ARTHUR L. SWEETING ~ , . Docke XT t No.

DEPARTMENT OF JUSTICE

OPINION AND ORDER

The Board reopened this appeal by order dated October 15, 1980, to

determine the meaning of "partisan political reasons" as used in 5 C.F.R.

315.806(b). The Department of Justice (the agency) and the Office of

Personnel Management (0PM) responded to the order by submitting

briefs, and Arthur L. Sweeting (the appellant) submitted a reply brief.

All three briefs have been given careful consideration.

I. BACKGROUND

The agency's Bureau of Prisons removed the appellant from the GS7 position of Correctional Officer during his probationary period at the

Federal Correctional Institution in Memphis, Tennessee, based on the

charge of conduct unbecoming a Correctional Officer. The appellant

petitioned the Board's Atlanta Field Office for review of the removal

action, alleging that it resulted from discrimination based on race (Black)

and "partisan politics." With regard to the latter claim, the appellant

asserted in his petition that "other persons involved in the case who

had higher rank and connections were not discharged."

In an initial decision dated April 1, 1980, the presiding official noted

that the Board has jurisdiction over probationers' appeals only in those

cases involving discrimination based on partisan political reasons and/

or marital status in accordance with 5 C.F.R. 315.806(b). The presiding

official then considered the appellant's claim of discrimination based on

partisan political reasons:

The appellant presented no evidence to show that his termination

was the result of partisan political reasons, as envisioned by the

regulations, e.g., the result of his affiliation with one of the nationally recognized politcal parties. The mere use of the term,

partisan politics, in the absence of evidence to show that the appellant was involved in some partisan political activity that would

serve as a discriminatory basis, is insufficient to bring the matter

within the Board's appellate jurisdiction.

Initial Decision at 2 (empasis added). He therefore dismissed the appeal

for lack of jurisdiction.

II. DISCUSSION

We note preliminarily that the presiding official erred in finding that

the Board lacks jurisdiction over this appeal without first affording the

appellant an opportunity to amplify or make an offer of proof in support

of his allegation that his discharge was a result of "partisan politics."

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Whenever a presiding official questions whether the Board has jurisdiction over an appeal in which the appellant has alleged an appealable

matter, the appellant should be given a chance to submit further material

to show why his claim is not frivolous, as is the practice in appeals

involving allegations of involuntary resignation. Because of the present

posture of this appeal, the Board has no way of knowing what kind of

"connections" the appellant referred to in his petition for appeal.

With regard to the meaning of "partisan political reasons" in 5 C.F.R.

315.806(b), since the regulation itself provides no hint, we shall look to

its evolution. Before the regulation was amended in 1972, it stated that

"an employee may appeal under this subparagraph a termination not

required by statute which he alleges was based on political reasons, . .,"

(emphasis added) and the term "political reasons" in that context was

construed in two reported judicial decisions.

In Peale v. United States, 325 F.Supp. 193, 194-95 (N.D.I11. 1971),

the district court noted that the former Civil Service Commission (Commission) dismissed the probationer plaintiffs appeal because it found

that wearing a black arm band to signify opposition to a war did not

constitute a "partisan political reason" for which termination was prohibited. The court found the Commission's equation of "political reasons"

with "partisan political reasons" to be a plainly erroneous construction

of 5 C.F.R. 315.806(b) because the Hatch Act prohibits partisan political

activity and permits non-partisan political activity.1

Similarly, in Holden v. Finch, 446 F.2d 1311 (D.C. Cir. 1971), the

court of appeals noted that the Commission dismissed the probationer

'5 U.S.C. 7324 provides:

(a) An employee in an Executive agency or an individual employed by the government

of the District of Columbia may not—

(1) use his official authority or influence for the purpose of interfering with or

affecting the result of an election; or

(2) take an active part in political management or in political campaigns.

(b) An employee or individual to whom susbsection (a) of this section applies retains

the right to vote as he chooses and to express his opinion on political subjects and candidates.

5 U.S.C. 7326 then explains:

Section 7324(a)(2) of this title does not prohibit political activity in connection with—

(1) an election and the preceding campaign if none of the candidates is to be nominated

or elected at that election as representing a party any of whose candidates for presidential elector received votes in the last preceding election at which presidential

electors were selected; or

(2) a question which is not specifically identified with a National or State political

party or political party of a territory or possession of the United States.

For purposes of this section, questions relating to constitutional amendments, referendums, approval of municipal ordinances, and others of a similar character, are

deemed not specifically identified with a National or State political party or political

party of a territory or possession of the United States.

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plaintiffs appeal on the grounds that civil rights activity did not constitute a "partisan political reason" because it did not relate to "affiliation

with or support of recognized partisan political parties, their candidates

for public office, or their political campaign activities." Id., 1314. The

court strenuously disagreed:

The Commission has seen fit to interpret its regulation as confined

to partisan political activity in the Hatch Act sense. It appears to

believe that it has in terms excluded from the concept of political

discrimination any conduct which does not fit into the traditional

partisan mould of organized contention for elective political office.

. . .We think. . .that such a reading is at odds with the Congressional purpose, stated in the Hatch Act itself, that the statutory

proscription of partisan political activity does not extend to the

right of an employee to "express his opinion on political subjects,"

or to engage in political activity in connection with "a question which

is not specifically identified" with political parties. We suggest,

finally, that such an interpretation could not, compatibly with the

First Amendment, be constitutionally maintained as against any

and all activities involving speech and association relating to public

policies of essentially political, albeit non-partisan, nature.

Id., 1316.

After these two decisions were rendered, the Commission amended

5 C.F.R. 315.806(b) in 1972 by adding the word "partisan" before "political reasons" in order to "clarify appeal rights of probationers." 37

Fed. Reg. 26575 (1972). Since there is no question that the Commission

acted within its authority in amending the regulations,2 the word "partisan" must be given full effect. United States v. Larionoff, 431 U.S.

864, 873 (1977); cf. Zeigler Coal Co. v. Kleppe, 636 F.2d 398, 406 (D.C.

Cir. 1976).

0PM urged in its brief that the proper interpretation of "partisan

potol reasons" in 5 C.F.R. 315.806(b) is the same as the Commission's

interpretation of "political reasons" in Holden, namely:

[Political influences, specifically as resulting from affiliation with

or support of recognized partisan political parties, their candidates

for public office, or their political campaign activities.

446. F.2d at 1314. 0PM contended that this interpretation is rational

when the regulation is viewed as a complement to the Hatch Act, and

that discrimination against an employee because of more general non-

^Fhe Civil Service Commission's authority to promulgate regulations for the civil service

was based on the President's delegation of that authority in Exec. Order No. 9830, 3

C.F.B. 608 (1943-1948 Compilation), and Exec. Order No 10577, 3 C.F.R. 218 (1954-

1958 Compilation), which in turn were based on the Civil Service Act of 1883, 22 Stat.

403. Similar delegation of authority to 0PM, the Commission's successor, is provided for

at 5 U.S.C. 1104(a), 3301, and 3302, in addition to Article II of the U.S. Constitution.

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partisan political beliefs may be addressed by Special Counsel action

under 5 U.S.C. 1206. See 5 U.S.C. 2301(b).

The construction of "partisan political reasons" in 5 C.F.R. 315.806(b)

by 0PM and its predecessor is entitled to great deference as long as

the interpretation is reasonable and consistent with the regulation. Larionoff, 431 U.S. at 872; Belco Petroleum Corp. v. Federal Energy Regulatory Commission, 589 F.2d 680, 685 (D.C. Or. 1978). We believe

that OPM's construction is indeed both reasonable and consistent with

the regulation.3 Moreover, it is consistent with Civil Service Rule IV

which specifies the type of political discrimination prohibited in Federal

employment:

No discrimination shall be exercised, threatened, or promised by

any person in the executive branch of the Federal Government

against or in favor of any employee in the competitive service, or

any eligible or applicant for a position in the competitive service

because of his race, political affiliation, or religious beliefs, except

as may be authorized or required by law.

5 C.F.R. 4.2 (emphasis added).4 We find, therefore, that discrimination

based on "partisan political reasons" under 5 C.F.R. 315.806(b) means

discrimination based on affiliation with any political party or candidate.

III. CONCLUSION

The presiding official erred in finding that the Board lacked jurisdiction over this appeal without first affording the appellant an opportunity

to make an offer of proof in support of his allegation that his discharge

was a result of "partisan politics." The presiding official erred, further,

in finding that the discrimination alleged must have resulted from "affiliation with one of the nationally recognized political parties" when it

may have resulted from affiliation with any political party or candidate.

Accordingly, the initial decision dated April 1, 1980, is hereby VACATED and this appeal is REMANDED to the Atlanta Field Office for

further proceedings consistent with this opinion.

For the Board:

ERSA H. POSTON.

WASHINGTON, D.C., June 12,1981

8

The term "partisan politics" is defined in The Random House College Dictionary (rev.

ed. 1975) as "partial to a specific party, person, etc."

4

In Elrod v. Burns, 427 U.S. 347, 352, 363 (1976), the Supreme Court considered the

"constitutionality of dismissing public employees for partisan reasons," (emphasis added)

and found that "conditioning the retention of public employment on the employee's support

of the in-party.. ." is constitutional only under certain limited circumstances. See also

Branti v. Finkel, 445 U.S. 507, 518 (1980).

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