NTEU Secures Preliminary Injunction in Free Speech Rights Case


3/13/07: In a legal case with potentially far-reaching First Amendment implications throughout the federal workforce, NTEU has won a preliminary injunction preventing the Bureau of Customs and Border Protection (CBP) from forcing an employee to choose between his job and public service to his community.

“This injunction is an important step forward in a vital case in the continuing battle to protect the free speech rights of federal employees,” said NTEU President Colleen Kelley. NTEU has a long and successful history in the fight for First Amendment rights for federal workers.

This case, filed in U.S. District Court for the District of Columbia, involves a CBP demand that a front-line employee resign either his CBP position or his unpaid, elected position on the city council in Presidio, Texas. When the order to resign one or the other positions was issued by the agency to CBP Officer Jaime Ramirez in late December, President Kelley described the action as “an outrageous violation of this officer’s rights.” Rather than impede and prevent such community participation, she said, “CBP should be doing all it can to encourage its employees to contribute to their communities in this way.”

Judge Gladys Kessler, who issued the preliminary injunction, said in her decision that the CBP effort “could have far-reaching implications for the First Amendment freedoms of government employees throughout the country to participate in a wide range of local, non-partisan community activities.” In her decision, Judge Kessler said the government is “seeking to bar what the Supreme Court has referred to as core First Amendment activity, namely, his participation in the political process and the civic life of his community.”

After seeking and obtaining CBP’s formal authorization to do so, Ramirez successfully ran for the non-partisan city council seat in 2004; in 2006, all candidates for Presidio City Council were unopposed and installed in office without an election in the city of some 6,000. In the wake of a directive from the agency that all such decisions would be made at Washington headquarters, he was ordered to resign his job or his city council post.

The judge was critical of CBP for having totally reversed its position on this issue without explanation, noting that “for a period of at least two years (and probably a lot longer), defendants had no objection whatsoever to CBP employees serving their community in unpaid, non-partisan political positions.” Judge Kessler said CBP failed to “give any persuasive justification for the abrupt change.” She added that “it would appear that the reversal in the agency’s position is directly related to simple bureaucratic or managerial shifts, namely, that the situs of decision-making has moved from local field operations directors, who presumably know the conditions in their locality, to lawyers and supervisors in Washington, D.C., who probably have little or no particular knowledge of local conditions.”

By granting the preliminary injunction, “the interests of the good citizens of Presidio in having their elected representative in office will be fully protected,” the judge wrote, until the merits of the case can be fully litigated.