Mcentee v. Merit Systems Protection Bd., 04-3066.

CourtUnited States Courts of Appeals. United States Court of Appeals for the Federal Circuit
Citation404 F.3d 1320
Docket NumberNo. 04-3066.,04-3066.
PartiesMike MCENTEE, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent.
Decision Date15 April 2005

Patrick J. Rogers, Modrall, Sperling, Roehl, Harris & Sisk, P.A., of Albuquerque, New Mexico, argued for petitioner.

Joyce G. Friedman, Attorney, Office of the General Counsel, United States Merit Systems Protection Board, of Washington, DC, argued for respondent. With her on the brief were Martha B. Schneider, General Counsel and Stephanie M. Conley, Reviewing Attorney.

Before GAJARSA, Circuit Judge, PLAGER, Senior Circuit Judge, and LINN, Circuit Judge.

GAJARSA, Circuit Judge.

Mike McEntee appeals from a decision by the Merit Systems Protection Board (the "Board" or "MSPB") granting summary judgment that he had committed violations of the Hatch Act in the conduct of his campaign for Mayor of Albuquerque, New Mexico. Special Counsel v. McEntee, 94 M.S.P.R. 486, 2003 WL 22136151 (2003). The Hatch Act1 is the colloquial designation for the federal statute that prohibits covered government employees from engaging in certain partisan political activities. See generally 5 U.S.C. §§ 7321-7326 (2000). Because we discern no legal error in the Board's decision and it was supported by substantial evidence, we affirm.


In August 2001, McEntee declared himself a candidate for Mayor of Albuquerque, New Mexico. According to city ordinances, the mayoral race is intended to be nonpartisan and the names of the candidates are listed on the ballot without party or other designation. At the time he became a candidate, McEntee was employed as an air traffic control specialist with the Federal Aviation Administration ("FAA"), a position he obtained in 1982. Prior to declaring his candidacy, McEntee consulted with the Albuquerque FAA Ethics Counselor regarding restrictions imposed by the Hatch Act. When asked prior to the onset of the campaign, both the Albuquerque FAA Ethics Counselor and FAA's regional counsel determined that the Hatch Act did not prevent McEntee from being a candidate.

In support of McEntee's quest for the mayoral seat, his campaign distributed a variety of leaflets and other literature. A campaign checking account was established under the name "Friends for Mike McEntee," which paid for the printing and distribution costs of those materials. McEntee approved for distribution all of the campaign literature at issue.

The McEntee campaign distributed leaflets stating "Mike McEntee — the ONLY CONSERVATIVE REPUBLICAN in the race for Mayor."2 The same leaflet included the statement "[f]inally, Republicans have a chance to elect a Conservative to lead our city" and the following quote from "Former Republican State Representative Frank Bird:"

For years Republicans have been forced to hold their nose and accept the policies that city government forced on them by Jim Baca, Marty Chavez and the rest of the liberal Democrats. Now, for the first time in years we have a chance to elect one of us, a conservative Republican to clean up the mess in City Hall.

Two additional leaflets also described McEntee as "The ONLY Conservative Republican!"

The campaign also distributed a "Dear Friend" letter from Jack Stahl, "Former Republican Lieutenant Governor," which included the following statements:

In two months, we can FINALLY elect a REPUBLICAN MAYOR to lead this city!

As Republicans, we know that this is the first time in years — and probably the last time in even more years — that we have a chance to elect a Republican Mayor to bring conservative values and principles to City Hall.


We Republicans can turn Albuquerque into a great city, but we need your help twice. First; WE NEED YOUR VOTE, Second; We need your financial support now so Mike McEntee can put his Conservative Republican message in the mail, on TV and on radio.

Our city is crying out for new REPUBLICAN leadership.


The letter further listed McEntee's opponents, all identified as "Democrat."

McEntee's campaign also disseminated a "Dear Republican Friend" letter that stated:

One reason I am writing you is because you are a registered Republican.... This is not supposed to be a "partisan" election, but we all know Mayor Baca and former Mayor Marty Chavez are cut from the same mold! As Republicans, we are outnumbered in Albuquerque. Our only hope of defeating the Democrat machine is to stick together behind one candidate. At last count there were at least 10 candidates saying they were running for Mayor, most of them Democrats like Baca and Chavez.

Another leaflet invited Albuquerque's kids to "[t]ake a shot at wasted spending at our Dunk the Dems tank," as part of an event sponsored by the McEntee campaign.

The McEntee campaign also issued press advisories, one of which announced that "Former Congressman Bill Redmond joined with 10 Republican legislators and grassroots Republican leaders to announce their endorsement of Republican candidate for Mayor, Mike McEntee, at a press conference on Wednesday, August 22, 2001." McEntee was present at the referenced press conference. The same press advisory included this quote from Senator Mark Boitano: "Republicans need to stand behind the candidate who will stand for the values that Republicans hold dear."

In addition to the endorsements of individual Republicans, McEntee also received endorsements from the Executive Committee of the Bernalillo County Republican Party, the Republican Assembly and the Republican Lincoln Caucus. McEntee trumpeted these endorsements in the press advisory discussed above.

The McEntee campaign solicited campaign contributions in a variety of ways. The "Dear Friend" letter from "Former Republican Lieutenant Governor" Jack Stahl included the statements "I'VE JUST SENT MY CHECK TO MIKE MCENTEE. WON'T YOU PLEASE SEND YOUR CHECK TODAY? ... You [sic] contribution of $25, $50, $100 or even $1000 is vital. Please let us know in the next 10 days if you can help elect the only conservative candidate." Similarly, the Dear Republican Friend told recipients that "[i]f you can afford a small contribution to help us offset the cost of this mailing and to help us build a warchest for the battle with Baca and Chavez down the road, we would appreciate it." Other campaign literature also included solicitations as did the campaign website. At least two fundraising events were held in support of the McEntee campaign, one on June 21, 2001, and another on September 14, 2001.

The local press reported on the Republican partisanship of the McEntee campaign. An article in the Albuquerque Journal chronicled McEntee's endorsement by the Bernalillo County Republican Executive Committee under the headline "County GOP Back McEntee for Mayor." A similar article in the Albuquerque Tribune, dated August 23, 2001, was entitled "Party Time? Open Republican endorsement stirs up supposedly nonpartisan election." The "Party Time" article included statements from the State Republican Party Chairman indicating that "the county GOP's actions take the `cloak off' claims that party politics don't control city government." The article included the observation that "McEntee, whose campaign has struggled to catch fire, is eagerly wrapping himself in the Republican flag." Finally, another article in the Albuquerque Journal, entitled "GOP Radar Focuses on McEntee," stated that "[a]s the sun set on his fundraiser, McEntee stepped to the microphone and stayed true to form. His message was simple: We need a Republican on the 11th floor." The McEntee campaign responded to the press coverage in part by circulating an editorial under McEntee's name stating that "[t]he Journal is irate because I believe in the conservative values embraced by Republicans and am open and honest enough to proudly call myself a Republican." At no time during the campaign did McEntee disavow his Republican identity or refute or refuse the assistance, financial or otherwise, of the Republican Party structure.

On August 30, 2001, Amber Bell, an attorney with the Office of Special Counsel ("OSC"), informed McEntee that the OSC believed that his candidacy for Mayor violated the Hatch Act. Bell offered McEntee the option of resigning his candidacy or resigning his federal position. McEntee answered that he did not believe his candidacy was unlawful. In a letter dated August 31, 2001, William Reukauf, Associate Special Counsel with the OSC, reiterated the message of Bell's conversation and notified McEntee that partisan politics had entered his campaign and therefore his candidacy for Mayor of Albuquerque violated the Hatch Act. Specifically, Reukauf determined that the presumption that the Albuquerque Mayoral election is nonpartisan was rebutted by McEntee's endorsement by the "Bernalillo County Republican Party" and his advertisement of that endorsement. Reukauf's letter permitted McEntee to correct his violation by either publicly withdrawing from the election or resigning his federal position by September 7, 2001.

McEntee, through counsel, responded in writing to Reukauf's letter. McEntee's response challenged Reukauf's statement that McEntee had been endorsed by the Bernalillo County Republican Party on the grounds that McEntee was endorsed only by a small committee of Republicans, which did not have the authority to issue an endorsement on behalf of the entire party. McEntee asserted that because he had not received the endorsement of a state or national political party the election had not been transformed into a partisan political race. McEntee chose not to withdraw from the race and did not resign his position with the FAA. The election was held October 2, 2001 and McEntee was not elected.

On November 20, 2001, OSC filed a complaint with the Merit Systems Protection Board charging McEntee with being a candidate...

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