                   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


                                         -2-
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”.

                                   -3-
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).




                                     -4-
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




                                    -5-
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

                                          -6-
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.

                                     -7-
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.

                                    -8-
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”).

                                             -9-
§ 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).




                                       -10-
      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


                                          -11-
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


                                      -12-
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.

                                      -13-
     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.

                                     -14-
       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.


                                          -15-
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.




                                  -16-
     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


                                  -17-
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).

                                     -20-
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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