The opinion of the court was delivered by: Gladys Kessler United States District Judge
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.
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 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 2006-2008*fn1 Orders violated his First Amendment rights to engage in political speech and to associate. Ramirez also alleges 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).
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.
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 federal court.*fn2 Third, Defendants argue that Ramirez's claims challenging the 2006-2008 Orders are moot, as the period of time they ...