Juan Curbelo and William Leafstone Jr., both of Douglas, alleged Border Patrol Chief David Aguilar and Tucson Sector Chief Patrol Agent Robert Gilbert violated their First Amendment rights.
The agents say the officials unlawfully suspended their enforcement authority, placed them on administrative duties and refused to reinstate their original positions, after they spoke out against the practice of “shotgunning” traffic — stopping vehicles without reasonable suspicion.
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Their complaint was filed in May. In July, an attorney for the defendants filed a motion to dismiss the case due to a “lack of subject matter jurisdiction.” Subsequent documents regarding the motion were filed by both sides in August and September. A hearing on the matter is scheduled for Dec. 19.
According to the motion to dismiss, the allegation by the plaintiffs that their supervisor reassigned them or significantly changed their duties in violation of their First Amendment rights falls within the “prohibited personnel practices” governed by the Civil Service Reform Act.
Allegations of prohibited personnel practices are investigated by the Office of Special Counsel. And, an employee may request a stay of a personnel action pending an OSC investigation.
“If there are reasonable grounds to believe the action is the result of a prohibited personnel action, the OSC may ask the agency to delay the action and, if it refuses, it may ask the Merit Systems Protection Board to stay the action,” the motion states.
“If the OSC investigation finds sufficient evidence of a violation, the OSC can seek corrective action, disciplinary action, or both. If an agency fails to remedy a violation upon request of the OSC, corrective action may be sought before the MSPB,” it continues.
An appeal of a Merit Systems Protection Board can only be filed in the Federal Circuit’s Court of Appeals, unless it involves a discrimination claim. As a result, the defendants maintain the U.S. District Court does not have jurisdiction over the matter.
But, the plaintiffs claim the U.S. District Court has jurisdiction to hear claims of constitutional violations.
According to the plaintiffs’ response to the motion to dismiss filed in August, the deprivation of a person’s First Amendment rights results in irreparable harm that “should weigh in favor of judicial intervention for the purpose of exercising its power in equity.”
The document points out the plaintiffs filed complaints with the Office of Special Counsel in October of 2007 claiming reprisal for whistle-blowing, but the complaints were rejected and the cases closed in December of 2007. In June, the plaintiffs filed another OSC complaint.
“Plaintiffs are not alone in their ability to obtain relief by way of the scheme set up by the CSRA. OSC has an earned reputation for its lack of effectiveness, leaving federal employees no avenue but the courts to seek redress for constitutional injury,” the document states.
In 2005 and 2006, only about 2 1/2 percent of the cases before the Office of Special Counsel resulted in favorable action for the employee filing the complaint, according to the document. And, the total number of favorable actions obtained for whistle-blowers declined from 120 in 1995 to 40 in 2006.
But in a reply brief filed in September, the defendants point out the “plaintiffs did not truly avail themselves of the process and remedies available” when the Office of Special Counsel rejected their whistle-blower complaints.
“Plaintiffs did not seek corrective action from the MSPB, but they assert that ‘the Court should take action,’ ” the document states, adding, “Plaintiffs are in the process of challenging the proposed adverse action which, if taken, may be appealed to the MSPB and thereafter to the Federal Circuit.”
According to the lawsuit, Curbelo’s ex-wife was arrested by Border Patrol in New Mexico and charged with possession of marijuana with intent to distribute in December of 2006. Agent Curbelo later complained that agents were shotgunning traffic when they stopped her.
Leafstone testified at a court hearing for Curbelo’s ex-wife in August of 2007 regarding the practice of shotgunning, and a judge decided the traffic stop was not supported by evidence of reasonable suspicion.
Soon after, Gilbert reprimanded Curbelo and Leafstone for divulging sensitive information. They were assigned to administrative duties of building border fence. Curbelo also was placed on facilities maintenance for a period of time.
They deny divulging sensitive information, and they are seeking reinstatement of their regular supervisory positions. In July, they were served with notices proposing to remove them from their employment.
Herald/Review reporter Jonathon Shacat can be reached at 515-4693 or by e-mail at jonathon.shacat@bisbeereview.net.
