Fedweek

Chief Justice John Roberts presiding over the Senate trial of President Donald Trump, January 2020.

In a fairly rare public comment on a court case, the Office of Special Counsel has praised a court’s rejection of a suit from the AFGE union challenging a Hatch Act advisory.

“OSC’s career Hatch Act attorneys provide timely and relevant information to help federal employees stay in compliance with the law. By dismissing this lawsuit, the court preserves OSC’s important advisory role,” the agency said in a Twitter posting regarding a ruling by the federal district court for the Maryland district.

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At issue was an advisory issued in late 2018 when the impeachment effort was gearing up in Congress. OSC said that because President Trump already had declared for re-election, advocating for or against impeachment could run afoul of the Hatch Act because that issue relates to a candidate’s eligibility to seek or hold office. That applies as well to the use of terms such as “resistance” and “#resist,” it said, because they have become “inextricably linked with the electoral success (or failure) of the president.”

It added that the policy applies only in the work-related circumstances in which the Hatch Act applies—on duty, in the workplace, while wearing an agency uniform or insignia, or while invoking any official authority or influence—and that use of such terms is not prohibited when not directed to the failure or success of a political party, candidate or group.

Echoing the view of free speech advocates and other federal employee unions, the AFGE contended in court that the advisory was an infringement on First Amendment rights of federal employees. The OSC responded that advisory opinions should not be subject to legal challenges since they are not binding and don’t involve an exercise of its enforcement powers under the Hatch Act.

The court agreed, saying that any charges of Hatch Act violations that the OSC might bring against an employee are appealable to the MSPB and that deeming an advisory to be appealable would strip the MSPB of its authority under the law.

“Adjudicating the constitutionality of an OSC advisory opinion here would expose similar OSC guidance to future judicial challenge. OSC, in turn, would be spend its precious resources in litigation at the expense of fulfilling its Congressionally mandated role as advisor and safe harbor,” the court said.

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2020 Federal Employees Handbook