Fedweek

A federal appeals court has left unresolved questions raised by 2018 guidance from the Office of Special Counsel regarding the free speech rights of federal employees and the Hatch Act restrictions on their partisan political activities.

The Court of Appeals for the Fourth Circuit, in case No. 20-1976, said that a suit challenging guidance related to employees making statements related to the impeachment of then-President Trump is moot because that guidance no longer applies. It also agreed with a lower court that even when it did apply, the suit was outside the realm of judicial review.

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The guidance stated that advocating for or against impeachment of a partisan candidate for office is prohibited under the Hatch Act on grounds that it is directed toward the success or failure of a political party or candidate for partisan office. That was the case with Trump since he already had announced his candidacy for re-election in 2020 by that time.

It said that those standards applied as well to the use of terms such as “resistance” and “#resist” because they were “inextricably linked with the electoral success (or failure) of the president.” That policy applied only at work and in other settings where the Hatch Act applies, it added.

Federal unions and whistleblower advocacy groups argued that the guidance would have a chilling effect on employees’ First Amendment rights. However, a federal district judge last year ruled, in a suit brought by the AFGE union, that the case was not “ripe” for decision because no federal employee had suffered disciplinary action, or even had been investigated, under the guidance.

The lower court also agreed with the OSC that allowing an advisory opinion to be appealable to federal court would strip the MSPB of its role under law as the first forum for appealing charges of Hatch Act violations.

In its opinion, the Fourth Circuit agreed with that analysis and noted that later last year the OSC issued guidance stating that after an election, an employee’s expression of views about a candidate in that election “is no longer considered political activity” under the Hatch Act because it cannot affect the result of that election.

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2021 Federal Employees Handbook