Court Dismisses AFGE Lawsuit Against OSC Challenging Hatch Act Advisory Opinion on Impeachment

August 05, 2020

The U.S. District Court for the District of Maryland has dismissed a lawsuit filed against OSC by AFGE seeking to compel OSC to rescind a Hatch Act advisory opinion.

The U.S. District Court for the District of Maryland has dismissed a lawsuit filed against the U.S. Office of Special Counsel (OSC) by the American Federation of Government Employees (AFGE) seeking to compel OSC to rescind a Hatch Act advisory opinion addressing speech relating to impeachment and “#Resist."  AFGE alleged that the advisory opinion unlawfully limits First Amendment rights of government employees. The Court dismissed the lawsuit for lack of jurisdiction, concluding that the plaintiffs' claims were not ripe for judicial review.

Special Counsel Henry J. Kerner released the following statement:

“I am pleased the Court dismissed this lawsuit. For the Hatch Act to serve the purpose of protecting the civil service system, it is incumbent on OSC's career Hatch Act attorneys to provide timely and relevant information to federal employees about how they can stay in compliance with the law. By statute, OSC has a robust advisory function and is frequently asked to clarify what is considered political activity under the Hatch Act. By dismissing this lawsuit, the Court preserves OSC's important advisory role. This is a good outcome, and I appreciate the Court's thoughtful opinion."