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FRENCH v. DEVINE

August 23, 1982

Bruce Comly FRENCH, Plaintiff,
v.
Donald J. DEVINE, Director, Office of Personnel Management, Herbert E. Ellingwood, Chairman, Merit Systems Protection Board, Ersa H. Poston, Vice Chair, Merit Systems Protection Board, Alex Kozinski, Special Counsel, Merit Systems Protection Board, Defendants



The opinion of the court was delivered by: BRYANT; ROBINSON, JR.

 BRYANT, District Judge.

 Plaintiff Bruce Comly French, the District of Columbia City Council's legislative counsel, seeks a preliminary injunction enjoining defendants from prosecuting French under the Hatch Act, 5 U.S.C. §§ 7324-7327, if French takes an active part in the primary campaign for City Council Chairman now under way in the District. French also seeks a declaratory judgment, pursuant to 28 U.S.C. § 2201, that the provisions of 5 U.S.C. § 7321 et seq. do not apply to him, or are unconstitutional as applied to him. Defendants seek to dismiss this case on the grounds that until French in fact takes an active part in a campaign and is found by the Merits Systems Protection Board (MSPB) to have violated the Hatch Act, the court lacks jurisdiction. For the reasons stated below, the court dismisses French's complaint on grounds of nonjusticiability. Until French seeks an advisory opinion from the MSPB's Special Counsel, his First Amendment rights are not sufficiently chilled to justify the award of injunctive or declaratory relief.

 FACTS

 Since 1979, French has served as Legislative Counsel to the District of Columbia City Council. French was nominated to his post by Council Chairman Arrington L. Dixon, and confirmed by the City Council. As a member of D.C.'s Excepted Service, French has no job tenure or protection, except the right to notice and a statement of reasons for termination fifteen days prior to expiration of his appointment. D.C. Code §§ 1-610.5, 1-610.8(11).

 Chairman Dixon, whose current term expires January 2, 1983, is now seeking renomination as Democratic candidate for Chairman. The primary election will take place on September 14. French asserts his continued appointment as Legislative Counsel is dependent upon Dixon's renomination and re-election. French, on his own time, wishes to assist Dixon's renomination by engaging in the following activities:

 
1. Receiving and distributing funds for partisan purposes;
 
2. Organizing the sale of tickets for fund raising events;
 
3. Active management of the campaign;
 
4. Soliciting support for the candidate;
 
5. Serving as a poll watcher and advocate;
 
6. Addressing gatherings in support of the partisan candidate;
 
7. Publicly endorsing the incumbent chairman and causing such announcements of such endorsement to be made;
 
9. Driving voters to the polls.

 Affidavit of Bruce Comly French, filed July 21, 1982, para. 7.

 French has not yet engaged in any of the activities listed above because "it is [his] belief that the activities [he] desire[s] to undertake are proscribed by regulations of the Office of Personnel Management or the Merit Systems Protection Board." Id. at P 9. French has not requested the MSPB Special Counsel to issue an advisory opinion ...


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