American Federation of Government Employees v. Office of Special Counsel, No. 20-1976 (4th Cir. 2021)Annotate this Case
AFGE filed suit challenging two advisory opinions issued by the OSC, the agency tasked by Congress to advise on the way in which the Hatch Act's prohibitions in the federal workplace applied. The original advisory opinion was promulgated on November 27, 2018, and a clarifying opinion was promulgated three days later (jointly, "the Advisory Opinions"). Both opinions bore on conduct related to President Trump's reelection campaign. AFGE sought a declaration that the Advisory Opinions violated its members' rights under the First Amendment; an injunction against OSC's reliance on and enforcement of the Advisory Opinions; and a court order commanding their rescission. The district court dismissed the complaint on ripeness grounds.
The Fourth Circuit affirmed the district court's dismissal of the action, concluding that AFGE's case is now moot and would otherwise be unripe for review. The court explained that OSC's post-election update of its guidance on impeachment and "the resistance" has removed AFGE's injury-in-fact and, therefore, mooted the case. Furthermore, the issues in this case are not fit for judicial decision and the mere issuance by OSC of a generally addressed advisory opinion falls short of what is required. Finally, the court noted that for it to rule this case justiciable would upend the Hatch Act enforcement scheme whose details Congress has so meticulously set out.