Case 8:19-cv-02322-CBD Document 1 Filed 08/13/19 Page 1 of 22

IN THE DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
General Counsel’s Office, 10th floor
80 F Street, NW
Washington, DC 20001
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 2578
8601 Adelphi Rd., Rm. 1920
College Park, Prince George’s County, MD 20740

Docket No. _________

Plaintiffs,
v.
OFFICE OF SPECIAL COUNSEL
1730 M Street, N.W., Suite 218,
Washington, D.C. 20036
Defendant.
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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INTRODUCTION
1.

“[P]ublic employees do not renounce their citizenship when they accept

employment.” Lane v. Franks, 573 U.S. 228, 236 (2014). It is therefore well settled that public
employees do not “relinquish the First Amendment rights they would otherwise enjoy as citizens
to comment on matters of public interest.” Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).
To the contrary, because “public employees are often the members of the community who are
likely to have informed opinions” on the pressing issues of the day, Liverman v. City of
Petersburg, 844 F.3d 400, 406 (4th Cir. 2016), the First Amendment guarantees that public
employees remain free to engage in the “interchange of ideas for the bringing about of political
and social changes desired by the people.” Lane, 573 U.S. at 236.
2.

This case concerns an unprecedented attempt to stifle the speech of public

employees on matters of the utmost public concern—whether the President is fit to remain in
office and whether his Administration’s policies serve the best interests of the country. In 2018,
the federal government’s Office of Special Counsel issued guidance sharply limiting federal
employees’ ability to advocate for or against impeachment of the President, and broadly
restricting federal employees from expressing “resistance” to the Administration’s policies.
3.

The Office of Special Counsel issued its guidance pursuant to the Hatch Act, but

the Hatch Act does not encompass the restrictions that the agency imposed, and if it did, the law
would violate the First Amendment. The Hatch Act exists to ensure that federal employees do
not use their government positions and resources improperly to seek to influence partisan
elections, and to ensure that “[federal] employees [are] free from pressure and from express or
tacit invitation to vote in a certain way or perform political chores in order to curry favor with
their superiors rather than to act out their own beliefs.” U.S. Civil Serv. Comm’n v. Nat’l Ass’n

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of Letter Carriers, 413 U.S. 548, 566 (1973). Preventing federal employees from advocating for
or against impeachment and from expressing opposition to federal policies does not remotely
serve these purposes. Speech on these topics does not inherently relate to any election at all.
4.

In issuing the challenged guidance, the Office of Special Counsel badly

misconstrued the text and purposes of the Hatch Act. The Hatch Act specifically provides that
federal “employees should be encouraged to exercise fully, freely, and without fear of penalty or
reprisal . . . their right to participate or to refrain from participating in the political process of the
Nation.” 5 U.S.C. § 7321. Far from “encourag[ing]” federal employees to engage in the
political process “without fear of penalty,” the Office of Special Counsel’s directives chill
federal employees from engaging in speech that is not only protected, but at the heart of the First
Amendment. Federal employees, including members of Plaintiffs the American Federation of
Government Employees and its Local 2578, must refrain from speaking out of fear that they
could lose their jobs if they run afoul of the Office of Special Counsel’s overbroad directives.
5.

Plaintiffs seek an injunction against enforcement of the Office of Special

Counsel’s draconian interpretation of the Hatch Act, so that federal government employees may
fully and freely exercise their First Amendment rights within the bounds of the Hatch Act.
PARTIES
6.

Plaintiff American Federation of Government Employees (“AFGE”) is a national

labor organization and unincorporated association headquartered in Washington, DC. AFGE
represents over 600,000 federal civilian employees in agencies and departments across the
federal government. AFGE and its affiliated councils and locals are the certified exclusive
representative, under 5 U.S.C. § 7111, of the employees they represent. AFGE works to ensure
that its members’ constitutionally guaranteed rights, including their freedom of speech and their

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right to due process, are protected. AFGE’s members include federal employees whose speech
has been prohibited or chilled by the Office of Special Counsel’s guidance relating to advocacy
for or against impeachment and to use of the term “#Resist” and variations thereof.
7.

Plaintiff American Federation of Government Employees Local 2578 (“AFGE

Local 2578”) is a local branch of AFGE that is headquartered in College Park, Maryland and
represents over 300 federal civilian employees of the National Archives and Records
Administration. AFGE Local 2578 and its affiliated council and national organization are the
certified exclusive representative, under 5 U.S.C. § 7111, of the employees they represent.
AFGE Local 2578 works to ensure that its members’ constitutionally guaranteed rights,
including their freedom of speech and their right to due process, are protected. AFGE Local
2578’s members include federal employees whose speech has been prohibited or chilled by the
Office of Special Counsel’s guidance relating to advocacy for or against impeachment and the
use of the term “#Resist” and variations thereof.
8.

Defendant United States Office of Special Counsel (“OSC”) is an independent

federal investigative and prosecutorial agency headquartered in Washington, DC. OSC
investigates and prosecutes, inter alia, violations of the Hatch Act, 5 U.S.C. §§ 7321-7326, a
federal law that limits federal employees’ ability to engage in certain partisan political activities.
OSC investigates alleged Hatch Act violations, makes recommendations to federal agencies
concerning employee discipline for alleged violations, and prosecutes alleged violations before
the Merit Systems Protection Board (“MSPB”). 5 U.S.C. §§ 1214, 1216. OSC also issues
advisory opinions about conduct that OSC considers to violate the Hatch Act. See 5 U.S.C. §
1212(f).

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JURISDICTION AND VENUE
9.

The Court has jurisdiction under 28 U.S.C. § 1331.

10.

The Court may award declaratory and injunctive relief under the Declaratory

Judgment Act, 28 U.S.C. §§ 2201-02, and under the First Amendment to the United States
Constitution.
11.

Venue is proper in this district under 28 U.S.C. §§ 1391(b) and 1391(e)(1).
STATEMENT OF FACTS

A.

The Statutory Framework

12.

The Hatch Act, 5 U.S.C. §§ 7321-7326, is a federal law that prohibits federal

employees from engaging in “political activity” while “on duty,” when in any room or building
being used by the federal government, while wearing a government uniform or insignia, or while
using federal government property. 5 U.S.C. § 7324. Federal regulations define “political
activity” in this context to include “an activity directed toward the success or failure of a political
party, candidate for partisan political office, or partisan political group.” 5 C.F.R. § 734.101.
13.

The Hatch Act imposes added restrictions on the political activities of certain

career federal employees, including career members of the Senior Executive Service,
administrative law judges, contract appeals board members, administrative appeals judges, and
employees of the Central Intelligence Agency, the Criminal Division of the Department of
Justice, the Defense Intelligence Agency, the Election Assistance Commission, the Federal
Bureau of Investigation, the Federal Election Commission, the MSPB, the National Geospatial
Intelligence Agency, the National Security Agency, the National Security Council, the National
Security Division of the Department of Justice, the Office of Criminal Investigation of the
Internal Revenue Service; the Office of the Director of National Intelligence, the Office of

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Investigative Programs of the United States Customs Service, the Office of Law Enforcement of
the Bureau of Alcohol, Tobacco, and Firearms, the Office of Special Counsel, and the Secret
Service. These employees, commonly referred to as “Further Restricted Employees,” face
certain restrictions on engaging in political activity even while not at work.
14.

The Hatch Act makes clear, though, that “it is the policy of the Congress that

employees should be encouraged to exercise fully, freely, and without fear of penalty or reprisal,
and to the extent not expressly prohibited by law, their right to participate or to refrain from
participating in the political process of the Nation.” 5 U.S.C. § 7321. Thus, as OSC has
previously explained, “all federal employees may discuss current events, policy issues, and
matters of public interest at work or on duty. Such discussions are usually not ‘political activity,’
i.e., activity directed at the success or failure of a political party, partisan political group, or
candidate for partisan political office. Therefore, the Hatch Act does not prohibit employees at
any time, including when they are at work or on duty, from expressing their personal opinions
about events, issues, or matters, such as healthcare reform, gun control, abortion, immigration,
federal hiring freeze, etc.” OSC, Hatch Act FAQs, https://osc.gov/Pages/HatchAct-FAQs.aspx.
15.

OSC enforces the Hatch Act as applicable to federal employees. Individuals and

organizations, including members of the public, may file complaints with OSC alleging that a
federal employee violated the Hatch Act. If OSC receives such a complaint, it may investigate
the matter and, at its discretion, issue warning letters or prosecute violations before the MSPB.
5 U.S.C. § 1216.
16.

Violating the Hatch Act can carry severe consequences. A federal employee

found to have violated the Hatch Act may be suspended, fined, reprimanded, removed from their
position, or disbarred from seeking federal employment for up to five years. 5 U.S.C. § 7326.

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17.

OSC often issues advisory opinions to provide guidance to federal employees on

conduct that OSC deems to violate the Hatch Act and that may subject employees to prosecution
or reprimand. 5 U.S.C. § 1212(f).
B.

The Challenged OSC Guidance

18.

On November 27, 2018, OSC issued an advisory opinion addressing three topics:

(1) whether and when federal employees may advocate for or against the impeachment of the
President; (2) whether and when federal employees may use the term “#Resist” or variations
thereof; and (3) whether and when federal employees may engage in strong criticism of an
administration’s policies and actions. See OSC, Memo. (Nov. 27, 2018) (the “Advisory
Opinion”), https://bit.ly/2KrzRsx. OSC distributed the Advisory Opinion to employees across
the federal government.
19.

On November 30, 2018, OSC issued a “Clarification” of the Advisory Opinion.

See OSC, Clarification (Nov. 30, 2018) (the “Clarification”), https://bit.ly/2KrzRsx.
1.
20.

Impeachment

In the Advisory Opinion, OSC stated that “any advocacy for or against an effort

to impeach a candidate”—i.e., President Trump—“is squarely within the definition of political
activity for purposes of the Hatch Act.” Advisory Opinion at 2. OSC reasoned that
“[a]dvocating for a candidate to be impeached, and thus potentially disqualified from holding
federal office, is clearly directed at the failure of that candidate’s campaign for federal office.”
Id.
21.

In the Clarification, OSC explained that “OSC considers advocacy for or against

the impeachment of a candidate for federal office to be political activity under the Hatch Act.”
Clarification at 2 (emphasis in original). OSC sought to draw a distinction between “advocacy”

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regarding impeachment (which OSC considers prohibited) and “merely discussing
impeachment” (which OSC does not consider prohibited). OSC offered purported examples of
the difference between these two activities. An employee “may discuss whether reported
conduct by the president warrants impeachment and express an opinion about whether the
president should be impeached without engaging in political activity.” But an employee may not
display “a poster that states ‘#Impeach45’” in their office, or “place a ‘Don’t Impeach Trump’
bumper sticker on a government-owned vehicle.” Id. Such behavior is prohibited, according to
OSC, because it “advocates for or against an impeachment of a candidate for federal office.”
22.

OSC’s guidance regarding speech about impeachment improperly equates

advocating for impeachment with an activity directed toward the success or failure of a candidate
for partisan political office. Expressing a view on whether an elected official’s conduct warrants
impeachment is not the same as engaging in partisan activities to support or oppose a candidate
in an election.
23.

To begin with, OSC’s guidance regarding impeachment in the Advisory Opinion

and in the Clarification rest on the erroneous premise that impeaching a President would “bar
[that] individual from serving as president” in the future. Advisory Opinion at 1-2. Contrary to
OSC’s understanding, impeachment would not automatically bar President Trump from running
for, or serving as, President in the future.
24.

Under the U.S. Constitution, impeachment proceedings begin in the U.S. House

of Representatives, which is assigned “the sole Power of Impeachment.” U.S. Const. art. I § 2,
cl. 5. A committee of House members first undertakes an investigation of the federal officer in
question, in this case the President. If the investigation uncovers information that the
investigators deem impeachable, they may draft articles of impeachment and report those articles

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to the full House. If the House determines that the President has committed an impeachable
offense, the House may vote to impeach. See T.J. Halstead, CRS Report for Congress: An
Overview of the Impeachment Process 2-4 (2005), https://bit.ly/2Pj6zwx.
25.

If the House votes to impeach, the U.S. Senate, to whom the Constitution assigns

the “sole Power to try all Impeachments,” U.S. Const. art. I § 3, cl. 6, may conduct a trial-like
inquiry into whether the offense in question occurred. After this inquiry has concluded, the
Senate votes on whether to convict on the articles of impeachment. If the officer is convicted, he
or she is removed from office. Under the Constitution, “remov[al] from Office” is the only
automatic punishment for a federal officer impeached by the House and convicted by the Senate
of “Treason, Bribery, or other high Crimes and Misdemeanors.” U.S. Const. art. II, § 4.
26.

After an officer has already been impeached by the House and convicted by the

Senate, then and only then “the Senate may subsequently vote on whether the impeached official
shall be disqualified from again holding an office of public trust under the United States.”
Halstead, supra, at 6; see also Procedure and Guidelines for Impeachment in the United States
Senate, S. 99-33, 2d Sess., at 93. Indeed, most of the officials that Congress has impeached and
removed from office were not disqualified from holding future office.1 In other words,
disqualification from future office is a question that the Senate would vote on separately and
subsequently from the question of removal from office, after impeachment by the House and
conviction by the Senate have already occurred.
27.

Thus, impeachment and conviction of President Trump would not necessarily

preclude him from running for President in 2020 or in any subsequent election for federal office.

1

Cass Sunstein, Impeachment: A Citizen’s Guide at 109–11 (2017) (demonstrating that of 19 officials that have
been impeached by the House—eight of whom were removed from office by the Senate—only three were
disqualified from holding future office.)

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As one reporter succinctly put it, an impeached president “could, legally, run again.” Laurence
Arnold, Everything You Need to Know About Impeachment: QuickTake Q&A, Wash. Post, Aug.
22, 2018.
28.

More fundamentally, beyond the misapprehension that impeachment would

necessarily disqualify the President from holding future office, OSC’s analysis in the Advisory
Opinion and the Clarification is flawed because there simply is no basis to assume that federal
employees’ advocacy for or against impeachment is “clearly directed at the failure of [the
President’s] campaign for federal office.” Advisory Opinion at 2. OSC has conflated the
impeachment process, which the Constitution enshrines as the sole extra-electoral means of
removing an federal official from office, with the traditional partisan electoral process from the
which the Hatch Act was designed to insulate government employees. Federal employees, like
any other citizens, may advocate for or against impeachment based on factors having nothing to
do with their partisan preferences for an upcoming election, such as whether the President has in
fact committed high crimes or misdemeanors that warrant impeachment.
29.

Indeed, the Advisory Opinion and the Clarification impermissibly expand the

definition of prohibited “political activity” to infringe on important legal obligations imposed on
federal employees to identify waste, fraud, and abuse in government and to fulfill their oaths of
office to uphold the Constitution. Federal civil servants are required by statute to swear to
“support and defend the Constitution of the United States against all enemies, foreign and
domestic” and “bear true faith and allegiance to the same.” 5 U.S.C. § 3331. The Office of
Government Ethics requires all federal employees to “disclose waste, fraud, abuse, and
corruption to the appropriate authorities.” 5 C.F.R. § 2635.101(b)(11). OSC’s Advisory
Opinion and Clarification purport to supersede these authorities and punish federal employees

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for commenting on the most severe possible infractions—treason, high crimes, or misdemeanors
by the President. Under OSC’s view, members of the other Office of Special Counsel—formerly
led by Robert Mueller—could be punished for, in the view of many, recommending that
Congress commence impeachment proceedings against the President. Of course this is absurd.
30.

OSC’s Advisory Opinion and Clarification purport to distinguish between

permissible and impermissible speech concerning impeachment, but the distinction is illusory.
The Advisory Opinion asserts that employees may state that the President should or should not
be impeached, but may not advocate that he should or should not be impeached. The Advisory
Opinion and Clarification’s attempt to distinguish between “state” and “advocate” fails because
in both examples, the hypothetical federal employee is expressing a normative judgment: that
impeachment should or should not occur. At a minimum, this purported distinction is vague and
fails to provide fair notice to federal employees about when discussions of impeachment may be
deemed to violate the Hatch Act and subject the employees to potential disciplinary action.
31.

By prohibiting “advocacy” for or against impeachment, OSC has prohibited and

chilled speech on matters of the utmost public concern lying at the heart of the First Amendment.
2.
32.

“Resistance”

In the Advisory Opinion, OSC asserts that federal employees’ use of the terms

“resistance” or “#resist” would presumptively be treated as political activity directed at President
Trump in the 2020 election, and therefore is prohibited by the Hatch Act. Advisory Opinion at 2.
33.

OSC asserted that, “[t]o the extent that the statement relates to resistance of

President Donald J. Trump . . . usage of the terms ‘resistance,’ ‘#resist,’ and derivatives thereof
is political activity.” Advisory Opinion at 2. OSC recognized that these terms “gained
prominence shortly after President Trump’s election in 2016.” But OSC claimed, based on its

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own unidentified evidence, that the terms “have become inextricably linked with the electoral
success (or failure) of the president.” Id. That is, what began as resisting President Trump and
his policies while in office—which is permissible under the Hatch Act—has become
automatically resisting candidate Trump in his quest for reelection—which is prohibited under
the Hatch Act. “Now that President Trump is a candidate for reelection, [OSC] must presume
that the use or display of “resistance,” “#resist,” “#resistTrump,” and similar statements is
political activity unless the facts and circumstances indicate otherwise.” Id. (emphasis added).
OSC thus will “presume that the use or display of the hashtags #resist and #resistTrump, in
isolation, is political activity under the Hatch Act.” Id. (emphases added).
34.

In the Clarification, OSC explained that it considers use of the terms “resistance”

and “#resist” to be partisan political activity because those terms purportedly “have become
slogans of political parties and partisan political groups” such as the Democratic National
Committee and MoveOn Political Action. OSC also sought to distinguish between prohibited
uses of “resist” and those that are not prohibited because they are “in relation to an issue,” such
as “#ResistHate” or “#ResistKavanaugh.” Id. at 2.
35.

The Clarification did not amend the Advisory Opinion’s guidance, however, that

OSC will “presume” that use of the terms “resistance,” “#resist,” or variations thereof “in
isolation” constitutes prohibited political activity in violation of the Hatch Act.
36.

Contrary to OSC’s analysis, the terms “Resistance,” “#Resist,” and variations

thereof are not associated with the Democratic Party or any partisan political group. As
Newsweek has explained: “The #Resistance . . . is not an explicitly partisan movement. It is an
amorphous set of groups and activities aimed at challenging President Donald Trump and
derailing his policy priorities. Many of the organizations that have formed in the wake of

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Trump’s victory, like Indivisible, are nonprofits that aren’t allowed to formally coordinate with a
party.” Emily Cadei, The DNC Wants to Join the Resistance: Will Activists Allow It?,
Newsweek, June 3, 2017. The Democratic Party did not create or popularize the term #Resist,
most members of the public do not associate the term with the Democratic Party, and the fact
that the Democratic National Committee and other political groups have invoked the term for
their own purposes in no way means that when a federal employee uses the term he or she is
publicly affiliating with or supporting particular candidates of the Democratic Party or the
Democratic Party itself.
37.

As applied to federal employees, the “Resistance” is most commonly understood

to refer to public servants who remain committed to protecting longstanding norms and
democratic guardrails. See, e.g., Justin Caffier, How Federal Civil Servants Are Waging
Bureaucratic War Against Trump, Vice, Feb. 13, 2017, https://bit.ly/2YSqKor. At its root, the
Resistance is the latest version of “bureaucratic resistance.” See Jennifer Nou, Bureaucratic
Resistance from Below, Notice & Comment, Nov. 16, 2016, https://bit.ly/2KF8sSu.
38.

Other political parties such as the Green Party have invoked the term “#resist” for

their own purposes. The same is true of members of the President’s own Administration. In a
now-famous op-ed in the New York Times, an anonymous senior administration official
described himself or herself as “part of the resistance.” I am Part of the Resistance Inside the
Trump Administration, N.Y. Times, Sept. 5, 2018. Under OSC’s guidance, this official
seemingly violated the Hatch Act by using the term “resistance,” even though the official made
clear that he or she did not support the Democratic Party. And that op-ed constituted
quintessential speech on matters of public concern that the First Amendment protects, no
different from the letter to the local newspaper sent by the public school teacher in Pickering.

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39.

OSC’s directive regarding “resistance” and the logic behind it is inconsistent with

OSC’s approach in other contexts. At nearly the same time OSC issued the Advisory Opinion, it
cleared members of the Trump Administration of alleged violations of the Hatch Act for using
the term “MAGAnomics.” “MAGA” is short for “Make America Great Again,” which is the
official slogan of the Trump campaign. If any term is “inextricably intertwined” with candidate
Trump, it is “MAGA.” However, OSC concluded that OMB Director Mick Mulvaney did not
violate the Hatch Act when he tweeted “#MAGAnomics” “because the Trump Administration
has branded its economic plan with the name . . . .” Letter from OSC to CREW, Nov. 30, 2018,
https://bit.ly/2Q5go55. Rather than preclude Administration officials from employing
terminology originating with the President’s partisan electoral campaign in official government
communications, OSC’s approach improperly legitimized the wholesale adoption of rhetoric and
slogans from the President’s partisan campaign in executive branch policy discussion. Whereas
OSC made a logical leap that, at some unspecified point, people who used “resistance” terms
slipped into political activity because Trump is a candidate for office in 2020, OSC refused to
make the obvious connection between “MAGAnomics” and the same 2020 campaign.
40.

OSC’s guidance, including the presumptive prohibition against using terms like

“Resistance” or “#Resist” untethered to some specific issue, restricts and chills a wide range of
speech on matters of public concern that have nothing to do with advocating for or against the
defeat of a candidate for office. Federal employees use these terms to express policy goals or
disagreements, social activism, and any number of other sentiments that do not relate to electoral
politics and that occupy the highest rungs of First Amendment protection.
41.

Moreover, OSC’s guidance is utterly vague as to when the use of #Resist” or

variations thereof will be deemed “in relation to an issue.” For instance, if a federal employee

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shares an article on social media about the President’s desire to build a border wall with a
caption that simply stated “#Resist,” would that be an impermissible political statement about
President Trump, or a permissible statement because it is “in relation to an issue”? It is anyone’s
guess, but federal employees cannot afford to take such risks when their careers are at stake.
3.
42.

Restrictions on Speech While Off Duty

The Advisory Opinion and the Clarification not only restrict speech by federal

employees while at work, but may also restrict certain speech even outside the workplace. OSC
has stated in separate guidance that, even when off duty, federal employees may not post,
retweet, link to, or share solicitations for political contributions or invitations to political
fundraising events. Hatch Act Guidance on Social Media (“OSC’s Social Media Guidance”) at
5.2 The Advisory Opinion and the Clarification thus would seem to prohibit all federal
employees—even while off duty and outside the workplace—from posting, retweeting, linking
to, or sharing solicitations for donations to organizations that have as their purpose advocating
for the impeachment of the President, or organizations that use some variant of “#Resistance” in
their name. OSC’s Advisory Opinion and Clarification likewise would seem to prohibit federal
employees from ever sharing invitations to fundraising events of such organizations.
43.

OSC’s Social Media Guidance also prohibits federal employees, even when off

duty, from mentioning their official titles or positions when posting messages directed at the
success or failure of a political candidate. OSC Social Media Guidance at 7. The Advisory
Opinion and the Clarification therefore would seem to prohibit all federal employees—even
while off duty and outside the workplace—from mentioning their federal government position in
any post that advocates for or against impeachment or that uses the term “#Resist” of some

2

http://ogc.osd.mil/defense_ethics/resource_library/hatch_act_and_social_media.pdf.
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variation thereof. For example, a State Department employee sitting at home on her couch
seemingly could not write a Facebook post saying that, based on her State Department
experience working in foreign countries, impeachment would be unwise because it could unsettle
diplomatic relations. And a different State Department employee seemingly could not Tweet
from home in support of impeachment on the ground that his State Department experience has
taught him that government officials must be held accountable for alleged serious misconduct.
44.

The Advisory Opinion and the Clarification may impose additional prohibitions

on Further Restricted Employees while off duty. OSC’s Social Media Guidance explains that
Further Restricted Employees may not share or retweet posts from, or the page of, partisan
political groups. OSC Social Media Guidance at 9. The Advisory Opinion and Clarification
therefore would seem to prohibit Further Restricted Employees—even while off duty and outside
the workplace—from sharing or retweeting posts from, or the pages of, any organization that has
as its purpose advocating for the impeachment of the President, or any organization that uses
some variant of “#Resistance” in its name.
C.

Harm to Plaintiffs’ Federal-Employee Members

45.

Being found guilty of violating the Hatch Act can come with serious

consequences. If OSC chooses to prosecute an employee and the employee is found guilty
before the MSPB, the employee may be suspended, fined, reprimanded, removed from their
position, or disbarred from seeking federal employment for up to five years. 5 U.S.C. § 7326.
46.

Moreover, the MSPB considers OSC’s guidance when ultimately ruling in Hatch

Act cases. Even though the guidance itself is not legally binding on MSPB, the MSPB has made
clear that “OSC’s view is worthy of consideration” and should be “afford[ed] . . . [the] weight it
deserves.” Special Counsel v. Sims, 102 M.S.P.R. 288, 294 n.3 (2006).

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47.

Plaintiffs’ members include federal employees whose speech has been prohibited

or chilled by OSC’s Advisory Opinion and the Clarification. The chilling effect on the speech of
Plaintiffs’ members is particularly pronounced given the adverse employment consequences of
an OSC determination that an employee violated the Hatch Act, and given the vagueness,
overbreadth, and internal contradictions of the Advisory Opinion and the Clarification.
CLAIMS FOR RELIEF
COUNT I
(Overbreadth in Violation of the First Amendment)
48.

Plaintiffs incorporate the preceding paragraphs as if fully set forth herein.

49.

“The First Amendment protects a public employee’s right . . . to speak as a citizen

addressing matters of public concern.” Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). Thus,
the First Amendment protects Plaintiffs’ members’ speech on matters of public concern both
while at work and when outside of the workplace.
50.

A statute is overbroad in violation of the First Amendment where “a substantial

number of [the statute’s] applications are unconstitutional, judged in relation to the statute’s
plainly legitimate sweep.” United States v. Stevens, 559 U.S. 460, 473 (2010).
51.

OSC’s interpretation of the Hatch Act, as set forth in the Advisory Opinion and

Clarification, restricts prohibits protected speech by federal employees advocating for or against
impeachment, or using the term “#Resist” or variations thereof. These prohibitions restrict
speech far outside of the statute’s legitimate sweep of preventing federal employees from
engaging in partisan political activity directed at the success or failure of a political candidate.
52.

OSC’s interpretation of the Hatch Act, as set forth in the Advisory Opinion and

Clarification, is unconstitutionally overbroad in violation of the First Amendment.

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53.

In the alternative, as a matter of constitutional avoidance, this Court should

declare that, contrary to OSC’s guidance, the Hatch Act does not cover protected speech
advocating for or against impeachment or using the term “#Resist” or variations thereof, and that
OSC lacked authority to issue its guidance.
COUNT II
(Content and Viewpoint Discrimination in Violation of the First Amendment)
54.

Plaintiffs incorporate the preceding paragraphs as if fully set forth herein.

55.

Government action that targets speech based on its content is presumptively

unconstitutional and is justified only if the Government demonstrates that it is narrowly tailored
to serve a compelling state interest. Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015).
56.

OSC’s interpretation of the Hatch Act, as set forth in the Advisory Opinion and

Clarification, is content-based because it restricts speech on specific topics (e.g., impeachment)
and using specific terms (e.g., “#Resist” and variations thereof).
57.

OSC’s interpretation of the Hatch Act, as set forth in the Advisory Opinion and

Clarification, imposes unconstitutional content-based restrictions because it is not narrowly
tailored to serve the compelling state interests of preventing federal employees from engaging in
partisan political activity directed at the success or failure of a political candidate.
58.

OSC’s interpretation of the Hatch Act, as set forth in the Advisory Opinion and

Clarification, is not only impermissibly content-based, but it also impermissibly discriminates
based on the viewpoint of the speaker. See Matal v. Tam, 137 S. Ct. 1744 (2017). In restricting
use of the term “#Resist” and variations thereof, OSC’s interpretation of the Hatch Act targets
and discriminates against speakers who oppose the Trump Administration’s policies. And the
prohibitions regarding discussions of impeachment, in purpose and effect, target and
discriminate against speakers who believe that the President should be impeached.
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59.

“[I]t is all but dispositive to conclude that a law is content-based and, in practice,

viewpoint-discriminatory.” Sorrell v. IMS Health Inc., 564 U.S. 552, 571 (2011). OSC cannot
advance any compelling state interest, much less narrow tailoring of its guidance in the Advisory
Opinion and Clarification, to justify its viewpoint discrimination.
60.

Consequently, OSC’s interpretation of the Hatch Act, as set forth in the Advisory

Opinion and Clarification, restricts protected speech based on content and viewpoint in violation
of the First Amendment.
61.

In the alternative, as a matter of constitutional avoidance, this Court should

declare that, contrary to OSC’s guidance, the Hatch Act does not cover protected speech
advocating for or against impeachment or using the term “#Resist” or variations thereof, and that
OSC lacked authority to issue its guidance.
COUNT III
(Vagueness in Violation of the Fifth and First Amendments)
62.

Plaintiffs incorporate the preceding paragraphs as if fully set forth herein.

63.

The “void-for-vagueness doctrine guarantees that ordinary people have fair notice

of the conduct a statute proscribes.” Sessions v. Dimaya, 138 S. Ct. 1204, 1212 (2018). And
“where a vague statute abuts upon sensitive areas of basic First Amendment freedoms, it
operates to inhibit the exercise of those freedoms.” Grayned v. City of Rockford, 408 U.S. 104,
109 (1972). “When speech is involved, rigorous adherence to [due process] requirements is
necessary to ensure that ambiguity does not chill protected speech.” FCC v. Fox Television
Stations, Inc., 132 S. Ct. 2307, 2317 (2012).
64.

OSC’s interpretation of the Hatch Act, as set forth in the Advisory Opinion and

Clarification, is vague and fails to afford fair notice of the conduct and speech that it prohibits.

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65.

With respect to impeachment, the Clarification asserts that “two employees may

discuss whether reported conduct by the president warrants impeachment and express an opinion
about whether the president should be impeached without engaging in political activity,” but the
Clarification elsewhere asserts that “OSC considers advocacy for or against the impeachment” of
the President to be prohibit political activity. Federal employees lack fair notice and meaningful
standards for understanding when speech arguing for against impeachment is permissible or
when it is impermissible “advocacy” that could cost them their jobs.
66.

With respect to uses of the term “#Resist” and variations thereof, the Advisory

Opinion and the Clarification fail to provide fair notice and meaningful standards for federal
employees to determine when their use of these terms is permissible and when it is
impermissible and could cost them their jobs. The Advisory Opinion and the Clarification are
utterly vague on when uses of these terms will be considered to be “in isolation” (which OSC
deems impermissible), and when they will be considered to be “in relation to an issue” (which
OSC deems permissible).
67.

The vagueness of OSC’s interpretation of the Hatch Act, as set forth in the

Advisory Opinion and Clarification, unconstitutionally chills protected speech by federal
employees on matters of public concern.
68.

In the alternative, as a matter of constitutional avoidance, this Court should

declare that, contrary to OSC’s guidance, the Hatch Act does not cover protected speech
advocating for or against impeachment or using the term “#Resist” or variations thereof, and that
OSC lacked authority to issue its guidance.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs seek an order and judgment to:

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a. Declare that OSC’s interpretation of the Hatch Act, as set forth in the Advisory
Opinion and Clarification, is overbroad in violation of the First Amendment, or in
the alternative, that the Hatch Act does not cover protected speech advocating for
or against impeachment or using the term “#Resist” or variations thereof and that
OSC lacked authority to issue its guidance;
b. Declare that OSC’s interpretation of the Hatch Act, as set forth in the Advisory
Opinion and Clarification, impermissibly discriminates against federal employees
based on the content and/or viewpoint of their speech in violation of the First
Amendment, or in the alternative, that the Hatch Act does not cover protected
speech advocating for or against impeachment or using the term “#Resist” or
variations thereof and that OSC lacked authority to issue its guidance;
c. Declare that OSC’s interpretation of the Hatch Act, as set forth in the Advisory
Opinion and Clarification, is vague in violation of the First and Fifth
Amendments, or in the alternative, that the Hatch Act does not cover protected
speech advocating for or against impeachment or using the term “#Resist” or
variations thereof and that OSC lacked authority to issue its guidance;
d. Enjoin OSC from enforcing or relying on the Advisory Opinion and the
Clarification;
e. Order OSC to rescind the Advisory Opinion and the Clarification;
f. Award all other relief that the Court deems just and proper.

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 Case 8:19-cv-02322-CBD Document 1 Filed 08/13/19 Page 22 of 22

Dated: August 13, 2019

Respectfully Submitted,

Austin R. Evers*
Melanie Sloan*
John E. Bies *
AMERICAN OVERSIGHT
1030 15th Street NW 20005
Washington, DC 20005
Telephone: +1 202.869-5246
austin.evers@americanoversight.com

/s/ R. Stanton Jones
R. Stanton Jones
Daniel F. Jacobson*
ARNOLD & PORTER KAYE SCHOLER LLP
601 Massachusetts Ave. NW
Washington, DC 20001
Telephone: +1 202.942.5000
Facsimile: +1 202.942.5999
stanton.jones@arnoldporter.com

Counsel for Plaintiffs
* Pro hac vice applications forthcoming

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