NORTHERN VA. REG. PK. AUTH. v. United States Civ. Serv. Com.

• Decision Date: 19 February 1971
• Docket Number: No. 14559.,14559.
• Citation: 437 F.2d 1346
• Parties: NORTHERN VIRGINIA REGIONAL PARK AUTHORITY, and William M. Lightsey, Appellants, v. UNITED STATES CIVIL SERVICE COMMISSION, Robert E. Hampton, James E. Johnson and Ludwig J. Andolsek, Commissioners, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

437 F.2d 1346 (1971)

NORTHERN VIRGINIA REGIONAL PARK AUTHORITY, and William M. Lightsey, Appellants, v. UNITED STATES CIVIL SERVICE COMMISSION, Robert E. Hampton, James E. Johnson and Ludwig J. Andolsek, Commissioners, Appellees.

No. 14559.

United States Court of Appeals, Fourth Circuit.

Argued December 9, 1970.

Decided February 19, 1971.

Edmund D. Campbell, Washington, D. C. (Stuyvesant K. Bearns, Washington, D. C., on the brief), for appellants.

Raymond D. Battochi, Atty., Department of Justice (William D. Ruckelshaus, Asst. Atty. Gen., Alan S. Rosenthal and Patricia S. Baptiste, Attys., Department of Justice, and Brian P. Gettings, U. S. Atty., on the brief), for appellees.

Before SOBELOFF,^* WINTER and CRAVEN, Circuit Judges.

SOBELOFF, Senior Circuit Judge:

This case involves the constitutionality of a provision of the Hatch Act that prohibits employees of federally funded state agencies from engaging in partisan political activity, 5 U.S.C. § 1502(a) (3).¹ Also at issue is the construction of an exemption contained in the Act, 5 U.S.C. § 1502(c) (4),² which excludes certain designated officials employed by such federally funded agencies from the bar against active participation in partisan politics. We shall make a brief summary of the factual background of this case before entering upon a consideration of these legal issues.

I. THE FACTS

The Northern Virginia Regional Park Authority is a state agency organized by the City of Falls Church and the Counties of Arlington and Fairfax for the purpose of developing and maintaining a system of regional parks. From 1962 to 1967, the Park Authority received grants from the Department of Housing and Urban Development under the Open Space Land Program, 42 U.S.C. § 1500 et seq. William M. Lightsey, as Executive Director of the Park Authority since 1963, has had overall responsibility for the supervision of a fourteen-man staff and for the execution of the policies formulated by an eight-man governing body.

In November 1965, Lightsey ran and was elected on the Democratic ticket to represent Arlington County in the Virginia House of Delegates. Shortly thereafter, the General Counsel of the United States Civil Service Commission received a complaint alleging that Lightsey had violated the Hatch Act by actively participating in political campaigns while principally employed in connection with a federally financed activity. The General Counsel dismissed the complaint based on misinformation supplied him by the Department of Housing and Urban Development that no federal grants had been made to the Park Authority during the years 1965 and 1966. The General Counsel informed Lightsey that when the Park Authority did receive grants under then-pending applications, he would be required to refrain from engaging in partisan political activity, and specifically from running for reelection to the Virginia House of Delegates in 1967.

Despite this warning, Lightsey actively and successfully campaigned for reelection from July 11, 1967, to November 8, 1967. On April 10, 1968, the Civil Service Commission initiated administrative proceedings against Lightsey, and by order of May 8, 1969, concluded that Lightsey had knowingly violated the Hatch Act by actively campaigning in the Democratic primary and in the general election of 1967 for the Virginia House of Delegates while still principally employed by the Park Authority. The Commission determined that this violation warranted Lightsey's removal from his position with the Park Authority. When that agency refused to terminate Lightsey's employment, the Commission directed the Department of Housing and Urban Development to deduct the sum of $26,400, an amount equal to two years of Lightsey's compensation, from loans or grants which would otherwise be paid or certified to the Northern Virginia Regional Park Authority. The amount of the penalty accords with the formula prescribed in 5 U.S.C. § 1506.

William Lightsey and the Park Authority brought suit in the District Court under 5 U.S.C. § 1508 seeking a review of the Commission's action. The District Court granted the Government's motion for summary judgment, sustaining the order of the Commission.

The plaintiffs base their appeal from the District Court's decision on two grounds: (1) they allege that 5 U.S.C. § 1502(a) (3) of the Hatch Act is unconstitutional as an infringement of the First Amendment rights of employees of state agencies which receive federal funds; (2) they also urge that even if 5 U.S.C. § 1502(a) (3) is constitutional, Lightsey is exempted from the coverage of that section by 5 U.S.C. § 1502(c) (4) since he was "an individual holding elective office" at the time of the offense with which he was charged.

II. THE CONSTITUTIONALITY OF 5 U.S.C. § 1502(a) (3)

In Oklahoma v. United States Civil Service Commission, 330 U.S. 127, 67 S.Ct. 544, 91 L.Ed. 794 (1947), the Supreme Court in a 5-2 decision upheld the constitutionality of 5 U.S.C. § 1502 (a) (3), the section under attack here. The primary constitutional challenge advanced by the state of Oklahoma was that the Hatch Act, insofar as it attempted to regulate the internal affairs of a state, invaded its sovereignty in violation of the Tenth Amendment to the Constitution. Although the majority of the Court in Oklahoma did not specifically discuss the First Amendment issues which are raised so forcefully in this appeal, they noted that in the companion case of United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947), decided the same day, the Court had sustained against First Amendment challenges an analogous provision of the Hatch Act forbidding federal employees in the Executive Branch from engaging in partisan political activity, 5 U.S.C. § 7324(a) (2). Both provisions, the Court emphasized, were designed to achieve "better public service by requiring those who administer funds for national needs to abstain from active political partisanship." Oklahoma, supra, 330 U.S. at 143, 67 S.Ct. at 553.

Justice Black dissented in Mitchell and Oklahoma, arguing vigorously that the political activity sections of the Hatch Act were unconstitutional. He underscored that millions of state and federal employees "can take no really effective part in campaigns that may bring about changes in their lives, their fortunes, and their happiness" merely because they are paid out of the public treasury. Mitchell,supra, 330 U.S. at 107, 67 S.Ct. at 573. The dissenting Justice objected to the vagueness of the statutory prohibitions and the indiscriminately broad class of employees covered by the Act, for it encompassed those whose political involvement posed no direct or indirect threat of corrupting governmental operations or undermining public confidence in the integrity of the federal or state apparatus.³ He contended that

"laws which restrict the liberties guaranteed by the First Amendment should be narrowly drawn to meet the evil aimed at and to affect only the minimum number of people imperatively necessary to prevent a grave and imminent danger to the public." Id. at 110, 67 S.Ct. at 574.

The appellants in this case assert that a series of Supreme Court opinions since 1947 have undermined the rationale of Mitchell and Oklahoma, and these decisions should no longer be followed. They point out that the Court in Mitchell applied a "reasonable basis" test in evaluating First Amendment issues. It was sufficient, according to this test, that Congress could "reasonably" find that political activity by the covered employees interfered with the efficiency and integrity of the public service. The appellants emphasize that standards for reviewing statutes abridging the exercise of First Amendment freedoms have changed dramatically since 1947, and that statutes are now subjected to closer judicial scrutiny to determine whether the interests of the Government are compelling, and whether the objectives of the legislation can be accomplished by narrower, less drastic means. See United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967); Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964); Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963); Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 83 S.Ct. 889, 9 L.Ed.2d 929 (1963); N.A.A.C.P. v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). According to the appellants, the Hatch Act cannot survive contemporary review under these more rigorous constitutional standards. Their position, in brief, is that Justice Black's dissent in Mitchell reflects the now prevailing viewpoint of the Supreme Court.⁴

The appellants cite Robel as a prime example of the new constitutional approach. In that case the Court held unconstitutional a section of the Subversive Activities Control Act which barred all members of Communist-action organizations from employment in defense facilities. The Government urged that the purpose of the section was eminently reasonable — to reduce the threat of sabotage and espionage in the nation's defense plants. The Court held, however, that although the government interest in such a prophylactic measure was substantial, the Constitution could not tolerate a broadside prohibition of all Communists from defense facilities regardless of the nature and extent of their activity in the Communist Party, the existence of any intent to further its unlawful aims, or the sensitivity of the position held in the defense establishment. The Court emphasized that Congress must achieve its legitimate goals through legislation having a "less drastic" impact on the exercise of First Amendment freedoms. The appellants in this case argue that by a parity of reasoning, Congress must limit its curtailment of political activity to...