point out that French may, if he wishes, seek an advisory opinion from the MSPB Special Counsel. Whether or not French chooses to do so, and whether or not the advisory opinion is favorable to French, defendants assert that French must campaign and be found to have violated the Hatch Act before he can seek a remedy in this court. See Dingess v. Hampton, 305 F. Supp. 169 (D.D.C.1969) (three judge court).
Federal courts established under Article III of the Constitution do not render advisory opinions. "For adjudication of constitutional issues, 'concrete legal issues, presented in actual cases, not abstractions,' are requisite." Golden v. Zwickler, 394 U.S. 103, 108, 89 S. Ct. 956, 959, 22 L. Ed. 2d 113 (1969), quoting United Public Workers v. Mitchell, 330 U.S. 75, 89, 67 S. Ct. 556, 564, 91 L. Ed. 754 (1946). While a plaintiff need not invariably wait until he has been subjected to the force of a law before he may challenge the statute in court, "the mere existence of a statute . . . is not ordinarily enough to sustain a judicial challenge, even by one who reasonably believes that the law applies to him and will be enforced against him according to its terms." National Student Association v. Hershey, 134 U.S. App. D.C. 56, 412 F.2d 1103, 1110 (D.C.Cir.1969).
Suits alleging injury in the form of a chilling effect upon plaintiff's First Amendment rights are more readily justiciable than comparable suits not so affected with a First Amendment interest. Id. at 1113. To determine whether the chilling effect in a particular case is sufficiently strong to render a case justiciable, the court must consider: "(1) the severity and scope of the alleged chilling effect on First Amendment freedoms, (2) the likelihood of other opportunities to vindicate such First Amendment rights as may be infringed with reasonable promptness, and (3) the nature of the issues which a full adjudication on the merits must resolve, and the need for factual referents in order properly to define and narrow the issues." Id. at 1115.
French's complaint and affidavit do not state that he has been subjected to adverse action or threats of adverse action. However, while French's complaint and affidavit do not explicitly allege that the Hatch Act has prevented French from exercising his protected rights, see National Treasury Employees Union v. Kurtz, 195 U.S. App. D.C. 170, 600 F.2d 984, 989 (D.C.Cir.1979), French's citation in his brief of Jordan v. Merit Systems Protection Board, C.A. No. 80-0465 (D.D.C. January 6, 1981) suggests that French's desire to campaign is chilled because French fears that campaigning will subject him to removal from his position. In this case, however, the severity of the chill upon French's First Amendment rights is mitigated because French can, within one week, obtain an opinion from the MSPB Special Counsel advising him whether the Hatch Act applies to him and/or the activities he proposes to undertake. Martin Tractor Co. v. Federal Election Commission, 200 U.S. App. D.C. 322, 627 F.2d 375, 384-385 (D.C.Cir.1980). Even though the statute does not explicitly bind the Special Counsel to his advisory opinions, the likelihood that the Special Counsel would consider himself bound by an advisory opinion favorable to French lessens the chilling effect of the Hatch Act enough to deter the court from deciding this case at this time.
It appears that French came for relief directly to this court because he believed that, given the language of the Hatch Act, the Special Counsel would certainly rule against him, and because he believed that, as in Jordan, the agency opinion would simply find a violation of the Hatch Act, and not confront claims of the statute's unconstitutionality. Exhaustion of administrative remedies is unnecessary when the claimant seeks to have a legislative act declared unconstitutional and administrative action will leave standing the constitutional question, Public Utilities Commission v. United States, 355 U.S. 534, 78 S. Ct. 446, 2 L. Ed. 2d 470 (1958); or if it would be futile to comply with administrative procedures because it is clear that the claim will be rejected. City Bank Farmers Trust Co. v. Schnader, 291 U.S. 24, 54 S. Ct. 259, 78 L. Ed. 628 (1934).
The court does not believe that resort to the administrative process is useless in this case. Jordan ran for office as Councilman himself, and was removed by the Council. Jordan appealed his removal by the Council to the MSPB, which affirmed the Council's determination that Jordan had violated the Hatch Act. The fact that Jordan's case came to the MSPB on review does not mean that the Special Counsel will initiate a complaint with the MSPB for French's removal, and that the MSPB will order French's removal. The court is unwilling to adjudicate the issues French raises when it is not sufficiently certain that the Special Counsel and the MSPB will act against French.
Second, while in Jordan the MSPB declined to rule on the constitutionality of the statute that it is assigned to administer, In the Matter of Absalom F. Jordan, Jr., Docket No. F-1830 (July 5, 1979) at 4, the Special Counsel and the MSPB are not precluded from ruling upon the applicability of the Hatch Act. This power is derived in the case of the Special Counsel, from his authority to render advisory opinions and to recommend legislation, see 5 U.S.C. § 1206(m), and in the case of the MSPB, from its power to review rules or regulations interpreting the Hatch Act issued by the Director of the Office of Personnel Management, see 5 U.S.C. § 1205(e), and its power to recommend legislation, see 5 U.S.C. § 1205(k). See Doe v. Martin, 404 F. Supp. 753, 763 (D.D.C.1975) (three judge court) (D.C. Board of Elections has power to issue declarations of D.C. Election Act's inapplicability derived from Board's broad rule-making function and authority to issue advisory opinions).
In addition to ascertaining the extent of the chill French asserts, requiring French to seek an advisory opinion before he comes to court will provide a somewhat better record upon which the court can base its decision. The facts the Special Counsel considers will be the same hypotheticals French now poses to the court. But the Special Counsel's opinion may narrow issues by deciding that only some of the many activities French wishes to undertake would violate the statute. Compare Signorelli v. Evans, 637 F.2d 853, 857 (2d Cir. 1980) ("Appellant . . . has indicated his proposed course of activity with specificity in his complaint, leaving no room for judicial speculation concerning the intended private action and the likely official response.").
Moreover, "Congress has entrusted enforcement of the [Hatch] Act exclusively to the [MSPB] . . . because of its long history of functioning in this area and the corresponding expertise it had acquired in divining and applying the reach of the Congressional purposes vis-a-vis the prohibited political activity." Dingess, 305 F. Supp. at 174. The legislative history of the Hatch Act's application to various categories of District of Columbia employees is long and complex. An advisory opinion from the Special Counsel would enhance the court's record by elucidating policies underlying the Hatch Act's coverage of certain D.C. employees.
Though the statutory scheme does not mandate that French seek an advisory opinion from the MSPB Special Counsel before coming to court, this case is not justiciable in its present posture. French's complaint is dismissed.
ON MOTION TO AMEND
AUBREY E. ROBINSON, Jr., District Judge.
Upon consideration of Plaintiff's Motion to Amend the Court's Order dismissing the above-captioned case, the opposition thereto, the hearing held September 3, 1982, and the entire record herein, the Court notes the following:
(1) On August 23, 1982 the Court entered an Order dismissing this action for lack of justiciability. The Court emphasized that Plaintiff had not yet engaged in any of the political activity he contemplates. Moreover, Plaintiff had failed to request an advisory opinion from the Office of Special Counsel of the Merit Systems Protection Board as to whether the activities he wishes to pursue are proscribed by the Hatch Act and would provoke enforcement action by the Special Counsel.
(2) Following dismissal of his action, Plaintiff petitioned the Office of Special Counsel (OSP) for an advisory opinion. The Special Counsel's opinion, issued one week later, concluded that Plaintiff is subject to the Hatch Act and each of the seven categories of political activity he wishes to engage in is prohibited by the Act. The OSP declined to speculate whether it would initiate proceedings against Plaintiff; the opinion noted that initiation of prosecutions is within the discretion of the Special Counsel and depends upon whether the violations are brought to its attention, the circumstances of the alleged violations, and "budgetary and available" resources. Nevertheless, the OSP cautioned that "any employee who violates the Hatch Act necessarily risks prosecution by the Special Counsel." On the basis of that opinion, Plaintiff now seeks to have the Order of dismissal vacated and the case decided on the merits.
(3) Plaintiff is entitled to a declaratory judgment on the constitutionality of the Hatch Act as it is applied to him; the current posture of the case presents a justiciable controversy. See National Student Association, Inc. v. Hershey, 134 U.S. App. D.C. 56, 412 F.2d 1103, 1110-1115 (D.C.Cir.1969). Although there is no certainty of prosecution, the penalty for violating the Act is severe enough to have a substantial "chilling effect" on Plaintiff's first amendment activities. Moreover, the type of activities Plaintiff wishes to pursue are sufficiently defined to permit adjudication of the constitutional issues. As the dates of the primary and general elections draw nearer, the opportunities for Plaintiff to vindicate his first amendment rights are dwindling.
(4) Intervenor David M. Watson wishes to engage in political activity that differs from the activity proposed by Plaintiff. Because Watson has not sought or received an advisory opinion from the OSP on the legality of his proposed activities, the Court declines to amend its Order dismissing the action as to him. Intervenor Harriet B. Burg has not indicated the type of political activity she wishes to engage in or whether she has sought an OSP advisory opinion. The Order dismissing the action as to her is therefore affirmed.
(5) Plaintiff is unquestionably subject to the Hatch Act. The Act provides that ". . . an individual employed by the government of the District of Columbia may not take an active part in political management or in political campaigns." 5 U.S.C. § 7324(a) (2). Plaintiff concedes that he is employed by the District of Columbia and that he does not fall within any of the exceptions contained in §§ 7324(c) and (d). The particularity with which these exceptions are drawn belie any Congressional intention that individuals in positions such as Plaintiff's also be shielded from the strictures of the Act.
(6) The United States Supreme Court has consistently upheld the validity of the Hatch Act against constitutional challenge. United Public Workers of America v. Mitchell, 330 U.S. 75, 67 S. Ct. 556, 91 L. Ed. 754 (1947); United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 93 S. Ct. 2880, 37 L. Ed. 2d 796 (1973). See also Broadrick v. Oklahoma, 413 U.S. 601, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973) (state "Hatch Act"). The nature of the duties performed by the regulated public employee is irrelevant to the Court's constitutional inquiry. See Mitchell, 330 U.S. at 101-102, 67 S. Ct. at 570-571. Thus, the fact that Plaintiff has no hand in the administration or enforcement of the law does not mandate departure from the holdings of Mitchell and Letter Carriers, supra.
(7) The government's interest in limiting "the political influence of federal employees on others and on the electoral process," Letter Carriers, 413 U.S. at 557, 93 S. Ct. at 2886, is sufficient to support the Act's broad restrictions on political activity by federal employees. In Mitchell, supra, the Court noted that
Congress recognizes danger to the service in that political rather than official effort may earn advancement and to the public in that governmental favor may be channeled through political connections. Mitchell 330 U.S. at 98, 67 S. Ct. at 568-69 (footnote omitted).
The Court continued,
Congress may reasonably desire to limit party activity of federal employees so as to avoid a tendency toward a one-party system. It may have considered that parties would be more truly devoted to the public welfare if public servants were not overactive politically. Id., at 100, 67 S. Ct. at 569.