State of Utah v. United States, 6447-6449.

• Citation: 286 F.2d 30
• Decision Date: 03 January 1961
• Docket Number: No. 6447-6449.,6447-6449.
• Parties: STATE OF UTAH and Vernon P. Bridge, Appellants, v. UNITED STATES of America and the United States Civil Service Commission, Appellees. STATE OF UTAH and Horace J. Gunn, Appellants, v. UNITED STATES of America and the United States Civil Service Commission, Appellees. STATE OF UTAH and Panos J. Georgopoulos, Appellants, v. UNITED STATES of America and the United States Civil Service Commission, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

286 F.2d 30 (1961)

STATE OF UTAH and Vernon P. Bridge, Appellants, v. UNITED STATES of America and the United States Civil Service Commission, Appellees.

STATE OF UTAH and Horace J. Gunn, Appellants, v. UNITED STATES of America and the United States Civil Service Commission, Appellees.

STATE OF UTAH and Panos J. Georgopoulos, Appellants, v. UNITED STATES of America and the United States Civil Service Commission, Appellees.

Nos. 6447-6449.

United States Court of Appeals Tenth Circuit.

January 3, 1961.

Vernon B. Romney, Salt Lake City, Utah (Walter L. Budge, Salt Lake City, Utah, was with him on brief), for appellants.

Sherman L. Cohn, Washington, D. C. (George Cochran Doub, Washington, D. C., A. Pratt Kesler, Salt Lake City, Utah, Morton Hollander and Alan S. Rosenthal, Washington, D. C., were with him on brief), for appellees.

Before MURRAH, Chief Judge, LEWIS, Circuit Judge, and RICE, District Judge.

MURRAH, Chief Judge.

These consolidated appeals are from the District Court's separate judgments affirming the Civil Service Commission's orders, which found the individual appellants guilty of activities prohibited by Section 12(a) of the Hatch Political Activity Act, 5 U.S.C.A. § 118k(a),¹ and ordering them discharged from their state employment.

From evidence adduced on hearing before the Civil Service Commission and duly certified to the District Court on review,² the court found that the individual appellants, Bridge, Gunn and Georgopoulos were all employees of the Utah Road Commission and subject to the jurisdiction conferred upon the Civil Service Commission by the Act; and that each of them did "directly or indirectly, coerce, attempt to coerce, command or advise other officers or employees subject to the Act to pay or contribute part of their salaries or compensation to the Republican Party organization of Utah for political purposes."

It appears from the record, without dispute, that the Republican Party of Utah planned a fund-raising dinner with tickets to be sold for $50 apiece. The various agencies of the state government were assigned quotas of tickets to be sold. Burton, Director of the Road Commission, wrote a letter³ to his subordinates, stating that the Commission had been assigned three tickets. This was duly received by appellant Bridge, Chief of the Commission's Right of Way Design Department, and relayed to his subordinates with an accompanying message to the effect that each should contribute 1.3% of his monthly salary.⁴ When the response to this letter was unproductive, a meeting of the employees was called, at which appellant Georgopoulos, Senior Highway Engineer and Acting Assisting Chief of the Right of Way Design Department, stated that the employees "may not receive deserved pay raises if we don't contribute to the Republican Party." Following this and other admonitions, the quota was met and turned over to appellant Gunn, the Commission's Public Information Officer, who had also engaged in solicitations among the employees.

Newspaper editorial comment on these activities apparently brought the matter to the attention of the Civil Service Commission with consequent investigation resulting in these statutory charges. The charges were subsequently dismissed as to Burton on the grounds that his "principal employment" was not with the Road Commission and he was not therefore within the scope of the Act.⁵ The Commission also invoked its administrative discretion to dismiss the charges against the Road Commission Secretary, Allred, on the grounds that "his participation was minimal in amount and meager in result."

On review of the Commission's discharge orders, the trial court found that each of them was "supported by substantial evidence and in accordance with law."

At the threshold of the appeal, the United States, as appellee, takes the position that the discharging orders have become moot; and that we should therefore remand the cases to the District Court with directions to dismiss the actions. This rather anomalous contention is based upon the appellee's construction of Section 12(c) of the Act, (5 U.S.C.A. § 118k(c)), which provides in substance and effect that any party aggrieved by any determination or order of the Civil Service Commission may, within 30 days after notice of the determination or order, institute proceedings for the review thereof by filing a written petition in the appropriate District Court; but that the commencement of such proceedings shall not operate to stay the challenged determination or order of the Commission unless "(1) it is specifically so ordered by the court, and (2) such officer or employee is suspended from his office or employment during the pendency of such proceedings." These orders were not stayed and it is apparently agreed that the employees were never suspended. From this the government argues that the discharging orders automatically became effective at the expiration of 30 days from the date of notice thereof, and therefore moot.

Section 12(b) of the Act (5 U.S.C.A. § 118k(b)) provides that "If in any case the Commission finds that such officer or employee has not been removed from his office or employment within thirty days after notice of a determination by the Commission that such violation warrants his removal, or that he has been so removed and has subsequently (within a period of eighteen months) been appointed to any office or employment in any State or local agency in such State, the Commission shall make and certify to the appropriate Federal agency an order requiring it to withhold from its loans or grants to the State or local agency to which such notification was given an amount equal to two years' compensation at the rate such officer or employee was receiving at the time of such violation; * * *." The State of Utah seeks redress from the imposition of a 12(b) withholding order, but there is nothing in this record to show that any such withholding order has been entered by the Civil Service Commission. In this connection, the government says that a discharging order and a withholding order are separate and distinct appealable orders, contingently based upon different factual determinations, and inasmuch as there was no withholding order before the trial court nor this court, there is nothing for review except the mooted discharging orders. The effect of this argument is to hold that a judicial stay of the discharging order and a suspension of the appealing employees is a jurisdictional prerequisite to the right of judicial review of the merits of the Commission's determination. We do not think Congress intended to impose any such procedural prerequisites.

The obvious purpose of the provision to the effect that the commencement of review proceedings shall not operate as a stay unless ordered by the court and unless the employees are suspended is to make sure that the orderly administration of the Act shall not be hindered by judicial review. Thus the enforcement scheme provided for in 12(b) contemplates an order of discharge after a hearing and consequent penalties for failure to comply with such order. The judicial review provided in 12(c) does not, without more, operate to stay the enforcement proceedings. But this does not mean that Congress intended to provide that compliance with the order was prerequisite to the right of review accorded by the statute. To be sure, the withholding order is conditional and contingent upon failure to comply with a discharging order. Indeed, the separate orders are based upon separate and distinct considerations, but each is but a step in the integrated enforcement mechanism. If on appeal the discharging orders fall as not being supported in law and fact the withholding order necessarily falls with them. The appeal is from that which is basic to the rights of the parties, i. e. the discharging orders.

This is not a case where the purposes of the decree have been fulfilled or the law has spent itself on the operative facts leaving no justiciable issue. Cf. United States v. Alaska...