Court Dismisses AFGE’s Hatch Act Lawsuit

August 5, 2020 10:21 AM
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The U.S. District Court for the District of Maryland has dismissed a lawsuit filed by the American Federation of Government Employees against the Office of Special Counsel (OSC) alleging a violation of federal employees’ First Amendment rights according to an announcement released today.

AFGE sued OSC last year over Hatch Act guidance the agency released which warned federal employees about using terms such as “resist” in the federal workplace on grounds that they could violate the Hatch Act.

OSC said that it decided to issue the guidance because of so many questions the agency was receiving from federal workers about whether the use of terms such as “#resist” or “the Resistance” while on duty is prohibited political activity under the Hatch Act.

Part of OSC’s statement at the time read:

Specifically, OSC’s guidance only applies to covered employees while they are on duty or in the workplace. It does not impose any restrictions on the ability of employees to engage in political activity while off-duty and away from the workplace. Equally important, the guidance does not limit whistleblowers in any way from reporting or disclosing wrongdoing.

AFGE sued on grounds that the guidance violated the First Amendment, demanding an injunction against what it called a “draconian interpretation of the Hatch Act” on the part of OSC.

According to OSC’s announcement, the District Court of Maryland dismissed the lawsuit for lack of jurisdiction, concluding that the plaintiffs’ claims were not ripe for judicial review.

OSC Special Counsel Henry J. Kerner said in a statement:

I am pleased the Court dismissed this lawsuit. For the Hatch Act to serve the purpose of protecting the civil service system, it is incumbent on OSC’s career Hatch Act attorneys to provide timely and relevant information to federal employees about how they can stay in compliance with the law. By statute, OSC has a robust advisory function and is frequently asked to clarify what is considered political activity under the Hatch Act. By dismissing this lawsuit, the Court preserves OSC’s important advisory role. This is a good outcome, and I appreciate the Court’s thoughtful opinion.

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Ian Smith is one of the co-founders of He enjoys writing about current topics that affect the federal workforce.