The opinion of the court was delivered by: GESELL
The National Association of Letter Carriers (NALC), a public employee union, brings this action against the Postmaster General seeking a declaratory judgment that portions of 5 U.S.C. § 7311 and a required implementing oath offend the First Amendment of the Constitution. NALC, an unincorporated association, is the certified exclusive representative of some 6,000 bargaining units of postal employees and sues on its own behalf and for its thousands of individual members.
Conceding for purposes of this litigation that Congress may prohibit public employees from striking, the complaint attacks the constitutionality of those portions of 5 U.S.C. § 7311 and related portions of the Post Office employment oath bracketed in context below. The statute provides that:
An individual may not accept or hold a position in the Government of the United States or the government of the District of Columbia if he -
(3) participates in a strike, [or asserts the right to strike,] against the Government of the United States or the government of the District of Columbia; [or]
(4) [is a member of an organization of employees of the Government of the United States or of individuals employed by the government of the District of Columbia that he knows asserts the right to strike against the Government of the United States or the government of the District of Columbia.] 5 U.S.C. § 7311(3) and (4).
The corresponding part of the oath, challenged portions of which also are bracketed, reads:
The Government concedes that the portions of the statute and oath under attack are separable. The statute itself contains a separability clause disclosing a congressional intent to retain any valid provisions if they can stand independently (5 U.S.C. at 87 (Sec. 7(g) of Pub. L. 89-554, 80 Stat. 631)) and the Court is satisfied that the no-strike clause is viable alone. See United States v. Jackson, 390 U.S. 570, 20 L. Ed. 2d 138, 88 S. Ct. 1209 (1968); Champlin Refining Co. v. Corporation Commission, 286 U.S. 210, 76 L. Ed. 1062, 52 S. Ct. 559 (1932). Accordingly, it is necessary only to deal here with the portions of the statute and oath bracketed above, the no-strike provision being left in effect.
The case was heard by this three-judge court on application for a preliminary injunction which was denied. Further briefs and affidavits were then filed and the parties were given the opportunity to request further argument. Since neither has done so, the Court deems the matter submitted.
The Government raises two issues which may obviate a decision on the merits. It contests NALC's standing and argues that no case or controversy has been presented to bring the declaratory judgment statute into play.
The statute does not provide any sanction against NALC for asserting the right to strike, nor is NALC required to swear an oath. Only individuals are directly affected. The Government accordingly urges that individual members of NALC alone have standing to challenge the statute and oath. But if NALC openly "asserts" the right to strike, its members may be put at hazard since the statute carries criminal sanctions (18 U.S.C. § 1918), and they could be barred from Government employment because of NALC's activities. And other letter carriers may be inhibited from joining because ...