been commended by Defendant Garcia, the Director of Field Operations in El Paso, for his willingness to serve on the City Council. Plaintiff has previously been active in community affairs, having served on the City's appraisal review board and its economic development board, and having coached Little League teams. In the past, many CPB employees, as well as those from its predecessors, the Immigration and Naturalization Service and Customs Service, have been active in non-partisan politics in Presidio. At least one person has been Mayor of Presidio while employed by the CPB and assigned to the Presidio port of entry.

On December 1, 2006, two years after Plaintiff received permission in 2004 to run for the City Council, CPB changed its internal procedures. The responsibility for making such decisions was taken away from CPB local Directors of Field Operations and shifted to CPB headquarters where they must now be approved by two lawyers and a management official, located in Washington, D.C. Shortly after this centralization of decision-making, on December 22, 2006, Defendant Louis Garcia sent a memorandum to Plaintiff directing him to resign his seat on the Council. Garcia concluded that service on the Council by a CBP Officer created actual or apparent conflicts of interests. Garcia also advised that CBP had only approved Plaintiff's service on the Council for the 2004-2006 term.

The order identified two potential conflicts. First, CBP and Presidio are both seeking to acquire a piece of land which had been seized by the U.S. Drug Enforcement Agency ("DEA"). Second, Garcia claims that the "ongoing relationship between CBP and [Presidio] over normal business issues" presents an ...


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