U.S. Office of Special Counsel
1730 M Street, N.W., Suite 218
Washington, D.C. 20036-4505
Board: OSC Not Liable for Attorney Fees
In State/Local Hatch Cases
FOR IMMEDIATE RELEASE - 1/4/07***
CONTACT: Loren Smith, 202-254-3714,
WASHINGTON, DC – The U.S. Office of Special Counsel prevailed on a
significant legal issue before the Merit Systems Protection Board on December 4,
2006, when the Board ruled that OSC was not liable for attorney fees sought by
respondents in state or local Hatch Act prosecutions.
The case arose on July 21, 2006, when a city
employee and his employer filed separate petitions seeking to recover attorney
fees following OSC’s prosecution of the employee for violating the Hatch Act.
Perkins was a high level employee of the sheriff's office near Las Vegas, was
speaker of the state house, and was running for Governor of Nevada. Perkins and
his Washington D.C. attorneys created a new agency organizational structure,
walling Perkins off from those employees who worked in connection with the
millions of dollars of federal money, for the sole purpose of allowing Perkins
to run for election without technically violating the Hatch Act.
In pursuing the case against Perkins, OSC tried
to show that this was a subterfuge, but the Board affirmed that the evidence was
insufficient to tie Perkins to the millions of dollars of law enforcement
grants. Following the Board’s decision, Perkins and the sheriff’s department
filed petitions to recover 600,000 dollars in attorney fees that were generated
by two Washington, D.C. law firms.
OSC objected to the petitions, arguing that
Congress had not waived the Government’s sovereign immunity from such lawsuits,
and that the respondents, therefore, were not entitled to recover attorney fees.
The Administrative Law Judge assigned to the case initially rejected OSC’s
arguments and found that Congress had waived the Government’s sovereign
immunity. Because this finding involved an important question of law about which
there were substantial grounds for a difference of opinion, the ALJ certified
his decision to the Board for an immediate ruling on this issue of first
The Board unanimously agreed with OSC, finding
that the statute under which respondents sought to obtain attorney fees did not
apply to state and local Hatch Act prosecutions and that Congress had not
otherwise waived the Government’s sovereign immunity to allow State or local
employees and their employers to obtain attorney fees from OSC following
unsuccessful Hatch Act prosecutions. As a result of the Board’s decision, the
ALJ has now denied the respondents’ petitions for attorney fees.
Special Counsel Scott Bloch said, “The Board
correctly found that attorney fees are unrecoverable in state and local cases.
This ruling will help ensure that all suspected violations of the Hatch Act are
fully investigated and enforced where violations are found. Workplaces that are
federal or federally-funded in nature should not be used for political advocacy
or running for partisan elections.”
Office of Special Counsel (OSC) is an independent investigative and
prosecutorial agency. Among other functions, it investigates and prosecutes
complaints alleging violations of the Hatch Act and provides advisory
opinions regarding the Act’s requirements. For more information about OSC,
please visit our web site at www.osc.gov
or call 1-800-872-1855.
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