Plaintiffs reply that this case falls without the rationale of any theoretical exhaustion-of-remedies requirement, because they are not seeking to circumvent an ongoing administrative process or to avoid initiating such a process themselves. They point out that the federal employees they represent are placed in the dilemma of acceding to the Special Counsel's opinion, giving up ex terrorem their rights of political speech and association, or risking almost certain enforcement action against them, with the distinct possibility of losing their jobs if they are wrong. Since the staff attorney in the Office of the Special Counsel issued the first advisory opinion plaintiffs have of caution abandoned all their plans for voter registration drives pending a decision by this Court. In such circumstances, they say, where important constitutional rights may be being irreparably harmed, the Special Counsel's advisory opinion is final enough agency action for the purpose of permitting them to go to court to test it.
These contentions, and the authorities the parties have cited to support them, invoke principles of both exhaustion of administrative remedies and ripeness (as well as ideas of finality, standing, and the existence of a justiciable case or controversy), in the abstract analytically distinct doctrines which in application often coincide with not altogether consistent results. See, e.g., Abbott Laboratories v. Gardner, 387 U.S. 136, 149-52, 87 S. Ct. 1507, 1515-17, 18 L. Ed. 2d 681 (1967); Toilet Goods Association v. Gardner, 387 U.S. 158, 165-66, 87 S. Ct. 1520, 1525-26, 18 L. Ed. 2d 697 (1967); Gulf Oil Corp. v. United States Department of Energy, 663 F.2d 296, 307 & n. 71, 310 (D.C.Cir.1981).
Exhaustion of administrative remedies is often required before seeking relief in court for an actual or threatened injury. See, e.g., Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S. Ct. 459, 463-464, 82 L. Ed. 638 (1938); Andrade v. Lauer, 234 U.S. App. D.C. 384, 729 F.2d 1475, 1484 (D.C.Cir.1984); Athlone Industries v. CPSC, 228 U.S. App. D.C. 80, 707 F.2d 1485, 1488 (D.C.Cir.1983). The requirement is not, however, generally treated as jurisdictional in nature but is to be applied in accordance with its purposes. Andrade v. Lauer, 729 F.2d at 1484. Exhaustion serves to discourage the flouting of agency authority and its processes; to enable the parties and the agency to develop the facts and produce a better record for review; to afford the agency opportunity to apply its expertise and to correct its own errors; and to promote judicial economy by preventing needless judicial fact-finding or resort to the courts altogether if the agency functions to the satisfaction of all parties. See Andrade v. Lauer, 729 F.2d at 1484; cf. Parisi v. Davidson, 405 U.S. 34, 37-38, 92 S. Ct. 815, 817-19, 31 L. Ed. 2d 17 (1972); McKart v. United States, 395 U.S. 185, 193-95, 89 S. Ct. 1657, 1662-63, 23 L. Ed. 2d 194 (1969); Athlone Industries v. CPSC, 228 U.S. App. D.C. 80, 707 F.2d 1485, 1488 (D.C.Cir.1983); Gulf Oil Corp. v. United States Department of Energy, 214 U.S. App. D.C. 119, 663 F.2d 296, 309 (D.C.Cir.1981).
While each of those purposes might be served to some extent by awaiting the outcome of an MSPB endorsement proceeding here, as a practical matter these plaintiffs have no administrative remedies of their own to exhaust. They want to conduct their voter registrations now, yet Congress has provided them with no mechanism for administrative review of an advisory opinion of the Special Counsel.
All proceedings before the MSPB under the Hatch Act are initiated by Special Counsel, and this he has neither done or is obliged to do. The only way plaintiffs can obtain administrative consideration of their claims is to cause one or more of their federal-employee members to engage in conduct which the Special Counsel has pronounced illegal and, thus, bait him into an enforcement action.
Once begun enforcement might so enhance the virtues of the exhaustion requirement as to preclude resort to the court until it had finished. It could be said that a federal employee already in jeopardy is no worse off by being made to await the end of the MSPB proceedings. But it makes little sense here to fault the plaintiffs, or the federal employees they represent, for failing to do that which they cannot in fact do except by calling down upon the union members the punitive process for breaking a law they would prefer to obey if they can. Exhaustion is appropriate only when a complainant is realistically able to seek administrative relief simply by applying for it, or when the administrative process has already begun. When neither circumstance is present, as here, there still may be good reasons to question whether judicial review is proper, but those reasons are better considered in the context of ripeness, not exhaustion.
Defendant contends that the Special Counsel's opinion is not final agency action ripe for judicial review, because the MSPB alone has authority to "hear, adjudicate, . . . and . . . take final action" on Hatch Act matters, 5 U.S.C. § 1205(a)(1), and it has neither ratified the advisory opinion, nor has it taken, or threatened to take, any action against plaintiffs' members. Review would be proper, says defendant, were plaintiffs challenging a final order of the MSPB, see 5 U.S.C. § 1207(c), or the issuance of a regulation by the Office of Personnel Management ("OPM") interpreting the Hatch Act, see Joseph v. United States Civil Service Commission, 180 U.S. App. D.C. 281, 554 F.2d 1140, 1149-52 (D.C.Cir.1977).
But the Special Counsel's opinion lacks the finality and "legal force" of either an OPM regulation or MSPB order, and, hence, is not ripe for review.
Neither of the two cases principally relied on by defendant, however, W.E.B. DuBois Clubs v. Clark, 389 U.S. 309, 88 S. Ct. 450, 19 L. Ed. 2d 546 (1967) and Dingess v. Hampton, 305 F. Supp. 169 (D.D.C.1969) (three-judge court), persuade the Court that this dispute is presently unripe for decision. In DuBois Clubs the Attorney General petitioned the Subversive Activities Control Board ("SACB") for an order (thus initiating administrative proceedings comparable to a Hatch Act enforcement proceeding here) that the W.E.B. DuBois Clubs of America was a Communist-front organization and, as such, required by statute to register with the Attorney General. Before any administrative hearings could be held, however, the Clubs brought suit against the Attorney General to declare the Communist-front registration provisions unconstitutional and enjoin their enforcement. Affirming dismissal of the complaint the Supreme Court observed the availability of the administrative process in which the Clubs could raise their constitutional claims and "decline[d] to require the court below to permit substitution of an injunctive proceeding for the civil proceeding which Congress has specifically provided." Id. at 313, 88 S. Ct. at 453. But in DuBois Clubs the administrative process had commenced (to enforce, it should be noted, a statute attaching consequences to conduct that had already occurred) and a dispositive decision of some sort was inevitable if not imminent. DuBois Clubs does not purport to foreclose judicial review of pre-emptive agency rulings which anticipate and abort a contemplated exercise of rights as effectively as a final administrative adjudication.
Dingess v. Hampton followed the holding of DuBois Clubs in a Hatch Act case which defendant claims is directly on point. Plaintiff, an employee of a federally-funded county government program, alleged that he had been, and intended to continue to be, actively engaged in partisan politics in violation of the Hatch Act.
Asserting that he must either forego politics or face the loss of his job, he brought suit in this court to obtain a declaration that the application of the Hatch Act to him violated his constitutional rights and an injunction prohibiting the Civil Service Commission from enforcing it against him.
While the suit was pending the Commission's general counsel investigated Dingess' activities, concluding that he had not violated the Act and that no action would be taken against him. The court (McGowan, J.) dismissed the complaint, finding the situation "not unlike" that in DuBois Clubs where it had been argued that the "mere overhanging threat of an administrative proceeding, or the burden of going through with it once begun, has a chilling effect upon First Amendment freedoms of speech and association which vests a court with jurisdiction to intrude itself before the Congressional plan of proceeding is either invoked or has run its course." 305 F. Supp. at 173. The court said:
We do not think the mere fact that a constitutional objection to an Act of Congress is derived from the First Amendment automatically and invariably means that a court must resolve the issue in advance, and without the benefit, of the operation of the specific processes provided by Congress for the enforcement of the statute.
305 F. Supp. at 174.
Dingess is, however, distinguishable from the case at bar. The plaintiff in Dingess wanted to litigate whether the Hatch Act applied to him despite counsel's opinion that his activities were innocent and no action was to be taken against him.
In contrast plaintiffs here have been told by the official authorized to charge federal employees with violations of the Act that for their members to participate in their voter registration drives would be unlawful, and they have been given no reason to think that if they go ahead with them as planned he will change his mind about them or not do his duty as he now sees it. Given what appears to be the inevitability of the confrontation, any incentive to require union members to place their careers at hazard simply to learn if the Hatch Act applies as Special Counsel says it does is attenuated.
Indeed, more recent court challenges to the application of the Hatch Act have been permitted even though actual enforcement proceedings had not been completed, or even commenced.
In 1973, the Supreme Court decided the constitutionality of the Hatch Act's prohibition of certain political activity in a suit by plaintiffs who wished to engage in it and alleged that the Civil Service Commission "was enforcing, or threatening to enforce," its provisions against them, of whom only one had already violated the Act and none were yet the subjects of Commission proceedings. Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 551 & n. 3, 93 S. Ct. 2880, 2883 & n. 3, 37 L. Ed. 2d 796 (1973).
Plaintiffs primarily rely on a Hatch Act decision of the court of appeals postdating Dingess in which the claims were held ripe for pre-enforcement review. Joseph v. United States Civil Service Commission, 180 U.S. App. D.C. 281, 554 F.2d 1140 (D.C.Cir.1977), involved a challenge to a Civil Service Commission regulation exempting participation in political campaigns as or on behalf of an independent candidate for an otherwise partisan election for local office in the District of Columbia from the strictures of the Hatch Act. The district court granted summary judgment in favor of the Commission, and on appeal the Commission argued both the merits and for dismissal because the case was not ripe for adjudication. Noting that "modern case law . . . reflects a greater judicial willingness to aid litigants faced with the necessity of risking substantial harm in order to challenge the validity of government action," 554 F.2d at 1151, the court said, "if this suit is dismissed, their only avenue for redress . . . is to violate the Hatch Act and run the risk of losing their jobs." Id. at 1152.
Although there were reasons favoring judicial review in Joseph not presented here,
its holding is sufficient to dissuade the Court from following Dingess to dismiss the instant complaints on ripeness grounds. If, in a case like Joseph, review of the validity of a regulation is possible before it is enforced if its promulgation imposes "debilitating uncertainties" on the regulated parties,
so also should pre-enforcement review be available of a threat of enforcement which has the effect of deterring the exercise of constitutional rights. See, e.g., Steffel v. Thompson, 415 U.S. 452, 462, 94 S. Ct. 1209, 1217, 39 L. Ed. 2d 505 (1974); Andrade v. Lauer, 234 U.S. App. D.C. 384, 729 F.2d 1475, 1483 (D.C.Cir.1984); Kaplan v. Hess, 224 U.S. App. D.C. 281, 694 F.2d 847, 850-51 (D.C.Cir.1982).
Special Counsel's advisory opinion here, even though lacking coercive legal effect, creates an onerous legal uncertainty and is tantamount to a threat of enforcement. It was issued, pursuant to a statutory grant of power, by the very person charged with initiating the enforcement process, and as an authoritative statement regarding the legality of these specific plaintiffs' planned conduct under the Hatch Act. It contemplated, and had the likely consequence of, "expected conformity," see National Automatic Laundry and Cleaning Council, 143 U.S. App. D.C. 274, 443 F.2d 689, 698 (D.C.Cir.1971), and the history of plaintiffs' response to it attests to its practical effect in that regard. Plaintiffs are therefore entitled to seek review of it without further delay.
Plaintiffs' claims on the merits present three basic questions: whether Special Counsel's opinion is consistent with the Hatch Act; whether its construction of the Hatch Act is unconstitutional as applied to plaintiffs' activities; and whether the opinion is unconstitutional on its face. Before reaching those issues, however, the defendant urges the Court to undertake a more limited inquiry, viz., whether the opinion's construction of the Hatch Act is within the "outer limits" of certain rules incorporated by reference in the Hatch Act in 1940.
He argues that to the extent his advisory opinion falls within those limits, it must be accepted as an authoritative statement of the reach of the Hatch Act and upheld against First Amendment attack.
But in Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 93 S. Ct. 2880, 37 L. Ed. 2d 796 (1973), the Supreme Court held that the reach of the Hatch Act was limited by the 1940 rules, not that it was congruent with them, nor that the division between permissible and impermissible conduct would remain static. Indeed, by further regulations and adjudications within those bounds, the Civil Service Commission was to produce "a more refined definition of what conduct would or would not violate the statutory prohibition of taking an active part in political management and political campaigns." 413 U.S. at 575, 93 S. Ct. at 2895. To determine whether the Special Counsel's opinion properly construes the Act, therefore, the Court should proceed not by examining the law as it stood in 1940, but as it stands today.
Section 7324(a)(2) simply proscribes taking "an active part in political management or political campaigns." The Court in Letter Carriers reaffirmed the basic holding of United Public Workers v. Mitchell, 330 U.S. 75, 67 S. Ct. 556, 91 L. Ed. 754 (1947), that this prohibition, when limited to partisan political activity, is within Congress' constitutional power. The Court reiterated Mitchell's limiting construction:
It was "only partisan political activity that is interdicted. . . . [Only] active participation in political management and political campaigns [is proscribed]. Expressions, public or private, on public affairs, personalities and matters of public interest, not an objective of party action, are unrestricted so long as the government employee does not direct his activities toward party success."