UNITED STATES OF AMERICA 

MERIT SYSTEMS PROTECTION BOARD 

93 M.S.P.R. 334 

TIMOTHY F. KAUFFMAN, 

Petitioner, 

v. 

OFFICE OF PERSONNEL 

MANAGEMENT, 

Agency. 

DOCKET NUMBER 

CB-1205-02-0021-U-1 

DATE: March 4, 2003 

Timothy F. Kauffman, Marshall Space Flight Center, Alabama, pro se. 

Jo-Ann Chabot, Washington, D.C., for the agency. 

BEFORE 

Susanne T. Marshall, Chairman 

Beth S. Slavet, Member 

OPINION AND ORDER 

¶1 The petitioner has requested that the Board review, pursuant to its authority 

at 5 U.S.C. § 1204(f), two regulations issued by the Office of Personnel 

Management (OPM), 5 C.F.R. §§ 734.205(a) and 734.306(a)(1). For the reasons 

set forth below, we DISMISS the petitioner’s request for regulation review for 

lack of jurisdiction. 

BACKGROUND 

¶2 The petitioner seeks review of two OPM regulations, 5 C.F.R. 

§§ 734.205(a) and 734.306(a)(1). Request File (RF), Tab 1. These regulations 
2

implement the Hatch Act, 5 U.S.C. §§ 7321-7326, which restricts the partisan 

political activities of federal employees. The Hatch Act provides, in pertinent 

part, that “[a]n employee may not engage in political activity . . . while the 

employee is on duty.” 5 U.S.C. § 7324(a)(1). The regulations in question 

prohibit federal employees from wearing partisan political buttons while on duty. 

Subject to the prohibitions in § 734.306, an employee may: 

(a) Display pictures, signs, stickers, badges, or buttons associated 

with political parties, candidates for partisan political office, or 

partisan political groups, as long as these items are displayed in 

accordance with the provisions of § 734.306 of subpart C of this 

part; 

5 C.F.R. § 734.205(a). Section 734.306 includes the following restriction. 

An employee may not participate in political activities subject to the 

provisions of subpart E of this part: 

(1) While he or she is on duty. 

5 C.F.R. § 734.306(a)(1). 

¶3 The petitioner argues that by prohibiting employees from wearing partisan 

political buttons on duty, the regulations coerce employees into refraining from 

political activity, which the petitioner claims is a prohibited personnel practice 

under 5 U.S.C. § 2302(b)(3).1

 RF, Tab 1 at 1. He further argues that the 

regulations violate the constitutional guarantee of free speech, and thereby cause 

 

1

 Section 2302(b)(3) provides: 

Any employee who has authority to take, direct others to take, 

recommend, or approve any personnel action, shall not, with respect to 

such authority – 

* * * 

coerce the political activity of any person (including the providing of any 

political contribution or service), or take any action against any employee 

or applicant for employment as a reprisal for the refusal of any person to 

engage in such political activity. 

5 U.S.C. § 2302(b)(3). 
3

a prohibited personnel practice under 5 U.S.C. § 2302(b)(12)2

 by violating a law 

concerning the merit systems principles at 5 U.S.C. § 2301(b)(4) and (8).3

 Id. 

OPM has responded in opposition to the appellant’s request. RF, Tab 5. The 

petitioner has filed a reply to OPM’s response. RF, Tab 6. 

ANALYSIS 

¶4 The Board may review a regulation promulgated by OPM and declare the 

regulation invalid if “such provision would, if implemented by any agency, on its 

face, require any employee to violate section 2302(b).” 5 U.S.C. § 1204(f)(2)(A). 

The Board’s regulations implementing this authority require a petitioner seeking 

review of an OPM regulation to provide, inter alia, a statement describing in 

detail the reasons why the regulation would require an employee to commit a 

prohibited personnel practice under section 2302(b). 5 C.F.R. 

§ 1203.11(b)(1)(iii). The petitioner has not met this regulatory requirement 

because he has failed to explain how OPM’s Hatch Act regulations require an 

 

2

 Section 2302(b)(12) states that an employee with personnel action authority may not 

take or fail to take any other personnel action if the taking of or failure to 

take such action violates any law, rule, or regulation implementing, or 

directly concerning, the merit system principles contained in section 2301 

of this title. 

5 U.S.C. § 2302(b)(12). 

3

 These merit system principles provide: 

(4) All employees should maintain high standards of integrity, conduct, 

and concern for the public interest. 

* * * 

(8) Employees should be - 

(A) protected against arbitrary action, personal favoritism, or coercion for 

partisan political purposes. 

5 U.S.C. § 2301(b)(4) and (8). 
4

employee to take any personnel action. The petitioner notes that an employee 

may be removed or suspended for violating the Hatch Act and OPM’s 

implementing regulations. 5 U.S.C. § 7326. However, agency managers may not 

remove or suspend an employee for violating the Hatch Act. Id. Rather, the 

Special Counsel possesses exclusive authority to investigate and charge an 

employee with violating the Hatch Act, and the Board possesses exclusive 

authority to discipline a federal employee for violating the Hatch Act. Id.; Sims 

v. Government of the District of Columbia, 7 M.S.P.R. 45, 53-54 (1981). Neither 

the Special Counsel nor the Board is an employee. See 5 U.S.C. §§ 1201 and 

1211. Consequently, a removal or suspension ordered by the Board as a penalty 

for violating the Hatch Act does not constitute a personnel action taken by an 

employee that could be a prohibited personnel practice. See 5 U.S.C. § 2302(b) 

(“[a]ny employee who has authority to take, direct others to take, recommend, or 

approve any personnel action, shall not, with respect to such authority” take any 

of a series of enumerated actions.) Therefore, the appellant has failed to present 

a non-frivolous allegation that the regulations in question require an employee to 

commit a prohibited personnel practice. 

ORDER 

¶5 The petitioner’s request for regulation review is DISMISSED. This is the 

final decision of the Merit Systems Protection Board. 5 C.F.R. § 1203.12(b) 

NOTICE TO THE APPELLANT REGARDING 

YOUR FURTHER REVIEW RIGHTS 

You have the right to request the United States Court of Appeals for the 

Federal Circuit to review this final decision. 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 
5

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

after your receipt of this order. If you have a representative in this case and your 

representative receives this order before you do, then you must file with the court 

no later than 60 calendar days after receipt by your representative. 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). You may read 

this law as well as review the Board’s regulations and other related material at 

our web site, http://www.mspb.gov. 

FOR THE BOARD: 

Washington, D.C. 

______________________________ 

Bentley M. Roberts, Jr. 

Clerk of the Board