MINN. DEPT. OF JOBS AND TRAINING v. MSPB, Civ. No. 4-87-284.
| Decision Date | 23 June 1987 |
| Docket Number | Civ. No. 4-87-284. |
| Citation | 666 F. Supp. 1305 |
| Parties | STATE OF MINNESOTA, DEPARTMENT OF JOBS AND TRAINING, Plaintiff-Petitioner, v. UNITED STATES MERIT SYSTEMS PROTECTION BOARD, Defendant. |
| Court | U.S. District Court — District of Minnesota |
Hubert H. Humphrey, III, Atty. Gen., for the State of Minn. by Rebecca H. Hamblin, Sp. Asst. Atty. Gen., St. Paul, for plaintiff-petitioner.
Martha B. Schneider, U.S. Merit Systems Protection Bd., Office of Gen. Counsel, Washington, D.C., for defendant.
This matter is before the court on the parties' cross-motions for summary judgment.
Petitioner is the State of Minnesota, Department of Jobs and Training (DJT). Respondent is the United States Merit Systems Protection Board (MSPB). Petitioner is appealing the February 27, 1987 opinion and order in the case of Special Counsel, Petitioner v. Thomas J. Kehoe, Respondent, 33 M.S.P.R. 56. The MSPB found in that case that Kehoe, an employee of respondent Minnesota Department of Jobs and Training,1 had willfully violated the Hatch Political Activities Act (Hatch Act). The MSPB ordered that Kehoe be removed from employment with DJT.
The history of this case is as follows. Thomas J. Kehoe is a DJT employee whose position with DJT is, and was during the time period in question, federally funded. In 1982, Kehoe ran for the Minnesota Legislature and lost. At that time, he was on a state-approved leave of absence from his federally-funded job with the State of Minnesota.
Although no action was taken by the Office of the Special Counsel (OSC) of the MSPB at that time, Kehoe was warned by the OSC that it considered his activities subject to the Hatch Act, notwithstanding the fact that he was on a state-approved leave of absence at the time he ran for partisan political office.
In 1984, Kehoe again ran for the Minnesota Legislature. Petitioner DJT determined that the state of Minnesota was obligated under Minnesota Statute to grant state employees such as Kehoe leave to pursue political office. Minn.Stat. § 43.28. Minn.Stat. § 43.28 states:
Except as herein provided any officer or employee in the state classified service shall be eligible for leave of absence from the service not to exceed one year upon becoming a candidate for public office.
However, the Federal Hatch Political Activities Act (Hatch Act) specifically states that:
5 U.S.C. § 1502(a)(3). The MSPB found that since Kehoe had run as an Independent Republican Party candidate for Minnesota State Representative in 1984 while employed in a position principally funded by federal moneys, he had violated the Hatch Act. The MSPB further found that Kehoe's violation of the Hatch Act was of such scope and effect as to warrant removal of Kehoe from his position with DJT, pursuant to 5 U.S.C. § 1505. The MSPB then ordered that Kehoe be removed from his position within thirty days of the MSPB's order. DJT refused to comply with the MSPB order, and this action ensued.
The MSPB has consistently held that Minn.Stat. § 43.28 is not in conflict with the Hatch Act. The MSPB has made a distinction between state employees connected with federally-funded programs, to whom the Hatch Act applies, and state employees who are strictly state-funded program employees, to whom the Hatch Act does not apply. See, e.g., Special Counsel v. Daniel, 15 M.S.P.R. 636 (1983).
However, one court in this district has considered the conflict between Minn.Stat. § 43.28 and the Hatch Act and concluded that:
the Hatch Act, while it applies to persons presently employed by the State Department of Economic Security now known as DJT, does not apply to persons who have been granted leaves of absence, or who have a statutory right to secure upon demand leaves of absence from the Department for the purpose of running for partisan political office.
Johnson v. Cushing, 483 F.Supp. 608, 611 (D.Minn.1980). Petitioner contends that Johnson is controlling law, and that it therefore cannot comply with the MSPB order. Petitioner had in fact granted Kehoe a leave of absence to run for political office, but had warned him 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 MSPB might take pursuant to the Hatch Act." Special Counsel v. Kehoe, 33 M.S. P.R. at 59.
On March 26, 1987, counsel for petitioner wrote to the MSPB requesting reconsideration and a stay of the opinion and order. On March 31, 1987, the office of the special counsel filed with the MSPB a request for an order directing that federal moneys be withheld from DJT pursuant to 5 U.S.C. § 1506(a), based on the fact that DJT had not removed Kehoe from its rolls as ordered by the MSPB. The MSPB denied petitioner's request for reconsideration and for a stay on May 18, 1987. Petitioner also requested that the Court stay the MSPB's order and any further proceedings or orders directing the withholding of federal funds from DJT. This request was denied by the Court. Order, CIVIL 4-87-284 (D.Minn. Apr. 29, 1987). The special counsel's request for a withholding of federal moneys from DJT is pending with the MSPB.
Both petitioner and respondent now move for summary judgment.
A party is not entitled to summary judgment unless the party can show that no genuine issue exists as to any material fact. Fed.R.Civ.P. 56(c). Summary judgment is an extreme remedy that should not be granted unless the moving party has established a right to judgment with such clarity as to leave no room for doubt and unless the nonmoving party is not entitled to recover under any discernible circumstances. E.g., Vette Co. v. Aetna Casualty & Surety Co., 612 F.2d 1076, 1077 (8th Cir.1980). In considering a summary judgment motion, a court must view the facts most favorably to the nonmoving party and give that party the benefit of all reasonable inferences that can be drawn from the facts. E.g., Hartford Accident & Indemnity Co. v. Stauffer Chemical Co., 741 F.2d 1142, 1144-45 (8th Cir.1984). The nonmoving party may not merely rest upon the allegations or denials of the party's pleading, but must set forth specific facts, by affidavits or otherwise, showing that there is a genuine issue for trial. Salinas v. School District of Kansas City, 751 F.2d 288, 289 (8th Cir.1984).
The parties agree that there is no genuine issue of material fact in this case, and that the sole question before the Court is the resolution of the apparent conflict between Minn.Stat. § 43.28 as interpreted in Johnson v. Cushing, and the Hatch Act.
The standard of review for MSPB decisions issued pursuant to 5 U.S.C. § 1505 is set forth in 5 U.S.C. § 1508. That section provides that when the Court is reviewing a MSPB decision and order, the Court should affirm the MSPB's determination that a Hatch Act violation has occurred if the MSPB's determination is "in accordance with law." State of Oklahoma v. U.S. Civil Service Commission, 330 U.S. 127, 144, 67 S.Ct. 544, 554, 91 L.Ed. 794 (1947). In the case at bar, petitioner contends that the MSPB's decision is contrary to law because it is inconsistent with Johnson v. Cushing, 483 F.Supp. 608 (D.Minn. 1980). The MSPB acknowledges that its decision is contrary to Johnson, but it is the MSPB's position that Johnson was wrongly decided. In Johnson, which was an action under 42 U.S.C. § 1983, not under the Hatch Act, the court held that the Hatch Act does not apply to persons employed by the State Department of Economic Security who have been granted a leave of absence, or who have a statutory right under Minnesota law to a leave of absence for the purpose of running for partisan political office. 483 F.Supp. at 611. The court in Johnson did not find that its interpretation of Minn.Stat. § 43.28 was in conflict with the Hatch Act, but did not elaborate on the basis for this finding. The MSPB disagrees with the holding of Johnson, arguing that the legislative history of the Hatch Act makes it clear that covered state employees are subject to the prohibitions of the Act regardless of leave status.
The legislative history of the Act does in fact support the MSPB's conclusion that a covered state employee on leave without pay is subject to the Act. The Hatch Act was first promulgated in 1939 to "`prevent pernicious political activities' within the Federal work force," Opinion and Order at 9, quoting S.Rep.No. 221, 76th Cong., 1st Sess. 1, but was quickly extended in 1940 to cover officers and employees of state and local agencies "whose principal employment is in connection with any activity which is financed in whole or in part by loans or grants made by the United States...." Id. 9-10, quoting Act of July 19, 1940, c. 640, 54 Stat. 767. Section 15 of the Act as originally enacted in 1940 prohibited the same activities on the part of state and local employees as the Civil Service Commission had determined were prohibited for federal employees. Senator Hatch, the proponent of the bill, inserted in the record a summary of interpretations of the rules of the Commission as applied to the political activities of federal employees.2 Included among these were the following:
Id. quoting 86th Cong.Rec. S2942-43 (daily ed. Mar. 15, 1940) (statement of Sen. Hatch).
An amendment was offered which would have excluded persons on leave without pay from the coverage of the statute, but the amendment was withdrawn at the request of Senator Hatch after another senator had expressed the following opinion:
I am rather disappointed that the Senator from New Mexico...
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