Burrus v. Vegliante, Docket No. 02-6257.

• Decision Date: 14 July 2003
• Docket Number: Docket No. 02-6257.
• Citation: 336 F.3d 82
• Parties: William BURRUS, President, American Postal Workers Union, AFL-CIO, and American Postal Workers Union, AFL-CIO, Plaintiffs-Appellees, v. Anthony VEGLIANTE, Vice President, Labor Relations, United States Postal Service, Elaine Kaplan, Special Counsel, U.S. Merit Systems Protection Board, Kay Coles James, Director, U.S. Office of Personnel Management, U.S. Office of Personnel Management, and United States Postal Service, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

336 F.3d 82

William BURRUS, President, American Postal Workers Union, AFL-CIO, and American Postal Workers Union, AFL-CIO, Plaintiffs-Appellees, v. Anthony VEGLIANTE, Vice President, Labor Relations, United States Postal Service, Elaine Kaplan, Special Counsel, U.S. Merit Systems Protection Board, Kay Coles James, Director, U.S. Office of Personnel Management, U.S. Office of Personnel Management, and United States Postal Service, Defendants-Appellants.

Docket No. 02-6257.

United States Court of Appeals, Second Circuit.

Submitted: October 28, 2002.

Decided: July 14, 2003.

David J. Kennedy, Assistant United States Attorney (Gideon A. Schor, Assistant United States Attorney, of counsel), for James B. Comey, United States Attorney for the Southern District of New York, New York, New York, for Defendants-Appellants.

Darryl Anderson (Peter J. Leff, of counsel), O'Donnell, Schwartz & Anderson, Washington, D.C., for Plaintiffs-Appellees.

Before: WINTER and CABRANES, Circuit Judges, and JONES,^* District Judge.

WINTER, Circuit Judge.

This action involves the questions of whether the 1939 Hatch Act, as amended in 1993, 5 U.S.C. §§ 7321-7326, prohibits postal workers from displaying political materials on union bulletin boards in nonpublic areas of post offices, and, if so, whether the Act is constitutional.

Various federal officials, the United States Office of Personnel Management, and the United States Postal Service ("USPS") (collectively the "government") appeal from Judge Hellerstein's decision enjoining them from interfering with the American Postal Workers Union ("APWU") display of political materials on APWU bulletin boards. See Burrus v. Vegliante, 247 F.Supp.2d 372 (S.D.N.Y. 2002). Because the postings in question fall squarely within the activities proscribed by the Hatch Act at 5 U.S.C. § 7324(a) and because there is no merit in the APWU's constitutional arguments, we reverse.

BACKGROUND

The APWU represents approximately 350,000 USPS employees nationwide. Article 22 of the national collective bargaining agreement between the USPS and the APWU provides for APWU bulletin boards in nonpublic postal workplaces, as follows:

The Employer shall furnish separate bulletin boards for the exclusive use of the Union party to this Agreement, subject to the conditions stated herein, if space is available.... Only suitable notices and literature may be posted ....

According to the APWU, it has regularly used these bulletin boards to make political endorsements by separate postings or through a "News Service" that it regularly posts on the bulletin boards.

In September and October, 2000, the APWU's Legislative Department developed and distributed a poster comparing the campaign positions and voting records of the Republican and Democratic party presidential candidates on issues of concern to the APWU and its membership. While the poster purported to present only factual information, the APWU does not seriously dispute that it was intended to generate support for Vice President Gore.¹ (A representative excerpt from the poster is set out in Appendix A.) However, the evidence is that the poster was not produced in cooperation or coordination with the Democratic party or presidential campaign.

After the posters were displayed on USPS bulletin boards in some post offices, the United States Office of Special Counsel ("OSC")² issued an advisory opinion to the USPS stating that the posting violated the Hatch Act.³ The USPS thereafter instructed managers at all postal facilities to remove the posters and return them to APWU representatives.

On November 2, 2000, five days before the presidential election, the APWU commenced the present action, seeking declaratory and injunctive relief against removal of the posters and any disciplinary actions to prevent involved employees. On November 3, 2000, the district court enjoined the USPS from ordering the removal of the posters and from disciplining the USPS employees involved in the posting.

The government appealed and moved in this court for an emergency stay of the district court's injunction pending appeal. On November 3, 2000, we declined to grant an emergency stay and set a hearing on the stay motion for November 14, 2000. On November 8, 2000, the day after the 2000 presidential election, the government withdrew its request for a stay but informed the court that it would pursue its appeal. On December 3, 2001, a panel of this court issued a summary order dismissing as moot the government's appeal and noting that appellate review would be available following resolution in the district court of the APWU's request for a declaratory judgment and permanent injunction. Biller v. Vegliante, 24 Fed.Appx. 73, 74-76 (2d Cir.2001) (unpublished summary order).

Following amended pleadings and a period of discovery, the government moved, and the APWU cross-moved, for summary judgment. On October 15, 2002, the district court filed an opinion and order granting summary judgment in favor of the APWU. The district court's opinion concluded:

I hold that the APWU is entitled to advocate the election of candidates through display of posters and like materials on designated union bulletin boards in non-public areas of post offices, so long as the display is not coordinated with or in concert with a political party or candidate, and that defendants are enjoined from interfering with the Union's displays, and from disciplining postal employees who bring such posters and refused [sic] to remove them.

Burrus, 247 F.Supp.2d at 379.

The government again appealed, and the district court stayed its order until 4:00 p.m. on October 22, 2002. In light of the upcoming mid-term election, the government moved in this court for a continuation of the stay, and we heard oral argument on October 22, 2002. We granted the government's motion from the bench, extending the stay of the district court's judgment and setting an expedited briefing schedule for the government's appeal. The appeal was fully briefed on October 28, 2002, and we thereafter issued an order continuing the stay of the district court's injunction until further order of this court to give us time to prepare an opinion. We held that the government had demonstrated a likelihood of success on the merits and that "the completion of the election will not render the action moot in light of a record demonstrating beyond peradventure that the issue is capable of repetition and yet evading review."

For the reasons that follow, we reverse the judgment of the district court and order entry of judgment for the government.

DISCUSSION

We review de novo both the grant of the APWU's motion for summary judgment and the denial of the government's motion for summary judgment. Scholastic, Inc. v. Harris, 259 F.3d 73, 81 (2d Cir.2001). The material facts are undisputed.

a) The Hatch Act

We begin with a description of the Hatch Act, 5 U.S.C. §§ 7321-7326, and its history. The Act limits the political activities of federal employees in the interests of promoting efficient, merit-based advancement avoiding the appearance of politically-driven justice, preventing the coercion of government workers to support political positions, and foreclosing use of the civil service to build political machines. See Burrus, 247 F.Supp.2d at 375 (citing United States Civil Serv. Comm'n v. Nat'l Assoc. of Letter Carriers, 413 U.S. 548, 565-66, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973); Biller v. United States Merit Sys. Prot. Bd., 863 F.2d 1079, 1089 (2d Cir.1988)).

Prior to its amendment in 1993, the Act imposed a broad prohibition on political activities by federal employees. See generally S.Rep. No. 103-57, at 2-3 (1993), reprinted in 1993 U.S.C.C.A.N. 1802, 1803-04. In addition to prohibiting federal employees from using their official authority to influence elections, prior to the 1993 Hatch Act Reforms, Section 7324 prohibited federal employees from at any time taking "an active part in political management or in political campaigns."⁴ See id. at 1804-05. By 1993, concern over using the civil service as a source of political patronage had subsided, and Congress passed the Hatch Act Reform Amendments. These amendments restored, with limited exceptions for employees in certain sensitive positions, the rights of federal employees to "take an active part in political management or in political campaigns" while off-the-job, but retained and strengthened prohibitions against "political activity" while on duty or at the workplace. See id. at 1803.

Amendments to the former Section 7324, see Note 4, supra, were placed in a new Section 7323, and a new Section 7324 was added, see 5 U.S.C. §§ 7323-7324. These two new sections are set out in their entirety in Appendix B to this opinion. The restrictions on political activity imposed by the new Sections 7323 and 7324, as modified by the Hatch Act Reforms, are of two distinct categories: (i) new Section 7323 sets out general prohibitions — not limited by time or place — on certain kinds of political activity, and (ii) new Section 7324 defines specific on-the-job circumstances in which all political activity is prohibited.

The general prohibitions of Section 7323 include a ban on federal employees using official authority to affect an election or to affect the political activity of those subject to government authority, Section 7323(a)(1), (4), engaging in political fundraising, Section 7323(a)(2), and running for partison political office, Section 7323(a)(3). Also prohibited are the giving or receiving of political contributions by members of the Federal Election Commission, Section 7323(b)(1), and the taking of "an active part in political management or political campaigns" by employees of certain specified federal agencies (not including the USPS), Section 7323(b)(2), (3). Section 7323(a) provides that with the exception of those employees specified in Section 7323(b), employees "may take an active part in political management...