The Federal Government found Jeffrey Eisinger to have manipulated the
Federal Small Business Administration offices to the harm of the American
public as shown in the following case:
"JEFFREY EISINGER OF FRESNO, CALIFORNIA FELONY CHARGES FOR ABUSE OF
FEDERAL SBA OFFICES BY EISINGER
United States Court of Appeals for the Federal Circuit - 2006-3426
JEFFREY W. EISINGER,
Petitioner,
v.
UNITED STATES OF AMERICA
Respondent.
Jeffrey W, Eisinger, of Fresno, California, pro se.
Jeffrey A. Gauger, Attorney, Office of the General Counsel, United
States Merit Systems Protection Board, of Washington, DC, for
respondent.
With him on the brief were B. Chad Bungard, General Counsel, and Rosa
M. Koppel, Deputy General Counsel.
Appealed from: United States Merit Systems Protection Board
United States Court of Appeals for the Federal Circuit - 2006-3426
JEFFREY EISINGER
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD, Respondent.
DECIDED: June 8, 2007
Before MICHEL, Chief Judge, HOLDERMAN, Chief Judge * , and GAJARSA,
Circuit Judge.
PER CURIAM.
Jeffrey Eisinger (“Mr. Eisinger”) appeals from a final decision of the
Merit Systems Protection Board (“Board”). Special Counsel v. Eisinger,
103 M.S.P.R. 252 (2006) (“Final Decision”). The Board determined that
Mr. Eisinger had violated the Hatch Act, 5 U.S.C. §§ 7321-26, which
prohibits federal employees from engaging in certain partisan political
activities. Final Decision at 253. The Board further determined that
removal was the appropriate penalty for Mr. Eisinger’s violation of the
Act. Id. We affirm.
Honorable James F. Holderman, Chief Judge, United States District Court
for the Northern District of Illinois, sitting by designation.
BACKGROUND
The facts of this case are not in dispute. The parties stipulated to the
relevant facts in the proceeding before the board.
Mr. Eisinger was employed as a staff attorney with the United States
Small Business Administration (“SBA”) in Fresno, California until his
removal as a result of the present litigation. He admits that he “was
aware of the Hatch Act and knew that the Hatch Act prohibited federal
employees from engaging in partisan political activity while at work.”
However, Mr. Eisinger also admits that from the fall of 2001 to
September 2004 he conducted political activity while on duty or while in
a room or building occupied in the discharge of official duties, in
violation of the Hatch Act. Mr. Eisinger’s political activities related
to several positions that he held within the Green Party of California,
a state political party.
Specifically, during the relevant time period he used his government
e-mail account to send numerous messages “that were directed toward the
success of the Green Party,” he “[h]eld telephone conversations that
were directed toward the success of the Green Party,” and he “[u]sed his
government computer to draft documents that were directed toward the
success of the Green Party.”
As a result of Mr. Eisinger’s conduct of political activities while at
work as a government employee, the OSC filed a complaint with the Board
for violations of the Hatch Act. The complaint was tried before an
administrative law judge (“ALJ”) who issued an initial decision on
November 17, 2005. Special Counsel v. Eisinger, No. CB- 1216-05-0011-T-1
(M.S.P.B. Nov. 17, 2005) (“Initial Decision”). The ALJ found that Mr.
Eisinger had violated the Hatch Act and that he should therefore be
removed from his position with the SBA.
Initial Decision at 19. On August 9, 2006, the Board issued a 2006-3426
final decision and order accepting and adopting the ALJ’s reasoning and
findings. Final Decision at 252. As a result, the Board ordered the SBA
to remove Mr. Eisinger from his position as a staff attorney. Id.
Mr. Eisinger filed an appeal to this court from the Board’s decision.
This court has jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
This court must affirm the Board’s decision unless it is “(1) arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with
law; (2) obtained without procedures required by law, rule, or
regulation having been followed; or (3) unsupported by substantial
evidence.” 5 U.S.C. § 7703(c); Barrett v. Soc. Sec. Admin., 309 F.3d
781, 785 (Fed. Cir. 2002).
The Hatch Act “prohibits covered government employees from engaging in
certain partisan political activities.” McEntee v. Merit Sys. Prot. Bd.,
404 F.3d 1320, 1322 (Fed. Cir. 2005). Among the political activities
prohibited by the Hatch Act are those engaged in “(1) while the employee
is on duty [or] (2) in any room or building occupied in the discharge of
official duties by an individual employed or holding office in the
Government of the United States or any agency or instrumentality thereof
. . . .”
5 U.S.C. § 7324(a). The Act does not prohibit federal employees from
engaging in most types of political activities while off-duty. McEntee,
404 F.3d at 1328. The Hatch Act’s prohibitions apply to Mr. Eisinger
because he is an “individual . . . employed or holding office in . . .
an Executive agency other than the Government Accountability Office . .
. .” 5 U.S.C. § 7322(1)(A). Mr. Eisinger admits that he engaged in
political activities in support of the Green Party of California while
on-duty 2006-3426 at his government job.
The Board therefore properly found that Mr. Eisinger had violated the
Hatch Act.
Mr. Eisinger argues that removal was not the appropriate penalty for his
violations of the Hatch Act. The Act provides that: An employee or
individual who violates sections 7323 or 7324 of this title shall be
removed from his position, and funds appropriated for the position from
which removed thereafter may not be used to pay the employee or
individual. However, if the Merit Systems Protection Board finds by
unanimous vote that the violation does not warrant removal, a penalty of
not less than 30 days’ suspension without pay shall be imposed by
direction of the Board.
5 U.S.C. § 7326. In determining whether a penalty other than removal
should be imposed, this court has stated that the Board should consider
the following Purnell factors: “[1] the nature of the offense and the
extent of the employee’s participation, [2] the employee’s past
employment record, [3] the political coloring of the employee’s
activities, [4] whether the employee had received advice of counsel
regarding the activities[,] [5] whether the employee had ceased the
activities, and [6] the employee’s motive and intent.” Kane v. Merit
Sys. Prot. Bd., 210 F.3d 1379, 1382 (Fed. Cir. 2000); Special Counsel v.
Purnell, 37 M.S.P.R. 184, 200 (1988).
In deciding that removal was the appropriate penalty for Mr.
Eisinger’s violation, the Board considered each of the Purnell factors
as well as several other factors raised by Mr. Eisinger. The additional
factors included the lack of notoriety of the offense, that he did not
receive any specific warnings from OSC, his potential for
rehabilitation, and unusual job tensions that were present at the time
of the violations. Initial Decision at 18. 2006-3426
Mr. Eisinger argues that the Board erred by applying a penalty
inconsistent with those imposed in other Hatch Act cases where the
penalty was mitigated. However, many of the cases cited by Mr. Eisinger
are settled cases and are therefore of limited precedential value. See,
e.g., Special Counsel v. Spada, 66 M.S.P.R. 526 (1995); Special Counsel
v. Andrezjwski, 63 M.S.P.R. 495 (1994). Further, the Board analyzed each
of the cited cases but found them to be significantly different from Mr.
Eisinger’s.
Here, Mr. Eisinger, by his own admission, engaged in a significant
amount of political activity while at work over a three year period.
None of employees in the cases cited by Mr. Eisinger devoted nearly the
amount of time as Mr. Eisinger to the activities that violated the Hatch
Act. See, e.g., Special Counsel v. Malone, 84 M.S.P.R. 342 (1999);
Special Counsel v. Rivera, 61 M.S.P.R. 440 (1994). Because the political
activities of the employees in those cases were much more limited than
Mr. Eisinger’s, the penalties in those cases cannot form a basis for
comparison to Mr. Eisinger’s penalty.
Accordingly, we find that the Board’s decision that removal was an
appropriate penalty in Mr. Eisinger’s situation was not arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with
law.
Mr. Eisinger also argues that the Board made several factual errors in
its analysis of the Purnell and other factors. We have reviewed those
claims and determine that the Board’s findings are supported by
substantial evidence. Mr. Eisinger further argues that the Board erred
by refusing to stay its proceedings pending the resolution of charges of
impropriety against the Special Counsel, by denying his motion to compel
discovery of the OCS’s investigation manual, by denying his motion for
certification for interlocutory appeal from the denial of his discovery
request, and by rejecting his affirmative 2006-3426 defenses of laches,
the Administrative Procedure Act, and discrimination based on political
affiliation. However, we have considered these issues and determine that
the Board’s decisions with respect to them were not arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with
law.
CONCLUSION
We conclude that the Board did not commit legal error in its decision to
remove Mr. Eisinger from his position as a staff attorney for the SBA
for his grievous violations of the Hatch Act. The decision of the Board
is therefore affirmed."
In discussions and statements by Margaret Vigil Soltero AKA Margaret V Gonzales and the Soltero family members at 5661 North Prospect Avn, Fresno, CA 93711-2156, communications were heard by neighbors, associates and others which implicated Eisinger in Scientology-related activities and real estate acquisitions of a questionable rights holder status. Family members noted that Eisinger's parents had been committed and felt that there was "something wrong" with Eisinger. An investigation into