Putting Teeth into the Hatch Act

A federal attorney appealed his removal for a Hatch Act violation to the Court of Federal Appeals but his removal stands.

A Small Business Administration attorney failed to persuade the Merit Systems Protection Board and now the federal appeals court that he should not have been fired for violations of the Hatch Act. (Eisinger v. Merit Systems Protection Board, C.A.F.C. No. 2006-3426 (nonprecedential), 6/8/07) According to the court’s decision, the facts in the case are not in dispute. Here’s a quick summary taken from that decision. (See, also, Fire That Lawyer!)

Eisinger worked for the SBA in Fresno, California when he became active with the California Green Party. He admitted he was familiar with the Hatch Act, which bans federal employees from being involved in political activities while at work. Nevertheless, he did just that on behalf of the Green Party for about 3 years. Eisinger used his official telephone, computer and email to espouse Green Party causes. Eventually, the Office of Special Counsel took notice and filed a complaint with the MSPB charging Eisinger with Hatch Act violations. (Opinion, p. 2)

An MSPB judge held a hearing resulting in his finding that Eisinger had violated the Hatch Act and that he should be removed from his SBA position. The full Board accepted the AJ’s findings and ordered SBA to remove Eisinger. (pp. 2-3)

Eisinger took his case to the Federal Circuit Court of Appeals and primarily argued that the Board erred in imposing removal as the penalty in his case. He did not dispute the facts. Instead, he cited several cases to the Board, and now to the court, where a lesser penalty had been imposed.

The court quotes the pertinent language from section 7326 of the Hatch Act:

“An employee or individual who violates…this title shall be removed from his position, and funds appropriated for the position from which removed thereafter may not be used to pay the employee or individual. However, if the Merit Systems Protection Board finds by unanimous vote that the violation does not warrant removal, a penalty of not less than 30 days’ suspension without pay shall be imposed by direction of the Board.” (Opinion p. 4)

The court delineates the following factors that are to be considered by the Board in such cases: “[1] the nature of the offense and the extent of the employee’s participation, [2] the employee’s past employment record, [3] the political coloring of the employee’s activities, [4] whether the employee had received advice of counsel … , [5] whether the employee had ceased the activities, and [6] the employee’s motive and intent.” (Citations omitted, p. 4)

The court concluded that the Board had given due consideration to all of these factors and that the removal penalty was appropriate. The court did not agree with Eisinger that other cases in which the penalty had been mitigated were similar to his situation, pointing out that Eisinger’s political activities had been “significant” and had been “over a three year period,” whereas the activities of employees in the cases that he was relying on to argue for a lesser penalty were “much more limited.” (p. 5)

Bottom line: Eisinger’s removal for his admitted Hatch Act violations stands.  This case demonstrates that there are still some teeth left in the Hatch Act and it pays to take it seriously given the fact that one’s job hangs in the balance.

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.