McGOWAN, Circuit Judge:
The complaint in this case sought injunctive and declaratory relief against the members of the United States Civil Service Commission and the Acting Director of the United States Office of Economic Opportunity. It asked for the convening of a three-judge court under 28 U.S.C. § 2282 because it sought to restrain the enforcement of an Act of Congress for repugnance to the Constitution. The federal statutes so challenged were said to be 5 U.S.C. § 1502(a)(3) and Title 42 U.S.C. § 2943(a). The first is a provision of the familiar Hatch Act which forbids federal employees, or those of State and local governments paid from federal funds, to engage in political activity. The second is a provision of the Economic Opportunity Act of 1964 which extended the Hatch Act to the employees of community action agencies administering, with federal funds, local anti-poverty programs.
Because of the apparent need for a three-judge court, the District Court requested that one be convened, and that was done. The case came on for hearing before it on the plaintiff's
motions for a temporary restraining order and a preliminary injuction, and upon the defendants' motion to dismiss. We have, for the reasons hereinafter set forth, concluded that dismissal is in order.
Plaintiff is a resident of Mingo County, West Virginia, and is a full-time staff employee of the Mingo County Economic Opportunities Commission. The Commission is a community action agency which has the responsibility for planning, implementing, and coordinating the antipoverty programs in Mingo County. Plaintiff alleges that he has been, and plans to continue to be, actively engaged in partisan politics in violation of the Hatch Act, and, accordingly, faces the loss of his job. His monthly salary of $400 represents his sole income, and is paid to him for his services in supervising anti-poverty programs in the Harvey District of Mingo County. He alleges that the Congressional ban on political activity was brought to his notice by his superior, but despite this he engaged in active and organized political activity, and intends to go on doing so. The complaint goes on to assert that plaintiff must either abandon this activity or lose his job; and that, even though his employer should choose not to dismiss him, it would thereby risk loss of the federal funds it receives. Alleging that he is without any remedy at law and that defendants threaten him with irreparable injury, plaintiff seeks by way of relief an injunction against enforcement of the statutory ban on partisan political activities, and a declaratory judgment that the Acts of Congress in question are, in their application to employees of community action programs, invalid under the First, Fifth, and Ninth Amendments to the Constitution.
In support of their motion to dismiss, defendants point out that Congress effected the extension of the Hatch Act to cover persons employed as is plaintiff by the simple device of defining "State or local agency" for Hatch Act purposes to include a community action agency like the one by which plaintiff is employed.
It notes that the enforcement of the Hatch Act itself has been vested by Congress exclusively in the Civil Service Commission. That Act provides (5 U.S.C. §§ 1504, 1505) that violations are to be reported to the Civil Service Commission which shall investigate a possible violation and, if it sees fit, set it for hearing at which the employee (or the State or local agency employing him, or both) may appear with counsel. After hearing the Commission shall determine whether a violation has occurred, and, if so, whether it warrants removal from employment. If removal of a State or local employee is found necessary, notice is given to his employer, and failure to comply requires the Commission to certify to the funding federal agency the requirement that it withhold certain amounts from its grants or loans (5 U.S.C.§ 1506).
The Hatch Act provides (5 U.S.C. § 1508) for judicial review of any such determination by the Civil Service Commission, at the instance of any aggrieved party, by petition to a United States District Court, with further review by direct appeal to a United States Court of Appeals and, on certiorari, by the United States Supreme Court. A court may stay the Commission's order pending completion of judicial review.
When this suit was filed in the District Court on October 23, 1968, the Civil Service Commission decided to investigate the allegations by plaintiff in his complaint that he had violated the Hatch Act. In a letter of March 17, 1969, to the Office of Economic Opportunity, the General Counsel of the Civil Service Commission stated that "[We] have concluded that the evidence received in the course of the investigation does not provide a basis for initiating action against Mr. Dingess under the [Hatch Act]."
On the same date the Commission's Deputy General Counsel wrote plaintiff to the same effect, describing the Commission's posision as follows:
With regard to your statement that you set up a campaign rally for a Republican candidate on October 9, 1968 and otherwise actively campaigned, our attorneys interviewed the witness you identified to them as having knowledge of your activity in this respect because he had collaborated with you. They also received sworn statements from several other witnesses who had knowledge of the meeting, including candidates who attended and local party leaders who planned and arranged the meeting. None of these witnesses credited you with having set up the rally, performing any work to arrange or promote it, or otherwise actively campaigning.
Your activities in the Fair Elections Committee concerned with voter registration and related work to prevent election irregularities are not prohibited by the Federal statute and therefore provide no basis for Commission action in your case.