Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 02-cv-03469) District Judge: Honorable Joseph E. Irenas
Before: Sloviter, Ambro, Circuit Judges, and Tucker *fn1, District Judge
The opinion of the court was delivered by: Ambro, Circuit Judge
Submitted Under Third Circuit LAR 34.1(a) June 27, 2003
Roger Merle, an employee of the United States Postal Service, wishes to run for Congress and retain his position with the Postal Service. The District Court concluded that the Hatch Act bars him from doing so. We agree and thus affirm.
I. Facts and Procedural History
Merle is a rural letter carrier for the Postal Service in Bridgeton, New Jersey. In June 2002, he filed nominating petitions with the New Jersey Division of Elections seeking qualification as a candidate for election to the United States House of Representatives from New Jersey's Second Congressional District in the November 2002 election. He wished to campaign as a candidate for the Green Party. A provision of the Hatch Act, 5 U.S.C. § 7323(a)(3), prohibits candidacies by federal employees for any "partisan political office" and has been applied to Postal Service employees. Kane v. MSPB, 210 F.3d 1379, 1381 (Fed. Cir. 2000). As a result, Merle feared that he would be terminated under § 7323(a)(3), or face other substantive penalties if he campaigned for office.
Merle and the Green Party State Committee filed suit to obtain a declaratory judgment that he could not lawfully be removed or suspended for running for election as a United States Representative because § 7323(a)(3) is unconstitutional as applied to congressional candidacies by federal employees. The United States filed a motion to dismiss, which was granted by the District Court. This appeal followed.
We have jurisdiction over this appeal under 28 U.S.C. § 1291. We review an order granting a motion to dismiss for failure to state a claim de novo. Beidleman v. Stroh Brewery Co., 182 F.3d 225, 229 (3d Cir. 1999).
We lack jurisdiction when "the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Powell v. McCormack, 395 U.S. 486, 496 (1969). The Government argues that this appeal has been mooted by the occurrence of the 2002 election and the filling of the Congressional office for which Merle wished to be a candidate. We reject this contention. This controversy, like most election cases, fits squarely within the "capable of repetition yet evading review" exception to the mootness doctrine. See Morse v. Republican Party of Virginia, 517 U.S. 186, 235 (1996) ("Like other cases challenging electoral practices... [,] this controversy is not moot because it is 'capable of repetition, yet evading review.'" (citing Anderson v. Celebrezze, 460 U.S. 780, 784 n.3 (1983); Storer v. Brown, 415 U.S. 724, 737 n.8 (1974); Moore v. Ogilvie, 394 U.S. 814, 816 (1969))).
Under the "capable of repetition" exception, a court may exercise its jurisdiction and consider the merits of a case that would otherwise be deemed moot when "(1) the challenged action is, in its duration, too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again." Spencer v. Kemna, 523 U.S. 1, 17 (1998) (citation and internal modifications omitted). The Government does not contest with much vigor that, as the duration of a campaign for the House of Representatives necessarily ...