Eisinger v. Merit Systems Protection Board , 236 F. App'x 628 ( 2007 )

Note: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-3426
JEFFREY W. EISINGER,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Jeffrey W, Eisinger, of Fresno, California, pro se.
Jeffrey A. Gauger, Attorney, Office of the General Counsel, United States Merit
Systems Protection Board, of Washington, DC, for respondent. With him on the brief
were B. Chad Bungard, General Counsel, and Rosa M. Koppel, Deputy General
Counsel.
Appealed from: United States Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-3426
JEFFREY EISINGER
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
___________________________
DECIDED: June 8, 2007
___________________________
Before MICHEL, Chief Judge, HOLDERMAN, Chief Judge * , and GAJARSA, Circuit
Judge.
PER CURIAM.
Jeffrey Eisinger (“Mr. Eisinger”) appeals from a final decision of the Merit
Systems Protection Board (“Board”). Special Counsel v. Eisinger, 103 M.S.P.R. 252(2006) (“Final Decision”). The Board determined that Mr. Eisinger had violated the
Hatch Act, 5 U.S.C. §§ 7321-26, which prohibits federal employees from engaging in
certain partisan political activities. Final Decision at 253. The Board further determined
that removal was the appropriate penalty for Mr. Eisinger’s violation of the Act. Id. We
affirm.
*
Honorable James F. Holderman, Chief Judge, United States District Court
for the Northern District of Illinois, sitting by designation.
BACKGROUND
The facts of this case are not in dispute. The parties stipulated to the relevant
facts in the proceeding before the board.
Mr. Eisinger was employed as a staff attorney with the United States Small
Business Administration (“SBA”) in Fresno, California until his removal as a result of the
present litigation. He admits that he “was aware of the Hatch Act and knew that the
Hatch Act prohibited federal employees from engaging in partisan political activity while
at work.” However, Mr. Eisinger also admits that from the fall of 2001 to September
2004 he conducted political activity while on duty or while in a room or building occupied
in the discharge of official duties, in violation of the Hatch Act. Mr. Eisinger’s political
activities related to several positions that he held within the Green Party of California, a
state political party. Specifically, during the relevant time period he used his
government e-mail account to send numerous messages “that were directed toward the
success of the Green Party,” he “[h]eld telephone conversations that were directed
toward the success of the Green Party,” and he “[u]sed his government computer to
draft documents that were directed toward the success of the Green Party.”
As a result of Mr. Eisinger’s conduct of political activities while at work as a
government employee, the OSC filed a complaint with the Board for violations of the
Hatch Act. The complaint was tried before an administrative law judge (“ALJ”) who
issued an initial decision on November 17, 2005. Special Counsel v. Eisinger, No. CB-
1216-05-0011-T-1 (M.S.P.B. Nov. 17, 2005) (“Initial Decision”). The ALJ found that Mr.
Eisinger had violated the Hatch Act and that he should therefore be removed from his
position with the SBA. Initial Decision at 19. On August 9, 2006, the Board issued a
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final decision and order accepting and adopting the ALJ’s reasoning and findings. Final
Decision at 252. As a result, the Board ordered the SBA to remove Mr. Eisinger from
his position as a staff attorney. Id.Mr. Eisinger filed an appeal to this court from the Board’s decision. This court
has jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
This court must affirm the Board’s decision unless it is “(1) arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having been followed; or (3) unsupported
by substantial evidence.” 5 U.S.C. § 7703(c); Barrett v. Soc. Sec. Admin., 309 F.3d
781, 785 (Fed. Cir. 2002).
The Hatch Act “prohibits covered government employees from engaging in
certain partisan political activities.” McEntee v. Merit Sys. Prot. Bd., 404 F.3d 1320,
1322 (Fed. Cir. 2005). Among the political activities prohibited by the Hatch Act are
those engaged in “(1) while the employee is on duty [or] (2) in any room or building
occupied in the discharge of official duties by an individual employed or holding office in
the Government of the United States or any agency or instrumentality thereof . . . .” 5
U.S.C. § 7324(a). The Act does not prohibit federal employees from engaging in most
types of political activities while off-duty. McEntee, 404 F.3d at 1328.
The Hatch Act’s prohibitions apply to Mr. Eisinger because he is an
“individual . . . employed or holding office in . . . an Executive agency other than the
Government Accountability Office . . . .” 5 U.S.C. § 7322(1)(A). Mr. Eisinger admits that
he engaged in political activities in support of the Green Party of California while on-duty
2006-3426 3
at his government job. The Board therefore properly found that Mr. Eisinger had
violated the Hatch Act.
However, Mr. Eisinger argues that removal was not the appropriate penalty for
his violations of the Hatch Act. The Act provides that:
An employee or individual who violates sections 7323 or 7324 of this title
shall be removed from his position, and funds appropriated for the position
from which removed thereafter may not be used to pay the employee or
individual. However, if the Merit Systems Protection Board finds by
unanimous vote that the violation does not warrant removal, a penalty of
not less than 30 days’ suspension without pay shall be imposed by
direction of the Board.
5 U.S.C. § 7326. In determining whether a penalty other than removal should be
imposed, this court has stated that the Board should consider the following Purnell
factors: “[1] the nature of the offense and the extent of the employee’s participation, [2]
the employee’s past employment record, [3] the political coloring of the employee’s
activities, [4] whether the employee had received advice of counsel regarding the
activities[,] [5] whether the employee had ceased the activities, and [6] the employee’s
motive and intent.” Kane v. Merit Sys. Prot. Bd., 210 F.3d 1379, 1382 (Fed. Cir. 2000);
Special Counsel v. Purnell, 37 M.S.P.R. 184, 200 (1988).
In deciding that removal was the appropriate penalty for Mr. Eisinger’s violation,
the Board considered each of the Purnell factors as well as several other factors raised
by Mr. Eisinger. The additional factors included the lack of notoriety of the offense, that
he did not receive any specific warnings from OSC, his potential for rehabilitation, and
unusual job tensions that were present at the time of the violations. Initial Decision at
18.
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Mr. Eisinger argues that the Board erred by applying a penalty inconsistent with
those imposed in other Hatch Act cases where the penalty was mitigated. However,
many of the cases cited by Mr. Eisinger are settled cases and are therefore of limited
precedential value. See, e.g., Special Counsel v. Spada, 66 M.S.P.R. 526 (1995);
Special Counsel v. Andrezjwski, 63 M.S.P.R. 495 (1994). Further, the Board analyzed
each of the cited cases but found them to be significantly different from Mr. Eisinger’s.
Here, Mr. Eisinger, by his own admission, engaged in a significant amount of political
activity while at work over a three year period. None of employees in the cases cited by
Mr. Eisinger devoted nearly the amount of time as Mr. Eisinger to the activities that
violated the Hatch Act. See, e.g., Special Counsel v. Malone, 84 M.S.P.R. 342 (1999);
Special Counsel v. Rivera, 61 M.S.P.R. 440 (1994). Because the political activities of
the employees in those cases were much more limited than Mr. Eisinger’s, the penalties
in those cases cannot form a basis for comparison to Mr. Eisinger’s penalty.
Accordingly, we find that the Board’s decision that removal was an appropriate penalty
in Mr. Eisinger’s situation was not arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.
Mr. Eisinger also argues that the Board made several factual errors in its analysis
of the Purnell and other factors. We have reviewed those claims and determine that the
Board’s findings are supported by substantial evidence. Mr. Eisinger further argues that
the Board erred by refusing to stay its proceedings pending the resolution of charges of
impropriety against the Special Counsel, by denying his motion to compel discovery of
the OCS’s investigation manual, by denying his motion for certification for interlocutory
appeal from the denial of his discovery request, and by rejecting his affirmative
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defenses of laches, the Administrative Procedure Act, and discrimination based on
political affiliation. However, we have considered these issues and determine that the
Board’s decisions with respect to them were not arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.
CONCLUSION
We conclude that the Board did not commit legal error in its decision to remove
Mr. Eisinger from his position as a staff attorney for the SBA for violations of the Hatch
Act. The decision of the Board is therefore affirmed.
No costs.
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