It was My Attorney’s Fault

Cases involving the Hatch Act are relatively uncommon. However, in this recent court decision a postal employee finds out the hard way that it is not a good idea to ignore warnings from the investigative agency responsible for delving into Hatch Act violations. (Lewis v Merit Systems Protection Board (CAFC No. 2014-3148 (nonprecedential) 12/4/14) The facts as outlined below are taken from the appeals court’s opinion.

The political activities of Marcus Lewis came under the microscope with the Office of Special Counsel (OSC) in 2012. At the time Lewis had worked for the US Postal Service for about fifteen years and probably should have realized that the Hatch Act restricted getting involved in partisan political activity. Nevertheless, Lewis threw his hat into the Illinois second congressional district race, running as an independent. Lewis first ran in the general election in November 2012 and again in a special election in April 2013 to fill the same seat.

The Hatch Act prohibits federal employees from running as candidates for a partisan political office. OSC warned Lewis several times that he was running afoul of this prohibition since by definition a federal congressional race falls under the prohibition. OSC told Lewis to choose between his job with USPS or his congressional campaign, but he could not do both. (Opinion p. 2)

Lewis stayed the course in his campaign and he stayed on in his role at USPS. Once he announced that he would run again as an independent for the same seat in the special election called for April 2013, that was the last straw. USPS sent him a written notice to “cease and desist,” as his actions would violate the law and he could be disciplined by OSC. (p. 3) Lewis perservered.

Lewis failed to respond to the complaints filed against him by OSC despite several opportunities given to him by the Administrative Law Judge. Not surprisingly the ALJ treated Lewis’ failure to answer the complaint as an admission to the facts in the complaint. The ALJ ruled that Lewis had indeed violated the Hatch Act and that given the repeated warnings to Lewis that he ignored, the appropriate penalty for his violation was removal from his USPS position. There was no question in the ALJ’s mind that because the congressional campaign involved partisan political candidates from both major political parties; therefore the Hatch Act prohibited a federal employee from running even as an independent candidate. Adding to the violations was the fact that Lewis solicited and received campaign contributions.

At this point, Lewis finally jumped into the proceedings and appealed to the full Merit Systems Protection Board. He argued that it was his lawyer’s fault that he did not respond to OSC’s charges and Lewis should therefore be excused. In his appeal Lewis finally answered OSC’s charges, “admitting the ‘salient facts forming the basis of the [ALJ’s] findings that he violated the Hatch Act.’ “ (p. 4) The crux of his argument to the MSPB was that running as an independent candidate is permitted under the Hatch Act but, if not, that any violation by his doing so was “unknowing and unintentional.” (p. 5)

The Board was unimpressed, pointing out that Lewis could not blame his attorney since he never designated one to represent him in the proceedings. Further, Lewis had admitted the underlying facts of the OSC petition. Finally the Board found removal was justified given the repeated warnings from the OSC and the USPS that Lewis repeatedly ignored. (p. 7)

The appeals court has now considered Lewis’ arguments and also finds them unpersuasive. Of note is the court’s refusal to let Lewis switch the blame to his attorney: “a party is bound by the actions or inactions of his chosen representative, which generally do not excuse the appellant’s filing delay.” (p. 10) Referring to the “Board’s thorough consideration of the facts,” the court concludes there is “no reason” to disturb the removal of Mr. Lewis. (pp. 12-13)

Mr. Lewis had been warned by OSC that he could continue his congressional campaign or he could continue working for the USPS, but he could not do both. Ironically, by ignoring the warnings, Lewis effectively opted out of both. Unfettered by being a federal employee, he is now free to give his political aspirations another go with no Hatch Act hanging over his head.

Lewis v. MSPB 2014-3148

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.

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