875 F.2d 179 (8th Cir. 1989), 87-5346, State of Minnesota v. Merit Systems Protection Board

Docket Nº:87-5346.
Citation:875 F.2d 179
Case Date:May 17, 1989
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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875 F.2d 179 (8th Cir. 1989)




No. 87-5346.

United States Court of Appeals, Eighth Circuit

May 17, 1989

Submitted Dec. 8, 1988.

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Martha B. Schneider, Washington, D.C., for appellant.

Rebecca H. Hamblin, St. Paul, Minn., for appellees.

Before LAY, Chief Judge, HEANEY, [*] and ROSS, Senior Circuit Judges, McMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, MAGILL and BEAM, Circuit Judges, en banc.

ROSS, Senior Circuit Judge.

This en banc submission follows an opinion of a panel of this court reported as

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State of Minnesota v. Merit Systems Protection Board, 858 F.2d 433 (8th Cir.1988). The appeal results from the district court's determination that the Merit Systems Protection Board (the Board) abused its discretion by ordering the removal of Thomas J. Kehoe, upon finding that Kehoe willfully violated the Hatch Political Activity Act (Hatch Act), 5 U.S.C. Secs. 1501-1508, by running for partisan political office while a state employee in a federally funded program. While agreeing with the Board that Kehoe's political campaign violated the Hatch Act, the district court ruled that such violation was not willful and therefore not justification for his removal from employment. After a careful review of the record and the briefs and arguments of the parties we reverse the decision of the district court.


In 1982, while an employee of the Minnesota Department of Economic Security (DES), Thomas Kehoe ran for election to the Minnesota State Legislature and lost. During his candidacy, Kehoe was on approved leave of absence from his state position of employment.

In August of 1982, the Director of DES informed the Office of the Special Counsel (OSC) 1 that Kehoe had filed to run for election as a partisan candidate. On September 3, 1982, the OSC officially warned Kehoe that it considered his political activities subject to the Hatch Act, notwithstanding the fact that he was on a state-approved leave of absence. Kehoe, however, maintained that the Hatch Act did not apply to him because of a federal district court ruling by Judge Miles Lord in Johnson v. Cushing, 483 F.Supp. 608 (D.Minn.1980), which held the Hatch Act inapplicable to state employees on approved leave while pursuing political office.

On October 21, 1983, the OSC sent Kehoe a letter informing him that, due to his apparent confusion about the district court's ruling in Johnson, the OSC had decided to exercise leniency and not seek disciplinary action against him. However, with strong language, the OSC warned Kehoe that contrary to the language in Johnson, the Hatch Act does apply to an employee while on leave of absence and any future political activity proscribed by the Act would be construed as a willful violation and result in Kehoe's removal from state employment. Notwithstanding the warnings, Kehoe again ran for a seat in the Minnesota Legislature in 1984.

On June 18, 1984, the OSC advised Kehoe that his candidacy while he was still a state employee would violate the Hatch Act. To buttress its warning, the OSC supplied Kehoe with a copy of the Board's opinion in Special Counsel v. Daniel, 15 M.S.P.R. 636 (1983), rev'd in part on other grounds, Special Counsel v. Purnell, 37 M.S.P.R. 184, 201 (1988), rejecting the validity of the Johnson holding. On the same day, Kehoe submitted an application with the Department of Jobs and Training (DJT) (successor agency to the DES) requesting a leave during the campaign. Pursuant to Minnesota Statute Sec. 43A.32, subd. 2(c) (1984), 2 which allows state employees to take leaves of absence to run for partisan political office, the DJT again granted Kehoe's request for leave in order to pursue a seat in the state legislature. On July 25, 1984, the Minnesota Department of Employee Relations, however, cautioned Kehoe that although the State of Minnesota was obligated under Minnesota statute to grant him leave to pursue political office, the state had no control over what actions the Board might take pursuant to the Hatch Act.

Sometime before Kehoe announced his candidacy, the DJT amended its Policy and Procedure Manual to advise employees that the Board had taken the position that the

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Hatch Act applied to an employee while on a leave of absence from employment with the DJT. Moreover, the Manual advised employees that the OSC had warned that it would prosecute Hatch Act violations, which could result in removal from state employment, notwithstanding any obligation the DJT had under Minnesota state law to grant leaves of absence to pursue political office.

Despite all warnings, Kehoe took the leave of absence and unsuccessfully ran as a candidate in the 1984 election. Kehoe returned to his position with the DJT following his defeat, and on February 20, 1985, the DJT advised OSC that Kehoe had been a partisan candidate for political office in 1984. OSC filed the complaint in the instant action on November 22, 1985, charging that Kehoe had been a candidate for a partisan political office while principally employed by a state agency with federally funded programs in violation of the Hatch Act. On July 21, 1986, after a hearing on the merits, the administrative law judge (ALJ) issued a recommended decision concluding that Kehoe had willfully and knowingly violated the Hatch Act and that his removal from employment was warranted. On February 27, 1987, the Board issued an opinion and order adopting the ALJ's recommendation and ordered that Kehoe be removed from his position within thirty days of the Board's order. DJT refused to comply with the Board's order and this action ensued.


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