Am. Fed'n of Gov't Emps. v. Office of Special Counsel

• Decision Date: 11 June 2021
• Docket Number: No. 20-1976,20-1976
• Citation: 1 F.4th 180
• Parties: AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES; American Federation of Government Employees Local 2578, Plaintiffs – Appellants, v. OFFICE OF SPECIAL COUNSEL, Defendant – Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

1 F.4th 180

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES; American Federation of Government Employees Local 2578, Plaintiffs – Appellants,

v.OFFICE OF SPECIAL COUNSEL, Defendant – Appellee.

No. 20-1976

United States Court of Appeals, Fourth Circuit.

Argued: May 5, 2021

Decided: June 11, 2021

ARGUED: Kyle David Lyons-Burke, ARNOLD & PORTER KAYE SCHOLER LLP, Washington, D.C., for Appellants. Jack E. Starcher, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Austin R. Evers, Melanie Sloan, John E. Bies, AMERICAN OVERSIGHT, Washington, D.C.; R. Stanton Jones, Daniel F. Jacobson, Jacob Zionce, ARNOLD & PORTER KAYE SCHOLER LLP, Washington, D.C., for Appellants. Jeffrey Bossert Clark, Acting Assistant Attorney General, Michael S. Raab, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Robert K. Hur, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland; Susan K. Ullman, General Counsel, UNITED STATES OFFICE OF SPECIAL COUNSEL, Washington, D.C., for Appellee.

Before WILKINSON and RUSHING, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Rushing and Senior Judge Traxler joined.

WILKINSON, Circuit Judge:

The federal courts are courts of limited jurisdiction. No matter how interesting or elegant a party's argument, the federal courts have no power to breathe life into disputes that come to us without it. The American Federation of Government Employees and the American Federation of Government Employees Local 2578 (jointly "AFGE") claim that we must enjoin the enforcement of an agency's advisory opinion, already since withdrawn, even before we have the slightest indication that any enforcement action has, or will ever, occur. The First Amendment rights of federal employees, they insist, hang in the balance. But this court has no authority to write an advisory opinion on an advisory opinion. Because AFGE's case is now moot, and would otherwise be unripe, we affirm the judgment of the district court.

I.

AFGE represents over 600,000 federal civilian employees. J.A. 98. It challenges two advisory opinions issued by the Office of Special Counsel ("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.

The Advisory Opinions first provided guidance on the debate around President Trump's initial impeachment. They indicated that, while OSC considered "express[ing] an opinion" on impeachment entirely proper, it did read the Hatch Act as prohibiting "advocacy for or against" impeachment. J.A. 49. Second, OSC opined on the use of phrases like "resistance" and "#resist," stating that, due to their prominence in partisan political campaigns, it considered their use "in isolation" political activity, though not where "facts and circumstances indicate[d] otherwise." J.A. 46.

AFGE sued OSC, seeking: 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. In furtherance of its suit, AFGE produced two affidavits, one of which alleged that a member desired to "express" an "opinion while at work on whether the President should be impeached." J.A. 51. The other alleged that a second member desired to "use ‘resist,’ ‘resistance,’ and iterations of those terms while at work to express ... views and opinions on topics of public importance." J.A. 53. Both claimed to have refrained from doing so "to avoid any possibility of being investigated or subject to disciplinary action." J.A. 51, 53.

The district court dismissed AFGE's complaint on ripeness grounds. Drawing on the D.C. Circuit's analysis in American Federation of Government Employees, AFL-CIO v. O'Connor , 747 F.2d 748 (D.C. Cir. 1984), the district court observed that the Advisory Opinions were non-binding on the Merit Systems Protection Board (the "MSPB"), that they were promulgated to mitigate the Hatch Act's potential to chill political speech, and that AFGE's allegations were too general to make the case fit for judicial review. J.A. 145–46. It specified that AFGE had not "provided any specific allegation as to how the Advisory Opinion interferes with their First Amendment rights" or even as to how any actual conduct of its members was inconsistent with the Advisory Opinions. J.A. 146–47. Nor did AFGE establish, in the district court's estimation, that dismissal of the complaint would cause any "real hardship" to AFGE or its members. J.A. 149. On the contrary, the district court stated, finding AFGE's case justiciable would impose significant burdens on OSC by forcing it to spend its scarce resources in litigation rather than in performing its characteristic Hatch Act functions. J.A. 148–49. Subsequent to the district court's ruling, President Trump left office and OSC withdrew the challenged guidance.

II.

We have before us what is in many ways a unique and distinctive statutory scheme. Understanding exactly what AFGE is asking of this court requires a review of the relevant history. The statutory regime presently governing the political activity of federal employees did not, after all, spring up from a seed planted yesterday, or even thirty years ago. Rather, it is the product of close congressional attention since the early days of our republic. In 1791, Congress deliberated on a bill "to prevent Inspectors [of distilled spirits], or any officers under them, from interfering, either directly or indirectly, in elections, further than giving their own votes." 2 Annals of Congress 1924–25 (1791). Although that bill did not pass, the ideal of a neutral civil service had already germinated and was destined to endure. Ten years later, President Jefferson renewed the call and decried "officers of the General Government taking on various occasions active parts in the elections of public functionaries." 10 James D. Richardson, A Compilation of the Messages and Papers of the Presidents, 1789–1879, at 98 (1902). He called instead for a system in which the duty of federal officers to the Constitution would assume precedence over partisan desires to "influence the votes of others [ ]or take ... part in the business of electioneering." Id.

Although not achieved during Jefferson's lifetime, civil service reform was eventually enacted in the Pendleton Act of 1883. Civil Service Act of 1883, ch. 522, 22 Stat. 403. The Act represented Congress’ judgment that the common good of the nation required some limits on the speech of certain federal employees to safeguard efficiency and integrity in the civil service. By prohibiting federal employees in certain agencies from "using [their] official authority or influence either to coerce the political action of any person or body or to interfere with any election," the Pendleton Act uprooted the notorious "spoils system" that had hitherto privileged partisan loyalty above professional merit. Id. President Theodore Roosevelt reinforced this regime by executive order, so that federal employees covered by the Pendleton Act "while retaining the right ... to express privately their opinions on all political subjects, shall take no active part in political management or political campaigns." Exec. Order No. 642 (June 3, 1907).

However, as the nation became better aware of conditions in the civil service—mainly in consequence of corruption scandals surrounding elections in 1936 and 1938—Congress entered into an impassioned debate about whether this balance between political neutrality and freedom of speech for federal employees should be readjusted. See Scott J. Bloch, The Judgment of History: Faction, Political Machines, and the Hatch Act , 7 U. Pa. J. of Lab. & Emp. L. 225, 231–32 (2005). Its ultimate solution was enacted as the Hatch Act of 1939, of which Section 9(a) was the essence:

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, 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.

An Act to Prevent Pernicious Political Activities (Hatch Act), ch. 410, 53 Stat. 1147 (1939). No longer binding solely on a subset of federal civil servants, the strictures of the Hatch Act now applied generally to executive branch employees. Congress preserved their right to express political opinions while limiting their right to engage in partisan activity whose impact on the political process was more direct.

Twice the constitutionality of the Hatch Act was challenged in the Supreme Court, and twice the Supreme Court upheld it. See United Workers of Am. (C.I.O.) v. Mitchell , 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947) ; U.S. Civil Serv. Comm'n v. Nat'l Ass'n of Letter Carriers, AFL-CIO , 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973). In Mitchell , the Court recognized that "[t]he essential rights of the First Amendment in some instances are subject to the elemental need for order without which the guarantees of civil rights to others would be a mockery." Mitchell , 330 U.S. at 95, 67 S.Ct. 556. Congress’ enactment of the Hatch Act was, accordingly, a reasonable outgrowth of its "conviction," grounded in the "teaching of experience," that "an actively partisan governmental personnel...