The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER AND DISMISSING ACTION
Plaintiff Chirstopher Newcomb has filed a motion for a temporary restraining order. Plaintiff seeks to enjoin Defendants from (1) removing or suspending him from his position as an employee of the federal government, or (2) pursuing any enforcement action under the Hatch Act against him as a result of his participation in the upcoming Alpine Union School District board election, scheduled for November 2, 2010. For the reasons discussed below, Plaintiff motion for a temporary restraining order is DENIED, and this case is DISMISSED.
Plaintiff Christopher Newcomb is employed as an Acquisition Professional/ Software Program Manager at Space and Naval Warfare Systems Command (SPAWAR) in San Diego, California. Plaintiff currently serves on the Alpine Union School District Board.
Plaintiff was appointed to the Board to fill the unexpired term of a previous school board member who resigned. Plaintiff's current term expires in November, 2010.
Plaintiff desires to retain his seat on the school board. He has filled out all of the necessary documents to stand for election, and his name will appear on the November 2, 2010 ballot.
The Board has five members, with three seats up for election in November. Under California law, the Board election is nonpartisan. Cal. Const., Art. II, § 6(a); Cal. Election Code §§ 334, 8002. According to Plaintiff, he is running a nonpartisan campaign for election to the Board, has not sought and will not accept the endorsement or support of any political party or partisan organization, and has not sought and will not accept any financial or other contributions or support from any political party or partisan organization. (Newcomb Decl. ¶¶ 6-7.) Plaintiff also characterizes the matters at issue in the campaign as "nonpartisan in nature." (Newcomb Decl. ¶ 8.)
Plaintiff sought the advice of the U.S. Office of Special Counsel ("OSC") regarding whether standing for election to the Board would violate the Hatch Act. In a letter dated April 14, 2010, the OSC responded to Plaintiff's request for an advisory opinion. (Ex. 2 to Newcomb Decl.)
In the letter, Peta-Gay Irving Brown, an attorney with OSC, explained that the Hatch Act prohibits candidacy in partisan elections. 5 U.S.C. § 7323(a)(3). Brown further explained that although state or local laws designate an election as "nonpartisan," such designation crates only a rebuttable presumption that an election is nonpartisan. Brown advised that the Hatch Act prohibits Plaintiff from being a candidate in an election that has become partisan even if he is running independent of a political party, and that "if any candidate in the nonpartisan election for AUSD School Board engages in conduct that warrants a conclusion that the candidate represents a political party, then the election has become a partisan election."
With respect to what conduct can convert a nonpartisan election into a partisan one, Brown explained:
No bright-line rule exists that identifies the type or amount of conduct needed to prove that a statutorily designated nonpartisan election, in fact, became a partisan one. McEntee, 404 F.3d at 1334. Therefore, OSC would have to evaluate the facts and circumstance of each case to determine whether a candidate in a nonpartisan election engaged in conduct that warrants a conclusion that the candidate represents a political party. Generally, a nonpartisan election could become partisan if, for example, one of the candidates in the election were to: participate in and win a party caucus; hold himself out as having the party's political support by lauding such support in his speeches, flyers, or mailings; seek or advertise a political party's endorsement; or receive support of a political party in the form of funding, campaign supplies, campaign volunteers, campaign publications, or use of the political party headquarters. Please note that the foregoing is not an exhaustive list of circumstances that could change a nonpartisan election to [a] partisan one. (Brown letter, p. 2.)
Plaintiff is aware of two candidates for the Board who have been endorsed by political parties (one has been endorsed by the county Democratic Party and the other has been endorsed by the county Republican Party). (Newcomb Decl. ¶ 11.) Plaintiff does not know if any other candidates have been endorsed by any political party or have received any support from any political party. (Id.) Plaintiff states that he has been informed by OSC that if it determines that the election has become partisan, it will instruct him to either withdraw from the election or resign. (Newcomb Decl. ¶ 13.) OSC advised Plaintiff that if he could not officially withdraw, he would have to take steps such as making a public announcement and ceasing all campaign activities. (Id.) In the event he was nonetheless elected, he would have to decline to take his seat or resign his federal position. (Id.)
On August 27, 2010, Plaintiff's attorney, David Blair-Loy, e-mailed Brown and advised Brown that the Republican Party had endorsed one of the candidates in the school board race. (Brown Decl. ¶ 13.) On September 2, 2010, Brown sent a reply e-mail, explaining that OSC would need to investigate the matter ...