UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

SPECIAL COUNSEL,

Petitioner,

v.

JAMES MURRY,

Respondent.

DOCKET NUMBER

CB-1216-15-0002-T-1

DATE: November 3, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Carolyn S. Martorana, Esquire, Washington, D.C., for the petitioner. 

James Murry, Pine Bluff, Arkansas, pro se. 

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The respondent has filed a petition for review of the initial decision, which 

found that he violated the Hatch Act and ordered his removal from Federal 

service. Generally, we grant petitions such as this one only when: the initial 

decision contains erroneous findings of material fact; the initial decision is based 

on an erroneous interpretation of statute or regulation or the erroneous application 

 1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). 
2

of the law to the facts of the case; the administrative law judge’s rulings during 

either the course of the appeal or the initial decision were not consistent with 

required procedures or involved an abuse of discretion, and the resulting error 

affected the outcome of the case; or new and material evidence or legal argument 

is available that, despite the petitioner’s due diligence, was not available when 

the record closed. See Title 5 of the Code of Federal Regulations,

section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this 

appeal, we conclude that the petitioner has not established any basis under

section 1201.115 for granting the petition for review. Therefore, we DENY the 

petition for review and AFFIRM the initial decision, which is now the Board’s 

final decision. 5 C.F.R. § 1201.113(b). 

¶2 The respondent is a Federal employee with the U.S. Army Corps of 

Engineers. Complaint File (CF), Tab 17 at 4. The Office of Special Counsel 

(OSC) filed a Complaint for Disciplinary Action (Violation of the Hatch Act)

against the respondent, charging him with: (1) being a candidate for partisan 

political office in violation of 5 U.S.C. § 7323(a)(3) and 5 C.F.R. § 734.304; and 

(2) knowingly soliciting, accepting, and/or receiving political contributions in 

violation of 5 U.S.C. § 7323(a)(2) and 5 C.F.R. § 734.303. CF, Tab 1. The 

respondent did not dispute the factual allegations set forth in the complaint. CF,

Tab 4. He instead argued, inter alia, that the Hatch Act unconstitutionally

restricts his participation in the electoral process and should not apply to 

campaigns outside of the Federal Government. Id. OSC filed a motion for 

summary adjudication, citing the respondent’s admission to all of the material 

facts set forth in the complaint. CF, Tab 15. The administrative law judge 

granted OSC’s motion in part, finding that no genuine issues of material fact 

concerning the respondent’s Hatch Act violations existed but that the respondent 
3

was entitled to a hearing regarding the penalty determination. 2 CF, Tab 24

at 13-21. 

¶3 After holding the hearing, the administrative law judge issued an initial 

decision finding that removal was the appropriate penalty for the proven

violations. CF, Tab 30, Initial Decision (ID) at 12-29. 3

 The respondent has filed 

a timely petition for review. Petition for Review (PFR) File, Tab 1. He asserts 

that: (1) the administrative law judge did not fully address his argument that the 

Hatch Act unconstitutionally infringes on his right to participate in the electoral 

process as a candidate; (2) the Hatch Act Modernization Act of 2012

(Modernization Act) denies him due process and equal protection because some 

Government employees are permitted to run as candidates for partisan office

while others are not;

4 (3) the Hatch Act should not apply to a Government worker 

of his status because he is not a supervisor or an executive; and (4) state and local 

 2 Subsequently, the respondent filed an untimely reply to OSC’s motion in which he 

asserted, inter alia, that he was a laborer and thus had no decision-making capacity, his 

actions should not be considered willful or deliberate because he is being penalized for 

exercising a fundamental right to fully participate in the electoral process, and he had a 

good work record. CF, Tab 26 at 2-3. In the initial decision, the administrative law 

judge stated that he informed the respondent at the hearing that he considered this 

motion, at least for mitigation purposes. CF, Tab 30, Initial Decision at 6. 

3 During the hearing, the respondent moved to dismiss the complaint, asserting that 

OSC had not presented sufficient evidence to show he had knowledge or sufficient 

training regarding the Hatch Act prior to initiating his fundraiser and campaign for 

sheriff. See ID at 6. The administrative law judge denied the respondent’s motion. Id. 

We agree with this denial because the record shows that the respondent was provided 

specific notice of the prohibitions of the Hatch Act beginning in February 2014, and 

provided numerous opportunities to mitigate his violations of the Hatch Act by ceasing 

the campaign efforts that he had begun, but he did not cease his efforts. See Special 

Counsel v. Lewis, 121 M.S.P.R. 109, ¶ 28, aff’d, 594 F. App’x 974 (Fed. Cir. 2014)

(considering whether the respondent had changed his conduct once notified that his 

conduct violated the Hatch Act); see also CF, Tab 15, Exhibit P-16, ¶¶ 15-17, 

Exhibit P-17, ¶¶ 15-17. 

4 The Modernization Act, Pub. L. No. 112-230, 126 Stat. 1616, 1616-18 (2012), scaled 

back the provision of the Hatch Act forbidding certain state and local employees from 

seeking elective office and clarified the application of certain provisions to the District 

of Columbia. 
4

laws do not prohibit him from being a candidate in primary or general elections. 

Id. at 2. OSC has responded in opposition to the petition for review. PFR File,

Tab 4. 

DISCUSSION OF ARGUMENTS ON REVIEW 

¶4 First, we reject the respondent’s assertions that the Hatch Act 

unconstitutionally infringes on his right to participate in the electoral process and 

violates his equal protection and due process rights. PFR File, Tab 1 at 2. 

Specifically, we need not consider the respondent’s assertions regarding equal 

protection and due process because he did not raise them below and he has not 

shown why, despite his due diligence, he could not have raised those arguments

before the close of the record. See Banks v. Department of the Air Force, 

4 M.S.P.R. 268, 271 (1980); 5 C.F.R. § 1201.114(b). Moreover, the Board 

does not have the authority to decide whether the Hatch Act is constitutional on 

its face. Special Counsel v. Jackson, 119 M.S.P.R. 175, ¶ 10 (2013). We 

nevertheless note that the U.S. Supreme Court consistently has upheld the 

constitutionality of the Hatch Act. See, e.g., United States Civil Service 

Commission v. National Association of Letter Carriers, 413 U.S. 548, 568-81

(1973). Although the Board does have the authority to consider whether the 

Hatch Act was constitutionally applied, Jackson, 119 M.S.P.R. 175, ¶ 10, the 

respondent has not presented arguments regarding how his constitutional rights 

were violated through specific application of the Hatch Act, see PFR File, Tab 1

at 2. To the extent that he asserts that he was treated differently than other 

similarly situated employees, the respondent has not identified how the Hatch Act 

was applied differently to him. 

¶5 Next, we reject the respondent’s argument that the Hatch Act should not 

apply to him because of his job level and type of employment. PFR File, Tab 1

at 2. The U.S. Supreme Court long ago rejected this challenge, and instead found 

that it was within the power of Congress to determine any differences between 
5

employees of different job levels and what weight to attach to these differences in 

regulating the employees’ political activities.

5

 United Public Workers of 

America v. Mitchell, 330 U.S. 75, 102 (1947). 

¶6 Finally, the respondent’s assertion that state and local laws do not prohibit 

his candidacy does not affect our decision. PFR File, Tab 1 at 2. Even if the 

respondent’s characterization of these laws is correct, the enforcement power of 

the Board under the Hatch Act preempts any such local laws. Special Counsel v. 

Campbell, 58 M.S.P.R. 170, 180 (1993), aff’d, 27 F.3d 1560 (Fed. Cir. 1994). 

¶7 The respondent does not otherwise challenge the administrative law judge’s 

determination that he violated the Hatch Act or that removal was the appropriate 

penalty. PFR File, Tab 1 at 2. Accordingly, applying the administrative law 

judge’s factual findings to our independent consideration of the appropriate 

penalty for the respondent’s Hatch Act violations, we order the respondent’s 

employing agency to remove him from Federal service under 5 U.S.C. § 7326. 

See Special Counsel v. Lewis, 121 M.S.P.R. 109, ¶¶ 30-31, aff’d, 594 F. App’x 

974 (Fed. Cir. 2014). 

ORDER

¶8 The Board ORDERS the U.S. Army Corps of Engineers to REMOVE the 

respondent from his position of employment. The Board also ORDERS OSC to 

notify the Board within 30 days of the date of this Final Order whether the 

respondent has been removed as ordered. This is the final decision of the Merit 

Systems Protection Board in this appeal. 5 C.F.R. § 1201.113(b). 

 5 To the extent that the respondent is attempting to challenge the penalty on the basis of 

his job level and type of employment, the administrative law judge considered those 

factors in determining the penalty, but found that they were outweighed by the open and 

continuous public nature of the respondent’s Hatch Act violations despite OSC’s 

repeated warnings. ID at 18-19. Based upon our own review, we agree with the 

administrative law judge in this respect. 
6

NOTICE TO THE RESPONDENT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the

United States Court of Appeals for the Federal Circuit. You must submit your 

request to the court at the following address: 

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar days 

after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27, 

2012). If you choose to file, be very careful to file on time. The court has held 

that normally it does not have the authority to waive this statutory deadline and 

that filings that do not comply with the deadline must be dismissed. See Pinat v. 

Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991). 

If you need further information about your right to appeal this decision to 

court, you should refer to the Federal law that gives you this right. It is found in

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the

United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. 

Additional information is available at the court’s website, 

www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se 

Petitioners and Appellants,” which is contained within the court’s Rules of 

Practice, and Forms 5, 6, and 11. 

If you are interested in securing pro bono representation for an appeal to the

United States Court of Appeals for the Federal Circuit, you may visit our website 

at http://www.mspb.gov/probono for information regarding pro bono 

representation for Merit Systems Protection Board appellants before the Federal 

Circuit. The Merit Systems Protection Board neither endorses the services 
7

provided by any attorney nor warrants that any attorney will accept representation 

in a given case. 

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board