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

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


January 17, 1977

JOEL D. JOSEPH, ET AL., APPELLANTS

v.

UNITED STATES CIVIL SERVICE COMMISSION, ET AL. 1977.CDC.12 DATE DECIDED: JANUARY 17, 1977

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

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

APPELLATE PANEL:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE TAMM

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. *fn9 The Commission's regulation thus embodied both a decision to exempt participation in the campaigns of independent candidates and a decision not to exempt participation in partisan campaigns.

By the Commission's logic, if it had decided not to add the District to the exemption list no one would have been able to seek judicial review of that decision since no one would be under any greater restriction than had no request for an exemption ever been made. We cannot accept such reasoning. The considered and deliberate decision of the Commission to refuse to exempt the appellants from the prohibitions of the Hatch Act is sufficient injury to meet the requirements for standing. *fn10

The Commission's conclusion that appellants have not been injured also ignores the adverse impact on appellants' interest in the success of candidates representing a particular political viewpoint which results from the disparate treatment of different candidates in the same election. Success in any election depends not only on the strength of one's own campaign but also the strength of the opposition's. Appellants' interest in the success of a particular political point of view is injured when the Commission refuses to allow them to campaign for the candidate who represents that view, while permitting federal employees to work in the same election for independent candidates representing opposing political viewpoints.

The standing of the final group of appellants, Moore, Shackleton and Clarke, is unclear given the state of the record now before us. A candidate who is opposed by an independent candidate or who alleges facts showing the immediate threat of independent opposition would have standing to challenge the Commission's exemption regulation. That regulation would permit his opponent to enlist the active support of federal employees but deny him the opportunity for similar support. A candidate facing such a situation suffers an injury directly traceable to the Commission's action which gives him a concrete interest in the outcome of litigation challenging that action. The problem in this case is that none of the candidate-appellants allege that they face opposition from independent candidates.

Moore simply alleges that he was elected in 1974 to a two-year term as an at-large member of the District of Columbia City Council and that he will probably seek public office again in the future. Shackleton and Clarke similarly only allege that they were elected to the City Council in 1974 and will probably seek public office in the future. *fn11 The failure to allege injury in detail may be simply a defect in the pleadings, however, standing is not merely a pleadings issue since it can be assumed that justiciable actions will be processed in accordance with Rule 15 of the Federal Rules of Civil Procedure which allows liberal amendment to the pleadings. See Ramer v. Saxbe, 173 U.S. App. D.C. 83, 522 F.2d 695, 703 (1975).

We may properly take judicial notice of certain facts with respect to the candidates for seats on the District of Columbia City Council *fn12 which to some extent fill in the generalized allegations of appellants' affidavits. In the 1976 elections there were three independent candidates running for the City Council - one each for the seat representing wards two, seven and eight respectively. None of these independents directly opposed any of the candidate-appellants in this case, however. Moore ran for an at-large seat in a field including Democratic, Statehood, Socialist Workers and U.S. Labor party candidates, but no independent candidates. Although there were independent candidates running in the ward races, neither Shackleton nor Clarke was up for re-election in 1976. Each was elected to a four year term in 1974 and will not face re-election until November 1978. None of the appellants can point to an existing or immediately threatened injury to their election campaigns from the exemption regulation's aid to independent candidates. *fn13 Their standing rests solely on a forecast that in future elections they will face opposition from independent candidates who will benefit from the Commission's exemption.

In O'Shea v. Littleton (supra) 414 U.S. at 497 the Supreme Court rejected a claim of standing by individuals who argued

that if [they] proceed to violate an unchallenged law and if they are charged . . . and tried . . . before [the respondents], they will be subjected to the discriminatory practices that [respondents] are alleged to have followed.

Id. (Emphasis in original). The Court reasoned that the anticipated injury alleged in that claim was too dependent on "speculation and conjecture" to satisfy the standing requirement that the injury be immediate and real. Id.; see Golden v. Zwickler, 394 U.S. 103, 109, 22 L. Ed. 2d 113, 89 S. Ct. 956 (1969).

The situation of the appellants in this case is distinguishable from the facts of O'Shea in at least two respects, however. The anticipated injury in O'Shea depended on the violation of valid criminal laws. None of the petitioners had suggested that they expected to violate those laws and the Court was unwilling to assume that they would not conduct their future activities within the law. 414 U.S. at 497-98. The anticipated injury of the candidate appellants in this case depends on three contingencies: (1) appellants will seek re-election, (2) independent candidates will oppose appellants' re-election and (3) at least one federal employee will actively participate in the campaign of an independent candidate opposing appellants. None of these contingencies is subject to a strong counter presumption similar to the counter presumption in O'Shea that valid laws will be obeyed. Contingency one hardly requires much speculation. Appellants have already alleged that they will "probably" seek elective office in the District in the future. To the extent that their use of "probably" requires speculation, it is more of a pleading problem than an inability to articulate a sufficient personal stake in this litigation. Similarly, contingency three requires little conjecture given the occurrence of contingency two. With the large number of federal employees in the District of Columbia area one may reasonably expect that an independent candidate would recruit at least one such employee as a campaign worker. Only contingency two - whether appellants will face opposition from independent candidates - requires any kind of speculation and conjecture comparable to that found fatal to the standing claim in O'Shea. This second contingency is less speculative than the one in O'Shea since there is no presumption against it, yet the situation confronting us is similar to O'Shea in that appellants have not alleged that they expect opposition from independent candidates.

We have taken judicial notice of the facts of the 1976 election which reveal that although there was no independent opposition for Moore's at-large seat, independent candidates did run against incumbents for the individual ward seats which were up for re-election. Of course past injury by itself cannot establish a present case or controversy regarding the prospective relief sought by appellants. O'Shea (supra) 414 U.S. at 495. Moreover, appellants cannot establish standing for themselves merely on a showing that other candidates for office in the District of Columbia are injured by the Commission's exemption. See id. at 494; Golden v. Zwickler (supra) 394 U.S. at 109-10. Past injury to others in so nearly identical situations as appellants, however, is evidence that there is a real and immediate threat of independent opposition to appellants' re-election. See O'Shea (supra) 414 U.S. at 496. We therefore are inclined to find standing for Moore, Shackleton and Clarke, but do so with two cautionary comments. First, since we have conclusively found standing for appellants who are current federal employees, our decision on the merits is not dependent on the standing of the candidate-appellants. Second, we urge that, at least as a matter of practice, the pleadings, affidavits and other supporting material submitted by plaintiffs should articulate their "injury in fact" with more particularity than the extremely brief and general allegations of the appellants in this case.

B. Ripeness

The Civil Service Commission strongly contends that the Supreme Court's holding of nonjusticiability on allegedly similar facts in United Public Workers v. Mitchell, 330 U.S. 75, 91 L. Ed. 754, 67 S. Ct. 556 (1947) is dispositive of this case. In Mitchell various federal employees sought an injunction against the Hatch Act's prohibition against participation in political campaigns and a declaratory judgment that the prohibition is unconstitutional. Id. at 81-82. The petitioners alleged that they desired to "perform any and all acts not prohibited by any provision of law other than the [Hatch Act] which constitute taking an active part in political management and political campaigns." *fn14 The Court characterized the threat from which petitioners sought relief as "a general threat by officials to enforce those laws which they are charged to administer," id. at 88, and held that their claim was not justiciable, but only an attempt to get "advisory opinions upon broad claims of rights." Id. at 89.

The posture of the legal issues presented by appellants in this case is markedly different from that in Mitchell, and Mitchell's view of justiciability must be evaluated in light of subsequent case law development. The federal employees in Mitchell and appellants here both may have been motivated to bring suit by a desire to actively participate in political campaigns. Ripeness is not a question of litigants motives; it depends instead on whether the issues presented for decision are within the competence of a federal court.

In Mitchell the litigants sought a declaration that, if they were to engage in a broad ranging number of activities, *fn15 the Civil Service Commission could not constitutionally take action against them under the Hatch Act. See Mitchell (supra) 330 U.S. at 81-82. Those litigants who were dismissed from that suit for failure to present a justiciable case did not claim that they had violated the Hatch Act or allege in any other way that the Commission was threatening to take action against them. *fn16 In that posture, the Court characterized their objections as "really an attack on the political expediency of the Hatch Act . . . [and] beyond the competence of [the] courts [to decide]" Id. at 89.

The appellants in this case, in contrast, do not seek a declaration that their intended political activity cannot be prohibited by the Hatch Act. They do not seek prior protection from some future action by the Commission, *fn17 but challenge the procedural and substantive validity of a regulation already promulgated. The legal issues which they present to this court are whether that particular rule was issued pursuant to proper procedures and whether the Commission has the statutory and constitutional authority to issue it. Far from the generalized and abstract questions of political expediency found non-justiciable in Mitchell, the issues in this case are concrete legal questions presented in the context of an actual proceeding by the Commission.

The Civil Service Commission also argues that a decision on the issues raised by this suit should await an actual enforcement action by the Commission which would result in a reviewable final order. *fn18 We find several errors in this reasoning. A partisan candidate for elective office who is not himself a federal employee is not subject to the Commission's authority. He may well be injured by the Commission's determination to allow federal employees to work for an independent opponent but not for him, yet there is no way he can ensure that determination will be challenged. He himself cannot violate the Hatch Act and force the Commission to bring an enforcement action against him. Unless he can come to court in the present posture of this case he may well be left with an illegal injury but no forum in which to seek redress. *fn19

Moreover, even if an employee covered by the Act does force the Commission into an enforcement action, it is doubtful that the issues raised by this suit would be relevant in any review of the Commission's determination that an employee violated the Hatch Act. This suit does not challenge the Act, but only a rulemaking decision of the Commission. It would be no defense to a violation of the Act to argue that the Commission's exemption regulation was not issued according to proper procedures or that it unconstitutionally discriminates between employees of different political persuasion. Whether or not other activity was properly or improperly exempted from the Act's prohibitions is simply not relevant to a review of a penalty for activity clearly in violation of the statute and not exempt under any regulation. *fn20

Finally, we note that modern case law since Mitchell reflects a greater judicial willingness to aid litigants faced with the necessity of risking substantial harm in order to challenge the validity of governmental action. As early as 1952, in Adler v. Board of Education, 342 U.S. 485, 96 L. Ed. 517, 72 S. Ct. 380 (1952) the Supreme Court ignored the ripeness rule of Mitchel, if it did not actually overrule it sub silentio. Adler and three other teachers in New York City Schools challenged the validity of a complicated statutory and regulatory scheme of the State of New York prohibiting anyone who engaged in certain proscribed speech or conduct from working in the public school system. The teachers did not allege that they had engaged in or intended to engage in any proscribed activity. They did not even allege that they were deterred from supporting causes or joining organizations by fear of the law's interdict. See id. at 504 (Frankfurter, J., dissenting). Although Justice Frankfurter noted in dissent that "the allegations in the present action fall short of those found insufficient in the Mitchell case" id., the majority did not discuss ripeness and proceeded directly to a decision on the merits.

In 1970 Professor Kenneth Culp Davis noted that not a single decision since 1958 had adopted the same attitude towards ripeness as Mitchell. See K. DAVIS, ADMINISTRATIVE LAW TREATISE, § 21.00, at 670 (Supp. 1970). Moreover three years before, in 1967, the Supreme Court decided a trio of cases which have served as the basis of the modern law of ripeness. Abbott Laboratories v. Gardner, 387 U.S. 136, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967); Toilet Goods Association v. Gardner, 387 U.S. 158, 18 L. Ed. 2d 697, 87 S. Ct. 1520 (1967); Gardner v. Toilet Goods Association, 387 U.S. 167, 18 L. Ed. 2d 704, 87 S. Ct. 1526 (1967). In Abbott and Gardner v. Toilet Goods the Court granted what it termed "pre-enforcement" review of labeling regulations of the Food and Drug Administration after considering the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration. The Court developed its two-fold analysis from the basic rationale of the ripeness doctrine:

to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way . . . .

Abbott (supra) 387 U.S. at 148.

Appellants' complaint against the Civil Service Commission's exemption regulation is not an abstract policy dispute. They themselves, as candidates, or the candidates they support have been and will be directly disadvantaged by the Commission's decision to restrict its exemption to independent candidates. If this suit is dismissed, their only avenue for redress of this disadvantage is to violate the Hatch Act and run the risk of losing their jobs. *fn21 Their suit does not seek court review of an administrative policy in its formative stage. The Commission's exemption regulation embodies a policy decision which has been fully formalized. By its own inaction the Commission has indicated that it does not intend to conduct further administrative proceedings to refine or adjust its exemption policy. Indeed, in this suit it opposes the notice and comment proceedings which appellants seek to initiate. We therefore find that the conclusion of the Supreme Court in Abbott applies with full force to the case now before us:

Where the legal issue presented is fit for judicial resolution, and where a regulation requires an immediate and significant change in plaintiffs' conduct of their affairs with serious penalties attached to noncompliance, access to the courts under the Administrative Procedure Act and the Declaratory Judgment Act must be permitted, absent a statutory bar or some other unusual circumstance. . . .

Id. at 153. II. NOTICE AND COMMENT PROCEEDINGS REQUIRED

Appellants charge that the Civil Service Commission violated the requirements of section 4 of the Administrative Procedure Act, 5 U.S.C. § 553 (1970), when it extended its exemption regulation to the District of Columbia without conducting notice and comment proceedings. Section 4(b) and (c) require an agency to publish a general notice of proposed rulemaking in the Federal Register and to afford interested persons an opportunity to submit comments. Administrative Procedure Act, 5 U.S.C. §§ 553(b) and (c) (1970). Although the Civil Service Commission did not comply with the notice and comment procedures of section 4, *fn22 the district court granted the Commission's motion for summary judgment apparently on the grounds that its regulation is an interpretative rule and, as such, within the exemption from notice and comment proceedings of section 4(b)(3). *fn23

We find that the Commission's action must be classified as legislative *fn24 rather than interpretative rulemaking. Consequently it is subject to the notice and comment requirements of section 4. Subsection 7327(b) of the Hatch Act delegates authority to the Commission to issue regulations exempting government employees within certain statutorily defined areas from the prohibitions of the Act. *fn25 When it added the District to its exemption regulation the Commission clearly intended to exercise that authority and promulgate a rule with the full force of law. Whether or not the District of Columbia is to be exempt from Hatch Act prohibitions is not a matter requiring either clarification of statutory language or a public indication of how the Commission will exercise a discretionary power. If the Commission issues an exemption which is within the authority of subsection 7327(b) and follows the proper procedure, that exemption is as binding on a court as if it were part of the statute. A court is not free to disregard the Commission's decision and an employee charged with violation of the Hatch Act cannot argue that the Commission's decision not to exempt the conduct he has engaged in was only "interpretative" and should be replaced by a broader exemption shaped by the courts.

When an agency seeks to exercise such legislative rulemaking authority it must follow the notice and comment procedures of section 4 of the Administrative Procedure Act. *fn26 The Commission's failure to comply with those requirements when it promulgated the exemption regulation at issue in this case renders that regulation invalid. *fn27 See NLRB v. Wyman-Gordon Co., 394 U.S. 759, 763-66, 22 L. Ed. 2d 709, 89 S. Ct. 1426 (1969). III. SCOPE OF THE CIVIL SERVICE COMMISSION'S EXEMPTION AUTHORITY

The question was raised at oral argument whether the Civil Service Commission has established that it has the necessary statutory authority to exempt elections in the District of Columbia from prohibitions of the Hatch Act. Although no definite answer to this question can be given in view of the inadequacy of the current record, the interests of judicial efficiency persuade us to indicate the issues which should be addressed in any future rulemaking with respect to a Hatch Act exemption for the District of Columbia.

The Commission can only exempt employees residing in a particular municipality or political subdivision when:

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. . . .

Hatch Act, 5 U.S.C. § 7327(b)(1) (1970). The District of Columbia cannot qualify for an exemption under the first alternative in subsection 7327(b)(1). Although there can be no dispute that it is "in the immediate vicinity of the District of Columbia," it is equally certain that it is not in the states of Maryland or Virginia. The legislative history of this first alternative clearly indicates that it was proposed to restrict the Civil Service Commission's exemption authority to areas adjacent to the District. See 86 CONG. REC. 2976-78 (1940) (remarks of Senators Byrd and O'Mahoney). Admittedly the failure to include areas within the District may well have been due to the fact that there were no elective positions within the District government in 1940 when the Commission was given its exemption authority. *fn28 The literal language of the first alternative in subsection 7327(b) (1), however, clearly does not include the District, and although a court should interpret the meaning of statutory language in light of the intent of its drafters, we cannot rewrite the statute to compensate for unforeseen circumstances. That power belongs to the legislature alone.

If the Civil Service Commission does have power to exempt elections in the District of Columbia from Hatch Act prohibitions, it must be on the basis of the second alternative of subsection 7327 (b)(1) that the District "is a municipality in which the majority of voters are employed by the Government of the United States. . . ." Hatch Act, 5 U.S.C. 7327(b)(1) (1970). At oral argument two questions were raised with respect to this alternative: 1) Should employees of the District of Columbia be considered "employed by the Government of the United States" for purposes of determining whether a majority of the voters who reside in the District are so employed; and 2) Does the statutorily-required majority refer to eligible voters, registered voters or actual voters, and by what method may the Commission make its finding that a majority thereof are employed by the Government.

Employees of the District of Columbia are not treated as employees of the United States for all purposes. See Bradshaw v. United States, 143 U.S. App. D.C. 344, 443 F.2d 759, 766-68 (1971). The legislative history of the Hatch Act, however, indicates that for purposes of subsection 7327 (b)(1) they should be considered "employed by the Government of the United States." The Commission's exemption authority was added to the Hatch Act as an amendment to a bill which extended the prohibitions of the Act to District employees by providing that for purposes of the Hatch Act "persons employed in the government of the District of Columbia shall be deemed to be employed in the executive branch of the Government of the United States. . . ." Act of July 19, 1940, ch. 640 4, 54 Stat. 771 (adding section 14 to Act of August 2, 1939); 86 CONG. REC. 2341 (1940) (remarks of Senator Hatch explaining extension to D.C. employees); id. at 2981 (remarks of Senator Schwellenbach explaining amendment restricting Commission's exemption authority). Thus at the time of its enactment the phrase "employed by the Government of the United States" clearly included employees of the District of Columbia. There has been no substantive change in the Commission's exemption authority since that time. *fn29 We therefore conclude that employees of the District of Columbia should be counted in determining whether the Commission may exempt the District under subsection 7327(b)(1).

Unfortunately the legislative history of subsection 7327 (b)(1) is far less enlightening on what the drafters meant by "majority of voters". The Commission's exemption authority was not part of the legislation as originally proposed. It was added to the Act by amendment during the final hours of consideration in the Senate, see 86 CONG. REC. 2976-81 (1940), and both the House and Senate Committee Reports only restate the legislative language of the exemption provision without explanation.

As originally proposed by Senator Byrd the amendment would have allowed the Civil Service Commission to grant an exemption whenever it determined that by reason of special or unusual circumstances an exemption would be in the domestic interests of persons subject to the Act. Id. at 2976. In debate Senator O'Mahoney voiced his concern that this language conferred too broad an exemption power on the Commission and, at his suggestion, the words "in the immediate vicinity of the National Capital, in the States of Virginia and Maryland" were added. Id. at 2977. Senator Schwellenbach then proposed the addition of language to include areas where a majority of voters are employed by the government of the United States, to meet the problem of Bremerton, Washington where a majority of the citizens were employed by or were members of the family of someone employed by the Puget Sound Navy Yard. Id. at 2981 (remarks of Senator Schwellenbach). Aside from comments that Senator Schwellenbach's proposal would also cover Norris, Tennessee where a majority of the voters were employed by the Tennessee Valley Authority and all other similar situations there was no other debate. The proposal was accepted by Senator Byrd as a modification to his amendment which in turn was agreed to, as modified, by the entire Senate. Id. The House did not change the Senate's language with respect to this provision, and the House debates offer no clarification of the phrase "majority of voters". *fn30

The Civil Service Commission has apparently decided that this "majority of voters" standard should be read as requiring a demonstration that a majority of the registered voters are government employees. See Record, Affidavit of General Counsel of Civil Service Commission; 119 CONG. REC. 42458 (1973) (remarks of Senator Eagleton explaining the information required by the Commission in an application for exemption). We see no reason to reject this interpretation of subsection 7327(b)(1), but we do question the evidentiary support for the Commission's conclusion that in fact a majority of the registered voters in the District of Columbia are government employees.

The only quantitative data in the record relevant to this issue is contained in a letter from Fred D. Wilkes of the American Federation of State, County and Municipal Employees to the Civil Service Commission requesting an exemption for the District of Columbia. Memorandum in Support of Defendants' Motion to Dismiss or for Summary Judgment, Exhibit 1. By means of a twelve-step estimation process, Wilkes concludes that 43 per cent of the registered voters of the District of Columbia are employed by either the District or federal governments. Id. Although he does not explicitly reject this estimate, Wilkes apparently intends to imply through two footnotes in his letter that it is significantly below the actual figure. He notes that his formula relies on a figure for total government employment which does not include Central Intelligence Agency and National Security Agency employees, and estimates the percentage of government employees registered to vote on the basis of the registration percentage for the entire voting age population which he assumes is significantly lower than the percentage of fully employed persons who are registered to vote. Wilkes offers no quantitative factor by which to adjust the estimate of 43 per cent to make up for the conservative basis of his estimation technique and we would be unwilling to assume that his estimate is necessarily low by at least seven percentage points.

We could not uphold a claim of Commission authority to act under subsection 7327(b)(1) based on the tenuous statistical evidence presented in this case. Of course the Commission is not required to conduct a name-by-name inquiry into the employment status of every registered voter where that data is not readily available, but neither can it rely on the unsupported assumption that if an estimating formula yields an approximate figure of 43 per cent then the actual figure must necessarily be more than 50 per cent. The fact that a majority of voters in an area are employed by the Government must be established by more satisfactory statistical proof. IV. HOLDING

Appellants have standing to challenge the Civil Service Commission's decision to exempt local elections in the District of Columbia from the prohibitions of the Hatch Act. Their suit is not barred by whatever remains of the ripeness rule of United Public Workers v. Mitchell (supra) since the issues they raise are fit for judicial determination and after weighing the respective hardships we find no reason to delay consideration of their claim. The Commission's exemption regulation for the District is an attempt at legislative rulemaking and its failure to comply with notice and comment procedures of the Administrative Procedure Act for such rulemaking renders the regulation invalid. We therefore reverse the district court's judgment in favor of the Commission and remand this case for entry of a judgment declaring the Commission's exemption regulation for the District of Columbia invalid. We also note that if the Commission decides to repromulgate this exemption following the proper procedures, it should develop stronger support for a finding that a majority of the voters in the District are employed by the government of the United States than the tenuous statistical inferences presented in the record of this case.

Finally, we wish to clarify any question as to the potential retroactive effect of our decision. Although we hold that the Commission's exemption regulation for local elections of the District of Columbia is invalid, any individual who relied on that exemption prior to the date of our decision can properly assert it as a defense to a charge that he otherwise violated the Hatch Act. Cf. Pickus v. United States Board of Parole, 165 U.S. App. D.C. 284, 507 F.2d 1107, 1114 (1974).

Reversed and Remanded.

CASE RESOLUTION

Reversed and Remanded. IN AGREEMENT

MACKINNON, Circuit Judge, Concurring:

I concur in the foregoing opinion but with respect to the interpretation of the first clause of 5 U.S.C. § 7327(b)(1) (1975) as excluding the District of Columbia,1 I would emphasize that this conclusion results from the specific language of the statute and is not in any way dependent on "legislative history."

While the provision, "in the immediate vicinity of the District of Columbia," taken alone, might be said to include the actual area of the District of Columbia because a definite area might by some be said to be within its own vicinity, it is awkward to convey such intent in that manner and the full context of the statement makes it clear that Congress did not so intend. Had Congress intended to include the District of Columbia because of its proximity to the Nation's Capital, it would have merely designated it by name,2 but it did not do so. Instead the express wording of the statute clearly indicates that Congress intended to exclude the District of Columbia because it provided in the Act that the

municipality or political subdivision [should be] in Maryland or Virginia and in the immediate vicinity of the District of Columbia. . . .

Since no part of the District of Columbia is in either "Maryland or Virginia," the District of Columbia is clearly excluded and it is immaterial whether one considers the District of Columbia to be within its own vicinity. Also, since the statute is clear there is no need to resort to legislative history that confirms the above interpretation.3

Nothing in this opinion is intended to convey the impression that the District of Columbia might be excluded if it is found that a majority of voters are employed by the government of the United States.4

The interpretation of the phrase "majority of voters" in the second clause of section 7327(b)(1) to mean "majority of registered voters" can also be upheld simply on the internal logic of the statute's phraselogy. This exception is addressed to situations where federal employees dominate an electorate. To base the determination of dominance on some standard other than fully eligible registered voters could defeat the logic of the section, where an area predominates in federal employees, but, perhaps due to apathy engendered by their being barred from taking part in the campaigns, less than a majority of the registered voters are federal employees. Thus, any interpretation other than "registered voters" would cut against the plain object of the exception.5


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