American Federation of Government Employees, AFL-CIO v. O'Connor

• Decision Date: 02 November 1984
• Docket Number: 84-5414,AFL-CIO,Nos. 84-5410,s. 84-5410
• Citation: 747 F.2d 748
• Parties: AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,, et al., Appellants, v. K. William O'CONNOR, Special Counsel, Merit Systems Protection Board. NATIONAL TREASURY EMPLOYEES UNION, Appellant, v. K. William O'CONNOR, Special Counsel, Merit Systems Protection Board.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 748

747 F.2d 748

241 U.S.App.D.C. 311

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, et

al., Appellants, v. K. William O'CONNOR, Special Counsel, Merit Systems

Protection Board.

NATIONAL TREASURY EMPLOYEES UNION, Appellant, v. K. William O'CONNOR, Special Counsel, Merit Systems Protection Board.

Nos. 84-5410, 84-5414.

United States Court of Appeals District of Columbia Circuit.

Argued Aug. 31, 1984.

Decided Nov. 2, 1984.

Appeals from the United States District Court for the District of Columbia (Civil Action Nos. 84-00972, 84-00974).

Gregory O'Duden, Washington, D.C., with whom Lois G. Williams, Washington, D.C., was on the brief, for appellant, Nat. Treasury Employees Union in No. 84-5414.

Mitchell Jay Notis, Washington, D.C., with whom Mark D. Roth, Washington, D.C., was on the brief, for appellants, American Federation of Government Employees, AFL-CIO, et al. in No. 84-5410.

Neil H. Koslowe, Sp. Litigation Counsel, Dept. of Justice, Washington, D.C., with whom Richard K. Willard, Acting Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty., and Leonard Schaitman, Asst. Director, Dept. of Justice, Washington, D.C., were on the brief, for appellee in Nos. 84-5410 and 84-5414.

John Vanderstar and Arthur B. Spitzer, Washington, D.C., were on the brief for amici curiae American Civil Liberties Union and Project Vote!, urging reversal.

Before MIKVA, EDWARDS, and GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.

Concurring Statement filed by Circuit Judge EDWARDS.

Dissenting Opinion filed by Circuit Judge MIKVA.

GINSBURG, Circuit Judge:

The American Federation of Government Employees (AFGE) and the National Treasury Employees Union (NTEU) appeal a district court judgment declaring that an advisory opinion of K. William O'Connor, Special Counsel of the Merit Systems Protection Board (MSPB), "does not contravene the Hatch Act and is not unconstitutional." American Federation of Government Employees v. O'Connor, 589 F.Supp. 1551, 1563 (D.D.C.1984). The Special Counsel's advice concerns the permissibility under section 9(a) of the Hatch Act, 5 U.S.C. Sec. 7324(a)(2) (1982), ¹ of voter registration drives conducted by members of public sector unions, after those unions have endorsed candidates for political office. AFGE and NTEU urge us to declare the Special Counsel's advisory opinion "illegal, void and contrary to law," AFGE Brief at 51; the government seeks affirmance of the district court's decision on the ground that the Special Counsel's advice "is reasonable and has a basis in fact." Government Brief at 26.

We hold that neither side is entitled to the disposition it seeks because the matter, as tendered to the district court and on appeal, is not ripe for judicial review. AFGE and NTEU have framed a general question not wedded to the facts of a particular case. They have named as sole defendant the MSPB's Special Counsel, an officer who may investigate, prosecute, and extend advice, but may not adjudicate Hatch Act liability. Adjudicatory authority in Hatch Act enforcement cases, at the administrative level, resides exclusively in the MSPB; that tribunal is not, in law or in practice, bound to follow the Special Counsel's advice. There is no indication at this time what position the MSPB would take on the question the unions pose.

Furthermore, the unions have barely sketched the contours of their case. They commenced this action without soliciting the Special Counsel's advice. Prompted by the district judge, the unions composed a terse inquiry to the Special Counsel, and received a return response formulated without investigation and with few hard facts in hand. The letter exchange between the unions and the Special Counsel presents unrefined issues in dim light. The unions' question, and the Special Counsel's answer, are not the stuff of a controversy ready for judicial review.

Because the district court reached out prematurely to declare law applicable to controversies lacking precise shape, we vacate the judgment from which the unions have appealed; we remand the case with instructions to dismiss the complaints for failure to present concrete claims ripe for court adjudication.

I. BACKGROUND

This dispute centers on a letter opinion requested by the complaining parties and supplied by an officer who may investigate, prosecute, and advise, but whose advice binds no one. An earlier letter sparked the litigation. On February 29, 1984, James M. Peirce, president of the National Federation of Federal Employees (NFFE), ² wrote John Erck, an attorney in the Office of the MSPB Special Counsel, to request written confirmation of an opinion Erck had expressed in a telephone conversation the day before. Erck had informed Peirce's aide that NFFE members could lawfully "conduct a nation-wide, non-partisan voter registration drive at their worksites," see NFFE Letter, reprinted in NTEU Joint Appendix (J.A.) 1a, as long as NFFE had not endorsed candidates for the upcoming presidential and congressional elections.

In a letter dated March 2, NTEU J.A. 4-5, Erck repeated this advice. He stated that, under the Hatch Act, "[f]ederal employees may participate in voter registration drives that are not identified with a political party or a partisan candidate for public office." However, he continued, "in our opinion," an organization's endorsement of a candidate would make it a "partisan club for the duration of the campaign." Erck's March 2 letter concluded:

Members of NFFE may participate in a voter registration drive as long as the organization maintains its neutrality. In the event that NFFE endorses a candidate for President and/or candidates for the U.S. Congress, NFFE members who are federal employees would be required to cease their voter registration activities.

Id.

On March 27, AFGE sued the Special Counsel; ³ NTEU filed its own complaint a day later. Neither union, at that stage, had itself requested advice from the Special Counsel, and neither ever named any other party defendant. The complaints principally alleged that because the AFGE and NTEU national unions had endorsed presidential and congressional candidates for the approaching elections, Erck's letter to NFFE had discouraged AFGE and NTEU members from engaging or continuing to engage in nonpartisan voter registration drives. Erck's advice to NFFE, AFGE and NTEU asserted, thus violated public sector union members' first amendment freedoms of speech and association. AFGE and NTEU sought (1) an injunction stopping the Special Counsel from "enforcing or continuing in effect" his subordinate's March 2 letter to NFFE, and (2) a declaration that the "holding" of the March 2 letter was contrary to the Hatch Act and unconstitutional. AFGE J.A. 11. On March 30, the district court denied the unions' motions for temporary restraining orders, AFGE J.A. 24-25, and instructed AFGE and NTEU to ask the Special Counsel for an opinion regarding the particular voter registration activities in which they wished to engage. ⁴

The unions requested an advisory opinion from the Special Counsel on the following Monday, April 2. Their request letter contained a single paragraph describing the facts on which they sought advice:

[NTEU] and [AFGE] have each endorsed a candidate for the presidency in 1984. Both unions, as has been our practice in the past, are now engaged, through our locals and chapters, in nonpartisan voter registration activity at worksites across the country. More specifically, at such registration activities, no attempt is made to solicit registrants on the basis of political party or candidate preference.

NTEU J.A. 35. The letter supplied no further particulars about the ongoing or proposed voter registration efforts of the national or local unions. NTEU and AFGE closed by reminding the Special Counsel that the unions had "commenced litigation challenging the legality of [Erck's] March 2, 1984 letter," and that counsel for the Office of Special Counsel had furnished assurance "in open court ... that an opinion responding to our letter will be issued within the week." Id. at 36.

Four days later, on Friday, April 6, the Special Counsel addressed to counsel for NTEU and AFGE the advice letter on which the unions now center their plea for judicial review. In the opening paragraphs, the April 6 letter twice noted the "paucity of information" contained in the AFGE-NTEU letter of April 2. Also at the outset, the Special Counsel stated that his responsive letter was merely "advisory in nature," and that therefore "we have not conducted any investigation into your activity." Id. at 41. ⁵ The Special Counsel's letter next recounted some Hatch Act history and cited early Civil Service Commission adjudications establishing that voter registration drives could constitute prohibited political activity under certain circumstances. The Special Counsel then declared:

The determination of whether a voter registration drive is a political campaign activity must be made from the available evidence. Although you state that, "no attempt is made to solicit registrants on the basis of political party or candidate preference," the absence of such "solicitation" at a voter registration information booth does not necessarily mean that the drive is not partisan; it is only one factor to be considered.

Id. at 44. The Special Counsel went on to list a number of other factors his office might consider relevant to a determination whether a particular voter registration drive violated the Hatch Act. ⁶ He further stated: "This is, of course, only a partial list .... Given the increasing use of voter registration as a tool in partisan political campaigns, we cannot accept at face value your assertion that the drive you plan is 'nonpartisan.' " Id. at 45.

At this point, the tenor of the letter changed. In place of comment on the few operative facts before the Special Counsel, and generalized, noncommittal, or tentative observations,...