United Public Workers v. Mitchell
330 U.S. 75 (1947)

Annotate this Case

U.S. Supreme Court

United Public Workers v. Mitchell, 330 U.S. 75 (1947)

United Public Workers v. Mitchell

No. 20

Argued December 3, 1945

Reargued October 17, 1946

Decided February 10, 1947

330 U.S. 75

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES

FOR THE DISTRICT OF COLUMBIA

Syllabus

1. Under § 3 of the Act of August 24, 1937, 50 Stat. 752, 28 U.S.C. § 380a, a direct appeal to this Court was taken from a judgment of a district court of three judges denying an injunction in a case involving the constitutionality of a federal statute. The case was not docketed in this Court until after 60 days from the time the appeal was allowed. The steps prescribed by Rule 11 of this Court for obtaining a dismissal were not taken by the appellees.

Held: This Court has jurisdiction of the appeal. Pp. 330 U. S. 84-86.

(a) The provision of 28 U.S.C. § 380a requiring an appeal thereunder to be docketed in this Court within 60 days from the time the appeal is allowed was not intended to vary Rule 11 of this Court, and does not constitute a limitation on the power of this Court to hear this appeal. Pp. 330 U. S. 85-86.

(b) Rule 47 of this Court requires the same practice for appeals under 28 U.S.C. § 380a that Rule 11 does for other appeals. P. 330 U. S. 86.

2. Certain employees of the executive branch of the Federal Government sued for an injunction against the members of the Civil Service Commission to prohibit them from enforcing against such employees § 9(a) of the Hatch Act, 18 U.S.C. Supp. V § 61h, which forbids such employees from taking "any active part in political management or in political campaigns," and also for a declaratory judgment of the unconstitutionality of this section. They did not allege that they had violated the Act or that they actually were threatened with any disciplinary action, but only that they desire to engage in acts of political management and in political campaigns (specifying the nature of the actions which they wish to take) and are prevented from doing so by fear of dismissal from federal employment.

Held: Their suit does not present a justiciable case or controversy. Pp. 330 U. S. 86-91.

3. Another employee of the executive branch of the Federal Government brought a similar suit, alleging that he actually had committed

Page 330 U. S. 76

specific violations of the Act, and that the Commission had charged him with violations and had issued a proposed order for his removal, subject to his right to reply to the charges and to present further evidence in refutation.

Held: His suit presents a justiciable case or controversy. Pp. 330 U. S. 91-94.

(a) Since the employee admits that he violated the Act and that removal from office is therefore mandatory under the Act, there is no question as to exhaustion of administrative remedies. P. 330 U. S. 93.

(b) There being no administrative or statutory review for the Commission's order and no prior proceeding pending in the courts, there is no reason why a declaratory judgment action does not lie, even though constitutional issues are involved. P. 330 U. S. 93.

4. A person employed as a roller in a United States mint acted outside of working hours as a ward executive committeeman of a political party and was politically active on election day as a worker at the polls and as a paymaster for the services of other workers. The Civil Service Commission found that he had taken an "active part in political management or in political campaigns" in violation of § 9 of the Hatch Act, 18 U.S.C.Supp. V § 61h, and Rule 1 of the Commission, and issued an order for his removal from federal employment.

Held: Such a breach of the Hatch Act and Rule 1 of the Commission can be made the basis for disciplinary action without violating the Constitution. Pp. 330 U. S. 94-104.

(a) Congress has the power to regulate, within reasonable limits, the political conduct of federal employees, in order to promote efficiency and integrity in the public service. Ex parte Curtis,106 U. S. 371; United States v. Wurzbach,280 U. S. 396. Pp. 330 U. S. 96-103.

(b) The fundamental human rights guaranteed by the First, Fifth, Ninth and Tenth Amendments are not absolute, and this Court must balance the extent of the guarantee of freedom against a congressional enactment to protect a democratic society against the supposed evil of political partisanship by employees of the Government. Pp. 330 U. S. 95-96.

(c) The Hatch Act permits full participation by federal employees in political decisions at the ballot box, and forbids only the partisan activity deemed offensive to efficiency. P. 330 U. S. 99.

(d) It does not restrict public and private expressions on public affairs, personalities, and matters of public interest, not an objective of party action, so long as the government employee does not direct his activities toward party success. P. 330 U. S. 100.

(e) If political activity by government employees is harmful

Page 330 U. S. 77

to the service, the employees, or people dealing with them, it is hardly less so because it takes place after hours. P. 330 U. S. 95.

(f) The prohibition of § 9(a) of the Hatch Act applies without discrimination to all employees of the executive branch of the Government, whether industrial or administrative. P. 330 U. S. 102.

(g) Whatever differences there may be between administrative employees of the Government and industrial workers in its employ are differences in detail for the consideration of Congress, so far as the constitutional power here involved is concerned. P. 330 U. S. 102.

(h) The determination of the extent to which political activities of government employees shall be regulated lies primarily with Congress, and the courts will interfere only when such regulation passes beyond the generally existing conception of governmental power. P. 330 U. S. 102.

5. Acting as ward executive committeeman of a political party and as a worker at the polls is within the prohibitions of § 9 of the Hatch Act and the Civil Service Rules. P. 330 U. S. 103.

56 F.Supp. 621, affirmed.

Certain employees of the executive branch of the Federal Government and a union of such employees sued to enjoin the members of the Civil Service Commission from enforcing the provision of § 9(a) of the Hatch Act, 18 U.S.C. Supp. V § 61h, which forbids such employees to take "any active part in political management or in political campaigns," and for a declaratory judgment holding the Act unconstitutional. The District Court dismissed the suit. 56 F.Supp. 621. A direct appeal to this Court was taken under § 3 of the Act of August 24, 1937, 50 Stat. 752, 28 U.S.C. § 380a. Affirmed, p. 330 U. S. 104.

Page 330 U. S. 78

MR. JUSTICE REED delivered the opinion of the Court.

The Hatch Act, * enacted in 1940, declares unlawful certain specified political activities of federal employees. [Footnote 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." [Footnote 2] Section 15 declares that the activities

Page 330 U. S. 79

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. [Footnote 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. [Footnote 4] In June, 1938,

Page 330 U. S. 80

the congressional authorization for exclusion had been made more effective by a Civil Service Commission disciplinary rule. [Footnote 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

Page 330 U. S. 81

printed in the margin. [Footnote 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. [Footnote 7]

The present appellants sought an injunction before a statutory three-judge district court of the District of Columbia

Page 330 U. S. 82

against appellees, members of the United States Civil Service Commission, to prohibit them from enforcing against appellants 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. [Footnote 8] A declaratory judgment of the unconstitutionality of the sentence was also sought. [Footnote 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, [Footnote 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. [Footnote 11] From the

Page 330 U. S. 83

affidavits 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. [Footnote 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 permissible

Page 330 U. S. 84

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 (CIO) v. Mitchell, 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. 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 under § 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 to a disposition of this question.

To comply with the suggestion of § 380a, this Court adopted Rule 47. [Footnote 13] In other cases of appeals, Rule 11

Page 330 U. S. 85

governs docketing. [Footnote 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 appellees. 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. [Footnote 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. 602. In principle it has long been in existence. [Footnote 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. Nothing

Page 330 U. S. 86

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 with § 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. [Footnote 17]

As is well known, the federal courts established pursuant to Article III of the Constitution do not render advisory opinions. [Footnote 19] For adjudication of constitutional issues, "concrete legal issues, presented in actual cases, not abstractions," are requisite. [Footnote 20] This is as true of declaratory judgments as any other field. [Footnote 21] These appellants seem clearly to seek advisory opinions upon broad claims of rights protected by the First, Fifth, Ninth and Tenth Amendments to the Constitution. As these appellants are classified employees, they have a right superior to the generality of citizens, compare Fairchild v. Hughes,258 U. S. 126, but the facts of their personal interest in their civil rights, of the general threat of possible interference with those rights by the Civil Service Commission under its rules, if specified things are done by appellants, does not make a justiciable case or controversy. Appellants want to engage in "political management and political campaigns," to persuade others to follow appellants' views by discussion, speeches, articles and other acts reasonably designed to secure the selection of appellants' political choices. Such generality of objection is really an attack on the political expediency of the Hatch Act, not the presentation of legal issues. It is beyond the competence of courts to render such a decision. Texas v. Interstate Commerce Commission,258 U. S. 158, 258 U. S. 162.

The power of courts, and ultimately of this Court, to pass upon the constitutionality of acts of Congress arises

Page 330 U. S. 90

only when the interests of litigants require the use of this judicial authority for their protection against actual interference. A hypothetical threat is not enough. We can only speculate as to the kinds of political activity the appellants desire to engage in, or as to the contents of their proposed public statements or the circumstances of their publication. It would not accord with judicial responsibility to adjudge, in a matter involving constitutionality, between the freedom of the individual and the requirements of public order except when definite rights appear upon the one side and definite prejudicial interferences upon the other. [Footnote 22]

The Constitution allots the nation's judicial power to the federal courts. Unless these courts respect the limits of that unique authority, they intrude upon powers vested in the legislative or executive branches. Judicial adherence to the doctrine of the separation of powers preserves the courts for the decision of issues, between litigants, capable of effective determination. Judicial exposition upon political proposals is permissible only when necessary to decide definite issues between litigants. When the courts act continually within these constitutionally imposed boundaries of their power, their ability to perform their function as a balance for the people's protection against abuse of power by other branches of government remains unimpaired. Should the courts seek to expand their power so as to bring under their jurisdiction ill-defined controversies over constitutional issues, they would

Page 330 U. S. 91

become the organ of political theories. Such abuse of judicial power would properly meet rebuke and restriction from other branches. By these mutual checks and balances by and between the branches of government, democracy undertakes to preserve the liberties of the people from excessive concentrations of authority. No threat of interference by the Commission with rights of these appellants appears beyond that implied by the existence of the law and the regulations. Watson v. Buck, supra, p. 313 U. S. 400. We should not take judicial cognizance of the situation presented on the part of the appellants considered in this subdivision of the opinion. These reasons lead us to conclude that the determination of the trial court, that the individual appellants, other than Poole, could maintain this action, was erroneous.

Third. The appellant Poole does present by the complaint and affidavit matters appropriate for judicial determination. [Footnote 23] The affidavits filed by appellees confirm that

Page 330 U. S. 92

Poole has been charged by the Commission with political activity and a proposed order for his removal from his position adopted subject to his right under Commission procedure to reply to the charges and to present further evidence in refutation. [Footnote 24] We proceed to consider the controversy over constitutional power at issue between Poole and the Commission as defined by the charge and preliminary finding, upon one side, and the admissions of Poole's affidavit, upon the other. Our determination is limited to those facts. This proceeding, so limited, meets the requirements of defined rights and a definite threat to interfere with a possessor of the menaced rights by a penalty for an act done in violation of the claimed restraint. [Footnote 25]

Page 330 U. S. 93

Because we conclude hereinafter that the prohibition of § 9 of the Hatch Act and Civil Service Rule 1, see notes 2 and | 2 and S. 75fn6|>6 above, are valid, it is unnecessary to consider, as this is a declaratory judgment action, whether or not this appellant sufficiently alleges that an irreparable injury to him would result from his removal from his position. [Footnote 26] Nor need we inquire whether or not a court of equity would enforce by injunction any judgment declaring rights. [Footnote 27] Since Poole admits that he violated the rule against political activity and that removal from office is therefore mandatory under the act, there is no question as to the exhaustion of administrative remedies. The act provides no administrative or statutory review for the order of the Civil Service Commission. Compare Stark v. Wickard,321 U. S. 288, 321 U. S. 306-310; Macauley v. Waterman S.S. Corporation,327 U. S. 540. As no prior proceeding, offering an effective remedy or otherwise, is pending in the courts, there is no problem of judicial discretion as to whether to take cognizance of this case. Brillhart v. Excess Insurance Co.,316 U. S. 491, 316 U. S. 496-497, dissent at 316 U. S. 500; Larson v. General Motors Corporation, 134 F.2d 450, 453. Under such circumstances, we see no reason why a declaratory judgment action, even though constitutional issues are involved, does not lie. See Rules of Civil Procedure, Rule 57. Steele v. Louisville & Nashville Railroad Co.,323 U. S. 192, 323 U. S. 197, 323 U. S. 207; Tunstall v. Brotherhood of

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