DEMOCRATIC ST. CENT. COM. FOR MONTGOMERY CO., MD. v. Andolsek, Civ. No. 16460.

• Decision Date: 25 January 1966
• Docket Number: Civ. No. 16460.
• Citation: 249 F. Supp. 1009
• Parties: DEMOCRATIC STATE CENTRAL COMMITTEE FOR MONTGOMERY COUNTY, MARYLAND, George Norman, Levon A. Terzian, H. Robert Borden, Sr., and William R. Thomas, III, v. Ludwig J. ANDOLSEK and Robert E. Hampton, Members, and John W. Macy, Jr., Chairman, United States Civil Service Commission.
• Court: U.S. District Court — District of Maryland

249 F. Supp. 1009

DEMOCRATIC STATE CENTRAL COMMITTEE FOR MONTGOMERY COUNTY, MARYLAND, George Norman, Levon A. Terzian, H. Robert Borden, Sr., and William R. Thomas, III, v. Ludwig J. ANDOLSEK and Robert E. Hampton, Members, and John W. Macy, Jr., Chairman, United States Civil Service Commission.

Civ. No. 16460.

United States District Court D. Maryland.

January 25, 1966.

COPYRIGHT MATERIAL OMITTED

Alfred L. Scanlan, Bethesda, Md. (Ralph J. Moore, Jr., and Shea & Gardner, Washington, D. C., and Francis X. Gallagher, Baltimore, Md., on the brief), for plaintiffs.

Thomas J. Kenney, U. S. Atty., Baltimore, Md. (John W. Douglas, Asst. Atty. Gen., Harland F. Leathers, William P. Arnold and Leslie A. Nicholson, Attys., Dept. of Justice, Washington, D. C., on the brief), for defendants.

THOMSEN, Chief Judge.

This action, brought by the Democratic State Central Committee for Montgomery County and by four employees of the federal government who reside in that County, attacks the regulation of the Civil Service Commission which grants to federal employees residing in Montgomery County a limited exemption from the prohibitions against political activities by federal employees contained in section 9 of the Hatch Act, 5 U.S.C.A. § 118i. The regulation in question, 5 C.F.R. 733.301, was adopted pursuant to section 16 of the Act, 5 U.S. C.A. § 118m, and has been amended from time to time to add additional municipalities and governmental subdivisions to the list of those whose residents are entitled to the limited exemption.¹

Plaintiffs complain because the regulation, section 733.301, while permitting certain political activities by federal employees in Montgomery County, forbids the partisan political activities specified in paragraphs (a) (2) and (3) thereof. Plaintiffs desire to engage in those prohibited activities, and contend: (1) that the restrictions contained in those paragraphs are not authorized by the statute; (2) that the restrictions are discriminatory and deprive plaintiffs and other federal employees similarly situated of rights under the First, Fifth, Ninth and Tenth Amendments, and that if they are authorized by the statute, the statute is to that extent unconstitutional; and (3) that the Commission failed to make a factual determination required by the statute. Plaintiffs seek a declaratory judgment and injunctive relief.

Defendants contend (1) that plaintiffs lack standing to sue; (2) that the complaint does not present a justiciable controversy, because the action complained of is committed to the discretion of the Commission and is not judicially reviewable; (3) that the actions complained of are in accordance with the governing statutory and constitutional requirements; and (4) that the individual plaintiffs have not exhausted their administrative remedies and have an adequate remedy at law.

Plaintiffs have filed a motion for summary judgment. Defendants have filed a motion to dismiss, which the parties have agreed should be treated as a motion for summary judgment insofar as it may require consideration of exhibits filed by defendants. The parties further agreed at a pretrial conference that there are no contested issues of fact and that it is a proper case for final disposition on the motions.

I

Section 9 of the Hatch Act, 53 Stat. 1148, as amended, 5 U.S.C.A. § 118i, prohibits officers and employees in the Executive Branch of the Federal Government from "taking any active part in political management or in political campaigns."²

Section 16 of the Act, 54 Stat. 767, 5 U.S.C.A. § 118m, adopted in 1940, authorizes the Civil Service Commission to promulgate regulations permitting federal employees residing in communities around the National Capital to take an active part in political management or political campaigns involving their municipalities or political subdivisions "to the extent the Commission deems to be in the domestic interest of such persons."³

The Commission has exercised its authority under the provisions of section 16 by granting a limited exemption to employees residing in 49 municipalities and political subdivisions in Maryland and Virginia near Washington, D. C., and in ten municipalities and political subdivisions in other States. 5 C.F.R. 733.301.⁴ However, the Commission has uniformly and without exception restricted this exemption to independent non-partisan activities of a purely local nature. The restrictions are set out in several subparagraphs of section 733.301 (a). See note 1, above. The two in question here are:

"(2) An employee shall not run for local office as a candidate representing a political party or become involved in political management in connection with the campaign of a party candidate for office.

"(3) An employee who is a candidate for local elective office shall run as an independent candidate."

Until 1964 Montgomery County, Maryland, had not been included among the political subdivisions with respect to which an exemption had been granted. Early in 1964 however, the Commission received and considered two separate requests that federal employees residing in Montgomery County be exempted from the provisions of section 9 of the Act. The first request (by Docter) called for an exemption which would have permitted residents of Montgomery County to participate in county elections as partisan candidates. The second request (by Salerno, et al.) was for permission to participate in local elections at the county level but only on a non-partisan basis. The Commission held that its regulations permit participation on a non-partisan basis only; it therefore denied the first (Docter) request and granted the second (Salerno request) on April 30, 1964. The exemption so granted to federal employees residing in Montgomery County was and is subject to the same conditions that the Commission has uniformly prescribed, including the conditions set out in section 733.301(a) (2) and (3), quoted above.⁵

On January 5, 1965, a number of the citizens who had participated in the successful Salerno request announced the formation of a "new political party" in Montgomery County, to be known as the "Non-Partisans for a Better Montgomery County." Shortly thereafter, on March 2, 1965, plaintiffs herein filed a petition with the Commission, seeking the elimination of the restrictions contained in section 733.301(a) (2) and (3), quoted above and in note 1, and other modifications of the Commission's Rules and Regulations, in order to permit the individual plaintiffs and other federal employees similarly situated to participate in political campaigns for election to local offices in Montgomery County as members or under the auspices of the political party of their choice, including plaintiff Democratic State Central Committee,⁶ and to permit such employees to support actively and openly any candidate running for local office, whether such candidate runs as a Democrat, Republican, Socialist, or "Non-Partisan".

It was alleged in that petition and in the complaint herein that the individual plaintiffs are employed in the Classified Civil Service and are members of the Democratic party; that plaintiff George Norman intends to file in the 1966 Democratic primary election to secure that party's nomination as a candidate for the Montgomery County Council; and that the other individual plaintiffs intend to campaign actively and publicly in support of Democratic party candidates. The petition and the complaint herein⁷ alleged the formation of the new political party and alleged that the new party would function locally as "an orthodox or traditional political party," i. e., would put up candidates in partisan elections for local office, would debate with the leaders and candidates of both the Democratic and Republican parties in Montgomery County, and would publicly criticize the local policies and county leadership of those two political parties. The petition requested the Commission to give plaintiffs and other interested persons the opportunity to appear before it in a public rule-making hearing pursuant to section 4(b) of the Administrative Procedure Act (60 Stat. 238, 5 U.S.C.A. § 1003(b)), on the issues presented by the petition. In the brief filed in support of their petition, plaintiffs made substantially the same contentions that they are making in this suit. On March 22, 1965, the plaintiffs supplemented their petition, proposing amendments to section 733.301 which, if adopted, would have permitted federal employees to engage in local campaigns through the political party of their choice. Plaintiffs contend that the amendments they proposed would have guaranteed that such participation would not lead to the involvement of such employees in state or national partisan politics.

On April 6, 1965, the Commission denied the request for a hearing and the request for an amendment to section 733.301 or other relief. The grounds for the Commission's decisions were stated as follows:

"In the interest of preserving and strengthening the career service the Commission has in granting privileges under § 16 of the Hatch Act, consistently held to the principle that federal officers and employees may be candidates for a local elective office in a partisan election but must run as independent candidates. From the very beginning of the civil service system partisan political activities has been prohibited because a question would arise as to whether those participating in such activity were discharging their duties in an impartial and objective manner independent of partisanship. The Commission's present regulations conform with the election policy of the Hatch Act that employees in the executive branch should refrain from active participation in political activity involving national political parties. Therefore, your request for Amendment for Commission Rule and for Declaratory Order Granting Exemption Thereunder is denied.

"It is felt that any fundamental change in longstanding policy

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