Arnold v. MSPB

• Court: Court of Appeals for the Federal Circuit
• Decided: December 13, 2023
• Docket: 23-1649
• Status: Unpublished

Opinion

Case: 23-1649 Document: 31 Page: 1 Filed: 12/13/2023

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

KEITH L. ARNOLD, Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent ______________________

2023-1649 ______________________

Petition for review of the Merit Systems Protection Board in No. CB-1216-16-0017-T-1. ______________________

Decided: December 13, 2023 ______________________

KEITH L. ARNOLD, Auburn, WA, pro se.

KATHERINE MICHELLE SMITH, Office of General Coun- sel, United States Merit Systems Protection Board, Wash- ington, DC, for respondent. Also represented by ALLISON JANE BOYLE. ______________________

Before MOORE, Chief Judge, HUGHES and STARK, Circuit Judges. Case: 23-1649 Document: 31 Page: 2 Filed: 12/13/2023

PER CURIAM. Keith L. Arnold appeals a final decision of the Merit Systems Protection Board that removed him from his posi- tion at the National Oceanic and Atmospheric Administra- tion because of his alleged violations of the Hatch Act in 2014 and 2016. S.A. 7. 1 We affirm. I Mr. Arnold was employed at the National Oceanic and Atmospheric Administration (NOAA) from March 2010 un- til the Merit Systems Protection Board (Board) ordered his removal in January 2023. S.A. 2, 7. During that time, he unsuccessfully ran to be a U.S. Representative for the 8th Congressional District in Washington state a number of times. S.A. 2; S.A. 19 (¶ 13). 2 During his candidacy, Mr. Ar- nold identified himself as a “[p]roud [f]ederal [e]mployee” of NOAA. S.A. 35–36. Mr. Arnold also explained that he was “told federal employees are mostly prohibited from running for Congress by a ‘law’ called the Hatch Act,” but continued to run for office to “fight[] for fairness.” S.A. 77– 78 (Voters’ Guide); S.A. 35–36 (Board discussing Mr. Ar- nold’s campaign website); S.A. 58–59 (¶¶ 16–17). 3 In 2012 and 2013, Mr. Arnold was repeatedly warned that running for a seat in the House of Representatives

1 Citations to “S.A.” refer to the Supplemental Appen-

dix accompanying the Respondent’s Informal Brief, ECF No. 19. 2 There is record evidence that Mr. Arnold also ran for

this same office in 2006, 2008, 2010, 2012, 2018, and 2020. S.A. 19 (¶ 13); S.A. 6. 3 Mr. Arnold has not challenged most of the facts in the

OSC’s amended complaint. See S.A. 62–73 (Pet. Answer to Amended Compl.); S.A. 79–81 (Pet. Admissions). There- fore, we cite the amended complaint throughout this opin- ion for additional background information. Case: 23-1649 Document: 31 Page: 3 Filed: 12/13/2023

ARNOLD v. MSPB 3

would violate the Hatch Act. S.A. 18 (¶¶ 3–4). In 2014, in response to an email educating federal employees about the Hatch Act, Mr. Arnold asked the Department of Com- merce’s (DOC) ethics office if his candidacy would violate the Act, but applied to be a candidate prior to receiving a response. S.A. 18 (¶ 5); S.A. 57–58 (¶¶ 10, 11, 13). The DOC’s ethics office responded to Mr. Arnold’s inquiry and informed him that the Hatch Act barred his campaign. S.A. 19 (¶ 6); see also S.A. 58 (¶ 14). Thereafter, the Office of Special Counsel (OSC) notified Mr. Arnold his candidacy violated the Hatch Act and instructed him to either resign from his job or officially withdraw his candidacy. S.A. 19 (¶ 9); see also S.A. 59 (¶¶ 19, 20). Mr. Arnold did neither. S.A. 19 (¶ 12). On March 8, 2016, the OSC filed a complaint against Mr. Arnold, accusing him of violating the Hatch Act (5 U.S.C. §§ 7321–7326) in 2014, and later amended the com- plaint to include his 2016 election bid. S.A. 49–54 (Com- plaint); S.A. 55–61 (Amended Complaint). In September 2016, the administrative law judge granted the OSC’s mo- tion for summary adjudication. S.A. 32–40. After a sepa- rate evidentiary hearing, the administrative law judge analyzed the Douglas factors and determined that removal was the appropriate penalty. S.A. 9–31. The Board issued a final order in January 2023, affirm- ing the administrative law judge’s initial decision and ren- dering it the final decision of the Board. S.A. 1–2; see also 5 C.F.R. § 1201.113(b). The Board denied Mr. Arnold’s pe- tition for review and ordered his removal. S.A. 1–8. Mr. Arnold timely appealed, and we have jurisdiction under 5 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1)(A). II The Hatch Act prohibits certain federal employees from “run[ning] for the nomination or as a candidate for election to a partisan political office.” 5 U.S.C. § 7323(a)(3). Case: 23-1649 Document: 31 Page: 4 Filed: 12/13/2023

A “partisan political office” is defined as “any office for which any candidate is nominated or elected as represent- ing a party any of whose candidates for Presidential elector received votes in the last preceding election at which Pres- idential electors were selected, but shall exclude any office or position within a political party or affiliated organiza- tion.” Id. § 7322(2). In McEntee v. MSPB, 404 F.3d 1320, 1329 (Fed. Cir. 2005), we interpreted the “elected as repre- senting a party” language to not require any “formal en- dorsement or selection by a major political party.” By regulation, there are two exceptions to this prohibi- tion. First, federal employees who live in certain localities (such as the District of Columbia, see 5 C.F.R. § 733.107) may “[r]un as an independent candidate in a partisan elec- tion.” Id. § 734.207(a). Mr. Arnold does not contend that this exception applies. See Pet. Informal Br. 1–3; Pet. In- formal Reply Br. 1–2. The second exception allows a federal employee, re- gardless of locality, to “[r]un as a candidate in a nonparti- san election.” 5 C.F.R. § 734.207(b) (emphasis added). A nonpartisan election is defined by regulation as: (1) An election in which none of the candi- dates is to be nominated or elected as rep- resenting a political party any of whose candidates for Presidential elector received votes in the last preceding election at which Presidential electors were selected; or (2) [a]n election involving a question or is- sue which is not specifically identified with a political party, such as a constitutional amendment, referendum, approval of a municipal ordinance, or any question or is- sue of a similar character. Id. § 734.101. Mr. Arnold maintains that because the Washington state primary election is nonpartisan, his can- didacy in both 2014 and 2016 did not violate the Hatch Act. Case: 23-1649 Document: 31 Page: 5 Filed: 12/13/2023

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See, e.g., Pet. Informal Reply Br. 1. Therefore, he seeks re- instatement, lost wages and benefits, and any appropriate damages. Pet. Informal Br. 3. We have upheld the Board’s conclusion that a federal employee violates the Hatch Act by running for a position, even as an independent, in the U.S. House of Representa- tives, because that is partisan political office. Lewis v. MSPB, 594 F. App’x 974, 979–80 (Fed. Cir. 2014) (non- precedential) (affirming Special Counsel v. Lewis, 2014 M.S.P.B. 33 (2014)). There, “[t]he record reflect[ed] that, during the last Presidential election, the Democratic and Republican candidates for Presidential electors received votes and both Democratic and Republican candidates ran for the seat for which the respondent campaigned during the 2012 general election and the 2013 special election.” Special Counsel, 2014 M.S.P.B. 33, ¶ 15. III We will set aside the Board’s decision only when it is “(1) arbitrary, capricious, an abuse of discretion, or other- wise not in accordance with law; (2) obtained without pro- cedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c). We review the Board’s legal conclusions de novo. Nordby v. Soc. Sec. Admin., 67 F.4th 1170, 1172 (Fed. Cir. 2023). IV The sole issue on appeal is whether the Board erred in concluding that Washington state’s 8th Congressional Dis- trict primary elections in 2014 and 2016 were partisan. See, e.g., Pet. Informal Reply Br. 2. Because we agree with Case: 23-1649 Document: 31 Page: 6 Filed: 12/13/2023

the Board that the elections Mr. Arnold ran in were parti- san, we affirm. We note that Mr. Arnold does not dispute that the of- fice of U.S. Representative is a partisan political office. 4 See Pet. Informal Br. 1–3; Pet. Informal Reply Br. 1–2. Instead, Mr. Arnold focuses on the distinction between a partisan political office and a partisan election, arguing that the Washington state election system is nonpartisan even if the office of U.S. Representative is a partisan political of- fice. See Pet. Informal Br. 2; Pet. Informal Reply Br. 2. Mr. Arnold also highlights the “[t]op 2 [p]rimary election system” used in Washington state, which differs from a party nominating system because the primary election does not “nominate[] a finalist from each major party, but rather sends the two most popular candidates forward for each office.” S.A. 63–64; see also Wash. Rev. Code § 29A.52.112 (2014). Only in the general election do the po- litical parties in Washington state elections nominate their candidates. See S.A. 38. The administrative law judge found that “[i]n the 2014 and 2016 general elections for Congress from Washington’s 8th District, both candidates represented a political party whose candidates for Presidential elector received votes in the last preceding election at which Presidential electors were selected.” S.A. 20 (¶ 14). Therefore, the administra- tive law judge concluded the general election was partisan. S.A. 20 (¶ 14). And while in Washington state “the primary elections do not, on their face, determine the names of the nominees,” it only mattered that “the general election was

4 The administrative law judge found that the office of

U.S. Representative is a partisan political office. S.A. 20 (¶ 15). This is consistent with the Third Circuit’s holding that “[b]y the plain terms of the Hatch Act, the position of United States Representative is a partisan political office.” Merle v. United States, 351 F.3d 92, 96 (3d Cir. 2003). Case: 23-1649 Document: 31 Page: 7 Filed: 12/13/2023

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eventually contested by named representatives of the two major political parties.” S.A. 22. Therefore, the administra- tive law judge concluded that the 2014 and 2016 primary elections in which Mr. Arnold campaigned were not non- partisan elections, but partisan political elections, and Mr. Arnold’s candidacy violated the Hatch Act. S.A. 39; see also S.A. 22. We agree. The Board’s findings are supported by sub- stantial evidence. The record establishes that the 2014 and 2016 Washington state primary elections do not meet the requirements for a nonpartisan election, i.e., that “none of the candidates is to be nominated or elected as represent- ing a political party any of whose candidates for Presiden- tial elector received votes in the last preceding election at which Presidential electors were selected.” See 5 C.F.R. § 734.101. And Mr. Arnold admits that in 2014, both the Republican and Democratic political parties at least en- dorsed their respective nominees. Pet. Informal Br. 2. Consider Dave Reichert, the incumbent in the 2014 and 2016 primary elections who went on to successfully become the U.S. Representative for the 8th District. See S.A. 36– 37 & n.11. Mr. Reichert was endorsed by the Washington State Republican Party, which included Mr. Reichert on their website, S.A. 98, and promoted Mr. Reichert’s cam- paign events on their social media page, S.A. 91. When elected in 2014, Mr. Reichert was listed as a “House Repub- lican” on a GOP website. S.A. 100. Therefore, despite the electoral scheme that exists in Washington state, the Board correctly concluded that Mr. Reichert was a candi- date that when in office represented “a political party whose candidates for Presidential elector received votes in the last preceding election at which Presidential electors were selected” in the 2014 and 2016 primary and general elections. S.A. 37 & n.11. Therefore, the 2014 and 2016 pri- mary elections were not nonpartisan. Case: 23-1649 Document: 31 Page: 8 Filed: 12/13/2023

In sum, we agree with the Board that both primary elections were not excepted nonpartisan elections, but im- permissible political activities under 5 U.S.C. § 7323(a)(3), and Mr. Arnold’s candidacy in those elections violated the Hatch Act. V A federal employee who violates the Hatch Act is sub- ject to “(1) disciplinary action consisting of removal, reduc- tion in grade, debarment from Federal employment for a period not to exceed 5 years, suspension, or reprimand; [and/or] (2) an assessment of a civil penalty not to exceed $1,000.” 5 U.S.C. § 7326. For his violations of the Hatch Act, the administrative law judge ordered Mr. Arnold’s re- moval. S.A. 9–31. Mr. Arnold does not contest that removal is an appropriate penalty if we conclude he violated the Hatch Act. See Pet. Informal Br. 1–3; Pet. Informal Reply Br. 1–2. Because the Washington state primary elections in 2014 and 2016 were partisan elections and Mr. Arnold vio- lated the Hatch Act, the decision of the Board is affirmed. AFFIRMED COSTS No costs.