NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARCUS LEWIS,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2014-3148
______________________
Petition for review of the Merit Systems Protection
Board in No. CB-1216-13-0063-T-1.
______________________
Decided: December 4, 2014
______________________
MARCUS LEWIS, of Matteson, Illinois, pro se.
STEPHEN FUNG, Attorney, Office of the General Coun-
sel, Merit Systems Protection Board, of Washington, DC,
for respondent. With him on the brief was BRYAN G.
POLISUK, General Counsel.
______________________
Before NEWMAN, BRYSON, and O’MALLEY, Circuit Judges.
2 LEWIS v. MSPB
PER CURIAM.
Marcus Lewis appeals a decision of the Merit Systems
Protection Board (“Board”) removing him from his posi-
tion with the United States Postal Service (“USPS”) for
violating the Hatch Act, 5 U.S.C. § 7323(a). Special
Counsel v. Lewis, 121 M.S.P.R. 109 (2014) (“Board Deci-
sion”). Because the Board did not err in reaching its
conclusion, we affirm.
I. BACKGROUND
Mr. Lewis began working for the USPS in October
1997, in Carol Stream, Illinois. Board Decision, 121
M.S.P.R. at 111. In 2012, Mr. Lewis became involved in
the Illinois congressional elections, running as an inde-
pendent candidate for Illinois’ second congressional
district seat—first in the general election held in Novem-
ber 2012, and then in the special election held in April
2013. 1 Id. at 112. Mr. Lewis’ political activities garnered
the attention of the Office of Special Counsel (“OSC”). As
part of its official duties, OSC investigates potential
violations of the Hatch Act, which prohibits most federal
employees in the executive branch from running as candi-
dates for a partisan political office.
Beginning in September 2012, OSC repeatedly
warned Mr. Lewis that his participation in a congression-
al race violated the Hatch Act. Id. OSC informed Mr.
Lewis that he could either withdraw from the general
campaign or resign from his position with the USPS. In
addition to these warnings, Mr. Lewis also received a
mandatory service talk about the Hatch Act at work on
November 2, 2012, which outlined the permissible and
1 Mr. Jesse Jackson Jr. was elected to this seat in
the 2012 general election, but resigned on November 21,
2012. A special election was held in April 2013 to find his
replacement.
LEWIS v. MSPB 3
prohibited activities under the Act. Mr. Lewis did not exit
the race, however. When it was announced that a special
election would be held in April 2013 for the same congres-
sional seat, Mr. Lewis publicly expressed his intention to
again seek election to the United States House of Repre-
sentatives.
Following Mr. Lewis’ announcement on December 4,
2012, the USPS mailed Mr. Lewis a cease and desist
letter, which reiterated that his candidacy would violate
the Hatch Act and cautioned him that he could be subject
to disciplinary action by OSC. Id. Despite this warning,
Mr. Lewis filed the necessary paperwork to become an
independent candidate in the 2013 special election. OSC
advised Mr. Lewis that his candidacy violated the Hatch
Act and recommended that he either withdraw from the
election or resign from the USPS. Mr. Lewis did neither.
On March 13, 2013, OSC filed a complaint with the
Clerk of the Board, alleging that Mr. Lewis violated the
Hatch Act by running for partisan political office twice
and by soliciting political contributions via his campaign
website and Facebook page during his campaigns for
elected office. Petitioner’s Appendix at 1. After Mr. Lewis
failed to file an answer within the prescribed period of
time of 35 days, OSC moved for entry of default. Id. at 3.
Prior to entering a default, however, the Administrative
Law Judge (“ALJ”) issued a show cause order, affording
Mr. Lewis additional time to answer OSC’s complaint and
to explain why default should not be entered against him.
Id. at 3–4. Mr. Lewis again failed to file a response.
In the absence of any response, the ALJ issued its ini-
tial decision, finding that Mr. Lewis had violated the
Hatch Act and that the penalty for these violations should
be removal from his job at the USPS. Id. at 17. Specifi-
cally, the ALJ treated OSC’s unanswered allegations as
admitted facts, deemed to be true, in light of Mr. Lewis’
failure to respond. Id. at 5. Because the relevant Illinois
4 LEWIS v. MSPB
congressional races involved Republican and Democratic
candidates, the ALJ found it was an election for a parti-
san political office prohibited by the Hatch Act. Id. at 9.
Additionally, the ALJ concluded that Mr. Lewis knowing-
ly solicited political contributions for his campaigns
because he requested donations on his campaign website
and Facebook page, and allowed visitors to contribute to
his campaign via a PayPal link on his campaign website.
Id. at 10–11. The penalties for Hatch Act violations
include, inter alia, suspension, reprimand, and civil
penalties. The ALJ, however, found the most appropriate
punishment to be removal, because Mr. Lewis had con-
tinued to violate the Hatch Act, despite several warnings
and opportunities to withdraw from the races. Id. at 16.
The ALJ assessed several factors, known as the Purnell
factors, to determine whether removal was an appropriate
penalty for this Hatch Act violation. 2 Id. at 11–16.
Mr. Lewis then filed a petition for review, asking the
Board to reverse the ALJ’s decision. Board Decision, 121
M.S.P.R. at 114. He argued that his failure to respond to
OSC’s complaint should be excused due to his attorney’s
negligence. According to Mr. Lewis, the ALJ should not
have entered default against him. With his petition, Mr.
Lewis included an answer to OSC’s complaint, admitting
the “salient facts forming the basis of the [ALJ’s] findings
that he violated the Hatch Act.” Id. Mr. Lewis claimed,
2 The Purnell factors consider: (1) the nature of the
offense and the extent of the employee’s participation; (2)
the employee’s motive and intent; (3) whether the em-
ployee received advice of counsel regarding the activities
at issue; (4) whether the employee had Hatch Act
knowledge; (5) whether the employee ceased the activity;
(6) the employee’s past employment record; and (7) the
political coloring of the employee’s activities. Special
Counsel v. Purnell, 37 M.S.P.R. 184, 200 (1988).
LEWIS v. MSPB 5
however, that he did not violate the Hatch Act, because
running for an elected office as an independent candidate
is permissible under the Act, and that any violation of the
Act was unknowing and unintentional.
The Board denied Mr. Lewis’ petition to reverse the
ALJ’s decision. Id. To vacate the ALJ’s entry of default,
Mr. Lewis had to demonstrate good cause for his failure to
respond. Because Mr. Lewis never designated anyone as
his representative, the Board found that Mr. Lewis could
not rely on his attorney’s negligence to excuse his failure
to respond to OSC’s complaint. Id. at 115. The Board
pointed out that Mr. Lewis himself was a registered e-
filer. For both these reasons, the Board found that there
was no good cause to vacate the ALJ’s entry of default.
Id. at 115–16. The Board concluded, moreover, that even
if Mr. Lewis’ untimely answer could be considered, Mr.
Lewis admitted that he ran for political office and that his
websites instructed the public to donate to his campaign,
thereby conceding he had violated the Hatch Act. The
Board explained that when an untimely answer will not
change the outcome of a case, it will not address any
argument that the answer should be considered. Id. at
116 (citing Special Counsel v. Briggs, 110 M.S.P.R. 1, 3
(2008)). Because Mr. Lewis “admitted to the pertinent
facts which form the basis of the [ALJ’s] findings that he
violated the Hatch Act,” the Board found there was no
reason to vacate the entry of default. Id.
As for the underlying Hatch Act violations and pun-
ishment, the Board affirmed the ALJ’s conclusions that
Mr. Lewis violated the Hatch Act and that Mr. Lewis
should be removed from his position because of those
violations. Id. at 117, 124. The Board agreed with the
ALJ’s finding that, in light of the admitted facts, Mr.
Lewis ran for a partisan political office twice and know-
ingly solicited political contributions via his campaign
website and Facebook page in violation of the Hatch Act.
Id. at 116–17.
6 LEWIS v. MSPB
The Board, however, found that the Douglas factors,
and not the Purnell factors, should have been considered
to determine Mr. Lewis’ penalty. 3 Id. at 119. Under the
recent amendments to the Hatch Act, a violation no
longer results in an employee’s removal from his position
unless the Board unanimously finds that the violation
warrants removal. Hatch Act Modernization Act of 2012,
Pub. L. No. 112-230, § 4, 126 Stat. 1616. Instead, the
amendment affords the Board great flexibility in crafting
appropriate remedies for such violations, by making clear
that an employee who violates the Act “shall be subject to
removal, reduction in grade, debarment from Federal
employment for a period not to exceed 5 years, suspen-
sion, reprimand, or an assessment of a civil penalty not to
exceed $1,000.” Board Decision, 121 M.S.P.R. at 119
3 The Douglas factors consider: (1) the nature and
seriousness of the offense, including whether the offense
was intentional or inadvertent, or was frequently repeat-
ed; (2) the employee’s job level and type of employment,
including any fiduciary or supervisory role; (3) the em-
ployee’s past disciplinary record; (4) the employee’s past
work record, including length of service; (5) the effect of
the offense upon the employee’s ability to perform at a
satisfactory level; (6) the consistency of the penalty with
those imposed upon other employees for the same or
similar offenses; (7) the consistency of the penalty with
any applicable table of penalties; (8) the notoriety of the
offense or its impact upon the reputation of the agency; (9)
the clarity with which the employee was on notice of any
rules that were violated; (10) the potential for the employ-
ee’s rehabilitation; (11) any mitigating circumstances
surrounding the offense, such as unusual job tensions;
and (12) the adequacy and effectiveness of alternative
sanctions to deter such conduct in the future by the
employee or others. Douglas v. Veterans Admin., 5
M.S.P.R. 280, 305–06 (1981).
LEWIS v. MSPB 7
(quoting 5 U.S.C. § 7326). Because the Purnell factors
had been adopted when there was a presumption of
removal—which no longer exists—the Board concluded
that, under the new version of the Act, it would be more
appropriate to apply the Douglas factors, which are
applied in other OSC disciplinary actions brought before
the Board. Id. at 119–20.
Applying the Douglas factors, the Board still deter-
mined that Mr. Lewis should be removed from his posi-
tion with the USPS. Id. at 120. In particular, the Board
noted that Mr. Lewis repeatedly ignored the advice from
OSC and the USPS that his actions were unlawful. Thus,
“[t]he repeated, flagrant nature of [his] Hatch Act viola-
tions,” in the absence of any mitigating factors, such as a
positive employment record or a prompt withdrawal from
the races, supported Mr. Lewis’ removal. Id. at 122.
Mr. Lewis timely appealed the Board’s decision to this
court. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9) (2012).
II. DISCUSSION
Our jurisdiction to review a final decision of the Board
is limited. We must affirm the Board’s decision unless it
was: “(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c); Fields v. Dep’t of Justice, 452
F.3d 1297, 1301 (Fed. Cir. 2006).
Under the Hatch Act, a USPS employee may not “run
for nomination or as a candidate for election to a partisan
political office.” 5 U.S.C. § 7323(a)(3); see 39 U.S.C.
§ 410(b)(1) (stating that Title 5, Chapter 73, which in-
cludes the Hatch Act provisions, applies to employees of
the USPS); 5 C.F.R. § 734.101 (defining the term “em-
ployee” for the purposes of the political activities regula-
8 LEWIS v. MSPB
tions for federal employees to include “any individual . . .
employed or holding office in . . . [t]he United States
Postal Service or the Postal Rate Commission.”). A parti-
san political office is defined as “any office for which any
candidate is nominated or elected as representing a party
any of whose candidates for Presidential elector received
votes in the last preceding election at which Presidential
electors were selected . . . .” 5 U.S.C. § 7322(2). Further-
more, a USPS employee may not “knowingly solicit,
accept, or receive a political contribution from any per-
son.” 5 U.S.C. § 7323(a)(2). If an employee violates the
Hatch Act, the employee “shall be subject to removal,
reduction in grade, debarment from Federal employment
for a period not to exceed 5 years, suspension, reprimand,
or assessment of a civil penalty not to exceed $1,000.” 5
U.S.C. § 7326.
On appeal, Mr. Lewis argues that the Board failed to
assess crucial facts when making its determination.
Specifically, Mr. Lewis contends that the Board did not
consider that (1) no official complaint was filed against
him with the OSC; (2) he believed his attorney would file
an answer with the Board on his behalf; (3) he had no
knowledge of the Hatch Act; and (4) he thought his con-
duct was permissible in light of an OSC statement.
Petitioner’s Br. at 3–10. Mr. Lewis asks the court to
reconsider the facts, and completely vacate the Board’s
decision, or, at a minimum, reverse the Board’s finding
that he should be removed from his job.
As an initial matter, Mr. Lewis contests the validity of
the proceedings against him. Petitioner’s Br. at 5–6. In
particular, Mr. Lewis argues that it was improper for
OSC to initiate an action against him, because OSC did
not receive a complaint alleging he violated the Hatch Act
on an OSC official complaint form. Without this official
complaint, Mr. Lewis contends OSC had no authority to
investigate and prosecute him.
LEWIS v. MSPB 9
Mr. Lewis’ argument is without merit. While it is
true OSC provides a form for individuals to complete in
order to alert OSC of potential prohibited political activi-
ty, this paperwork is not required. See 5 C.F.R.
§ 1800.1(d) (explaining that a complaint alleging a Hatch
Act violation may be submitted in any written form). The
absence of an official complaint did not prevent OSC from
investigating Mr. Lewis’ alleged Hatch Act violations.
A. Good Cause
Mr. Lewis next contends that the Board should have
excused his failure to answer OSC’s complaint, because of
his attorney’s negligence. If his failure to respond were
excused, Mr. Lewis argues that the Board would not have
excluded his response and would have considered evi-
dence presented in his untimely answer, including evi-
dence that he had no knowledge of the Hatch Act. Mr.
Lewis alleges that, if the Board had considered this
information, it would have reached a different outcome in
this case.
Mr. Lewis does not dispute that he failed to comply
with the requirements of 5 C.F.R. § 1201.124(c), which
states that an answer must be filed “with the Clerk of the
Board within 35 days of the date of service of the com-
plaint.” Instead, Mr. Lewis complains that the Board
erred when it failed to find he had demonstrated good
cause for the delay in filing his answer.
“To establish good cause for a filing delay, [a party]
must show that the delay was excusable under the cir-
cumstances and that the [party] exercised due diligence in
attempting to meet the filing deadline.” Zamot v. Merit
Sys. Prot. Bd., 332 F.3d 1374, 1377 (Fed. Cir. 2003). The
Board’s decision regarding a showing of good cause “is a
matter committed to [its] discretion and this court will not
substitute its own judgment for that of the Board.” Men-
doza v. Merit Sys. Prot. Bd., 966 F.2d 650, 653 (Fed. Cir.
1992). This court “will disturb [only] the grant or denial
10 LEWIS v. MSPB
of such a waiver [] if it is arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with the law.”
Id.
In its decision to uphold the ALJ’s entry of default,
the Board explained that “a party is bound by the actions
or inactions of his chosen representative, which generally
do not excuse the appellant’s filing delay.” Board Deci-
sion, 121 M.S.P.R. at 115 (citations omitted). Therefore,
even if Mr. Lewis had properly designated his attorney as
his representative, Mr. Lewis would have been bound by
that counsel’s inaction. While Mr. Lewis claims that the
Board failed to properly consider his counsel’s negligence
in reaching its decision, it clearly did, but found that any
such negligence would not excuse Mr. Lewis’ failure to
respond, particularly given Mr. Lewis’ own status as an e-
filer. The burden was on Mr. Lewis to show good cause
for his failure to respond. We find no abuse of discretion
in the Board’s conclusion that Mr. Lewis failed to meet
that burden.
B. Hatch Act Violations
Mr. Lewis also argues that the Board failed to consid-
er his contentions that he had no knowledge of the Hatch
Act. If the Board had examined these facts, Mr. Lewis
alleges, it would have concluded that he was innocent.
The Hatch Act prohibits an USPS employee from
running for partisan political office. This prohibition does
not require knowledge or intent, as Mr. Lewis suggests.
Rather, the statute simply states that a USPS employee
may not “run for nomination or as a candidate for election
to a partisan political office.” 5 U.S.C. § 7323(a)(3). Mr.
Lewis is correct, though, that an individual must “know-
ingly solicit, accept or receive a political contribution from
any person,” in order to violate the restriction against
political fundraising. 5 U.S.C. § 7323(a)(2) (emphasis
added). While Mr. Lewis contends he cannot be guilty if
he had no knowledge that the soliciting of donations
LEWIS v. MSPB 11
violated any law, the statutory knowledge requirement
does not require such scienter. Rather, the statute simply
states one must knowingly solicit a political contribution,
which even in Mr. Lewis’ untimely response, he admits.
See Respondent’s Appendix at 87 (Mr. Lewis, in his an-
swer, admits that his campaign website asked for dona-
tions and provided a link to PayPal where individuals
could donate to his campaign).
Here, the Board found it was undisputed that Mr.
Lewis participated in two partisan elections and knowing-
ly solicited political contributions during both campaigns
via his campaign website and Facebook page. Board
Decision, 121 M.S.P.R. at 115. Substantial evidence
supports these conclusions. Therefore, we affirm the
Board’s determination that Mr. Lewis violated the Hatch
Act.
C. Penalty
Lastly, Mr. Lewis challenges the reasonableness of his
penalty. Specifically, Mr. Lewis argues that the Board
failed to consider his belief that his conduct was permissi-
ble in light of a newspaper article, wherein an OSC
spokeswoman stated that an employee does not run afoul
of the Hatch Act if the employee runs as an independent
candidate. “[I]t is a well-established rule of civil service
law that the penalty for employee misconduct is left to the
sound discretion of the agency.” Lachance v. Devall, 178
F.3d 1246, 1251 (Fed. Cir. 1999) (quoting Miguel v. Dep’t
of the Army, 727 F.2d 1081, 1083 (Fed. Cir. 1984)). There-
fore, “[t]his court ‘will not disturb a choice of penalty
within the agency’s discretion unless the severity of the
agency’s action appears totally unwarranted in light of all
the factors.’” Eidmann v. Merit Sys. Prot. Bd., 976 F.2d
1401, 1408 (Fed. Cir. 1992) (quoting Mings v. Dep’t of
Justice, 813 F.2d 384, 390 (Fed. Cir. 1987)).
Contrary to Mr. Lewis’ assertions, the Board consid-
ered Mr. Lewis’ claim that he thought, even if mistakenly,
12 LEWIS v. MSPB
that he could run for political office as an independent.
The Board explained that there are very narrow condi-
tions that allow an employee who resides “in a municipal-
ity or political subdivision designated by [the Office of
Personnel Management (OPM)] . . . [to] [r]un as inde-
pendent candidate[] for election to partisan political office
in elections for local office in the municipality or political
subdivision.” Id. at 122 n.3 (quoting 5 C.F.R.
§ 733.103(b)(1)). This limited exception, however, was
inapplicable to Mr. Lewis, because he ran for “elected
office on the federal level.” Id. Additionally, even if Mr.
Lewis initially believed his actions were permissible, the
Board concluded that the multiple OSC notices made it
clear to Mr. Lewis that he should not continue with his
political activities. Therefore, the Board concluded that
his alleged reliance on a newspaper article was not suffi-
cient to mitigate his penalty.
Ultimately, while Mr. Lewis may disagree with the
Board’s determination, there is nothing in the record to
suggest that we should overturn its decision. Here, the
Board considered several factors to reach its decision. For
example, the Board weighed OSC’s and USPS’s repeated
attempts to warn Mr. Lewis that his candidacy violated
the Hatch Act and Mr. Lewis’ decision to remain a candi-
date in both congressional races after these warnings,
against Mr. Lewis’ alleged belief that his conduct was
lawful. Board Decision, 121 M.S.P.R. at 121–23. The
Board also explained that Mr. Lewis’ penalty was com-
mensurate with other penalties the Board had imposed
under similar circumstances. Id. at 123. Lastly, the
Board noted that Mr. Lewis’ employment record, which
included an extensive disciplinary history, did not miti-
gate the penalty. Id. at 123–24. Given Mr. Lewis’ “unwa-
vering resolve to run for partisan political office” in the
face of repeated protestations by OSC and USPS, the
Board concluded removal was appropriate. Id. at 124. In
light of the Board’s thorough consideration of the facts,
LEWIS v. MSPB 13
there is no reason to find the penalty unreasonable in this
case.
III. CONCLUSION
Accordingly, we affirm the decision of the Board.
AFFIRMED