In a recent decision (Citizens for Responsibility and Ethics in Washington v U.S. Office of Special Counsel (U.S.D.C.D.C. Civil Action No. 19-3757 (JEB) 8/6/2020), the federal district court indicates that “CREW” (Citizens for Responsibility and Ethics in Washington) had filed many complaints with the Office of Special Counsel (OSC) alleging that Kellyanne Conway, White House Counselor, had violated the Hatch Act prohibitions against engaging in political activity on the job. The upshot was an investigation and a report by OSC to Ms. Conway’s boss, President Donald Trump, delineating Ms. Conway’s infractions and recommending that she be removed. The President rejected the recommendation and Ms. Conway remains in her position. (Opinion p. 1)
CREW now challenges the OSC’s handling of the matter with this suit in the district court. CREW contends that the OSC should have pursued Conway’s dismissal in an action before the Merit Systems Protection Board (MSPB) which it contends has jurisdiction to adjudicate Hatch Act complaints and order up removal of those who violate the law. (p. 1) Therefore, CREW contends, OSC’s action in the case was unlawful. (p. 2)
OSC argued two positions in response to CREW’s lawsuit in a motion to dismiss. The court has granted that motion on the grounds that CREW lacks standing to bring such a challenge. (p. 2)
The upshot, as explained in the court’s decision tossing the suit is the “CREW must seek other avenues to hold Conway accountable for her misdeeds.” (p. 2)
Having found that CREW had no standing to bring the suit, the court declined to reach the second argument raised by OSC that the suit fails to state a justiciable claim. No standing—no need to rule on whether the claim can indeed even be brought before the court.
While not reaching the meat of the claim, the court does note in its opinion that the law establishing the OSC and its jurisdiction over Hatch Act violations “carves out an exception for employees ‘in a confidential, policy-making, policy-determining, or policy-advocating position appointed by the President, by and with the advice and consent of the Senate.’” In such cases OSC is mandated to present its findings to the President “for appropriate action.” (p. 4)
In all other cases the OSC is instructed by that law to issue a written complaint with its determination to the employee and the MSPB. It is then up to the MSPB to take appropriate action which may include dismissing the allegations, or in cases where it finds a violation, imposing disciplinary action. In the latter case the employee has the right to seek review of the MSPB decision in the U.S. Court of Appeals for the Federal Circuit. (p. 4)
Apparently CREW’s complaints to the OSC regarding Conway stemmed from statements she made in her official capacity in various television news interviews, including her endorsement of a Republican candidate for U.S. Senate in Alabama. OSC’s investigation concluded that she had used her “official authority or influence for the purpose of interfering with or affecting the result of an election” twice. OSC found that both instances violated the Hatch Act. As instructed by federal law, OSC submitted its finding to the President of the United States for “appropriate disciplinary action.” (p. 5)
The President determined not to take action against Ms. Conway. (p. 5)
CREW filed a few more complaints with OSC and that agency in turn investigated, agreed that Ms. Conway had made partisan attacks on several Democratic Party nominees for President, and advocated for re-election of the President. Once again, as instructed by federal law, OSC submitted its findings in this regard to the President. The White House Counsel submitted a response to OSC “taking issue with several facets of the investigation, [referred to] multiple fundamental legal and factual errors, [and made] unfair and unsupported claims…influenced by various inappropriate considerations.” (p. 6A)
Once again, the President rejected OSC’s recommendations with regard to Conway.
CREW thereupon went back to OSC demanding that it file complaints against Ms. Conway in the MSPB and pursue discipline against her in that forum. OSC took no action in response to this demand. (p. 7)
Rebuffed, CREW went to federal district court demanding that OSC’s decision be declared unlawful, ordering OSC to take action against Conway before MSPB, and barring OSC from taking such an approach in the future. OSC responded with its motion to dismiss that the court has now granted with its finding that CREW lacks standing to bring such a complaint.
The reader can take a look at the court’s lengthy explanation in its opinion. Of note is this language from the decision: “Not every disagreement merits a lawsuit. Federal courts decide only ‘cases and controversies,’ a phrase given meaning by the doctrine of ‘standing.’” (p. 9) And this language: “At bottom, CREW’s beef is that OSC is flouting the statute by not prosecuting Conway before the MSPB. Even assuming that Defendant should have done so, …CREW has no greater stake in the disciplinary proceeding to which Conway ultimately is, or is not, subject than any other member of the public.” (p. 21)
The detailed discussion of the law with regard to standing is worth a read by practitioners or anyone else interested in the subject. Suffice it to say here that the court concluded CREW had none.