Keith Arnold v. Keith L. Arnold

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SPECIAL COUNSEL, DOCKET NUMBER

Petitioner, CB-1216-16-0017-T-1

v.

KEITH L. ARNOLD, DATE: January 17, 2023

Respondent.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Carolyn S. Martorana, Esquire, Washington, D.C., for the petitioner.

Keith L. Arnold, Auburn, Washington, pro se.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

Member Leavitt recused himself and

did not participate in the adjudication of this appeal.

FINAL ORDER

¶1 The respondent has filed a petition for review of the initial decision, which

found that he had violated the Hatch Act by running for a partisan political office

in two election cycles and ordered his removal from Federal service. Generally,

1

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

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we grant petitions such as this one only in the following circumstances: the

initial decision contains erroneous findings of material fact; the initial decision is

based on an erroneous interpretation of statute or regulation or the erroneous

application of the law to the facts of the case; the administrative law judge’s

rulings during either the course of the appeal or the initial decision were not

consistent with required procedures or involved an abuse of discretion, and the

resulting error affected the outcome of the case; or new and material evidence or

legal argument is available that, despite the respondent’s due diligence, was not

available when the record closed. Title 5 of the Code of Federal Regulations,

section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this

appeal, we conclude that the respondent has not established any basis under

section 1201.115 for granting the petition for review. Therefore, we DENY the

petition for review and AFFIRM the initial decision, which is now the Board’s

final decision. 5 C.F.R. § 1201.113(b).

BACKGROUND

¶2 The respondent has served as an employee of the U.S. Department of

Commerce’s National Oceanic and Atmospheric Administration since

March 2010. Complaint File (CF), Tab 6 at 1, Tab 1 at 5. The Office of Special

Counsel (OSC) filed a Complaint for Disciplinary Action (Violation of the Hatch

Act) against the respondent, charging him with a single count of being a

candidate for partisan political office in violation of 5 U.S.C. § 7323(a)(3) and

5 C.F.R. § 734.304 for the 2014 primary election for the office of

U.S. Representative for the 8th Congressional District of the State of Washington

(Washington’s 8th Congressional District). CF, Tab 1. OSC subsequently

amended its complaint to add a second count alleging that the respondent also ran

in the 2016 primary election for the same office. CF, Tab 9. The respondent did

not dispute that he ran in the named primary elections, but instead argued that the

elections were nonpartisan because Washington’s “Top 2” primary system meets

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the pertinent regulatory definition of a nonpartisan election. CF, Tab 12 at 3-5.

OSC filed a motion for summary adjudication, arguing that the respondent had

admitted to all material facts and thus it was entitled to judgment as a matter of

law. CF, Tab 22. The respondent also filed a motion for summary judgment . 2

Petition for Review (PFR) File, Tab 7. Subsequently, the administrative law

judge issued an order denying the respondent’s motion in its entirety and granting

OSC’s motion in part, finding OSC was entitled to judgment as a matter of law on

both counts of its complaint, but finding a hearing necessary to determine the

proper penalty to impose on the respondent. CF, Tab 25 at 8-9.

¶3 After holding the hearing, the administrative law judge issued an initial

decision finding that OSC proved its case and that removal was the appropriate

penalty for the violation. CF, Tab 35, Initial Decision (ID). In his timely filed

petition for review, the respondent reiterates his argument that his candidacy was

allowed under the exceptions enumerated in 5 C.F.R. § 734.207. PFR File, Tab 1.

OSC responds in opposition to the respondent’s petition for review. PFR File,

Tab 3.

¶4 After the close of the record on review, OSC filed two motio ns to reopen

the record to submit new and material evidence showing that the respondent ran

two more times as a candidate for partisan political office in violation of 5 U.S.C.

§ 7323(a)(3), in the 2018 and 2020 primary election for Washington’s 8th

Congressional District. PFR File, Tab 8 at 5-6, 9-11, 26-29; Tab 10 at 5-7, 11-13.

OSC argued that the new evidence not only supports the penalty of removal, but

also supports an enhanced penalty to include a $1,000.00 fine and debarment

from Federal employment for 5 years. PFR File, Tab 8 at 6, Tab 10 at 7. The

Acting Clerk of the Board granted both motions to submit a new pleading and

afforded the respondent 15 days, in each instance, to respond to OSC’s new

2

A copy of the respondent’s motion for summary judgment was missing from the

record below but was supplemented on review.

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evidence. PFR File, Tabs 9, 11. The respondent did not respond in either

instance.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative law judge considered the respondent’s arguments and

correctly determined that he violated the Hatch Act.

¶5 The respondent claims that the administrative law judge and OSC

“knowingly, willfully, and fraudulently” left out the exceptions contained within

5 C.F.R. § 734.304, and that under those exceptions he was allowed to run in the

primary election for Washington’s 8th Congressional District. PFR File, Tab 1.

5 C.F.R. § 734.304 prohibits an employee from running for the nomination, or as

a candidate for election, to a partisan political office, unless the employee falls

into one of the following two exceptions, as enumerated in 5 C.F.R. § 734.207:

either if an employee (a) runs as an independent candidate in a partisan election

covered by 5 C.F.R. part 733; or (b) runs as a candidate in a nonpartisan election.

We find that that the first exception is inapplicable here because Washington’s

8th Congressional District is not included in any of the municipalities covered by

5 C.F.R. part 733. 3 5 C.F.R. § 733.107(c). Therefore, the only issue in dispute is

whether the respondent ran in a nonpartisan political election.

¶6 We reject the respondent’s argument and agree with the administrative law

judge’s finding that the primary elections for Washington’s 8th Congressional

District are partisan, and thus do not fall under the second exception enumerated

in 5 C.F.R. § 734.207. ID at 13-14. A partisan political office is defined as “any

office for which any candidate is nominated or elected as representing a party any

of whose candidates for Presidential elector received votes in the last preceding

election at which Presidential electors were selected, but does not include any

office or position within a political party or affiliated organization.” 5 C.F.R

3

The respondent does not argue that Washington’s 8th Congressional District is within

one of the designated municipalities covered by 5 C.F.R. § 733.107. PFR File, Tab 1.

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§ 734.101; see also 5 U.S.C. § 7322(2). There is no evidence in the record, or

any argument made by the respondent, that undermines the administrative law

judge’s finding that the primary elections for Washington’s 8th Congressional

District included candidates from political parties whose candidates for

Presidential elector received votes in the last preceding election. ID at 12.

Further, the Board has confirmed that the office of United States Representative

is a partisan political office. Special Counsel v. Lewis, 121 M.S.P.R. 109, ¶ 15

(finding that a respondent’s candidacy for the U.S. House of Representative was a

violation of the Hatch Act), aff’d, 594 F. App’x 974 (Fed. Cir. 2014); see also

Merle v. United States, 351 F.3d 92, 96 (3d Cir. 2003) (“By the plain terms of the

Hatch Act, the position of United States Representative is a partisan political

office.”). Therefore, because the office of U.S. Representative is a partisan

political office, we agree with the administrative law judge that the respondent

violated the Hatch Act when he ran in in the 2014 and 2016 primary elections for

Washington’s 8th Congressional District. ID at 14-15.

Removal is an appropriate penalty.

¶7 The administrative judge correctly applied the relevant Douglas factors and

found that removal was the appropriate penalty to impose on the respondent. ID

at 16-21; Lewis, 121 M.S.P.R. 109, ¶ 31 (concluding that the Board should apply

the Douglas factors in independently determining the proper penalty from the

range of penalties permissible under 5 U.S.C. § 7326); Douglas v. Veterans

Administration, 5 M.S.P.R. 280, 305-06 (1981) (providing a nonexhaustive list of

factors that may be relevant to a penalty determination, including, among other

factors, whether the misconduct is intentional, repeated, and shows a poor

potential for rehabilitation). The respondent does not dispute the administrative

law judge’s application of the Douglas factors, and upon review of the record, it

is apparent that the administrative law judge reviewed all of the evidence and

arguments by both parties and came to reasoned, logical conclusions. See ID;

PFR File, Tab 1. Thus we see no reason to disturb his findings. Crosby v. U.S.

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Postal Service, 74 M.S.P.R. 98, 106 (1997) (declining to disturb the

administrative judge’s findings where she considered the evidence as a whole,

drew appropriate inferences, and made reasoned conclusions); Broughton v.

Department of Health and Human Services, 33 M.S.P.R. 357, 359 (1987) (finding

no reason to disturb the administrative judge’s findings when the initial decision

reflected that the administrative judge considered the evidence as a whole, drew

appropriate inferences, and made reasoned conclusions).

¶8 As for OSC’s request that the Board enhance the penalty imposed against

the respondent because the respondent ran again for partisan political office in

2018 and 2020, we deny the request. PFR File, Tab 8 at 6, Tab 10 at 6-7. The

enhanced penalty requested by OSC is based on the statutory authority provided

for in the National Defense Authorization Act for Fiscal Year 2018, Pub. L.

No. 115-91, 131 Stat 1283, 1626 (NDAA for 2018). Section 1097(k)(2) of that

Act, codified at 5 U.S.C. § 7326, authorizes those penalties for violations of

5 U.S.C. § 7323 “occurring after the date of enactment of this Act.” The NDAA

for 2018 became effective on December 12, 2017. Thus, by the plain language of

the statute, the respondent’s actions in 2014 and 2016 are not subject to the

NDAA for 2018 and the enhanced penalties provided for in that statute cannot be

imposed for the respondent’s conduct. Hooker v. Department of Veterans Affairs,

120 M.S.P.R. 629, ¶ 12 (2014) (quoting Landgraf v. USI Film Products, 511 U.S.

244, 257 (1994) (“A statement that a statute will become effective on a certain

date does not even arguably suggest that it has any applic ation to conduct that

occurred at an earlier date.”)).

¶9 Furthermore, we find that enhancing the penalty imposed on the respondent

for violations that occurred after the effective date of the NDAA for 2018 and

after the issuance of the initial decision would be inconsistent with the statutory

requirements. Pursuant to 5 U.S.C. § 1215(a)(1), if OSC determines that

disciplinary action should be taken against an employee for, among other things,

violating the Hatch Act, it “shall prepare a written complaint against the

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employee containing the Special Counsel’s determination, together with a

statement of supporting facts, and present the complaint and statement to the

employee and the Board . . . .” Further, once a complaint is filed, certain

procedural protections are afforded to the respondent pursuant to 5 U.S.C.

§ 1215(a)(2), including a reasonable time to answer the complaint orally and in

writing, to have a hearing before the Board or an administrative law judge

designated by the Board, and to have a written decision on the merits. OSC filed

a complaint with the Board against the respondent for violations of 5 U.S.C.

§ 7323(a)(3) and 5 C.F.R. § 734.304 that occurred in 2014 and 2016, and the

respondent was given an opportunity to respond to the charges, have a hearing in

front of an administrative law judge, and have a written decision on the merits .

5 U.S.C. § 1215(a)(2); CF, Tab 9; ID. At no point has OSC filed a complaint

against the respondent for violations of 5 U.S.C. § 7323(a)(3) related to his

candidacy in 2018 or 2020 and thus, the respondent has not been afforded the

procedural protections required by 5 U.S.C. § 1215(a)(2). Accordingly, because

OSC did not comply with the requirements of 5 U.S.C. § 1215, we deny its

request to enhance the respondent’s penalty to include an additional fine and

debarment as authorized by the NDAA for 2018. 4

ORDER

The Board ORDERS the National Oceanic and Atmospheric Administration

to REMOVE the respondent from his position of employment. The Board also

ORDERS OSC to notify the Board within 30 days of the date of this Final Order

whether the respondent has been removed as ordered. This is the final decision

of the Merit Systems Protection Board in this appeal. 5 C.F.R. § 1201.113(b).

4

OSC may file a new complaint with the Board if it wishes to seek disciplinary action

against the appellant for his 2018 and 2020 candidacies. Such a complaint must

comport with the statutory requirements and must be filed consistent with the Board’s

regulations. 5 U.S.C. § 1215(a)-(b); 5 C.F.R. §§ 1201.122, 1201.123.

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NOTICE OF APPEAL RIGHTS 5

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant 6 seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

5

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

6

In this case, the respondent has the same appeal rights as an “appellant.”

9

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before th e Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a

representative in this case, and your representative receives this decision before

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of

discrimination based on race, color, religion, sex, national origin, or a disabling

condition, you may be entitled to representation by a court-appointed lawyer and

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to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

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disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Federal Circuit or any court

of appeals of competent jurisdiction. 7 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

7

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,

132 Stat. 1510.

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Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD: /s/ for

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.