492 F.Supp. 121 (1980)
James A. KELLY et al., Plaintiffs,
v.
UNITED STATES POSTAL SERVICE et al., Defendants.
No. C-1-80-058.
United States District Court, S. D. Ohio, W. D.
April 21, 1980.
Marc D. Mezibov, Furer, Moskowitz, Siegel & Mezibov, Robert Newman, American Civil Liberties Union, Cincinnati, Ohio, for plaintiffs.
James C. Cissell, U. S. Atty., Ann Marie Tracey, Asst. U. S. Atty., Cincinnati, Ohio, D. Richard Froelke, Regional Labor Counsel, Chicago, Ill., for defendants.

*122 OPINION
DAVID S. PORTER, Senior District Judge:
This matter is before the Court on plaintiffs' motion for a preliminary injunction mandating their reinstatement to the employ of the United States Postal Service (doc 4). An adversary hearing was held March 5, 1980. From the testimony at the hearing, the various affidavits and submissions of the parties, and the memoranda and argument of counsel, we make the following findings of fact and conclusions of law.

FINDINGS OF FACT
Plaintiffs are James A. Kelly and Robert N. Hauck. On the days relevant to this action both were employed as mail handlers by the United States Postal Service at its Sharonville, Ohio, Bulk Mail Center ["BMC"]. Plaintiff Kelly worked at the inbound docks of the BMC, unloading mail bags and parcels from trucks and putting them on conveyor belts. Plaintiff Hauck worked in the "dispatch" area adjacent to the inbound docks, putting containers of mail on a conveyor belt.
Defendants are the United States Postal Service, William F. Bolger (Postmaster General), John P. Doran (Regional Postmaster General), K. W. Cooley (District Manager of the Postal Service), William New (supervisor at the BMC) and Robert Twitty (supervisor at the BMC).
The United States Postal Service ["Postal Service"] is an independent establishment of the Executive Branch of the United States Government, created by Act of Congress. 39 U.S.C. § 201. It operates as a quasi-governmental entity directed by a Board of Governors appointed by the President. 39 U.S.C. § 202. Its basic function is to provide prompt, reliable, and efficient postal services to all American communities. 39 U.S.C. § 101.
The BMC is a large facility maintained and operated for the purpose of expediting delivery of the mail. Regulations for employee attire at the BMC state that "[p]ersons working around machinery should wear snug fitting clothing, short sleeves and no neckware or jewelry" and that "[e]mployees will not strip to the waist while working on Postal property." Employees at the BMC have work clothing with political and nonpolitical insignia and messages on them and doing so was not a violation of the dress code.
There are 38 inbound docks equipped with conveyor belts at the BMC. About 35 mail handlers and two supervisors, Robert Twitty and Marvin Worst, work at the docks. Supervisor Twitty does most of the administrative work for the inbound docks and spends a great deal of time seated at a desk that does not allow him to fully view the docks area. Supervisor Worst spends most of his time directing the unloading of trucks at the inbound docks; he assigns workers, usually in pairs, to particular docks. The workday at the BMC inbound docks runs from 7:30 a. m. to 4:00 p. m. Monday through Saturday, with a half-hour lunch break from 11:30 a. m. to noon and a short rest break during the afternoon.
Plaintiffs are represented for collective bargaining purposes by the National Post Office Mail Handlers, Watchmen, Messengers and Group Leaders Division of the Laborers' International Union of North America, AFL-CIO ["Union"]. The terms and conditions of their employment are governed by a national collective bargaining agreement which includes a four-step grievance procedure culminating in binding, third-party arbitration. Disciplinary actions available to the Postal Service include "emergency suspension" and "removal." Also available is "progressive discipline" which consists of five steps: (1) letter of warning, (2) seven day suspension, (3) fourteen day suspension, (4) another fourteen day suspension, and (5) removal.
Under the Union-Postal Service agreement an employee's insubordination, which would include failure to obey a direct order given by a supervisor, can bring discharge or other discipline of that employee.
On Saturday, December 8, 1979, plaintiffs reported to work wearing buttons on their *123 shirts that bore the language "Death to the Shah  U. S. Imperialism get your Bloody Hands Off of Iran." The buttons were about 1½ inches in diameter. Plaintiff Kelly had worn his button to work several days prior to December 8. Just before lunch break Worst informed Twitty that some of the workers were upset about Kelly's button. Just after lunch Joseph Mechley, who is also a mail handler on the inbound docks, took the button from Kelly's shirt and, along with fellow mail handler Steve Edwards, presented it to Twitty, complaining that the language on the button angered them.
At the time the button was presented to Twitty ten to twelve mail handlers, including Kelly had gathered around Mechley and Edwards. Twitty told the group to return to work and they dispersed, except Mechley, Edwards, and Kelly, who remained. Mechley and Edwards stated to Twitty that they did not like Kelly's button because it was "putting down" the United States. Twitty told Mechley and Edwards to give the button to him and return to work. They did so. Twitty then took Kelly to his desk and told him that the button was disruptive and could put him in danger. Kelly asked for return of the button. Twitty told Kelly the button would be returned at the end of the work day and directed Kelly to return to work. After making some statements to Twitty, Kelly returned to work.
At some point during the discussion among Twitty, Mechley, Edwards, and Kelly a request was made for the presence of a Union official. Union steward Joseph Styles, who works as a mail handler in another part of the BMC, was called by Twitty. Styles first spoke with Mechley who informed him that Kelly's button was upsetting because it said "kill all Americans." Styles told Mechley that the situation was not a Union matter. Styles also spoke with Kelly and Twitty individually and told them the situation was not a Union matter.
At the conclusion of his meeting with Kelly, Twitty went to his immediate supervisor James Flamm and discussed the incident. Flamm asked if he should deal with the situation personally. Twitty stated that if he and Worst stayed on the docks the entire afternoon they could keep any disruption from occurring. Flamm instructed Twitty to return the button to Kelly and to tell Mechley and Edwards that any violent acts by them would lead to their dismissal.
Twitty returned to the docks area and gave the button to Kelly, telling him he could wear it. Kelly stated that he would wear a tee-shirt to work Monday that would "really upset the motherfuckers." Twitty then took Mechley and Edwards aside and explained the consequences of any violent acts on their part. Mechley and Edwards said they would not commit any violent acts, but if they were further provoked there was no way they could be stopped. They also informed Twitty that they wanted to start an employee petition regarding the buttons worn by Kelly and Hauck. Twitty said they could not do so while at work.
For the balance of the work day both Twitty and Worst stayed in the docks area and supervised the work. Twitty at one time saw an inscription on the chalkboard in the docks area stating "death to commies" or something similar. Twitty obliterated it. Throughout the afternoon Mechley drove a forklift truck and when passing Kelly's work station he would make shooting gestures with his hands. At one point in the afternoon the mail handler working directly with Kelly told Worst that he did not want to work with Kelly, but, after discussing the matter, said he would finish the day working with Kelly. Worst said he overheard conversation to the effect that some mailhandlers were going to "break Kelly's head." There was tension in the docks area the entire afternoon and the presence of both Twitty and Worst was necessary to complete the unusual work load. No disciplinary actions were taken against any of the mail handlers on the inbound docks that afternoon.
During the afternoon break on December 8 plaintiff Hauck and Mechley were seated *124 in the BMC cafeteria, along with 40 to 50 others. Mechley was talking loudly and uttering obscenities toward Hauck and Kelly regarding their buttons. At one point Mechley stood up and moved in a menacing way toward Hauck. Almost immediately Mechley was restrained by Edwards and others. Hauck remained seated. Mechley shouted that he would shoot Hauck and Kelly, made shooting gestures with his hands, and then left the room. Twitty was informed of this event but was assured by Mechley that it was "no big deal." Mechley, a disabled Vietnam veteran, is reputed to have a "short fuse." Sometime later in the afternoon Kelly and Hauck conferred and determined they would wear tee-shirts with anti-Shah messages to work the following Monday.
On Monday, December 10, 1979, both plaintiffs came to the BMC wearing the buttons they had worn December 8. They also wore tee-shirts depicting a likeness of the recently deposed Shah of Iran and bearing the language "Shah Wanted, Dead or Alive." The word "Alive" was crossed out with a large X.
Kelly wore his tee-shirt and button under a work shirt which was open in front. The language on the tee-shirt and button were clearly visible. Hauck had on no shirt other than the tee-shirt.
At 7:30 a. m. on December 10, when they would usually report to their work stations, several mail handlers working at the inbound docks gathered near the time clock area and complained about Kelly's tee-shirt and button to Twitty and Worst. Twitty instructed them to go work and they did. Twitty then went to the dock Kelly was assigned to and told him to close his work shirt so that the messages on his tee-shirt and button could not be seen. Kelly, who was at work unloading a truck, asked if Twitty was ordering him to do so for safety reasons. Twitty responded, "for that and other reasons." Kelly refused to follow Twitty's instruction, commenting that Twitty should discipline other mail handlers on the inbound docks because they were the ones not working. Twitty again told Kelly to cover his tee-shirt and button. Kelly again refused. Twitty told Kelly to come with him to the tour (superintendent's) office. Kelly did so.
During their discussion at the dock Twitty told Kelly that other mail handlers were upset because of his tee-shirt and that he was being removed from the docks area for his own safety. Kelly's attire was not in violation of the BMC dress code and did not present a safety hazard. While Twitty and Kelly spoke a number of mail handlers stopped working to watch. They did so out of curiosity; no violence was threatened. At the time he removed Kelly from the docks area Twitty sincerely believed there was an explosive situation that needed to be defused. Twitty felt violence was imminent.
Just after Kelly and Twitty left the inbound docks area, Hauck, who saw them leave, was approached by his supervisor William New and was told that unless he removed his shirt he would be taken out of the work area. Hauck began to remove his shirt and informed New that by doing so he would be bare chested. New then told Hauck not to remove his shirt. (There is no evidence of any offer to turn the shirt inside-out or any request that such be done.)
Hauck joined Kelly in the office of the tour superintendent. New and Twitty again told Kelly and Hauck to remove their shirts and buttons. They again refused. They were told to wait in the office for further action.
About 1 p. m. the following statement was read to Kelly and Hauck by Twitty and New:
The buttons and shirts you are wearing are purely political and inflammatory in nature, and the order for you to remove this material is for your mutual aid and protection as well as other employees'.
There is sufficient evidence which indicates that the continued display of this material could lead to violence. Saturday, December 8, 1979, is a good example.
As an employer, the United States Postal Service does not have to wait until *125 an injury occurs if there is a reasonable possibility of violence.
Therefore, I am ordering you to remove the material and go back to work.
Should you fail to obey the order to remove this material, it will result in your discharge from the Postal Service for failing to obey a direct order.
Both plaintiffs stated they understood the order and refused to comply with it. They remained in the tour office.
At about 3 p. m. Kelly and Hauck received typewritten notices of proposed emergency suspension signed by their supervisors and Jerry G. Grant who was the BMC's designated reviewing authority for disciplinary matters. The notice given to Kelly stated that the wearing of the tee-shirt and button "caused tension on the workroom floor," "resulted in a confrontation between you and several other mailhandlers," and "could result in physical harm to yourself and others." Kelly's notice concluded that he had refused to obey an order and that he had to be removed from the premises for the protection of himself and others.
The notice given to Hauck stated that his tee-shirt and button had "caused tension on the workroom floor and could result in physical harm to yourself and others." The notice further stated that Hauck had refused to obey an order to remove the shirt and button and that he had to be removed from the premises for the protection of himself and others.
After reading and acknowledging their notices Kelly and Hauck left the BMC.
Sometime on December 10 Twitty was presented a petition signed by 37 mail handlers stating
... Joseph P. Mechley and the undersigned protest working with Bob Hauck and James Kelly my co-workers who are members of the Revolution Communist Party. Bob Hauck and James Kelly are parading themselves with anti-American buttons.
Bob Hauck and James Kelly are provoking violence by wearing these anti-Americanism badges. This is obnoxious and offensive to the American patriots and is definitely creating unpleasant working conditions.
On December 17 Kelly received a "notice of removal" signed by Twitty and Grant stating that he would be removed from the Postal Service on January 21, 1980 because he had failed to obey a direct order. On December 18 Hauck received a "Letter of Decision  Emergency Suspension" stating he would be suspended for 30 days effective December 24. On December 20 Hauch received a "Notice of Charges  Removal," signed by New and Grant stating that his removal from the Postal Service was proposed because he failed to obey a direct order. On January 11, 1980 Hauck received a "Letter of Decision" signed by Paul P. Manning, BMC general supervisor, informing him he would be removed from the Postal Service effective January 25, 1980 because he had failed to obey a direct order.
Pursuant to the grievance-arbitration procedure in the collective bargaining agreement between the Union and Postal Service, Kelly and Hauck filed timely grievances for their suspensions and removal. The third step of the procedure had been completed with respect to each grievance and they have thus far been denied. The fourth step, presentation to an arbitration panel, is scheduled for April 11, 1980. The panel includes a professor from Notre Dame University.
The Court takes judicial notice of the fact that at the time Kelly and Hauck wore their shirts and buttons to the BMC about 50 employees of the United States Embassy in Teheran, Iran, had been held hostage by Iranian militants for about four weeks. The taking of the hostages was precipitated by the entry of the deposed Shah of Iran into the United States for medical treatment. Americans generally were frustrated and mad at this humiliating turn of events. Outrage against Iranians and their sympathizers was the order of the day.
At the hearing Twitty and Worst described the general situation at the inbound docks of the BMC as volatile. They stated *126 that if Kelly and Hauck returned to work violence would be imminent and they would be unable to stop it.

CONCLUSIONS OF LAW

I.
Before getting to the merits of plaintiffs' request for preliminary injunction, we must decide whether the Court has jurisdiction over the controversy. Defendants assert that this Court lacks subject matter jurisdiction and that the matter is exclusively for the National Labor Relations Board.
The United States Postal Service is subject to the Labor Management Relations Act (LMRA) and the jurisdiction of the National Labor Relations Board (NLRB), 39 U.S.C. § 1209. LMRA § 7, 29 U.S.C. § 157, provides:
Employees shall have the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection ....
LMRA § 8(a)(1), 29 U.S.C. § 158(a)(1) states:
(a) It shall be an unfair labor practice for an employer
(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 [29 U.S.C. § 157]. . ..
When an employer interferes with an employee's § 7 rights, the employee may file a charge with the NLRB. 29 U.S.C. § 160(b). The NLRB is empowered to issue complaints, hold hearings, and make orders regarding the charge. 29 U.S.C. § 160(b), (c). The orders may be enforced by United States Courts of Appeals and District Courts. 29 U.S.C. § 160(a). The NLRB may also petition a District Court for an order enjoining the employer's action prior to issuing its own order. 29 U.S.C. § 160(b). See generally, Gorman, Basic Text on Labor Law, 7-9 (1976).
As a general rule, when an activity is arguably subject to LMRA § 7 or § 8, federal courts must defer to the special competence of the NLRB. San Diego Unions v. Garmon, 359 U.S. 236, 245, 79 S.Ct. 773, 779, 3 L.Ed.2d 775 (1959). Employee speech regarding concerns of employees as employees is protected by LMRA § 7 and any employer action punishing such speech is a potential unfair labor practice under LMRA § 8(a)(1). Eastex, Inc. v. NLRB, 437 U.S. 556, 563-70, 98 S.Ct. 2505, 2511-14, 57 L.Ed.2d 428 (1978). In such a case, deference to the NLRB's jurisdiction is required, even if a constitutional claim is involved. See Letter Carriers v. Austin, 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974); Linn v. Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966).
The Supreme Court has stated, however, that "[t]here may well be types of [employee] conduct or speech that are so purely political or so remotely connected to the concerns of employees as employees as to be beyond the protection of [LMRA § 7]." Eastex, Inc. v. NLRB, supra, 437 U.S. at 570 n.20, 98 S.Ct. at 2515 n.20. This statement supports an earlier NLRB determination that a private employer's censure of a purely political tract distributed by an employee did not constitute an unfair labor practice. Ford Motor Co., 221 NLRB 663, 666 (1975), enf'd 546 F.2d 418 (3d Cir. 1976).
The messages contained on the tee-shirts and buttons of the plaintiffs in this case easily fall into the category of "purely political." Indeed the statement read to plaintiffs by their supervisor identified them as purely political. They criticize American foreign policy and recommend dire consequences for a deposed foreign leader. The messages do not relate to plaintiffs' jobs or to their status or condition as employees. They are not connected to the interests of employees as employees and therefore are not protected from employer censure by LMRA § 7. The actions of the Postal Service in this case do not then constitute an unfair labor practice under LMRA § 8(a)(1). Deference to the jurisdiction of the NLRB is not required; indeed the NLRB's jurisdiction could not be invoked in this matter.
*127 While plaintiffs are without the protection of LMRA § 7 in this case, they are not without the rights guaranteed by the First Amendment to the Constitution. Because the Postal Service is an agency of the federal government, it must respect the First Amendment rights of those it comes in contact with, Tucker v. Texas, 326 U.S. 517, 520, 66 S.Ct. 274, 275, 90 L.Ed. 274 (1946), including its employees. Beilan v. Board of Public Education, 357 U.S. 399, 405, 78 S.Ct. 1317, 1321, 2 L.Ed.2d 1414 (1958). Plaintiffs' allegation of violation of their free speech rights by the Postal Service necessarily states a federal cause of action and the lack of preemption by the NLRB puts the issues squarely before this Court. The fact that plaintiffs were public employees does, however, enter into our resolution of those issues.
Plaintiffs' pursuit of the grievance-arbitration process available to them because of the collectively bargained contract between the Union and the Postal Service does not bar this Court's determination of the issues before it. As a general rule, national labor policy dictates that a court should not entertain a civil suit by an employee who has not exhausted an available grievance-arbitration remedy. Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965); see United Steelworkers v. Am. Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960). This policy gives way however when the employee suffers irreparable harm. See Sampson v. Murray, 415 U.S. 61, 84-92, 94 S.Ct. 937, 950-53, 39 L.Ed.2d 166 (1974). Plaintiffs here have alleged violation of their First Amendment rights. Such violation would, as a matter of law, constitute irreparable harm. Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 (1976) (plurality opinion). Hence, this Court need not await exhaustion of the grievance-arbitration process plaintiffs have pursued.
In sum, we conclude that this suit does not come before us as a matter of labor law and we must therefore consider it within a constitutional law framework.

II.
In determining whether a preliminary injunction should issue courts have traditionally considered four factors:
(1) the significance of the threat of irreparable harm to the plaintiff if the injunction is not granted;
(2) the state of the balance between this harm and the injury that granting the injunction would inflict on the defendant;
(3) the probability that plaintiff will succeed on the merits; and
(4) the public interest.
Princeton Ed. Assn. v. Princeton Bd. of Ed., 480 F.Supp. 962, 967 (S.D.Ohio 1979). 11 Wright & Miller, F P & P Civil § 2948 (1973) at 430-31.
Applying these factors to the facts of this case we find the first factor weighs in favor of granting an injunction. "The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, supra, 427 U.S. at 373, 96 S.Ct. at 2690. The Postal Service's suspension and dismissal of plaintiffs was a direct consequence of their refusal to obey a direct order regarding their speech activities. The Postal Service does not contend its actions were taken for any other reason. See Mt. Healthy Board of Ed. v. Doyle, 429 U.S. 274, 285-87, 97 S.Ct. 568, 575-76, 50 L.Ed.2d 471 (1977). If an injunction was denied and the Postal Service's actions were later found unconstitutional, plaintiffs will have suffered irreparable harm. Cf. Princeton, supra, 480 F.Supp. at 967.
Consideration of the second factor, a balance of injuries to the respective parties, also weighs in the plaintiffs' favor. If plaintiffs were reinstated in their jobs there is little doubt that their presence on the work floor would cause tension and there would be a potential for violence. In order to minimize disruption and continue the expeditious processing of the mail the Postal Service will have to provide close supervision of the work at the BMC's inbound docks. The facts show that when mail handlers *128 on the dock were closely supervised, they carried out their jobs despite the presence of plaintiffs and their attire. This close supervision would undoubtedly have to continue as long as the hostage crisis exists, but we doubt if it would have to continue interminably. While it continues the supervisory resources of the Postal Service would be strained. This burden, which would likely include extra expense for the needed supervisory personnel, does not, however, amount to an injury that would outweigh the irreparable harm plaintiffs would suffer by the denial of their First Amendment rights.
The third factor, the probability that plaintiffs will succeed on the merits, requires the Court to address the constitutional questions presented by this case. Plaintiffs claim the Postal Service suspended and dismissed them because of the language on their tee-shirts and buttons. This, plaintiffs argue, amounts to an abridgement of their First Amendment right of free speech.
At the outset we note that the language on plaintiffs' buttons and tee-shirts is, for constitutional purposes, "pure speech." See Tinker v. Des Moines Community School District, 393 U.S. 503, 505-06, 89 S.Ct. 733, 735-36, 21 L.Ed.2d 731 (1969). As such it is entitled to the highest degree of protection available under the circumstances. Kucinich v. Forbes, 432 F.Supp. 1101, 1111 (N.D. Ohio 1977).
In the context of public employees' exercise of free speech rights the Supreme Court has announced that
[t]he problem in any case is to arrive at a balance between the interest of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the [government], as an employer, in promoting the efficiency of the public services it performs through its employees.
Pickering v. Bd. of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968); see Givhan v. Western Line Consol. School Dist., 439 U.S. 410, 414, 99 S.Ct. 693, 695, 58 L.Ed.2d 619 (1979).
We find this "balancing" test of limited value in the case at bar because it has been applied by the Supreme Court only in situations where the employees have said something disparaging about their employers. See Givhan, supra, 439 U.S. at 412-13, 99 S.Ct. 693, 694-95, 58 L.Ed.2d 619; Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 283-84, 97 S.Ct. 568, 574, 50 L.Ed.2d 471 (1977); Perry v. Sindermann, 408 U.S. 593, 596-98, 92 S.Ct. 2694, 2696-98, 33 L.Ed.2d 570 (1972); Pickering, supra, 391 U.S. at 565-68, 88 S.Ct. at 1733-34. This is not the case here. The language on plaintiffs' tee-shirts and buttons was in no way aimed at the Postal Service or any person with whom they would be in contact during the course of their daily work as mail handlers. If this test did apply in this case, the balance would tip in favor of the plaintiffs because the language on their shirts and buttons concerns a matter of legitimate public concern, not an intramural dispute, and does not, by its very nature, "inflict injury or tend to incite an immediate breach of the peace." Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942); see Cohen v. California, 403 U.S. 15, 20-23, 91 S.Ct. 1780, 1785-1787, 29 L.Ed.2d 284 (1971). There is no doubt the language caused disruption, but not because it attacked the Postal Service. Because plaintiffs' language was commenting on a matter of general public concern which had no relation to the business of the Postal Service, the Postal Service's interests as an employer in regulating the speech of its employees is not significantly greater than its interest in limiting similar language expressed by a member of the general public. Pickering, supra, 391 U.S. at 573, 88 S.Ct. at 1737.
As a general matter, to restrict "pure speech" the government must show that:
(1) a clear and present danger is presented by the pure speech,
(2) the individual's interest in expressing himself is outweighed by the danger from allowing the pure speech, and
(3) the government has used the narrowest restriction on pure expression consistent *129 with the furtherance of the governmental interest involved.
Princeton, supra, 480 F.Supp. at 969 n.6; Kucinich v. Forbes, supra, 432 F.Supp. at 1111 and cases cited therein. As noted by the Supreme Court early on,
The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils Congress has a right to prevent. It is a question of proximity and degree.
Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470 (1919).
Viewing the facts of this case in light of the three requirements outlined above we conclude the plaintiffs have a high probability of success on the merits. The danger presented by their wearing of the tee-shirts and buttons is violence and physical injury on the inbound docks and disruption of the handling of the mail. Whether this danger is clear and present requires consideration of the circumstances in which the speech takes place. The BMC is not a public assembly hall or school. Its purpose does not include the fostering of exchange of views on matters of public concern. Its supervisory force is not charged with the duty of insuring that employees get to present their views on current political issues. Nevertheless, the facts of this case lead us to conclude that the existing supervisory force can maintain the expeditious processing of the mail without speech-related disruptions. On December 8 supervisor Twitty left the docks area to talk with James Flamm about the button incident, thus leaving Worst as the sole supervisor there, and no disruption occurred. Indeed, throughout December 8 no disruptions occurred and no disciplinary actions were taken. Further, the cafeteria confrontation between Mechley and Hauck, where Mechley was restrained by other employees, tends to show that plaintiffs' co-workers will actively avoid disruptions.[1] The danger of violence and disruption in these circumstances is not "clear and present." The fear of Twitty and Worst that some violence may take place in the future is sincerely held and not unwarranted, but it is insufficient as a foundation for a finding of clear and present danger.
Determining whether plaintiffs' interest in expressing themselves is outweighed by the danger from allowing their speech is difficult in this case. It is unclear, first of all, whether plaintiffs' interest in wearing their buttons and tee-shirts to the BMC is to state their own personal opinions, to persuade others to their point of view, or to cause irritation among their fellow mail handlers. Their audience at the BMC is small and obviously hostile, so it is unlikely that any efforts at persuasion would be successful. Further, plaintiffs are free to wear their attire elsewhere; they are not losing their only available forum when not allowed to wear them to the BMC. Finally, it is clear plaintiffs wore their tee-shirts on December 10 at least in part to taunt certain of their co-workers. Nevertheless they are public employees and citizens and their work place does not disallow the displaying of political messages on clothing. Hence, they have an interest in being able to participate in whatever exchange of political ideas takes place at the BMC. The dangers that may result from plaintiffs' tee-shirts and buttons are violence and disruption. While supervisor Twitty genuinely fears the occurrence of these dangers, we conclude, as noted above, that the likelihood of their occurrence is low  especially if the competent leadership and supervision of Twitty and Worst continues. With the likelihood of the dangers occurring being low, the plaintiffs' interest in expressing their political ideas, though not overwhelming, outweighs them.
The Postal Service has not used the narrowest restriction over pure expression consistent with the furtherance of the governmental interest involved. Specifically removing Kelly and Hauck could be seen as narrow restriction. It is, however, a specific exercise of a very broad, arbitrary restriction *130 which is in essence that anyone stating an opinion that angers others may be removed willy-nilly. This is a restriction of frightening proportions. Even without specific regulation the Postal Service could have taken lesser steps than suspension and removal to defuse the perceived difficulties. Plaintiffs could have been moved to another area, or those who threatened violence could have been moved to another area or reprimanded.
The major difficulty with this case is that the Postal Service did not regulate the time, place and manner of political speech at the BMC. The purpose of the facility is not speech related and restrictions on political speech could be severe if not total. See United States v. Douglass, 579 F.2d 545, 549 (9th Cir. 1978). The Postal Service chose however not to promulgate any restrictions on political language or emblems on clothing worn to the BMC. Hence, by suspending and removing plaintiffs' for wearing the tee-shirts and buttons the Postal Service was in effect, restricting the content of plaintiffs' speech, not the time, manner or place of its expression.
Any restriction on expression must be content neutral. Princeton, supra, 480 F.Supp. at 968-69.
Above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content (citations omitted) . . . The essence of forbidden censorship is content control. Any restriction on expressive activity would completely undercut the "profound rational commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." New York Times v. Sullivan, 376 U.S. 254, 270 [84 S.Ct. 710, 720, 11 L.Ed.2d 686].
. . . Government may not select which issues are worth discussing or debating in public facilities. There is an "equality of status in the field of ideas," (footnote omitted) and government must afford all points of view an equal opportunity to be heard.
Police Department of Chicago v. Mosley, 408 U.S. 92, 95-6, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212 (1972). Having chosen to allow political speech at the BMC the Postal Service is not free to censor that which some or all of its supervisors and employees dislike.
With or without regulation the Postal Service is not helpless in the face of substantial disorder. Behavior which materially disrupts the workplace or involves substantial disorder or invasion of the rights of others is not immunized by the constitutional guarantee of freedom of speech. Tinker v. Des Moines School District, supra, 393 U.S. at 513, 89 S.Ct. at 740. But in order to stop such behavior the government must show that the expression is directed to "inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430 (1969). We cannot conclude on the facts before us that the language on plaintiffs' tee-shirts and buttons was so directed. The language was no doubt upsetting to many of their co-workers and there is no doubt that plaintiffs wore the tee-shirts on December 10 to upset some of their co-workers, but these facts do not amount to "inciting or producing imminent lawless action" Brandenburg v. Ohio, supra. The plaintiffs wanted to disturb people, but they did not intend to cause violence. Also it is unlikely that the plaintiffs' tee-shirts and buttons would incite or produce lawless action. The events of December 8 show that all but one of the mail handlers on the inbound docks were able to fully restrain themselves and do their usual work. We cannot conclude that the anger of one short-tempered person is an adequate basis for finding lawless action is imminent. Compare Krause v. Rhodes, 570 F.2d 563, 570-72 (6th Cir. 1977).
It is true that if members of a mob have vowed before hand to act violently when a certain person speaks, that person will incite a riot by saying anything at all. In such a case however it is the obligation of the government to chastise the violent, not the verbal. Antieau, Modern Constitutional Law § 1.7, pp. 22-25 (1969). To do otherwise *131 would put the right of free speech at the mercy of those who threaten disruption. "Constitutional rights may not be denied simply because of hostility to their expression or exercise." Cox v. Louisiana, 379 U.S. 536, 551, 85 S.Ct. 453, 462, 13 L.Ed.2d 471 (1965); see Collin v. Smith, 578 F.2d 1197, 1206 (7th Cir. 1978) (Nazi "Skokie March" case). The obligation of government authorities is to do everything possible to suppress violence from members of the mob who would deny the opportunity to speak. Antieau, supra at 25.
It is doubtful that the Postal Service could satisfy the "heavy burden" of justifying their decision to suspend and remove plaintiffs on the basis of imminent lawless action. Healy v. James, 408 U.S. 169, 184, 92 S.Ct. 2338, 2347, 33 L.Ed.2d 266 (1972). Therefore, we conclude that the Postal Service will have difficulty making the showing required to suppress pure speech. Plaintiffs have a high probability of success on the merits at trial. The third factor weighs in favor of granting a preliminary injunction.
In view of the foregoing conclusions, we find that the public interest favors granting a preliminary injunction. The First Amendment's guarantee of freedom of speech is a cornerstone of our system of government. See Stromberg v. California, 283 U.S. 359, 369, 51 S.Ct. 532, 535, 75 L.Ed. 1117 (1930). In view of the very limited nature of the burden imposed on the Postal Service, the probability that plaintiffs will prevail in a trial on the merits, and irreparable nature of plaintiffs' alleged injury, we conclude that the public interest would be best served by granting of a preliminary injunction.
We also think it pertinent to observe that the events that lead to this lawsuit were caused in part by strong patriotic sentiments. Plaintiffs' co-workers felt, and this Court sympathizes, that plaintiffs endorsed the lawless, humiliating actions that had been taken against American Embassy employees in Iran. To disagree with, and indeed be offended by the messages carried by plaintiffs' buttons and tee-shirts are certainly valid feelings. But to take action against plaintiffs because of the political ideas they espouse is clearly unlawful and just as clearly unpatriotic. For to punish those that endorse unpopular ideas is to punish the individualism and pluralism that have given the United States the strength to carry on its democratic government. Along with their right to speak and believe as they please all Americans have the responsibility to tolerate the speech and beliefs of those they disagree with. If we do not practice such tolerance we will become something less than a free and independent people.

CONCLUSION
A recent case we have found illuminating while pursuing this decision is Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978). In that case the Circuit Court affirmed a District Court determination that enforcement of local ordinances aimed at stopping Nazi Party members from parading through a predominantly Jewish village violated the First Amendment rights of the Nazis. We can find no more appropriate words now than those used by Judge Pell to conclude his majority opinion:
"The result we have reached is dictated by the fundamental proposition that if these civil rights are to remain vital for all, they must protect not only those society deems acceptable, but also those whose ideas it quite justifiably rejects and despises." 578 F.2d at 1210.
Until further disposition of this case by trial on the merits or other order of this Court, defendant, United States Postal Service, is mandatorily enjoined to (1) reinstate plaintiffs in the job classification and salary level they held at the time of their suspension, (2) pay plaintiffs all income that would have accrued to them from the time of their suspension until the time of their reinstatement, and (3) insure that plaintiffs suffer no loss of seniority or other job benefits because of their absence. All parties shall inform the Court of the final determination of the grievances plaintiffs have filed pursuant to the collective bargaining contract *132 between the Union and the United States Postal Service. Upon receiving such information we will determine what further proceedings in this Court are necessary.
So ordered.
NOTES
[1]  But, as noted above, most of plaintiffs' co-workers have signed a petition stating that the language on plaintiffs' buttons and tee-shirts was "provoking violence."


219 P.3d 617 (2009)
231 Or. App. 568
STATE
v.
OTJEN.
No. A139527
Court of Appeals of Oregon.
October 21, 2009.
Affirmed without opinion.


                                                        [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT           FILED
                     ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                            No. 04-16334                   JULY 8, 2005
                        Non-Argument Calendar            THOMAS K. KAHN
                      ________________________               CLERK

                  BIA Nos. A79-474-393 & A79-474-394

JAIME ROBERTO OSORIO,
CLARA PATRICIA SANCHEZ, et al.,

                                                    Petitioners,

     versus

U.S. ATTORNEY GENERAL,

                                                    Respondent.

                     __________________________

                 Petition for Review from an Order of the
                       Board of Immigration Appeals
                       _________________________

                            (July 8, 2005)

Before BIRCH, HULL and WILSON, Circuit Judges.

PER CURIAM:
       Jaime Roberto Osorio (“Jaime”), his wife Clara Patricia Sanchez (“Clara”),

and their daughter Mayra Alejandra Osorio (“Mayra”) (collectively,

“Petititoners”), seek review of the Bureau of Immigration Appeals’ (“BIA”) order

denying their motion to reconsider the BIA’s affirmation of the Immigration

Judge’s (“IJ”) order of removal. Because the Petitioners’ removal proceedings

commenced after 1 April 1997, the permanent rules of the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat.

3009 (1996) (“IIRIRA”), apply. The BIA did not abuse its discretion in denying

the Petitioners’ motion to reconsider because they failed to argue the appropriate

grounds for such relief. Therefore, we DENY the petition for review.

                                    I. BACKGROUND

       The Petitioners are natives and citizens of Colombia who were admitted to

the United States as non-immigrant visitors. Jaime was admitted on 6 August

2000 and authorized to stay until 30 June 2001, and Clara and Mayra were

admitted on 28 November 2000 and authorized to stay until 27 May 2001. They

remained in the United States beyond these dates and on 28 September 2001 were

issued Notices to Appear by the Immigration and Naturalization Service (“INS”)1

       1
         On 25 November 2002, President Bush signed into law the Homeland Security Act of 2002
(“HSA”), Pub. L. No. 107-296, 116 Stat. 2135. The HSA created a new Department of Homeland
Security (“DHS”), abolished the INS, and transferred its functions to the new department. However,

                                                2
charging them with removability under Immigration and Naturalization Act

(“INA”) § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), as aliens who remained in the

United States for a time longer than permitted.

       On 9 October 2001, Jaime filed an application for asylum, withholding of

removal, and United Nations Convention Against Torture and Other Cruel,

Inhuman, or Degrading Treatment or Punishment (“CAT”) relief on behalf of

himself and his family. In his application, he alleged that he was offered

employment by the National Liberation Army (“ELN”) due to his expertise and

knowledge of computers. According to Jaime, the ELN threatened him and his

family when he refused the offer of employment, and he was kidnaped by the ELN

but released on his promise to return and accept the job. After a hearing on the

merits, the IJ denied the application for asylum, withholding of removal, and CAT

relief. The IJ found that Jaime (1) had not shown a well-founded fear of

persecution on a protected ground because the ELN attempted to recruit him due

to his knowledge, not his political views, and “[r]ecruitment of an individual by a

guerilla organization is not, in and of itself, persecution on account of a political

because this case was initiated while the INS was still in existence, this memorandum refers to the
agency as the “INS” rather than the “DHS.”

                                                3
opinion,” Administrative Record “AR” at 73-74, (2) lacked credibility, and

(3) could relocate to another area of Colombia without fear.

      The Petitioners appealed the IJ’s decision and argued that: (1) portions of

the decision were “totally outside of the parameters of the U.S. Supreme Court

(Cardoza-Fonseca2) case decision and the B.I.A. (Mogharrabi3) [c]ase concept of

the ‘reasonable person,’” AR at 18; (2) the decision was “not within the letter nor

the spirit of the Refugee Act of 1980,” id.; and (3) the IJ ignored (a) the fact that

Petitioners were “chosen political targets,” id. at 20, and (b) the current country

conditions, which has led to “a civil war,” id. at 22. On 18 May 2004, the BIA

affirmed the IJ’s decision without opinion, pursuant to 8 C.F.R. § 1003.1(e)(4).

      On 14 June 2004, the Petitioners filed a timely motion for reconsideration of

the BIA’s decision. They argued that: (1) portions of the IJ’s decision were

“totally outside of the parameters set forth in the Supreme Court case decision of

Cardoza-Fonseca and the B.I.A. case of Mogharrabi, where the concept of the

‘reasonable person’ is fully explained,” id. at 6; (2) the decision was “not within

the letter, nor the spirit of the Refugee Act of 1980,” id.; and (3) the IJ “did not

give any weight to the persecution [they] endured in Colombia” or consider

      2
          INS v. Cardoza-Fonseca, 480 U.S. 421, 107 S. Ct. 1207 (1987).
      3
          Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987).

                                                4
current country conditions, which has led to “a civil war,” id. at 8. The Petitioners

asserted that they were entitled to asylum, withholding of removal, and CAT relief

because they had “a well-founded fear of persecution based on [their] experienced

persecution” and “would be killed” if they returned to Colombia. Id. at 7. The

BIA denied the Petitioners’ motion for reconsideration based on its finding that

they had “failed to specify any particular errors of fact or law in the prior Board

decision” but merely reiterated, “in conclusory fashion,” the arguments they made

on appeal. Id. at 2. The BIA stated that it had considered those arguments before

reaching a decision and would not revisit them. Id. This timely petition for

review of the BIA’s denial of the motion for reconsideration followed. The

Petitioners did not file a petition for review of the BIA’s final order of removal.

                                 II. DISCUSSION

      The Petitioners argue that, in their motion for reconsideration of the BIA’s

final order of removal, they listed the reasons for reconsideration and specified the

particular errors of fact and law, including the IJ’s failure to apply the “reasonable

person” concept to define “well-founded fear of future persecution,” and the BIA’s

failure to consider that Jaime “was persecuted, threatened, and kidnaped by the

ELN guerillas.” Appellant’s Brief at 5, 6. The government responds that the

Petitioners’ motion for reconsideration merely reiterated the arguments raised in

                                          5
their brief in support of their appeal, which arguments the BIA already had

considered and rejected. Thus, the government argues, the Petitioners’ motion did

not satisfy the standard for reconsideration, as it did not specify any errors of law

or fact in the BIA’s prior decision or identify any legal argument or aspect of the

case that had been overlooked.

      We review the BIA’s denial of a motion to reconsider for an abuse of

discretion. Assa’ad v. U.S. Att’y Gen., 332 F.3d 1321, 1341 (11th Cir. 2003).

Motions to reconsider are disfavored in removal proceedings. See Immigration

and Naturalization Serv. v. Doherty, 502 U.S. 314, 323, 112 S. Ct. 719 (1992)

(discussing motions to reopen and explaining that such motions are disfavored

because “as a general matter, every delay works to the advantage of the deportable

alien who wishes merely to remain in the United States”). A motion to reconsider

must specify “the errors of fact or law in the prior [BIA] decision and shall be

supported by pertinent authority.” 8 C.F.R. § 1003.2(b)(1).

      In this case, the BIA correctly found that the Petitioners’ motion to

reconsider failed to specify any error of law or fact in the BIA’s prior decision, but

merely reiterated arguments that were considered and rejected on appeal from the

IJ’s order denying their application for asylum, withholding of removal, and CAT

                                          6
relief. Accordingly, the BIA did not abuse its discretion in denying the motion to

reconsider.

                               III. CONCLUSION

      The BIA properly denied the Petitioners’ motion to reconsider the BIA’s

affirmation of the IJ’s order of removal because it only reiterated arguments that

were advanced and rejected on appeal of the IJ’s order denying Petitioner’s

application for withholding of removal and CAT relief.

      Accordingly, the petition for review is DENIED.

                                         7


525 F.Supp.2d 103 (2007)
Walter THOMAS, Plaintiff,
v.
Natwar GANDHI, Office of The Chief Financial Officer of the District of Columbia, Defendant.
Civ. Action No. 05-1784 (RJL).
United States District Court, District of Columbia.
November 30, 2007.
*104 *105 Barbara B. Hutchinson, New Carrollton, MD, for Plaintiff.
Mary E. Pivec, Keller and Heckman LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION
RICHARD J. LEON, District Judge.
Walter Thomas ("Thomas" or "plaintiff') has sued Natwar Gandhi, the Chief Financial Officer of the District of Columbia, alleging age, race, sex, and disability discrimination in violation of the 1964 Civil Rights Act, 42 U.S.C. §§ 1981(a) and 2000e et seq. ("Title. VII"), the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), the Americans with Disabilities Act, 42 U.S.C. § 12101 et *106 seq. ("ADA"), and the D.C. Human Rights Act, D.C.Code § 2-1401.11(a)(1) (2000 ed.) ("DCHRA"). Currently before the Court is the defendant's motion for partial summary judgment. For the following reasons, defendant's motion will be GRANTED.

I. BACKGROUND
Thomas is a sixty-four year-old African-American male who suffers from permanent cornea deficiency. Complaint, ¶ 1. In July 1998, plaintiff began working as a Liaison Officer in the Mission Support Center of the Office of the Chief Financial Officer ("OCFO"). Id. at ¶ 4. In January 2001, he was transferred to the Department of Tax and Revenue within OCFO as a Support Services Specialist. Id. ¶ 4. Due to his impairment, Thomas used an enlarged computer monitor, voice activated software, and special lighting to help his visual focus. Def.'s Mot. Part. Summ. J. ("Def.'s Mot."), p. 2.
In December 2002, OCFO notified Thomas that it was reorganizing OCFO and that all support positions within the office, including the plaintiff's, were being abolished. Pl.'s Opp. to Mot. Summ. J. ("Pl.'s Opp.") p. 2. Thomas was informed that he was eligible to apply for open positions within the newly formed Office of Management and Administration ("OMA") and that all vacancies would be posted for ten business days on the OCFO website and in the OCFO building. Id. 2; Def.'s Mot. at p. 3, 6.
Thomas subsequently applied for a position as a Lead. Support Specialist[1] ("LSS") within OMA but was not selected. Def.'s Mot. at p. 3. Instead, the hiring panel selected Barry Edmonds ("Edmonds"), a forty-one year-old African-American male. Def.'s Mot. 4. Because plaintiff had failed to secure a new position at OMA, he was terminated on March 28, 2003. Id.
On April 3, 2003, OMA announced vacancies for positions as the Special Assistant to the Director ("SAD") and as a Lead Logistics Management Specialist ("LLMS"). Def.'s Mot. at p. 5. Although the vacancy announcements were posted on the OCFO website and available in the OCFO office, Thomas did not apply for either position. Id. at p. 6. The LLMS position was withdrawn before interviews were conducted, but OMA ultimately hired Barbara Bryant, a Caucasian female, for the SAD position. Id.
In August 2003, Thomas filed discrimination charges with the EEOC and the D.C. Office of Human Rights. Id. In. June 2005, he was notified of his right to sue. Id. Consequently, in September 2005, plaintiff filed suit in this Court alleging that he was not selected for the LSS, SAD, and LLMS positions because of his race, age, gender (Count I) and disability (Count II).
Defendant has moved for summary judgment of plaintiffs race, gender and disability claims as to all three positions, and his age discrimination claims as to the SAD and LLMS positions.[2] Upon review of the relevant caselaw and the entire record herein, defendant's motion will be GRANTED.

*107 II. ANALYSIS
Under Rule 56, summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In deciding whether there is a disputed issue of material fact, the Court must draw all justifiable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Where the court finds that facts material to the outcome of the case are at issue, a case may not be disposed of by summary judgment. Id. at 248, 106 S.Ct. 2505. For the following reasons, the Court concludes that there are no genuine issues of material fact and the defendant is entitled to judgment as a matter of law.
Title VII of the Civil Rights Act of 1964 provides that it is unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1) (2006). Similarly, the DCHRA makes it unlawful for an employer to take adverse employment actions "wholly or partially for a discriminatory reason based upon the actual or perceived . . . race . . . of any individual." D.C.Code § 2-1402.11(a), (a)(1). The ADA makes it unlawful for a covered entity to "discriminate against a qualified individual with a disability because of the disability of such individual" with respect to any "terms, conditions [or] privileges of employment." 42 U.S.C. § 12112(a).
In a suit brought pursuant to Title VII, the DCHRA or the ADA, a plaintiff may prove his claim of discrimination indirectly under the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Duncan v. Washington Metro. Area Transit Auth., 240 F.3d 1110, 1114 (D.C.Cir.2001); Hollins v. Fed. Nat'l Mortgage Ass'n, 760 A.2d 563, 571 (D.C.2000). Under this framework, a plaintiff-employee carries the initial burden of establishing, by a preponderance of the evidence, a prima facie case of discrimination. Holcomb v. Powell, 433 F.3d 889 (D.C.Cir.2006). Thus, in the context of a nonselection case, the plaintiff must show that: 1) he is a member of a protected class; 2) he was qualified for and applied for an available position; 3) he was considered for and denied the position; and 4) after his rejection, the employer awarded the position to a person no more qualified that the plaintiff. Id.
If the plaintiff can establish a prima facie case, the burden shifts to the defendant-employer to "articulate a legitimate, nondiscriminatory reason for its actions." Stella v. Mineta, 284 F.3d 135, 144 (D.C.Cir.2002) (citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817, 36 L.Ed.2d 668). If the defendant can provide such a reason, the burden shifts back to the plaintiff, who must then "demonstrate that the employer's stated reason was pretextual and that the true reason was discriminatory." Id. (citing, McDonnell Douglas at 804, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668). Plaintiff, unfortunately, has not met his burden here How so?
A. Plaintiff's Non-Selection for the SAD and LLM Positions
First, as to plaintiffs contention that he was not selected for the SAD and LLMS positions because of his age, race, gender and disability; plaintiff must prove *108 that he applied for an available position in order to establish a prima facie case. McDonnell Douglas, 411 U.S. 792 at 802-05, 93 S.Ct. 1817; Morgan v. Federal Home Loan Mortgage Corp., 172 F.Supp.2d 98, 112 (D.D.C.2001) (holding that African-American plaintiff failed to establish prima facie case of discrimination relating to his non-selection when he did not apply for the position). Here, Thomas concedes that he failed to apply for either position. Although, he argues that he was a Career. Service employee and, therefore, entitled to automatic consideration for the positions pursuant to the reduction in force procedures of the D.C. government, there is no authority for this contention under D.C. law. D.C.Code § 1-608.01(a)(12) (2001). Moreover, even assuming such a provision, there is no evidence that plaintiff was a Career Service employee. Indeed, the June 24, 1998 letter hiring plaintiff to the OCFO explicitly stated that "employment with the . . . OCFO is at will" and "all employees within the OCFO serve at the pleasure of the Chief Financial Officer." Def.'s Mot. Ex. 1A; p. 17.[3] Likewise, Diane Camilleri, the Director of Human Resources in charge of the restructuring. process, averred that all OCFO employees were at-will. Def.'s Mot. Ex. 1C; Camilleri Dep. 25: 21-22. Therefore, because Thomas did not apply for the SAD and LLMS positions, he cannot claim discrimination in his non-selection. Accordingly, the Court will GRANT summary judgment as to these claims.
B. Plaintiff's Non-Selection for the Lead Support Specialist Position
Plaintiff has similarly alleged that he was not selected for the LSS position on account of his age, race, gender and disability. Although defendant concedes that Thomas has established a prima facie case, it argues that the person ultimately chosen for the position was better qualified. In response, plaintiff contends that he was significantly more qualified than the person chosen and, therefore, the Court should infer that the defendant's proffered explanation is mere pretext. I disagree.
In reviewing an employer's explanation for failure to hire, courts have consistently declined to serve as a "superpersonnel department that reexamines an entity's business decisions." Barbour v. Browner, 181 F.3d 1342, 1346 (D.C.Cir. 1999) (quoting Dale v. Chicago Tribune Co., 797 F.2d 458, 464 (7th Cir.1986)). Although, the factfinder can infer discrimination if the evidence showed that a plaintiff was "significantly better qualified" for the job than the selected candidate, the qualifications gap must be "wide and inexplicable." Holcomb v. Powell, 433 F.3d 889, 897 (D.C.Cir.2006)(quoting Lathram v. Snow, 336 F.3d 1085 (D.C.Cir.2003)). Upon review of the record, the Court finds that Thomas has failed to prove such a gap.
First, Edmonds reported extensive support services experience in his application package. Def.'s Mot. Ex. 2, p. 30-33. Although plaintiff also reported considerable relevant experience, the Court has no basis in the record to conclude that the plaintiff was significantly more qualified in this regard.[4] Def.'s Mot. Ex. 2, p. 14-21.
Additionally, the OCFO selection panel  OMA Director Jo Ann Smoak, Logistics *109 and Support Director, Alphonse Lister; and Human Resource Director., Diane Camilleri  unanimously concluded that Mr. Edmonds outperformed the plaintiff in the interview.[5] Indeed, panelist Jo Ann Smoak testified that she was "disappointed in [plaintiff s] interview, in his demeanor, in his lack of knowledge about his basic job, and just in terms of how he presented." Def. Mot. Ex. 3E; Smoak Dep. 158:9-12. Moreover, she found that Edmonds was "definitely" the better candidate because he had the experience and temperament to do the job and seemed excited to be there. Id. 168:15-17; 169:16-17; 167;2-3. Likewise, panelist Alphonso Lister found that. Edmonds was the better candidate because of his knowledge, experience, background, interview, and "positive go-getter type attitude." Def.'s Mot. Ex 3F; Lister Dep. 40:3-17. Panelist Diane Camilleri further noted that Edmonds "demonstrated knowledge of the methods and procedures for providing or performing a variety of functions applicable to the position to be filled." Pl.'s Opp. Ex. 3; Camilleri Dep. 102:6-9.
Given this evidence, the Court cannot conclude that plaintiff was significantly more qualified than Edmonds, nor that the defendant's proffered explanation of plaintiffs non-selection was pretextual. Accordingly, the Court will GRANT defendant's motion for summary judgment as to plaintiff's race, gender or disability claims relating to the LSS position.

CONCLUSION
Therefore, for all of the reasons stated above, defendant's motion for partial summary judgment is GRANTED.
NOTES
[1]  The vacancy announcement for the LSS position required either a graduate degree in administration or management or one year of specialized experience in support services, the ability to plan, organize and control work involving diverse activities, the ability to gain cooperation of others, and skill in oral and written communication. Def.'s Mot. Ex. 2 p. 5. Although two LSS positions were advertised, the second LSS position was never filled. Def.'s Mot. 4.
[2]  Plaintiff has explicitly declined to move for. summary judgment of plaintiff's age discrimination claim as to the LSS position.
[3]  Moreover, even if plaintiff was entitled to reduction in force procedure, plaintiff's allegations are not timely, as the D.C.Code requires an appeal to be filed no later than thirty calendar days after the effective date of the action. D.C.Code § 1-624.04 (2001).
[4]  The Court notes that although Thomas has extensive work experience, much of that experience would have been irrelevant to the LSS position. Indeed, Thomas served as a Foreign Service Officer in the State Department between 1971 and 1985, and worked for a private firm involved in international investment projects between 1985 and 1989 and between 1995 and 1996. Def.'s Mot. Ex. 2, p. 30-33. Thomas also reported working for the D.C. Department of Education as a coordinator of bilingual education and for the D.C. Department of Human Services as a coordinator for refugee resettlement between 1989 and 1995. Id. As to support services experience, Thomas worked as an operations specialist in the OCFO between 1996 and 1998, and as a support services specialist in OCFO between 1998 and 2004. Id. In contrast, Edmonds has spent the bulk of his career in the support service field. Between 1981 and 1989, Edmonds worked as a purchasing agent, procurement officer, maintenance coordinator, administrative assistant supervisor and property inventory specialist for the D.C. City Council where he, inter alia, supervised the administrative staff, negotiated bids with outside vendors and managed 15 vehicles Def.'s Mot. Ex. 2, p. 32-33. From 1989 and 2001, Edmonds was a district manager and circulation supervisor for the Wall Street Journal where he supervised and coordinated the delivery of the Wall Street Journal and other publications in the area, maintained the budget for the "AD Operation" and handled payroll processing for more than twenty employees. Id. Similarly, between 2001 and 2003, Edmonds worked as an area manager for the Washington Times where he was responsible for managing and coordinating delivery of the newspaper throughout Prince George's County, conducted sales presentations and handled payroll processing and budgeting for his area. Id.
[5]  According to the defendant, the interview was the primary factor in the selection decision; with each panelist ranking the candidates based on their responses to the same seven questions. Pl.'s Opp. Ex. 4; Camilleri Dep. 193:7-8. Out of a possible score of 85, plaintiff scored 57 while Edmonds scored 68. Id.


18 So.3d 969 (2009)
Korey Dion JOHNSON
v.
STATE of Alabama.
CR-08-0343.
Court of Criminal Appeals of Alabama.
March 6, 2009.
Mark Bishop Turner, Jasper, for appellant.
Submitted on appellant's brief only.
PER CURIAM.
The appellant, Korey Dion Johnson, appeals his convictions for trafficking in cocaine and trafficking in marijuana. On July 24, 2008, Johnson was sentenced to 99 years for each conviction. On August 25, *970 2008, Johnson filed a timely motion for a new trial.[1] On November 25, 2008, Johnson filed a notice of appeal. The circuit clerk's records indicated that the motion for a new trial was deemed denied by operation of law on September 22, 2008 60 days from the date of sentencing. See Rule 24.4, Ala. R.Crim. P. Thus, Johnson had 42 days from September 22, 2008, to file a timely notice of appeal.[2] See Rule 4(b)(1), Ala. R.App. P. Because Johnson's notice of appeal was untimely, we requested that Johnson respond as to why the appeal should not be dismissed. Johnson informed this Court that he filed a motion to correct the record in circuit court pursuant to Rule 29, Ala. R.Crim. P. On December 19, 2008, the circuit court made the following entry on the case-action summary: "Motion to amend and/or correct case action summary is granted. The hearings of September 22, 2008, and October 6, 2008, were continued by agreement of both defendant and prosecution." Johnson concedes that the "express consents did not appear `of record.'"
The question before this Court is whether Rule 29, Ala. R.Crim. P., allows a trial judge to correct the failure to comply with the provisions of Rule 24.4, Ala. R.Crim. P., at any time. Rule 29, Ala. R.Crim. P., states, in pertinent part:
"Clerical mistakes in judgments, orders, or other parts of the record, and errors arising from oversight or omission may be corrected by the court at anytime of its own initiative or on the motion of any party and after such notice, if any, as the court orders."
Rule 24.4, Ala. R.Crim. P., provides:
"No motion for new trial or in arrest of judgment shall remain pending in the trial court for more than sixty (60) days after the pronouncement of sentence, except as provided in this section. A failure by the trial court to rule on such a motion within the sixty (60) days allowed by this section shall constitute a denial of the motion as of the sixtieth day; provided, however, that with the express consent of the prosecutor and the defendant or the defendant's attorney, which consent shall appear in the record, the motion may be carried past the sixtieth day to a date certain; if not ruled upon by the trial court as of the date to which the motion is continued, the motion is deemed denied as of that date, unless it has been continued again as provided in this section. The motion may be continued from time to time as provided in this section."
(Emphasis added.)
In Taylor v. State, 905 So.2d 36 (Ala. Crim.App.2005), we addressed the effect of a nunc pro tunc[3] order on Rule 24.4, Ala. R.Crim. P. and stated:
"The Supreme Court in [Ex parte] Heard, [999 So.2d 978 (Ala.2003),] did not recognize the circuit court's nunc pro tunc order as an effective means of complying with Rule 24.4. In both Heard, and Ex parte Howlet, 801 So.2d 30 (Ala.2000), a case relied on by the Supreme Court to reach its holding in Heard, the record contained a reference *971 that the motion for a new trial was continued by agreement of both parties. That reference was either in an order issued by the circuit court or an unchallenged motion referencing the fact that both parties agreed to the continuance.
"It appears that the Supreme Court's holding in Heard abrogated, in part, our holding in Underwood [v. State, 879 So.2d 611 (Ala.Crim.App.2003)]. It is clear from the Supreme Court's comments in Heard that there must be some affirmative reference in the record that the motion for a new trial was continued by agreement of both parties in order to comply with Rule 24.4, Ala.R.Crim.P. The Heard Court did not recognize any circumstance where `implied consent' would be sufficient to satisfy Rule 24.4, Ala.R.Crim.P. Moreover, it appears that the Supreme Court made a great effort to find that `express consent on the record' was necessary to satisfy the requirements of Rule 24.4, Ala.R.Crim.P., as that court failed to find that the circuit court's nunc pro tunc order was sufficient.
"The Supreme Court's holding in Heard is also consistent with its earlier holding in Ex parte Caterpillar, Inc., 708 So.2d 142 (Ala.1997), when interpreting an identical provision in the Alabama Rules of Civil ProcedureRule 59.1, Ala.R.Civ.P. In Caterpillar, that Court stated: `Any extension of the this 90-day period must be of record before the 90-day period expires, because any purported extension after the 90 days is a nullity.' 708 So.2d at 143 (emphasis added)."
905 So.2d at 39-40, (footnotes omitted).
Johnson asserts that the circuit court's December 19, 2008, order was sufficient to comply with the provisions of Rule 24.4. We are aware of no case that has applied Rule 29, Ala. R.Crim. P., to Rule 24.4, Ala. R.Crim. P. The purpose of Rule 24.4 is to "obtain finality of judgments." See Edgar v. State, 646 So.2d 683, 686 (Ala.1994). "Rule 24.4, Ala. R.Crim. P., was ... designed to require trial judges to rule on post-judgment motions in criminal cases within 60 days after the pronouncement of sentence, a shorter period than is provided for in the civil rule, namely, 90 days. The whole purpose of the Rule is to ensure a speedier resolution of the case." 646 So.2d at 687. It would be inconsistent with the purpose of Rule 24.4, Ala. R.Crim. P., to allow a judge to comply with the provision of Rule 24.4 allowing an extension of the 60-day period at any stage of the proceedings.
Also, Rule 29, Ala. R.Crim. P., was patterned after Rule 60(a), Ala. R. Civ. P. See Committee Comments to Rule 29, Ala. R.Crim. P. In interpreting the scope of Rule 60(a), Ala. R. Civ. P., the Alabama Supreme Court has stated:
"`"Since a correction pursuant to Rule 60(a) may be made at any time and on the trial court's initiative, the rule should be cautiously applied to preserve the integrity of final judgments. Otherwise, the finality of a judgment would only be illusory since the possibility would exist of substitution of a new judgment for the original one at a later date. Therefore, it is essential that there be something in the record from which the mistake or error to be corrected may be gleaned. See Ex parte ACK Radio Supply of Georgia, 283 Ala. 630, 219 So.2d 880 (1969); Busby v. Pierson, 272 Ala. 59, 128 So.2d 516 (1961); Tombrello Coal Co. v. Fortenberry, 248 Ala. 640, 29 So.2d 125 (1947). Stated differently, the fact of mistake or error must be supported by the record of the proceedings. See Harris v. Harris, 256 Ala. 192, 54 So.2d 291 (1951)."'"
*972 Ex parte Brown, 963 So.2d 604, 608 (Ala. 2007), quoting Higgins v. Higgins, 952 So.2d 1144, 1148 (Ala.Civ.App.2006) (emphasis added). Johnson concedes that the "express consent [of the parties], did not appear `of record,'" before the expiration of the 60th day.
The rationale in Brown applies to Rule 24.4, Ala. R.Crim. P., and is consistent with our holding in Taylor. We hold that in order to comply with the provisions of Rule 24.4, Ala. R.Crim. P., the agreement of all parties to continue the motion for a new trial must be on the record before the expiration of the 60th day, and this failure may not be corrected after that period expires.
Johnson's motion for a new trial was deemed denied by operation of law on September 22, 2008, and his November 25, 2008, notice of appeal was not timely filed. Accordingly, this appeal is due to be dismissed. Johnson's remedy, if any, is to file a petition for postconviction pursuant to Rule 32.1(f), Ala. R.Crim. P.
APPEAL DISMISSED.
WISE, P.J., and WELCH, WINDOM, and KELLUM, JJ., concur.
NOTES
[1]  The thirtieth day for filing the motion for a new trial fell on a Saturday. Pursuant to Rule 1.3, Ala. R.Crim. P., Johnson had until the next business day, Monday, August 25, 2008, to timely file the postjudgment motion.
[2]  While a posttrial motion is pending pursuant to Rule 24.4, Ala. R.Crim. P., the time for filing a notice of appeal is tolled. See Rule 4(a)(1), Ala. R.App. P.
[3]  "Nunc pro tunc" is defined in Black's Law Dictionary as "[h]aving retroactive legal effect through a court's inherent power." Black's Law Dictionary 1100 (8th ed.2004).


479 F.2d 1259
Jordan Jay KING et al., Plaintiffs-Appellants,v.KANSAS CITY SOUTHERN INDUSTRIES, INC., et al., Defendants-Appellees.
No. 72-1734.
United States Court of Appeals,Seventh Circuit.
Argued and Decided June 12, 1973.

Lowell E. Sachnoff, Chicago, Ill., for plaintiffs-appellants.
A. Bradley Eben, George B. Christensen, Edward H. Hatton and Joan M. Hall, Chicago, Ill., Landon H. Rowland, Kansas City, Mo., Marvin Schwartz, New York City, Arthur Susman, Harry Schulman, Harry A. Young, Jr., Chicago, Ill., for defendants-appellees.
Before PELL and STEVENS, Circuit Judges, and ESCHBACH, District Judge.*
PER CURIAM.

1
This is an appeal by a group of plaintiffs in only one of six consolidated cases pending in the district court.  In the instant case, the district court on June 22, 1972, 56 F.R.D. 96, entered its order denying plaintiffs' motion to have this action designated as a class action.  Plaintiffs filed their notice of appeal to this court from that order and concede that they base their right of appeal, if any, on 28 U.S.C. Sec. 1291.

2
Defendant-appellee Kansas City Southern Industries, Inc., has filed its motion to dismiss the appeal for the reason that the order below was an interlocutory order not appealable under 28 U. S.C. Sec. 1291.  We agree.

3
The question before the court on the motion to dismiss involves a much disputed question as to whether the dismissal of a class action portion of a complaint is appealable.  In Thill Securities Corp. v. New York Stock Exchange, 469 F.2d 14, 17 (7th Cir. 1972), this court held that the denial of a motion to strike a class action was not an appealable order under 28 U.S.C. Sec. 1291.  We now hold that the present order is not appealable under Sec. 1291, necessitating the dismissal of the appeal for lack of jurisdiction.

4
In so holding, we follow Hackett v. General Host Corp., 455 F.2d 618 (3d Cir. 1972), cert. denied, 407 U.S. 925, 92 S.Ct. 2460, 32 L.Ed.2d 812; Gerstle v. Continental Airlines, Inc., 466 F.2d 1374 (10th Cir. 1972); and our analogous prior decision in Jumps v. Leverone, 150 F.2d 876 (7th Cir. 1945).  We decline to adopt and accordingly reject the socalled "death knell" theory originally enunciated in Eisen v. Carlisle & Jacquelin, 370 F.2d 119 (2d Cir. 1966), cert. denied, 386 U.S. 1035, 87 S.Ct. 1487, 18 L.Ed.2d 598 (1967).  Likewise we do not find the "collateral order" doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), applicable to the type of order here involved.

5
On June 11, 1973, the plaintiffs below purported to secure an order from the district court amending, on a nunc pro tunc basis, the order of June 22, 1972, which amended order would have permitted, pursuant to 28 U.S.C. Sec. 1292(b), an appeal on the class action status as involving a controlling question of law as to which there is a substantial ground for difference of opinion.  Our present disposition does not reach the issues raised by that action and we express no opinion as to whether the power existed in the district court to amend its previous order on a nunc pro tunc basis while an appeal was pending in this court, nor do we express an opinion as to whether this court in its discretion should permit an appeal to be taken from such order in the event it was properly entered below.

6
Appeal dismissed.

*
 Honorable Jesse E. Eschbach is sitting by designation from the United States District Court for the Northern District of Indiana


689 F.Supp. 678 (1988)
William E. BROCK, Secretary of the United States Department of Labor, Plaintiff,
v.
Oscar C. LINDEMANN, et al., Defendants.
No. CA 3-84-1814-R.
United States District Court, N.D. Texas, Dallas Division.
July 1, 1987.
Revised July 25, 1988.
*679 Leslie J. Canfield, William W. Taylor, U.S. Dept. of Labor, Plans Benefits Sec. Div., Washington, D.C., for plaintiff.
G. Scott Damuth, Eric Klein, Jr., J. Christopher Cimalglia, David B. Seybold, L.E. Creel, III, Ronald E. Deutsch, William Chris Wolffarth, Jeffrey H. Abrams, Arthur M. Meyer, Roy A. Herberger, Richard A. Dean, Dallas, Tex., for defendants.

*680 MEMORANDUM OPINION
BUCHMEYER, District Judge.
This is an ERISA case.[1] It involves the Lee Optical Pension and Profit Sharing Plan ("the Plan").
After a non-jury trial on the merits, judgment was entered against the defendant Theodore Shanbaum for over $1 million, the amount of losses suffered by the Plan as the result of misconduct by Shanbaum.[2] However, both Shanbaum and his former wife, Bernice Shanbaum, are receiving benefit payments under this Planand the present Trustee now claims that these payments should, instead, be applied as offsets to the judgment against Theodore Shanbaum.
This opinion holds:
(1) that the "anti-alienation" provisions of ERISA do not prevent the Trustee from offsetting the interest of Theodore Shanbaum against the judgment, because it is based upon his knowing participation in the misconduct of the former trustee of the Plan; but
(2) that these "anti-alienation" provisions do prevent the Trustee from offsetting the interest of Bernice Shanbaum against the judgment, because it was not entered until after her divorce from Theodore Shanbaum and because there is no evidence that she participated in the misconduct which led to the judgment.

1. The Statutory Framework

The Employment Retirement Income Security Act ("ERISA" or the "Act") was designed to "protect the interests of participants in employee benefit plans and their beneficiaries" and to "establish standards of conduct, responsibility, and obligations for fiduciaries of employee benefit plans ... by providing for appropriate remedies, sanctions, and ready access to Federal courts." 29 U.S.C. § 1001(b). To carry out these purposes, the Act regulates virtually all aspects of qualified employee benefit plans, including reporting and disclosure, 29 U.S.C. §§ 1021-1031; participation and vesting, 29 U.S.C. §§ 1051-1061; funding, 29 U.S.C. §§ 1081-1086; fiduciary responsibility, 29 U.S.C. §§ 1101-1114; and administration and enforcement, 29 U.S.C. §§ 1131-1145.
Specifically, with respect to fiduciaries, the Act not only details the duties imposed upon them, 29 U.S.C. § 1104, it also imposes liability for breach of those duties. 29 U.S.C. § 1109(a). Section 1109(a) provides:
Any person who is a fiduciary with respect to a plan who breaches any of the responsibilities, obligations, or duties imposed upon fiduciaries by this subchapter shall be personally liable to make good to such plan and losses to the plan resulting from each such breach ... and shall be subject to other equitable or remedial relief as the court may deem appropriate....
The Secretary of Labor is authorized to enforce this section by bringing a civil action for "appropriate relief under section 1109." 29 U.S.C. § 1132(a)(2). Section 1132 was "designed specifically to provide ... the Secretary ... with broad remedies for redressing or preventing violations" of the Act. Accordingly, it was the intent of Congress "to provide the full range of legal and equitable remedies available in state federal courts." S.Rep. 93-127, 93d Cong., 2d Sess., reprinted in 1974 U.S. Code Cong. & Admin.News, 4639, 4838, 4871. Consistent with this intent, Congress made "principles developed in the evolution of the law of trusts" applicable to ERISA's fiduciary provisions; "it is expected that courts will interpret the prudent man rule and other fiduciary standards bearing in mind the special nature and purposes ... intended to be effectuated by the Act." S.Rep. 93-127, 93d Cong., 2d Sess., *681 reprinted in 1974 U.S.Code Cong. & Admin.News, 4838, 4865.[3] 1 Scott on Trusts, § 1, at 1-10 (3d ed. 1967).
Just as the enforcement of ERISA's strict fiduciary duties protects employees' interest in plans covered by the statute, so does the Act's "anti-alienation" provision. 29 U.S.C. § 1056(d)(1) provides:
Each pension plan shall provide that benefits provided under the plan may not be assigned or alienated.
There are, of course, some exceptions to this broad anti-alienation provision. For example, consistent with its purpose of insuring that plan beneficiaries and their families are protected, the Act permits the transfer of plan benefits to an alternate payee, a "former spouse, child, or other dependent of a participant who is recognized by a domestic relations order as having a right to receive all, or a portion of, the benefits payable under a plan with respect to such participant." 29 U.S.C. §§ 1056(d)(3)(A). And, although ERISA preempts state law in the area of pensions, 29 U.S.C. § 1144(a), federal courts have created an exception to this anti-alienation provision in areas exclusively within the realm of the police power of the state e.g., domestic relations law, American Telephone & Telegraph Co. v. Merry, 592 F.2d 118 (2d Cir.1979). Thus, notwithstanding § 1056(d)(1), a state may validly permit garnishment of a beneficiary's interest in a plan covered by ERISA in order to satisfy a state court order of divorce or child support. "The exception is premised upon the statute's broad purpose to provide protection for employees and their families, so that intra-familial transfers are not to be viewed in the same light as an involuntary transfer for the benefit of a third-party creditor." Tenneco Inc. v. First Virginia Bank, 698 F.2d 688, 690 (4th Cir.1983). Finally, the Act also permits some revocable voluntary assignments not exceeding ten percent of any benefit payment, 29 U.S.C. § 1056(d)(2), but "a garnishment or levy is not to be considered a voluntary assignment" for the purpose of anti-alienation provision. H.Conf.Rep. 93-1280, 93d Cong., 2d Sess., reprinted in, 1974 U.S. Code Cong. & Admin.News, 5038, 5061.[4]
Placed in this statutory framework, the Trustee's attempt to offset the Shanbaum payments under the Plan seems to present a dilemma: the payments to the Shanbaums are not to "be assigned or alienated" under § 1056(d)(1)but Theodore Shanbaum should be held personally liable" to the Plan, under § 1109(a), for the losses caused by the misconduct of Shanbaum and the former trustee. This compels a separate analysis for Theodore Shanbaum and for his former wife, Bernice Shanbaum.

2. The Interest of Theodore Shanbaum

Under the common law of trusts, a breaching trustee who is liable for a loss resulting from the breach may be compelled "to make good the breach of trust out of his beneficial interest in the trust property." 3 Scott on Trusts § 257, at 2201 (3d ed. 1967). Where the trust in question contains a spendthrift provision, offset depends on the intent of the settlor in creating the spendthrift provision and "whether in view of the circumstances the Settlor would have desired to protect the trustee-beneficiary, not only as against the claims of ordinary creditors, but also against the claims of the other beneficiaries *682 for breach of trust." 3 Scott on Trust § 257.1, at 2204-05 (3d ed. 1967).
It is clear that the anti-alienation provision of the Plan is part of a comprehensive scheme designed to protect the interests of employees in their benefit plans. Specifically, § 1056(d)(1) accomplishes this by protecting these interests from the claims of ordinary creditors. However that same comprehensive scheme also creates strict fiduciary duties designed to be enforced through the use of broad and flexible remedial measures. While the practical effect of these provisions may appear to conflict, their purposes do not. This Court can only conclude that the offset remedy is not only consistent with ERISA's purpose of providing flexible and effective remedies for fiduciary breaches, but is also among the traditional trust principles that Congress intended to be implemented in enforcing the Act.
Only one other court has addressed this precise issue. In Crawford v. La Boucherie Bernard Ltd., 815 F.2d 117 (D.C.Cir. 1987), the D.C. Circuit found that offset of a beneficiary's interest in a plan would be permissible where that beneficiary was a fiduciary who had breached his duty to the plan. The court held:
[T]he purpose of ERISA's anti-alienation provisionto protect plan beneficiaries by ensuring that plan assets are used only for payment of benefits would be undermined, not advanced by an interpretation that prohibited offset under these circumstances. The broad equitable remedies authorized by ERISA against plan assets to the detriment of beneficiaries can bestperhaps onlybe effectuated by her applying the traditional trust remedy of offset (815 F.2d at 122.)
This Court agrees with Crawford. Moreover, it finds that the equitable offset remedy is available against a nonfiduciary who is jointly and severally liable for the knowing participation in a fiduciary's breach. Such a finding is not only consistent with traditional trust principles, see Brock v. Gerace, 635 F.Supp. 563 (D.N.J. 1986); Donovan v. Schmoutey, 592 F.Supp. 1361, 1397 (D.Nev.1984); Freund v. Marshall & Ilsley Bank, 485 F.Supp. 629 (W.D.Wis.1979), it is also consistent with ERISA's broad grant of remedial powers.
Here, Theodore Shanbaum was found to be jointly and severally liable to the Plan for losses it suffered because of his knowing participation in a breach of fiduciary duty to the Plan. And, judgment was entered ordering Shanbaum to pay restitution to the Plan. Under these circumstances, § 1056(d)(1) does not prevent the current Trustee from offsetting the payments due to Theodore Shanbaum against his liability to the Plan under the judgment.

3. The Interest of Bernice Shanbaum

However, the application of these principles to the Trustee's attempt to offset the payments due to Bernice Shanbaum against the liability of her former husband requires a different result.
In February of 1983, the 303rd District Court of Texas entered judgment terminating the marriage of Bernice Shanbaum and Theodore Shanbaum. Under the divorce decree, Mrs. Shanbaum was awarded fifty percent of the community interest in the Plan, including fifty percent of the benefits to be received or distributed to Mr. Shanbaum from the plan.
The Trustee argues that Bernice Shanbaum's interest in the plan is held "only as a result of her marriage to and subsequent divorce from Theodore Shanbaum. As a result, her position in this matter can rise no higher than his." Reply Brief, at 5. This position is not correct.

A. State Law
In Texas, the income from the wages one spouse receives during the marriage is community property. Tex.Fam.Code Ann. § 5.01 (Vernon 1975); see Meshwert v. Meshwert, 543 S.W.2d 877 (Tex.Civ.App. Beaumont 1976), affirmed, 549 S.W.2d 383 (Tex.1977). Similarly, delayed wages in the form of employee retirement benefits are also community property. Tex.Fam.Code Ann. § 5.01 (Vernon 1975); see Busby v. Busby, 457 S.W.2d 551 (Tex.1970); Wilson *683 v. Wilson, 507 S.W.2d 916, 917 (Tex.Civ. App.Houston [1st Dist.] 1974). Upon dissolution of the marriage, the community estate is dissolved and thereafter vests as separate property in the former spouses.
Under Texas law, a person's separate property may not be sued to satisfy a post-divorce judgment against the person's former spouse when the person was not a party to the action giving rise to the judgment. Stewart Title v. Huddleston, 598 S.W.2d 321 (Tex.Civ.App.San Antonio 1980, writ r.f.e.). Indeed, the separate property cannot even be used to satisfy a community debt reduced to judgment after the divorce when the former spouse neither participated nor acquiesced in, had knowledge of, or otherwise benefited from the debt. Miller v. City National Bank, 594 S.W.2d 823 (Tex.Civ.App.Waco 1980).
The filing of this ERISA suit took place well after the end of the Shanbaum marriage. Indeed, the judgment was not entered against Theodore Shanbaum until four years after the divorce. Bernice Shanbaum was not named as a party, nor was there any evidence that she participated in the misconduct which damaged the Plan. Therefore, to permit the Trustee to offset the payments due to Bernice Shanbaum against the post-divorce judgment against Theodore Shanbaum would conflict with Texas law.

B. ERISA
The result is the same under ERISA. Bernice Shanbaum claimsand the Trustee does not disputethat the decree is "a qualified domestic relations order" under the Act. 29 U.S.C. § 1056(d)(3)(B). As such, the decree validly transferred to Bernice Shanbaum her interest in the plan. 29 U.S.C. § 1056(d)(3)(A). It also protects her as an "alternate payee" to the extent she "shall be considered for purposes of any provision of this chapter a beneficiary under the plan." 29 U.S.C. §§ 1056(d)(3)(J), 1056(d)(3)(K) (emphasis added). Accordingly, her interest in the plan is protected by the anti-alienation provision of § 1056(d)(1).
Nevertheless, the Trustee argues that equitable principles require this Court to offset the interest of Bernice Shanbaum to satisfy her former husband's debt. This is not correct; that equity permits offset only against a fiduciaryor one who knowingly participates with the fiduciaryto redress a breach of duty to the plan. Here, there is no evidence that Bernice Shanbaum participated in the former trustee's breach of his fiduciary duties. Accordingly, Bernice Shanbaum's interest is fully protected against offset.
For these reasons, the Trustee is entitled to offset the payments due under the Plan to Theodore Shanbaumbut not the payments due to his former wife, Bernice Shanbaumagainst the liability of Theodore Shanbaum under the judgment.
NOTES
[1]  The action was brought by the Secretary of the Department of Labor under Title I of the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq.
[2]  The defendants Theodore Shanbaum and Henry Klepak were held jointly and severally liable to the Plan for damages caused to it by their knowing participation with Oscar Lindemann, the former Trustee, in Lindemann's breach of his fiduciary duties to the Plan. The present trustee of the Plan is entitled to enforce this judgment by its terms.
[3]  See also Statement of Hon. Harrison A. Williams, Jr., 120 Cong.Rec. S 15736, reprinted in 1974 U.S.Code Cong., & Admin.News, 5177, 5186 ("[T]he legislation imposes strict fiduciary obligations on those who have discretion or responsibility respecting the management, handling, or disposition of pension or welfare plan assets. The objectives of these provisions are to make applicable the law of trusts ... and to provide effective remedies for breaches of trust.")
[4]  In addition to the exception permitted with respect to family matters, at least one court has permitted another narrow exception to § 1056(d)(1). In St. Paul Fire and Marine Insurance Co. v. Cox, 752 F.2d 550 (11th Cir.1985), the Eleventh Circuit held that the anti-alienation provision did not prevent the offset of an employee's interest in an ERISA plan where the employee had engaged in criminal misconduct which damaged his employer. However, on similar facts, the Second Circuit refused to adopt that reasoning in Ellis National Bank v. Irving Trust Co., 786 F.2d 466 (2d Cir.1986).