The opinion of the court was delivered by: YOUNGDAHL
This cause came on to be heard on defendants' motion to dismiss or, in the alternative, for summary judgment and on plaintiff's motion for summary judgment.
Plaintiff is a resident of Houston, Texas, and an employee of the Railway Mail Service of the United States Post Office Department. He wrote a letter to the Houston Post which was published in its column entitled 'Sound-Off' on June 22, 1954. The letter reads:
'In olden times there was a goat called the 'Judas' goat. He led the other goats to the slaughtering pen. They followed him blindly because they had confidence in him.
'After the Judas goat had delivered this batch of goats to the executioners, he went back after another batch.
'This just might be a parable. Our esteemed, honorable governor was elected by the Democrats, then in 1952 turned against the Democratic party that had elected him governor and led Texas into the Republican fold. Of course, our honorable governor didn't expect to be appointed by Ike to a better job, not much he didn't.
'Anyway, he didn't get the job and now is offering his services again to the Democratic party of Texas. I respect Republicans as such. I respect Democrats as such. No one respects a renegade. Let's send Allan Shivers home.'
The United States Civil Service Commission instituted removal proceedings against plaintiff on September 1, 1954, under Section 9(a) of the Hatch Act,
charging that he had participated in a political campaign in that the letter advocated and recommended the defeat of Allan Shivers, 'a partisan candidate for nomination for governor of the state of Texas in the Democratic primary of July 24, 1954'; that it was written with the intent to have it published and with the intent to dissuade voters from voting for a specified partisan political candidate at a time when other candidates were conducting campaigns to secure the party nomination.
Plaintiff was granted a hearing to answer these charges. It was held on February 21, 1955, over the protest of his counsel who charged that the hearing was not as prescribed by the Administrative Procedure Act. Then, on May 18, 1955, a final order issued from the Civil Service Commission finding plaintiff in violation of Section 9(a) of the Hatch Political Activity Act and directing that plaintiff be suspended from his employment for a period of ninety days.
On June 27, 1955, plaintiff filed complaint against defendants, seeking declaratory and injunctive relief from the order of suspension. Plaintiff moved for a preliminary injunction on August 15, 1955, which was granted pending final determination of plaintiff's action.
On August 29, 1955, defendants moved to dismiss for lack of jurisdiction or for summary judgment.
The Court is satisfied that it has jurisdiction to render declaratory relief. The administrative process has been exhausted. A final order has issued finding plaintiff in violation of Section 9(a) and ordering his suspension from employment for ninety days. No other effective remedy is available to plaintiff. See United Public Workers v. Mitchell, 1947, 330 U.S. 75, 91-94, 67 S. Ct. 556, 91 L. Ed. 754. This is not a case where plaintiff has tried to sue the Civil Service Commission eo nomine. The Commissioners themselves are being sued individually and as members of defendant Civil Service Commission and each has been duly served. Compare Blackmar v. Guerre, 1952, 342 U.S. 512, 515, 72 S. Ct. 410, 96 L. Ed. 534.
Attention must be focused upon that portion of Section 9(a) of the Hatch Act which reads:
'No officer or employee in the executive branch of the Federal Government, or any agency or department thereof, shall take any active part in political management or in political campaigns. All such persons shall retain the right to vote as they may choose and to express their opinions on all political subjects and candidates.'
A ninety day minimal penalty of suspension without pay is provided for violation of this section. The statute does not specifically authorize or deny the opportunity for a full hearing prior to the enforcement of the penalty provisions. Due to our resolution of the case, ...