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01/17/77 Joel D. Joseph, Et Al., v. United States Civil

January 17, 1977





Appeal from the United States District Court for the District of Columbia (D.C. Civil 74-1302).


Tamm, MacKinnon and Wilkey, Circuit Judges. Opinion for the Court filed by Circuit Judge Tamm. Concurring opinion filed by Circuit Judge MacKinnon.


In this appeal eight residents of the District of Columbia ask this court to reverse a district court's summary judgment upholding the validity of a regulation of the Civil Service Commission. The challenged regulation exempts participation in political campaigns as or on behalf of an independent candidate in a partisan election *fn1 for local office in the District from the otherwise applicable prohibitions of the Hatch Political Activity Act (Hatch Act). *fn2 Appellants argue that the district court erred in deciding that the challenged regulation was exempt from the notice and comment provisions of section 4 of the Administrative Procedure Act, 5 U.S.C. § 553 (1970). *fn3 The Civil Service Commission not only denies the merits of appellants' argument, but also asserts that appellants have failed to present a justiciable claim. We find that at least those appellants who are currently employed by the federal government have standing to challenge the Commission's regulation; that the issues presented by appellants are ripe for judicial review; and that the regulation was not exempt from section 4. Consequently we hold that the Commission's failure to follow the procedure required by section 4 renders its exemption regulation for the District of Columbia invalid. The judgment of the district court to the contrary is reversed.

We also note that an examination of the language of the legislation granting the Commission its power to exempt certain statutorily defined municipalities and political subdivisions from Hatch Act prohibitions raises doubts about the Commission's authority to include the District of Columbia within any exemption. This issue was not raised by the parties, *fn4 and the record currently before us is inadequate for a clear resolution of the question. In the interests of judicial efficiency, however, we offer the Commission our views on the proper statutory interpretation since if it decides to reissue its regulation under section 4, the Commission must indicate the legal authority under which the regulation is proposed. See Administrative Procedure Act, § 4(b)(2), *fn5 U.S.C. § 553(b)(2) (1970).

Subsection 7324(a)(2) of the Hatch Act forbids an employee in an executive agency or an individual employed by the District of Columbia government to take an active part in political campaigns. Subsection 7327(b), however, provides that:

The Civil Service Commission may prescribe regulations permitting employees and individuals to whom section 7324 of this title applies to take an active part in political management and political campaigns involving the municipality or other political subdivision in which they reside, to the extent the Commission considers it to be in their domestic interest, when -

(1) the municipality or political subdivision is in Maryland or Virginia and in the immediate vicinity of the District of Columbia, or is a municipality in which the majority of voters are employed by the Government of the United States; and

(2) the Commission determines that because of special or unusual circumstances which exist in the municipality or political subdivision it is in the domestic interest of the employees and individuals to permit that political participation.

5 U.S.C. § 7327(b) (1970). The Commission has exercised this exemption authority by designating a list of municipalities wherein an employee

may take an active part in political management and political campaigns in connection with partisan elections for local offices . . . subject to the following limitations:

(1) Participation in politics shall be as an independent candidate or on behalf of, or in opposition to, an independent candidate.

5 C.F.R. § 733.124(c)(1) (1976).

On May 30, 1974 the Civil Service Commission added the District of Columbia to its list of exempted municipalities with an effective date of May 16, 1974. 39 Fed. Reg. 18761 (1974). Shortly thereafter appellants filed suit in the United States District Court for the District of Columbia challenging the Commission's action as both procedurally improper and unconstitutional. Appellants argued that the addition of the District of Columbia to the Commission's exemption list was a rulemaking action subject to the notice and comment requirements of section 4 of the Administrative Procedure Act, 5 U.S.C. § 553 (1970), which the Commission failed to follow. They also raised constitutional objections to the substance of the exemption regulation to the extent that it permits political activity in support of one type of candidate but prohibits such activity in support of other candidates in the same election. The Commission filed a motion for summary judgment arguing that the addition of the District to the exemption list was an interpretative rule exempt from the requirements of section 4 and that the constitutionality of the exemption had been upheld by Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 37 L. Ed. 2d 796, 93 S. Ct. 2880 (1973). After considering appellants' arguments in opposition, the district court granted summary judgment for the Commission on the authority of Letter Carriers and the exception to section 4 of the Administrative Procedure Act for interpretative rules. Appellants now challenge the correctness of that judgment.5 I. JUSTICIABILITY

The Commission argues that appellants have failed to allege sufficient injury to establish standing or to show that their claims are ripe for adjudication. For the purposes of analyzing these arguments, the appellants can be divided into three distinct groups. Jerry A. Moore, Jr., Polly Shackleton and David A. Clarke are elected members of the District of Columbia City Council representing either the Republican or Democratic political party. Lawrence A. Fox, Ronald A. Margolis, Mark A. Rothstein and Robert E. Silver are all employees of the federal government who have made donations to Democratic candidates for the District's City Council and would like to take an active role in the management of their campaigns. Kenneth J. Oliver is interested in obtaining employment with the federal government and as a member of the Democratic Party he would like to actively support Democratic candidates in future District elections. *fn6

A. Standing

In order to challenge governmental action in a federal court a plaintiff must show that he is "injured in fact." Sierra Club v. Morton, 405 U.S. 727, 734-35, 31 L. Ed. 2d 636, 92 S. Ct. 1361 (1972). The injury need not be substantial. A trifle is enough for standing. United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 689, 37 L. Ed. 2d 254, 93 S. Ct. 2405 n.14 (1973). "Injury in fact" distinguishes the person with a direct, although sometimes small, stake in the result of a case from the person with only an interest in the legal issues presented. Id. Although this line drawing function of the standing rule is conceptually clear, determining on which side of the line a particular factual situation falls is often quite difficult. See K. DAVIS, ADMINISTRATIVE LAW IN THE SEVENTIES § 22.02-10, at 507 (1976).

Even applying the most liberal interpretation of injury, we cannot find that Oliver has established a personal stake in the outcome of this litigation. He is not employed by the federal government. He is not currently applying for such employment. There is no reason to suppose that he will be injured by the Hatch Act's restrictions because of the Commission's refusal to include partisan candidates in its exemption for local elections of the District of Columbia. There are simply too many contingencies between Oliver's interest in supporting Democratic candidates in District elections and any possible application of the Hatch Act prohibitions to that activity to say that the threat of injury to him is real and immediate, rather than conjectural or hypothetical. See O'Shea v. Littleton, 414 U.S. 488, 494-97, 38 L. Ed. 2d 674, 94 S. Ct. 669 (1974).

Appellants Fox, Margolis, Rothstein and Silver, unlike Oliver, are presently employed by the federal government. They each desire to participate in the campaigns of Democratic candidates for the City Council of the District of Columbia whom they are currently supporting through financial contributions. *fn7 Without an exemption from the Commission such participation would clearly violate subsection 7324(a)(2) and subject these appellants to a possible penalty of at least 30 days suspension without pay and perhaps the loss of their jobs. See Hatch Act, § 7325, 5 U.S.C. § 7325 (1970); 5 C.F.R. §§ 733.131 to 733.137 (1976).

The Commission argues that since the appellants were prohibited by the Hatch Act from participating in partisan campaigns before it promulgated its exemption and continue to be prohibited afterwards, they have suffered no injury. This argument rests on an untenably narrow view of the Commission's decision. When the Commission decided to add the District to its exemption list it not only granted federal employees a limited benefit but also denied them a larger benefit. The Commission had received requests for an exemption covering partisan as well as independent candidates. *fn8 Moreover, after it had published its limited exemption, the Commission sent out at least two letters describing in detail why it had decided not to extend the exemption to partisan candidates. ...

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