United Public Workers of America v. Mitchell, 20

CourtUnited States Supreme Court
Citation330 U.S. 75,67 S.Ct. 556,91 L.Ed. 754
Docket NumberNo. 20,20
Decision Date10 February 1947

Appeal from the District Court of the United States for the District of Columbia.

[Syllabus from pages 75-77 intentionally omitted] Mr. Lee Pressman, of Washington, D.C., for appellants.

Mr. Ralph F. Fuchs, of Washington, D.C., for appellees.

Mr. Justice REED delivered the opinion of the Court.

The Hatch Act,* enacted in 1940, declares unlawful certain specified political activities of federal employees.1 Section 9 forbids officers and employees in the executive branch of the Federal Government, with exceptions, from taking 'any active part in political management or in political campaigns.'2 Section 15 declares that the activ- ities theretofore determined by the United States Civil Service Commission to be prohibited to employees in the classified civil service of the United States by the civil service rules shall be deemed to be prohibited to federal employees covered by the Hatch Act. 3 These sections of the Act cover all federal officers and employees whether in the classified civil service or not and a penalty of dismissal from employment is imposed for violation. There is no designation of a single governmental agency for its enforcement.

For many years before the Hatch Act the Congress had authorized the exclusion of federal employees in the competitive classified service from active participation in political management and political campaigns.4 In June, 1938 the Congressional authorization for exclusion had been made more effective by a Civil Service Commission disciplinary rule.5 That power to discipline members of the competitive classified civil service continues in the Commission under the Hatch Act by virtue of the present applicability of the Executive Order No. 8705, March 5, 1941. The applicable Civil Service Commission rules are printed in the margin.6 The only change in the Civil Service Rules relating to political activity, caused by the Hatch Act legislation, that is of significance in this case is the elimination on March 5, 1941, of the word 'privately' from the phrase 'to express privately their opinions.' This limitation to private expression had regulated classified personnel since 1907.7

The present appellants sought an injunction before a statutory three judge district court of the District of Co- lumbia against appellees, members of the United States Civil Service Commission to prohibit them from enforcing against petitioners the provisions of the second sentence of § 9(a) of the Hatch Act for the reason that the sentence is repugnant to the Constitution of the United States.8 A declaratory judgment of the unconstitutionality of the sentence was also sought.9 The sentence referred to reads, 'No officer or employee in the executive branch of the Federal Government * * * shall take any active part in political management or in political campaigns.'

Various individual employees of the federal executive civil service and the United Public Workers of America,10 a labor union with these and other executive employees as members, as a representative of all its members, joined in the suit. It is alleged that the individuals desire to engage in acts of political management and in political campaigns. Their purposes are as stated in the excerpt from the complaint set out in the margin.11 From the affida vits it is plain, and we so assume, that these activities will be carried on completely outside of the hours of employment. Appellants challenge the second sentence of § 9(a) as unconstitutional for various reasons. They are set out below in the language of the complaint.12

None of the appellants, except George P. Poole, has violated the provisions of the Hatch Act. They wish to act contrary to its provisions and those of § 1 of the Civil Service Rules and desire a declaration of the legally per- missible limits of regulation. Defendants moved to dismiss the complaint for lack of a justiciable case or controversy. The District Court determined that each of these individual appellants had an interest in their claimed privilege of engaging in political activities, sufficient to give them a right to maintain this suit. United Federal Workers of America (C.I.O.) v. Mitchell, D.C., 56 F.Supp. 621, 624. The District Court further determined that the questioned provision of the Hatch Act was valid and that the complaint therefore failed to state a cause of action. It accordingly dismissed the complaint and granted summary judgment to defendants.

First. The judgment of the District Court was entered on September 26, 1944. An order was duly entered on October 26, 1944, allowing an appeal. 28 U.S.C. § 380a, 28 U.S.C.A. § 380a. The same section of the statutes provides: 'In the event that an appeal is taken under this section, the record shall be made up and the case docketed in the Supreme Court of the United States within sixty days from the time such appeal is allowed, under such rules as may be prescribed by the proper courts.' This appeal was not docketed in this Court until February 2, 1945, a date after the return date of the order and § 380a. Thereafter the Government suggested a lack of jurisdiction in this Court to consider the appeal because of the failure of appellants to docket the appeal in time. We postponed consideration of our jurisdiction over this appeal to the hearing. We proceed now o a disposition of this question.

To comply with the suggestion of § 380a, this Court adopted Rule 47.13 In other cases of appeals, Rule 11 governs docketing.14 If Rule 11 applies also to appeals under § 380a, we may hear this appeal for the steps for dismissal required by Rule 11 were not taken by the appellee. This is because upon the allowance of an appeal by a judge of the district court as here, Supreme Court Rules 10 and 36, the case is transferred from the district court to this Court and subsequent steps for dismissal or affirmance are to be taken here.15 If, however, the above quoted provision of § 380a as to docketing is a prerequisite to the power of this Court to review, this appeal must fail.

Prior to the passage of § 380a, appeals docketed after the return day were governed by Rule 11, 275 U.S.Appendix. In principle it has long been in existence.16 By the words of the rule, it appears that dismissal for appellant's tardiness in docketing requires a step by the appellee. Even after dismissal for failure to docket, the rule permits this Court to allow the appellant to docket. Noth- ing in the legislative history which has been called to our attention indicates that Congress intended its docketing provision to vary Rule 11. Direct appeal accomplishes the Congressional purpose of expediting review, of course, and is consistent with an unchanged practice as to dismissals. The time to docket may have been enlarged from the conventional return day of Rules 10 and 11 to bring continental uniformity, see Rule 10, or to give time for the preparation of a record which would often be large and not transcribed or printed. It will not expedite determination of constitutional questions to dismiss appeals because of errors of practice. In fact the sentence of § 380a on docketing seems deliberately to leave the practice on failure to docket to rules of court. We do not construe the requirement of docketing within sixty days as a limitation on our power to hear this appeal.

So far as our Rule 47 is concerned, we construe it as requiring in accordance wit § 380a the docketing in sixty days from the allowance of the appeal, instead of the forty days of our Rule 10 and that as to dismissals, the first sentence of Rule 47 requires the same practice for appeals under § 380a that Rule 11 does for other appeals. We think it desirable to have sufficient flexibility in the rule to permit extensions of the time for return in the unusual situations that occur when large records are involved. In view of the recognized Congressional purpose to quicken review under § 380a, the discretion to delay final hearing allowed under Rule 11 will be exercised only on a definite showing of need therefor to assure fair review. This leads us to hear this appeal.17

Second. At the threshold of consideration, we are called upon to decide whether the complaint states a controversy cognizable in this Court. We defer consideration of the cause of action of Mr. Poole until section Three of this opinion. The other individual employees have elaborated the grounds of their objection in individual affidavits for use in the hearing on the summary judgment. We select as an example one that contains the essential averments of all the others and print below the portions with significance in this suit. 18 Nothing similar to the fourth para- graph of the printed affidavit is contained in the other affidavits. The assumed controversy between affiant and the Civil Service Commission as to affiant's right to act as watcher at the polls on November 2, 1943, had long been moot when this complaint was filed. We do not therefore treat this allegation separately. The affidavits, it will be noticed, follow the generality of purpose expressed by the complaint. See note 11 supra. They declare a desire to act contrary to the rule against political activity but not that the rule has been violated. In this respect, we think they differ from the type of threat adjudicated in Railway Mail Association v. Corsi, 326 U.S. 88, 65 S.Ct. 1483, 89 L.Ed. 2072. In that case, the refusal to admit an applicant to membership in a labor union on account of race was involved. Admission had been refused. 326 U.S. at page 93, note 10, 65 S.Ct. at page 1487, 89 L.Ed. 2072. Definite action had also been taken in Hill v. Florida, 325 U.S. 538, 65 S.Ct. 1373, 89 L.Ed. 1782. In the Hill case an injunction had been sought and allowed against Hill and the Union forbidding Hill from acting as the business agent...

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