                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SPECIAL COUNSEL,                                DOCKET NUMBER
                  Petitioner,                        CB-1216-15-0002-T-1

                  v.

     JAMES MURRY,                                    DATE: November 3, 2015
                         Respondent.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

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

           James Murry, Pine Bluff, Arkansas, pro se.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The respondent has filed a petition for review of the initial decision, which
     found that he violated the Hatch Act and ordered his removal from Federal
     service. Generally, we grant petitions such as this one only when: 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

     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
                                                                                      2

     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 petitioner’s due diligence, was not available when
     the record closed.       See 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 petitioner 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).
¶2        The respondent is a Federal employee with the U.S. Army Corps of
     Engineers. Complaint File (CF), Tab 17 at 4.      The Office of Special Counsel
     (OSC) filed a Complaint for Disciplinary Action (Violation of the Hatch Act)
     against the respondent, charging him with:     (1) being a candidate for partisan
     political office in violation of 5 U.S.C. § 7323(a)(3) and 5 C.F.R. § 734.304; and
     (2) knowingly soliciting, accepting, and/or receiving political contributions in
     violation of 5 U.S.C. § 7323(a)(2) and 5 C.F.R. § 734.303.       CF, Tab 1.    The
     respondent did not dispute the factual allegations set forth in the complaint. CF,
     Tab 4.   He instead argued, inter alia, that the Hatch Act unconstitutionally
     restricts his participation in the electoral process and should not apply to
     campaigns outside of the Federal Government.        Id.   OSC filed a motion for
     summary adjudication, citing the respondent’s admission to all of the material
     facts set forth in the complaint.   CF, Tab 15.    The administrative law judge
     granted OSC’s motion in part, finding that no genuine issues of material fact
     concerning the respondent’s Hatch Act violations existed but that the respondent
                                                                                              3

     was entitled to a hearing regarding the penalty determination. 2             CF, Tab 24
     at 13-21.
¶3         After holding the hearing, the administrative law judge issued an initial
     decision finding that removal was the appropriate penalty for the proven
     violations. CF, Tab 30, Initial Decision (ID) at 12-29. 3 The respondent has filed
     a timely petition for review. Petition for Review (PFR) File, Tab 1. He asserts
     that: (1) the administrative law judge did not fully address his argument that the
     Hatch Act unconstitutionally infringes on his right to participate in the electoral
     process as a candidate; (2) the Hatch Act Modernization Act of 2012
     (Modernization Act) denies him due process and equal protection because some
     Government employees are permitted to run as candidates for partisan office
     while others are not; 4 (3) the Hatch Act should not apply to a Government worker
     of his status because he is not a supervisor or an executive; and (4) state and local

     2
       Subsequently, the respondent filed an untimely reply to OSC’s motion in which he
     asserted, inter alia, that he was a laborer and thus had no decision-making capacity, his
     actions should not be considered willful or deliberate because he is being penalized for
     exercising a fundamental right to fully participate in the electoral process, and he had a
     good work record. CF, Tab 26 at 2-3. In the initial decision, the administrative law
     judge stated that he informed the respondent at the hearing that he considered this
     motion, at least for mitigation purposes. CF, Tab 30, Initial Decision at 6.
     3
       During the hearing, the respondent moved to dismiss the complaint, asserting that
     OSC had not presented sufficient evidence to show he had knowledge or sufficient
     training regarding the Hatch Act prior to initiating his fundraiser and campaign for
     sheriff. See ID at 6. The administrative law judge denied the respondent’s motion. Id.
     We agree with this denial because the record shows that the respondent was provided
     specific notice of the prohibitions of the Hatch Act beginning in February 2014, and
     provided numerous opportunities to mitigate his violations of the Hatch Act by ceasing
     the campaign efforts that he had begun, but he did not cease his efforts. See Special
     Counsel v. Lewis, 121 M.S.P.R. 109, ¶ 28, aff’d, 594 F. App’x 974 (Fed. Cir. 2014)
     (considering whether the respondent had changed his conduct once notified that his
     conduct violated the Hatch Act); see also CF, Tab 15, Exhibit P-16, ¶¶ 15-17,
     Exhibit P-17, ¶¶ 15-17.
     4
       The Modernization Act, Pub. L. No. 112-230, 126 Stat. 1616, 1616-18 (2012), scaled
     back the provision of the Hatch Act forbidding certain state and local employees from
     seeking elective office and clarified the application of certain provisions to the District
     of Columbia.
                                                                                               4

     laws do not prohibit him from being a candidate in primary or general elections.
     Id. at 2. OSC has responded in opposition to the petition for review. PFR File,
     Tab 4.

                            DISCUSSION OF ARGUMENTS ON REVIEW
¶4           First,    we    reject   the   respondent’s   assertions   that   the   Hatch   Act
     unconstitutionally infringes on his right to participate in the electoral process and
     violates his equal protection and due process rights.              PFR File, Tab 1 at 2.
     Specifically, we need not consider the respondent’s assertions regarding equal
     protection and due process because he did not raise them below and he has not
     shown why, despite his due diligence, he could not have raised those arguments
     before the close of the record.           See Banks v. Department of the Air Force,
     4 M.S.P.R. 268, 271 (1980); 5 C.F.R. § 1201.114(b).                Moreover, the Board
     does not have the authority to decide whether the Hatch Act is constitutional on
     its face.        Special Counsel v. Jackson, 119 M.S.P.R. 175, ¶ 10 (2013).             We
     nevertheless note that the U.S. Supreme Court consistently has upheld the
     constitutionality of the Hatch Act.            See, e.g., United States Civil Service
     Commission v. National Association of Letter Carriers, 413 U.S. 548, 568-81
     (1973).     Although the Board does have the authority to consider whether the
     Hatch Act was constitutionally applied, Jackson, 119 M.S.P.R. 175, ¶ 10, the
     respondent has not presented arguments regarding how his constitutional rights
     were violated through specific application of the Hatch Act, see PFR File, Tab 1
     at 2.    To the extent that he asserts that he was treated differently than other
     similarly situated employees, the respondent has not identified how the Hatch Act
     was applied differently to him.
¶5           Next, we reject the respondent’s argument that the Hatch Act should not
     apply to him because of his job level and type of employment. PFR File, Tab 1
     at 2. The U.S. Supreme Court long ago rejected this challenge, and instead found
     that it was within the power of Congress to determine any differences between
                                                                                             5

     employees of different job levels and what weight to attach to these differences in
     regulating the employees’ political activities. 5         United Public Workers of
     America v. Mitchell, 330 U.S. 75, 102 (1947).
¶6         Finally, the respondent’s assertion that state and local laws do not prohibit
     his candidacy does not affect our decision. PFR File, Tab 1 at 2. Even if the
     respondent’s characterization of these laws is correct, the enforcement power of
     the Board under the Hatch Act preempts any such local laws. Special Counsel v.
     Campbell, 58 M.S.P.R. 170, 180 (1993), aff’d, 27 F.3d 1560 (Fed. Cir. 1994).
¶7         The respondent does not otherwise challenge the administrative law judge’s
     determination that he violated the Hatch Act or that removal was the appropriate
     penalty.   PFR File, Tab 1 at 2.      Accordingly, applying the administrative law
     judge’s factual findings to our independent consideration of the appropriate
     penalty for the respondent’s Hatch Act violations, we order the respondent’s
     employing agency to remove him from Federal service under 5 U.S.C. § 7326.
     See Special Counsel v. Lewis, 121 M.S.P.R. 109, ¶¶ 30-31, aff’d, 594 F. App’x
     974 (Fed. Cir. 2014).

                                             ORDER
¶8         The Board ORDERS the U.S. Army Corps of Engineers 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).




     5
       To the extent that the respondent is attempting to challenge the penalty on the basis of
     his job level and type of employment, the administrative law judge considered those
     factors in determining the penalty, but found that they were outweighed by the open and
     continuous public nature of the respondent’s Hatch Act violations despite OSC’s
     repeated warnings. ID at 18-19. Based upon our own review, we agree with the
     administrative law judge in this respect.
                                                                                        6

               NOTICE TO THE RESPONDENT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
      You have the right to request review of this final decision by the
United States Court of Appeals for the Federal Circuit. You must submit your
request to the court at the following address:
                          United States Court of Appeals
                              for the Federal Circuit
                            717 Madison Place, N.W.
                             Washington, DC 20439

The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
      If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012).    You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional     information     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, and 11.
      If you are interested in securing pro bono representation for an appeal to the
United States 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 Merit Systems Protection Board neither endorses the services
                                                                                7

provided by any attorney nor warrants that any attorney will accept representation
in a given case.




FOR THE BOARD:                           ______________________________
                                         William D. Spencer
                                         Clerk of the Board
Washington, D.C.
