A Motorist stopped for suspicion of transporting illegal aliens across the United States-Mexico border

In March 1999, a motorist stopped for suspicion of transporting illegal aliens across the United States-Mexico border filed a complaint with the United States Attorney’s Office alleging his civil rights were violated when a United States Border Patrol Agent allegedly used excessive force on the motorist during the traffic stop.

Even though the civil rights complaint alleged misconduct on the part of one agent, the two agents present during the stop were placed on administrative duties and relieved of their service-issued firearms, identification badges and credentials, “pending full investigation of allegations of misconduct.” The agents were “temporarily assigned to administrative duties pending resolution of this matter.”

When Agent David Dresser met with the assistant United States attorney assigned to the investigation he was told he was not a suspect, but a witness. Additionally, in correspondence from the United States Attorney’s Office to LDF panel attorney James M. Gattey, the United States Attorney’s Office stated Dresser would be treated as a witness and not the subject of the investigation.

Although only a witness, the Border Patrol seized Dresser’s service-issued weapon, badge and credentials, and assigned him to administrative duty. Consequently, the Border Patrol transferred Dresser from his night shift to the day shift to work a Monday through Friday schedule.

Because of the transfer, Dresser suffered a reduction in pay due to the loss of his shift differential and weekend premium pay rates he was receiving before being transferred to the day shift. Agent Dresser’s pay records demonstrated that because of his assignment to administrative duties, the Border Patrol had effectively reduced his pay by approximately 30 percent.

Because of this substantial loss of pay resulting from the assignment to administrative duty and the likelihood of the Border Patrol continuing this practice, National Border Patrol Council Local 1613 asked the PORAC LDF to authorize coverage for Dresser to pursue a grievance against the Border Patrol.

LDF panel attorneys James M. Gattey and Patrick T. Cooney, of the Law Offices of James M. Gattey handled Dresser’s grievance.

In his grievance, Dresser contended that under the provisions of the Collective Bargaining Agreement (CBA) between the National Border Patrol Council and the Immigration and Naturalization Service, a reduction in pay constituted “adverse action” which can only be imposed for a cause.

Furthermore, before taking adverse action the Border Patrol is required to provide the agent with the materials supporting the action and give the agent an opportunity to reply to the allegations of misconduct. Dresser was never advised of any determinations of misconduct which the Border Patrol could assert as a cause for its imposition of adverse action, nor given an opportunity to review and respond to any allegations of misconduct.

Therefore, Dresser argued the Border Patrol had not provided him with due process before imposing disciplinary action.

In addition, the CBA requires notice of proposed adverse action “at the earliest practicable date after the alleged offense has been committed,” but that it is “understood criminal investigations outside the control of the employer may be prolonged.” However, if the investigation is prolonged, “the employer must furnish notice at the earliest practicable date after the employer has obtained control of the matter under investigation.”

Dresser asserted in his grievance that the Border Patrol had the ability to conduct an administrative investigation of allegations of misconduct at any time, regardless of whether a criminal investigation was being conducted by a prosecuting agency.

Dresser argued the only “investigation” asserted by the Service as the basis for reducing Agent Dresser’s pay must be the one conducted by the United States Attorney’s Office. Dresser pointed out the prosecutor acknowledged he was neither a target nor a subject of its investigation.

Dresser was simply a witness. Thus, the only investigation of the allegations of excessive force had concluded Dresser was simply a witness. Therefore, there were no allegations of misconduct pending against Dresser that could possibly serve as the basis for the Border Patrol’s imposition of adverse action.

Not surprisingly, the chief Border Patrol agent of the San Diego Sector rejected Dresser’s grievance. The grievance met a similar fate before the regional director of the INS. However, before an independent arbitrator was selected to hear the grievance, the chief Border Patrol agent of the San Diego Sector, issued a memorandum.

It stated that when an agent is assigned to administrative duties pending a criminal or internal investigation, the agent must continue to be paid at the rate of the regularly assigned shift, including administratively uncontrollable overtime and night premium pay.

As a result of the chief’s memorandum, Dresser’s time and attendance reports were amended and he received all lost night premium and differential pay resulting from the Border Patrol’s decision to place him on administrative duty and remove him from his regular assignment.