Case: 23-1649 Document: 31 Page: 1 Filed: 12/13/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KEITH L. ARNOLD,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2023-1649
______________________
Petition for review of the Merit Systems Protection
Board in No. CB-1216-16-0017-T-1.
______________________
Decided: December 13, 2023
______________________
KEITH L. ARNOLD, Auburn, WA, pro se.
KATHERINE MICHELLE SMITH, Office of General Coun-
sel, United States Merit Systems Protection Board, Wash-
ington, DC, for respondent. Also represented by ALLISON
JANE BOYLE.
______________________
Before MOORE, Chief Judge, HUGHES and STARK, Circuit
Judges.
Case: 23-1649 Document: 31 Page: 2 Filed: 12/13/2023
2 ARNOLD v. MSPB
PER CURIAM.
Keith L. Arnold appeals a final decision of the Merit
Systems Protection Board that removed him from his posi-
tion at the National Oceanic and Atmospheric Administra-
tion because of his alleged violations of the Hatch Act in
2014 and 2016. S.A. 7. 1 We affirm.
I
Mr. Arnold was employed at the National Oceanic and
Atmospheric Administration (NOAA) from March 2010 un-
til the Merit Systems Protection Board (Board) ordered his
removal in January 2023. S.A. 2, 7. During that time, he
unsuccessfully ran to be a U.S. Representative for the 8th
Congressional District in Washington state a number of
times. S.A. 2; S.A. 19 (¶ 13). 2 During his candidacy, Mr. Ar-
nold identified himself as a “[p]roud [f]ederal [e]mployee”
of NOAA. S.A. 35–36. Mr. Arnold also explained that he
was “told federal employees are mostly prohibited from
running for Congress by a ‘law’ called the Hatch Act,” but
continued to run for office to “fight[] for fairness.” S.A. 77–
78 (Voters’ Guide); S.A. 35–36 (Board discussing Mr. Ar-
nold’s campaign website); S.A. 58–59 (¶¶ 16–17). 3
In 2012 and 2013, Mr. Arnold was repeatedly warned
that running for a seat in the House of Representatives
1 Citations to “S.A.” refer to the Supplemental Appen-
dix accompanying the Respondent’s Informal Brief, ECF
No. 19.
2 There is record evidence that Mr. Arnold also ran for
this same office in 2006, 2008, 2010, 2012, 2018, and 2020.
S.A. 19 (¶ 13); S.A. 6.
3 Mr. Arnold has not challenged most of the facts in the
OSC’s amended complaint. See S.A. 62–73 (Pet. Answer to
Amended Compl.); S.A. 79–81 (Pet. Admissions). There-
fore, we cite the amended complaint throughout this opin-
ion for additional background information.
Case: 23-1649 Document: 31 Page: 3 Filed: 12/13/2023
ARNOLD v. MSPB 3
would violate the Hatch Act. S.A. 18 (¶¶ 3–4). In 2014, in
response to an email educating federal employees about
the Hatch Act, Mr. Arnold asked the Department of Com-
merce’s (DOC) ethics office if his candidacy would violate
the Act, but applied to be a candidate prior to receiving a
response. S.A. 18 (¶ 5); S.A. 57–58 (¶¶ 10, 11, 13). The
DOC’s ethics office responded to Mr. Arnold’s inquiry and
informed him that the Hatch Act barred his campaign. S.A.
19 (¶ 6); see also S.A. 58 (¶ 14). Thereafter, the Office of
Special Counsel (OSC) notified Mr. Arnold his candidacy
violated the Hatch Act and instructed him to either resign
from his job or officially withdraw his candidacy. S.A. 19
(¶ 9); see also S.A. 59 (¶¶ 19, 20). Mr. Arnold did neither.
S.A. 19 (¶ 12).
On March 8, 2016, the OSC filed a complaint against
Mr. Arnold, accusing him of violating the Hatch Act (
5
U.S.C. §§ 7321–7326) in 2014, and later amended the com-
plaint to include his 2016 election bid. S.A. 49–54 (Com-
plaint); S.A. 55–61 (Amended Complaint). In September
2016, the administrative law judge granted the OSC’s mo-
tion for summary adjudication. S.A. 32–40. After a sepa-
rate evidentiary hearing, the administrative law judge
analyzed the Douglas factors and determined that removal
was the appropriate penalty. S.A. 9–31.
The Board issued a final order in January 2023, affirm-
ing the administrative law judge’s initial decision and ren-
dering it the final decision of the Board. S.A. 1–2; see also
5 C.F.R. § 1201.113(b). The Board denied Mr. Arnold’s pe-
tition for review and ordered his removal. S.A. 1–8.
Mr. Arnold timely appealed, and we have jurisdiction
under
5 U.S.C. § 1295(a)(9) and
5 U.S.C. § 7703(b)(1)(A).
II
The Hatch Act prohibits certain federal employees
from “run[ning] for the nomination or as a candidate for
election to a partisan political office.”
5 U.S.C. § 7323(a)(3).
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4 ARNOLD v. MSPB
A “partisan political office” is defined as “any office for
which any candidate is nominated or elected as represent-
ing a party any of whose candidates for Presidential elector
received votes in the last preceding election at which Pres-
idential electors were selected, but shall exclude any office
or position within a political party or affiliated organiza-
tion.”
Id. § 7322(2). In McEntee v. MSPB,
404 F.3d 1320,
1329 (Fed. Cir. 2005), we interpreted the “elected as repre-
senting a party” language to not require any “formal en-
dorsement or selection by a major political party.”
By regulation, there are two exceptions to this prohibi-
tion. First, federal employees who live in certain localities
(such as the District of Columbia, see
5 C.F.R. § 733.107)
may “[r]un as an independent candidate in a partisan elec-
tion.”
Id. § 734.207(a). Mr. Arnold does not contend that
this exception applies. See Pet. Informal Br. 1–3; Pet. In-
formal Reply Br. 1–2.
The second exception allows a federal employee, re-
gardless of locality, to “[r]un as a candidate in a nonparti-
san election.”
5 C.F.R. § 734.207(b) (emphasis added). A
nonpartisan election is defined by regulation as:
(1) An election in which none of the candi-
dates is to be nominated or elected as rep-
resenting a political party any of whose
candidates for Presidential elector received
votes in the last preceding election at which
Presidential electors were selected; or
(2) [a]n election involving a question or is-
sue which is not specifically identified with
a political party, such as a constitutional
amendment, referendum, approval of a
municipal ordinance, or any question or is-
sue of a similar character.
Id. § 734.101. Mr. Arnold maintains that because the
Washington state primary election is nonpartisan, his can-
didacy in both 2014 and 2016 did not violate the Hatch Act.
Case: 23-1649 Document: 31 Page: 5 Filed: 12/13/2023
ARNOLD v. MSPB 5
See, e.g., Pet. Informal Reply Br. 1. Therefore, he seeks re-
instatement, lost wages and benefits, and any appropriate
damages. Pet. Informal Br. 3.
We have upheld the Board’s conclusion that a federal
employee violates the Hatch Act by running for a position,
even as an independent, in the U.S. House of Representa-
tives, because that is partisan political office. Lewis v.
MSPB,
594 F. App’x 974, 979–80 (Fed. Cir. 2014) (non-
precedential) (affirming Special Counsel v. Lewis,
2014
M.S.P.B. 33 (2014)). There, “[t]he record reflect[ed] that,
during the last Presidential election, the Democratic and
Republican candidates for Presidential electors received
votes and both Democratic and Republican candidates ran
for the seat for which the respondent campaigned during
the 2012 general election and the 2013 special election.”
Special Counsel,
2014 M.S.P.B. 33, ¶ 15.
III
We will set aside the Board’s decision only when it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without pro-
cedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.”
5
U.S.C. § 7703(c). We review the Board’s legal conclusions
de novo. Nordby v. Soc. Sec. Admin.,
67 F.4th 1170, 1172
(Fed. Cir. 2023).
IV
The sole issue on appeal is whether the Board erred in
concluding that Washington state’s 8th Congressional Dis-
trict primary elections in 2014 and 2016 were partisan.
See, e.g., Pet. Informal Reply Br. 2. Because we agree with
Case: 23-1649 Document: 31 Page: 6 Filed: 12/13/2023
6 ARNOLD v. MSPB
the Board that the elections Mr. Arnold ran in were parti-
san, we affirm.
We note that Mr. Arnold does not dispute that the of-
fice of U.S. Representative is a partisan political office. 4 See
Pet. Informal Br. 1–3; Pet. Informal Reply Br. 1–2. Instead,
Mr. Arnold focuses on the distinction between a partisan
political office and a partisan election, arguing that the
Washington state election system is nonpartisan even if
the office of U.S. Representative is a partisan political of-
fice. See Pet. Informal Br. 2; Pet. Informal Reply Br. 2.
Mr. Arnold also highlights the “[t]op 2 [p]rimary election
system” used in Washington state, which differs from a
party nominating system because the primary election
does not “nominate[] a finalist from each major party, but
rather sends the two most popular candidates forward for
each office.” S.A. 63–64; see also Wash. Rev. Code
§ 29A.52.112 (2014). Only in the general election do the po-
litical parties in Washington state elections nominate their
candidates. See S.A. 38.
The administrative law judge found that “[i]n the 2014
and 2016 general elections for Congress from Washington’s
8th District, both candidates represented a political party
whose candidates for Presidential elector received votes in
the last preceding election at which Presidential electors
were selected.” S.A. 20 (¶ 14). Therefore, the administra-
tive law judge concluded the general election was partisan.
S.A. 20 (¶ 14). And while in Washington state “the primary
elections do not, on their face, determine the names of the
nominees,” it only mattered that “the general election was
4 The administrative law judge found that the office of
U.S. Representative is a partisan political office. S.A. 20
(¶ 15). This is consistent with the Third Circuit’s holding
that “[b]y the plain terms of the Hatch Act, the position of
United States Representative is a partisan political office.”
Merle v. United States,
351 F.3d 92, 96 (3d Cir. 2003).
Case: 23-1649 Document: 31 Page: 7 Filed: 12/13/2023
ARNOLD v. MSPB 7
eventually contested by named representatives of the two
major political parties.” S.A. 22. Therefore, the administra-
tive law judge concluded that the 2014 and 2016 primary
elections in which Mr. Arnold campaigned were not non-
partisan elections, but partisan political elections, and
Mr. Arnold’s candidacy violated the Hatch Act. S.A. 39; see
also S.A. 22.
We agree. The Board’s findings are supported by sub-
stantial evidence. The record establishes that the 2014 and
2016 Washington state primary elections do not meet the
requirements for a nonpartisan election, i.e., that “none of
the candidates is to be nominated or elected as represent-
ing a political party any of whose candidates for Presiden-
tial elector received votes in the last preceding election at
which Presidential electors were selected.” See
5 C.F.R.
§ 734.101. And Mr. Arnold admits that in 2014, both the
Republican and Democratic political parties at least en-
dorsed their respective nominees. Pet. Informal Br. 2.
Consider Dave Reichert, the incumbent in the 2014 and
2016 primary elections who went on to successfully become
the U.S. Representative for the 8th District. See S.A. 36–
37 & n.11. Mr. Reichert was endorsed by the Washington
State Republican Party, which included Mr. Reichert on
their website, S.A. 98, and promoted Mr. Reichert’s cam-
paign events on their social media page, S.A. 91. When
elected in 2014, Mr. Reichert was listed as a “House Repub-
lican” on a GOP website. S.A. 100. Therefore, despite the
electoral scheme that exists in Washington state, the
Board correctly concluded that Mr. Reichert was a candi-
date that when in office represented “a political party
whose candidates for Presidential elector received votes in
the last preceding election at which Presidential electors
were selected” in the 2014 and 2016 primary and general
elections. S.A. 37 & n.11. Therefore, the 2014 and 2016 pri-
mary elections were not nonpartisan.
Case: 23-1649 Document: 31 Page: 8 Filed: 12/13/2023
8 ARNOLD v. MSPB
In sum, we agree with the Board that both primary
elections were not excepted nonpartisan elections, but im-
permissible political activities under
5 U.S.C. § 7323(a)(3),
and Mr. Arnold’s candidacy in those elections violated the
Hatch Act.
V
A federal employee who violates the Hatch Act is sub-
ject to “(1) disciplinary action consisting of removal, reduc-
tion in grade, debarment from Federal employment for a
period not to exceed 5 years, suspension, or reprimand;
[and/or] (2) an assessment of a civil penalty not to exceed
$1,000.”
5 U.S.C. § 7326. For his violations of the Hatch
Act, the administrative law judge ordered Mr. Arnold’s re-
moval. S.A. 9–31. Mr. Arnold does not contest that removal
is an appropriate penalty if we conclude he violated the
Hatch Act. See Pet. Informal Br. 1–3; Pet. Informal Reply
Br. 1–2.
Because the Washington state primary elections in
2014 and 2016 were partisan elections and Mr. Arnold vio-
lated the Hatch Act, the decision of the Board is affirmed.
AFFIRMED
COSTS
No costs.
