National Association of Letter Carriers v. Blount

• Decision Date: 30 October 1969
• Docket Number: Civ. A. No. 1843-69.
• Citation: 305 F. Supp. 546
• Parties: The NATIONAL ASSOCIATION OF LETTER CARRIERS, Plaintiff, v. Winton M. BLOUNT, as Postmaster General of the United States, Defendant.
• Court: U.S. District Court — District of Columbia

305 F. Supp. 546

The NATIONAL ASSOCIATION OF LETTER CARRIERS, Plaintiff, v. Winton M. BLOUNT, as Postmaster General of the United States, Defendant.

Civ. A. No. 1843-69.

United States District Court District of Columbia.

October 30, 1969.

Glenn R. Graves, Washington, D. C., for plaintiff.

David Orlikoff, Atty., Dept. of Justice, for defendant.

Before FAHY, Circuit Judge, and CORCORAN and GESELL, District Judges.

OPINION

GESELL, District Judge.

The National Association of Letter Carriers (NALC), a public employee union, brings this action against the Postmaster General seeking a declaratory judgment that portions of 5 U.S.C. § 7311 and a required implementing oath offend the First Amendment of the Constitution. NALC, an unincorporated association, is the certified exclusive representative of some 6,000 bargaining units of postal employees and sues on its own behalf and for its thousands of individual members.

Conceding for purposes of this litigation that Congress may prohibit public employees from striking, the complaint attacks the constitutionality of those portions of 5 U.S.C. § 7311 and related portions of the Post Office employment oath bracketed in context below. The statute provides that:

An individual may not accept or hold a position in the Government of the United States or the government of the District of Columbia if he—

* * * * * *

(3) participates in a strike, or asserts the right to strike, against the Government of the United States or the government of the District of Columbia; or

(4) is a member of an organization of employees of the Government of the United States or of individuals employed by the government of the District of Columbia that he knows asserts the right to strike against the Government of the United States or the government of the District of Columbia. 5 U.S.C. § 7311(3) and (4).

The corresponding part of the oath, challenged portions of which also are bracketed, reads:

I am not participating in any strike against the Government of the United States or any agency thereof, and I will not so participate while an employee of the Government of the United States or any agency thereof. I do not and will not assert the right to strike against the Government of the United States or any agency thereof while an employee of the Government of the United States or any agency thereof. I do further swear (or affirm) that I am not knowingly a member or an organization of Government employees that asserts the right to strike against the Government of the United States or any agency thereof and I will not, while an employee of the Government of the United States or any agency thereof, knowingly become a member of such an organization.

The Government concedes that the portions of the statute and oath under attack are separable. The statute itself contains a separability clause disclosing a congressional intent to retain any valid provisions if they can stand independently (5 U.S.C. at 87 (Sec. 7(g) of Pub.L. 89-554, 80 Stat. 631)) and the Court is satisfied that the no-strike clause is viable alone. See United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed. 2d 138 (1968); Champlin Refining Co. v. Corporation Commission, 286 U.S. 210, 52 S.Ct. 559, 76 L.Ed. 1062 (1932). Accordingly, it is necessary only to deal here with the portions of the statute and oath bracketed above, the no-strike provision being left in effect.

The case was heard by this three-judge court on application for a preliminary injunction which was denied. Further briefs and affidavits were then filed and the parties were given the opportunity to request further argument. Since neither has done so, the Court deems the matter submitted.

The Government raises two issues which may obviate a decision on the merits. It contests NALC's standing and argues that no case or controversy has been presented to bring the declaratory judgment statute into play.

I. STANDING

The statute does not provide any sanction against NALC for asserting the right to strike, nor is NALC required to swear an oath. Only individuals are directly affected. The Government accordingly urges that individual members of NALC alone have standing to challenge the statute and oath. But if NALC openly "asserts" the right to strike, its members may be put at hazard since the statute carries criminal sanctions (18 U.S.C. § 1918), and they could be barred from Government employment because of NALC's activities. And other letter carriers may be inhibited from joining because of the possible sanctions. Thus, NALC has an interest in testing the validity of these provisions whose legal effect may be to hamper its efforts.

The Government's strict view of the standing issue ignores the trend of courts "increasingly to recognize the standing of associations to raise in some circumstances the rights of their members." United Federation of Postal Clerks v. Watson, 133 U.S.App.D.C. 176, 409 F.2d 462, 469 (1969). Here, as in Watson, the NALC is the authorized spokesman of its membership and recognized as such by Executive Order. It clearly has sufficient interest in this litigation to pursue the matter vigorously and is in a position to bring the issues into sharp focus. Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968); see also, NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed. 2d 405 (1963); NAACP v. Alabama ex rel Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958).

NALC's interest, for itself and on behalf of its membership, especially in light of the recent case law, is quite sufficient to give it standing.

II. CASE OR CONTROVERSY

In its verified complaint, NALC avers that, "through various elected officers and spokesmen, it has urged and supported the right of postal employees, along with other federal employees, to strike. Many of its members who have advocated, and continue to advocate, the right to strike, * * * desire to repudiate that portion of the oath." Against this broad assertion there is no competent evidence before the Court that any administrative, criminal or other action has been taken against any NALC member for its disregard of the statute. Indeed, the Postmaster General's affidavit flatly states that no sanctions have been sought for many years under the Act and that "the NALC and its members have complied in all respects with * * * statutory requirements."

The Government argues from this foundation that the mere statement that letter carriers wish to repudiate the oath and continue to assert the right to strike is insufficient to establish a justiciable controversy. When action against a worker for legitimate First Amendment activity is actually begun or clearly imminent, the Government insists, is time enough for a court test.

Superficially, this argument has great appeal. The Government relies chiefly on United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947). Mitchell cuts strongly in the Government's favor, and, if that case retained its full force, it would be difficult to conclude that a justiciable controversy exists here. The fact is, however, that subsequent case law has weakened Mitchell as precedent in First Amendment cases. Mitchell was decided prior to judicial recognition of the so-called "chilling effect" doctrine. More recent cases indicate that where freedoms of expression and association are involved, the threat alone of loss of job, criminal sanction or other penalty may inhibit, or "chill" their exercise and thus require court intervention to preserve them. In short, "immediate and real injury is done to the plaintiff's interests if he does not speak or act as he says he wants to * * * because of the threat of enforcement." National Student Ass'n v. Hershey, D.C.Cir., 412 F.2d 1103, 1111 (1969); Wolff v. Selective Service Local Board No. 16, 372 F.2d 817 (2nd Cir. 1967); see also, Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); Cramp v. Board of Public Instruction, 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285 (1961).

It has not yet been held that "every plaintiff who alleges a First Amendment chilling effect * * * has thereby established a case or controversy." National Student Ass'n v. Hershey, 412 F.2d at 1114. The Court must examine each case separately, assessing such factors as the severity of the alleged chilling effect, the nature of the...