Smith v. U.S. Civil Service Commission, 74-1556

• Decision Date: 14 July 1975
• Docket Number: No. 74-1556,74-1556
• Citation: 520 F.2d 731
• Parties: Anna SMITH et al., Plaintiffs-Appellants, v. UNITED STATES CIVIL SERVICE COMMISSION et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 731

520 F.2d 731

Anna SMITH et al., Plaintiffs-Appellants, v. UNITED STATES CIVIL SERVICE COMMISSION et al., Defendants-Appellees.

No. 74-1556.

United States Court of Appeals, Seventh Circuit.

Argued April 14, 1975.

Decided July 10, 1975.

As Amended July 14, 1975.

Richard L. Curry, Corp. Counsel, Edmund Hatfield, Asst. Corp. Counsel, Chicago, Ill., for plaintiffs-appellants.

James R. Thompson, U. S. Atty., Gary L. Starkman and Floyd Babbitt, Asst. U. S. Attys., Chicago, Ill., for defendants-appellees.

Before CASTLE, Senior Circuit Judge, and STEVENS and SPRECHER, Circuit Judges.

SPRECHER, Circuit Judge.

The issue raised by this appeal is whether the complaint, mounting a constitutional attack on the Hatch Act insofar as it affects state and local employees, was properly dismissed as lacking a substantial federal question.

I

At the outset we are faced with pleading deficiencies which go to the propriety of federal jurisdiction.

The plaintiffs in their amended complaint for declaratory judgment and injunctive relief have alleged that jurisdiction is conferred by28 U.S.C. § 1331 and § 1343(3). ¹

Section 1343(3) grants jurisdiction of an action commenced "(t)o redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States" (emphasis added). The plaintiffs further allege that they seek redress under Section 1983, which provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983 (emphasis added).

Inasmuch as the plaintiffs are here complaining about acts done by the defendants under color of federal law rather than state law, 42 U.S.C. § 1983 does not apply. Bivens v. Six Unknown Named Agents, 456 F.2d 1339, 1346 (2d Cir. 1972); Norton v. McShane, 332 F.2d 855, 862 (5th Cir. 1964), cert. denied, 380 U.S. 981, 85 S.Ct. 1345, 14 L.Ed.2d 274. Consequently, jurisdiction is not conferred by 28 U.S.C. § 1343(3).

The jurisdictional basis for this case must be 28 U.S.C. § 1331(a), Bivens v. Six Unknown Named Agents, 403 U.S. 388, 398, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (Harlen, J., concurring), which provides:

The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States.

28 U.S.C. § 1331(a).

The amended complaint does not contain allegations satisfying the jurisdictional amount and was properly dismissed on that ground alone, although not raised by the parties nor mentioned as a ground by the district court in its dismissal order.

Although we could permit the plaintiffs to amend their complaint in this court to allege the proper jurisdictional amount for each plaintiff, assuming that such allegations could, in good faith be made, ² it would be futile to do so if we ultimately concluded that the amended complaint was also properly dismissed for the ground assigned by the district court, namely lack of a substantial federal question.

II

The section of the Hatch Act which the plaintiffs specifically attack provides that A State or local officer or employee ³ may not

(3) take an active part in political management or in political campaigns.

5 U.S.C. § 1502(a)(3).

The complaint was filed on March 9, 1973. On October 15, 1974, Congress amended Section 1502(a)(3), effective January 1, 1975, to read as follows:

A State or local officer or employee may not

(3) be a candidate for elective office.

Pub.L. 93-443, Title IV, § 401(a), Oct. 15, 1974, 88 Stat. 1290.

Section 1503 was also amended to read:

Section 1502(a)(3) of this title does not prohibit any State or local officer or employee from being a candidate in any election if none of the candidates is to be nominated or elected at such election as representing a party any of whose candidates for Presidential elector received votes in the last preceding election at which Presidential electors were selected.

Id. § 401(b)(1).

The relief sought here was the convening of a three-judge court and injunctive and declaratory relief.

"The necessary determination (prerequisite to injunctive relief) is that there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive." United States v. W. T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 898, 97 L.Ed. 1303 (1953).

In Hall v. Beals, 396 U.S. 45, 90 S.Ct. 200, 24 L.Ed.2d 214 (1969), a three-judge court had held a durational residency voting requirement of Colorado law to be constitutional. The plaintiff had sought an injunction restraining enforcement of the statute. While the case was pending on appeal in the Supreme Court, Colorado substantially reduced the duration of the residency requirement. The Supreme Court, in vacating the judgment below and remanding with directions to dismiss the cause as moot, said:

(T)he recent amendatory action of the Colorado Legislature has surely operated to render this case moot. . . . The case has therefore lost its character as a present, live controversy of the kind that must exist if we are to avoid advisory opinions on abstract propositions of law.

Id. at 48, 90 S.Ct. at 201.

In Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967), the Supreme Court indicated that "a request for a declaratory judgment that a state statute is overbroad on its face must be considered independently of any request for injunctive relief against enforcement of that statute." Id. at 254, 88 S.Ct. at 399. After remand to the district court, however, the Zwickler case was again appealed to the Supreme Court, which held that the case should be dismissed as moot since Zwickler had been convicted of violating a New York election law by distributing anonymous handbills attacking a Congressman, and subsequently that Congressman had been appointed to the Supreme Court of New York. Therefore, no "controversy" existed because there was no prospect that Zwickler would ever be prosecuted again for distributing similar handbills. Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969). The Court quoted United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947), a Hatch Act case, in concluding:

The power of courts, and ultimately of this Court to pass upon the constitutionality of acts of Congress arises only when the interests of litigants require the use of this judicial authority for their protection against actual interference. A hypothetical threat is not enough.

Id. at 90, 67 S.Ct. at 564.

It would appear that the congressional amendment, which occurred after the district court dismissed the case as lacking a substantial federal question, rendered future threats of actual interference with the plaintiffs moot, and warranted the dismissal of the case which sought only injunctive and declaratory relief.

III

But assuming arguendo that the present Hatch Act statutory prohibition against being a candidate for elective office preserves a shred of the controversy, we proceed a step further. The question of partial mootness, as opposed to what we believe in this case is complete mootness, blends almost imperceptibly into a question of the existence of a substantial federal question. In considering mootness, the Supreme Court said in Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974):

The question is "whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (61 S.Ct. 510, 512, 85 L.Ed. 826) (1941). And since this case involves governmental action, we must ponder the broader consideration whether the short-term nature of that action makes the issues presented here "capable of repetition, yet evading review," so that petitioners are adversely affected by government "without a chance of redress." Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 515 (31 S.Ct. 279, 283, 55 L.Ed. 310) (1911).

Id. at 122, 94 S.Ct. at 1698.

In four cases, two of mature vintage and two very recent, the Supreme Court has upheld virtually every aspect of the Hatch Act against constitutional challenges as it applies to federal employees and to State and local employees. United States Civil Service Commission v. National Ass'n of Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973); Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947); Oklahoma v. Civil Service Commission, 330 U.S. 127, 67 S.Ct. 544, 91 L.Ed. 794 (1947).

The plaintiffs here contended that the portions of the Hatch Act applying to State and local employees violate the First, Fifth, Eighth and Tenth Amendments.

The Hatch Act tetralogy considered in great detail First, Fifth, Ninth and Tenth Amendment attacks on the Act. See, e. g., Mitchell, supra, 330 U.S. at 83, n. 12, 67 S.Ct. 556.

The plaintiffs here argued however, that their Fifth Amendment, attack is novel in suggesting that State and local employees are subjected to more severe penalties than federal employees. The Mitchell case disposed of an...