United Federal Workers of America v. Mitchell, Civil Action No. 24007.

• Decision Date: 03 August 1944
• Docket Number: Civil Action No. 24007.
• Citation: 56 F. Supp. 621
• Parties: UNITED FEDERAL WORKERS OF AMERICA (C. I. O.) et al. v. MITCHELL et al.
• Court: U.S. District Court — District of Columbia

56 F. Supp. 621

UNITED FEDERAL WORKERS OF AMERICA (C. I. O.) et al. v. MITCHELL et al.

Civil Action No. 24007.

District Court of the United States for the District of Columbia.

August 3, 1944.

Lee Pressman, of Washington, D.C., for plaintiffs.

Joseph M. Friedman, Sp. Asst. to Atty. Gen. (Francis M. Shea, Asst. Atty. Gen., Edward M. Curran, U. S. Atty., of Washington, D. C., and Tobias G. Klinger, of Cleveland, Ohio, and Jess G. Schiffmann, of New York City, on the brief), for defendants.

Before GRONER, Chief Justice, United States Court of Appeals, District of Columbia, and BAILEY and MORRIS, Justices.

BAILEY, Justice.

This is an action brought to declare invalid, as in contravention of the Constitution of the United States, the second sentence of Section 9(a) of the Act of August 2, 1939, as amended, popularly known as the Hatch Act, 18 U.S.C.A. § 61h(a), 53 Stat. 1147, 1148, 54 Stat. 767, 56 Stat. 181, and to enjoin the defendants, members of the United States Civil Service Commission, "from enforcing, threatening to enforce, or otherwise acting" pursuant to that provision. Defendants have moved to dismiss the action and for summary judgment, the motion being accompanied by affidavit.

The following are the pertinent statutes and regulations:

Section 9(a) of the Hatch Act is as follows:

"It shall be unlawful for any person employed in the executive branch of the Federal Government, or any agency or department thereof, to use his official authority or influence for the purpose of interfering with an election or affecting the result thereof. No officer or employee in the executive branch of the Federal Government, or any agency or department thereof, except a part-time officer or part-time employee without compensation or with nominal compensation serving in connection with the existing war effort, other than in any capacity relating to the procurement or manufacture of war material shall take any active part in political management or in political campaigns. All such persons shall retain the right to vote as they may choose and to express their opinions on all political subjects and candidates. For the purposes of this section the term `officer' or `employee' shall not be construed to include (1) the President and Vice President of the United States; (2) persons whose compensation is paid from the appropriation for the office of the President; (3) heads and assistant heads of executive departments; (4) officers who are appointed by the President, by and with the advice and consent of the Senate, and who determine policies to be pursued by the United States in its relations with foreign powers or in the Nation-wide administration of Federal Laws."

Section 9(b) of the Hatch Act is as follows:

`Any person violating the provisions of this section shall be immediately removed from the position or office held by him, and thereafter no part of the funds appropriated by any Act of Congress for such position or office shall be used to pay the compensation of such person."

Section 15 of the Hatch Act is as follows:

"The provisions of this subchapter which prohibit persons to whom such provisions apply from taking any active part in political management or in political campaigns shall be deemed to prohibit the same activities on the part of such persons as the United States Civil Service Commission has heretofore determined are at the time this section takes effect prohibited on the part of employees in the classified civil service of the United States by the provisions of the civil-service rules prohibiting such employees from taking any active part in political management or in political campaigns." 18 U.S.C.A. § 61o, 54 Stat. 767.

Section 18 of the Hatch Act is as follows:

"Nothing in the second sentence of section 9 (a) * * * shall be construed to prevent or prohibit any person subject to the provisions of this subchapter from engaging in any political activity (1) in connection with any election and the preceding campaign 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, or (2) in connection with any question which is not specifically identified with any National or State political party. For the purposes of this section, questions relating to constitutional amendments, referendums, approval of municipal ordinances, and others of a similar character, shall not be deemed to be specifically identified with any National or State political party." 18 U.S. C.A. § 61r, 54 Stat. 767.

Revised Statutes, § 1753, 5 U.S.C.A. § 631, contains the following provision:

"The President is authorized to prescribe such regulations for the admission of persons into the civil service of the United States as may best promote the efficiency thereof, and ascertain the fitness of each candidate in respect to age, health, character, knowledge, and ability for the branch of service into which he seeks to enter * * * and may * * * establish regulations for the conduct of persons who may receive appointments in the civil service."

In the exercise of power conferred by R. S. § 1753, and by the Civil Service Act, 5 U.S.C.A. § 632 et seq., the President has promulgated a number of Civil Service Rules. Civil Service Rule I is as follows:

"No person in the executive civil service shall use his official authority or influence for the purpose of interfering with an election or affecting the results thereof. Persons who by the provisions of these rules are in the competitive classified service, while retaining the right to vote as they please and to express their opinions on all political subjects, shall take no active part in political management or in political campaigns." 5 C.F.R. 1943 Cum.Supp., 1.1.

Civil Service Rule XV is as follows:

"Whenever the Commission finds, after due notice and opportunity for explanation, that any person has been appointed to or is holding any position, whether by original appointment, promotion, assignment, transfer, or reinstatement, in violation of the Civil Service Act or Rules, or of any Executive Order or any regulation of the Commission, or that any employee subject thereto has violated such act, rules, orders, or regulations, it shall certify the facts to the proper appointing officer with specific instructions as to discipline or dismissal of the person or employee affected. If the appointing officer fails to carry out the instruction of the Commission within 10 days after receipt thereof, the Commission shall certify the facts to the proper disbursing and auditing officers, and such officers shall make no payment or allowance of the salary or wages of any such person or employee thereafter accruing." Executive Order No. 8705, March 5, 1941. 5 C.F.R.1943 Cum.Supp., 15.1.

This action is brought by the United Federal Workers of America, an unincorporated labor union composed of employees of the United States Government, and 12 individual plaintiffs, each of whom occupies a position in the Federal government under the classified civil service. The defendants are the duly appointed and acting members of the United States Civil Service Commission.

The plaintiff union asserts that it has "an interest in protecting and restoring the rights of its membership" and that it brings this action "as a representative of, and on behalf of, all of its members, including those who have not specifically joined in suing individually, who are subject to the provisions of the second sentence of Section 9 (a) of the Hatch Act."

The plaintiffs charge that if they engage in the activities forbidden by Section 9 (a) of the Hatch Act the defendants will cause them to be dismissed; that plaintiff Poole has already conducted political activities in violation of said Section 9(a), and that the defendants have already commenced proceedings for his dismissal from the employ of the United States.

The defendants contend that neither plaintiff union nor the individual plaintiffs can maintain this action; that it is not claimed that the Union is prevented from engaging in any political activity; that a union does not stand in a position where it can assert the individual rights of its members; that the plaintiffs, other than Poole, have only hypothetical issues, and that they are not hurt because they have done nothing in violation of the Act.

Whether or not the union can maintain this action in a representative capacity the individual plaintiffs are in a different situation. The mere existence of the statute, saying that they shall not engage in political activity, the penalty in the statute that they shall be dismissed if they do, and the warning addressed to them by the Civil Service Commission in their posters certainly prevent them from engaging in such activity, if the statute is constitutional. If the statute is unconstitutional, they are being prevented from things which they have the right to do. If the statute is constitutional, it is mandatory that they be dismissed for doing such things. As to the plaintiff Poole, he has done the things denounced by the statute. If the Act is valid, dismissal is mandatory. There is no need for him to follow further administrative procedures. The provisions of Civil Service Rule XV that in case of any violation of the Civil Service Act or Rules or of any Executive Order or any regulation of the Commission the Commission shall certify the facts to the proper appointing officer with specific instructions as to discipline or dismissal is now controlled by the provisions of the Hatch Act that in case of violation of Section 9(a) of that Act, dismissal is mandatory.

We are of the opinion, therefore, that the individual plaintiffs have such an interest as to give them the right to maintain this suit.

The defendants further contend that the Civil Service Commission has no responsibility under...