# United Public Workers of America v. Mitchell/Concurrence-dissent Douglas

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Mr. Justice DOUGLAS, dissenting in part.
I disagree with the Court on two of the four matters decided.
First. There are twelve individual appellants here asking for an adjudication of their rights. The Court passes on the claim of only one of them, Poole. It declines to pass on the claims of the other eleven on the ground that they do not present justiciable cases or controversies. With this conclusion I cannot agree.
It is clear that the declaratory judgment procedure is available in the federal courts only in cases involving actual controversies and may not be used to obtain an advisory opinion in a controversy not yet arisen. Coffman v. Breeze Corporations, 323 U.S. 316, 324, 325, 65 S.Ct. 298, 302, 303, 89 L.Ed. 264, and cases cited. The requirement of an 'actual controversy, which is written into the statute (Judicial Code § 274d, 28 U.S.C. § 400, 28 U.S.C.A. § 400) and has its roots in the Constitution (Article III, § 2) seems to me o be fully met here.
What these appellants propose to do is plain enough. If they do what they propose to do, it is clear that they will be discharged from their positions. The analysis of the situation by the District Court seems to me to be accurate and conclusive:
'The mere existence of the statute, saying that they shall not engage in political activity, the penalty in the statute that they shall be dismissed if they do, and the warning addressed to them by the Civil Service Commission in their posters certainly prevent them from engaging in such activity, if the statute is constitutional. If the statute is unconstitutional, they are being prevented from things which they have the right to do. If the statute is constitutional, it is mandatory that they be dismissed for doing such things. * * * The provisions of Civil Service Rule XV that in case of any violation of the Civil Service Act or Rules or of any Executive Order or any regulation of the Commission the Commission shall certify the facts to the proper appointing officer with specific instructions as to discipline or dismissal is now controlled by the provisions of the Hatch Act that in case of violation of Section 9(a) of that Act, dismissal is mandatory.' 56 F.Supp. 621, 624.
Their proposed conduct is sufficiently specific to show plainly that it will violate the Act. The policy of the Commission and the mandate of the Act leave no lingering doubt as to the consequences.
On a discharge these employees would lose their jobs, their seniority, and other civil service benefits. They could, of course, sue in the Court of Claims. United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073. But the remedy there is a money judgment, not a restoration to the office formerly held. Of course, there might be other remedies available in these situations to determine their rights to the offices from which they are discharged. See White v. Berry, 171 U.S. 366, 377, 18 S.Ct. 917, 921, 43 L.Ed. 199. But to require these employees first to suffer the hardship of a discharge is not only to make them incur a penalty; it makes inadequate, if not wholly illusory, any legal remedy which may have. Men who must sacrifice their means of livelihood in order to test their rights to their jobs must either pursue prolonged and expensive litigation as unemployed persons or pull up their roots, change their life careers, and seek employment in other fields. At least to the average person in the lower income groups the burden of taking that course is irreparable injury, cf. Ex parte Young, 209 U.S. 123, 165, 28 S.Ct. 441, 456, 52 L.Ed. 714, 13 L.R.A.,N.S., 932, 14 Ann.Cas. 764, no matter how exact the required showing. Cf. Watson v. Buck, 313 U.S. 387, 400, 61 S.Ct. 962, 966, 85 L.Ed. 1416.
The declaratory judgment procedure may not, of course, be used as a substitute for other equitable remedies to defeat a legislative policy, Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 300, 301, 63 S.Ct. 1070, 1074, 87 L.Ed. 1407 or to circumvent the necessity of exhausting administrative remedies. Order of Ry. Conductors v. Penn. R. Co., 323 U.S. 166, 65 S.Ct. 222, 89 L.Ed. 154; Macauley v. Waterman S.S.C.orp., 327 U.S. 540, 66 S.Ct. 712. But it fills a need and serves a high function previously 'performed rather clumsily by our equitable proceedings and inadequately by the law courts.' H.R.No.1264, 73d Cong., 2d Sess., p. 2.
The declaratory judgment procedure is designed 'to declare rights and other legal relations of any interested party * * * whether or not further relief is or could be prayed'. Judicial Code § 274d, 28 U.S.C. § 400, 28 U.S.C.A. § 400. The fact that equity would not restrain a wrongful removal of an office holder but would leave the complainant to his legal remedies, White v. Berry, supra, is, therefore, immaterial. A judgment which, without more, adjudicates the status of a person is permissible under the Declaratory Judgment Act. Perkins v. Elg, 307 U.S. 325, 349, 350, 59 S.Ct. 884, 896, 83 L.Ed. 1320. The 'declaration of a status was perhaps the earliest exercise of this procedure.' H.R.No.1264, 73d Cong., 2d Sess., p. 2. The right to hold an office or public position against such threats is a common example of its use. Borchard, Declaratory Judgments (2d ed.), pp. 858 et seq. Declaratory relief is the singular remedy available here to preserve the status quo while the constitutional rights of these appellants to make these utterances and to engage in these activities are determined. The threat against them is real not fanciful, immediate not remote. The case is therefore an actual not a hypothetical one. And the present case seems to me to be a good example of a situation where uncertainty, peril, and insecurity result from imminent and immediate threats to asserted rights.
Since the Court does not reach the constitutionality of the claims of these eleven individual appellants, a discussion of them would seem to be premature.
Second. Poole is not in the administrative category of civil service. He is an industrial worker-a roller in the mint, a skilled laborer or artisan whose work or functions in no way affect the policy of the agency nor involve relationships with the public. There is a marked difference in the British treatment of administrative and industrial employees under civil service. And the difference between the two is for me relevant to the problem we have here.
The civil service system has been called 'the one great political invention' of nineteenth century democracy. The intricacies of modern government, the important and manifold tasks it performs, the skill and expertise required, the vast discretionary powers vested in the various agencies, and the impact of their work on individual claimants as well as on the general welfare have made the integrity, devotion, and skill of the men and women who compose the system a matter of deep concern of many thoughtful people. Political fortunes of parties will ebb and flow; top policy men in administrations will come and go; new laws will be passed and old ones amended or repealed. But those who give continuity to administration, those who contribute the basic skill and efficiency to the daily work of government, and those on whom the new as well as the old administration is dependent for smooth functioning of the complicated machinery of modern government are the core of the civil service. If they are beneficiaries of political patronage rather than professional careerists, serious results might follow-or so Congress could reasonably believe. Public confidence in the objectivity and integrity of the civil service system might be so weakened as to jeopardize the effectiveness of administrative government. Or it might founder on the rocks of incompetency, if every change in political fortunes turned out the incumbents, broke the continuity of administraton, and thus interfered with the development of expert management at the technical levels. Or if the incumbents were political adventurers or party workers, partisanship might color or corrupt the processes of administration of law with which most of the administrative agencies are entrusted.
The philosophy is to develop a civil service which can and will serve loyally and equally well any political party which comes into power.
Those considerations might well apply to the entire group of civil servants in the administrative category-whether they are those in the so-called expert classification or are clerks, stenographers and the like. They are the ones who have access to the files, who meet the public, who arrange appointments, who prepare the basic data on which policy decisions are made. Each may be a tributary, though perhaps a small one, to the main stream which we call policy making or administrative action. If the element of partisanship enters into the official activities of any member of the group it may have its repercussions or effect throughout the administrative process. Thus in that type of case there would be much to support the view of the Court that Congress need not undertake to draw the line to include only the more important offices but can take the precaution of protecting the whole by insulating even the lowest echelon from partisan activities.
So, I think that if the issues tendered by Poole were tendered by an administrative employee, we would have quite a different case. For Poole claims the right to work as a ward executive committeeman, i.e., as an office holder in a political party.
But Poole, being an industrial worker, is as remote from contact with the public or from policy making or from the functioning of the administrative process as a charwoman. The fact that he is in the classified civil service is not, I think, relevant to the question of the degree to which his political activities may be curtailed. He is in a position not essentially different from one who works in the machine shop of a railroad or steamship which the Government runs, or who rolls aluminum in a manufacturing plant which the Government owns and operates. Can all of those categories of industrial employees constitutionally be insulated from American political life? If at some future time it should come to pass in this country, as it has in England, that a broad policy of state ownership of basic industries is inaugurated, d es this decision mean that all of the hundreds of thousands of industrial workers affected could be debarred from the normal political activity which is one of our valued traditions?
The evils of the 'spoils' system do not, of course, end with the administrative group of civil servants. History shows that the political regimentation of government industrial workers produces its own crop of abuses. Those in top policy posts or others in supervisory positions might seek to knit the industrial workers in civil service into a political machine. As a weapon they might seek to make the advancement of industrial workers dependent on political loyalty, on financial contributions, or on other partisan efforts. Or political activities of these workers might take place on government premises, on government time, or otherwise at government expense. These are specific evils which would require a specific treatment.
There is, however, no showing of any such abuse here. What Poole did, he did on his own without compulsion or suggestion or invitation from any one higher up. Nor does it appear that what he did was done on government time or on government premises. Moreover, as Mr. Justice BLACK points out laws can be drawn to punish those who use such coercion. See Ex parte Curtis, 106 U.S. 371, 1 S.Ct. 381, 27 L.Ed. 232. Such activity is more than the exercise of political prerogatives; it is the use of official power as well, and hence can be restrained or punished. Cf. Bakery and Pastry Drivers and Helpers Local 802 of International Brotherhood of Teamsters v. Wohl, 315 U.S. 769, 776, 777, 62 S.Ct. 816, 819, 820, 86 L.Ed. 1178; Thomas v. Collins, 323 U.S. 516, 543, 544, 65 S.Ct. 315, 328, 329, 89 L.Ed. 430.
The question is whether a permissible remedy is complete or partial political sterilization of the industrial group. There is, of course, the possibility of the mobilization whether voluntary or otherwise, of millions of employees of the federal Government and federally assisted state agencies for the purpose of maintaining a particular party or group in power. The marked increase in the number of Government employees in recent years has accentuated the problem. The difficulty lies in attempting to preserve our democratic way of life by measures which deprive a large segment of the population of all political rights except the right to vote. Absent coercion, improper use of government position or government funds, or neglect or inefficiency in the performance of duty, federal employees have the same rights as other citizens under the Constitution. They are not second class citizens. If, in exercise of their rights, they find common political interests and join with each other or other groups in what they conceive to be their interests or the interests of the nation, they are simply doing what any other group might do. In other situations where the balance was between constitutional rights of individuals and a community interest which sought to qualify those rights, we have insisted that the statute be 'narrowly drawn to define and punish specific conduct as constituting a clear and present danger to a substantial interest' of government. Cantwell v. State of Connecticut, 310 U.S. 296, 311, 60 S.Ct. 900, 906, 84 L.Ed. 1213, 128 A.L.R. 1352. And see Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 116, 63 S.Ct. 870, 876, 87 L.Ed. 1292, 146 A.L.R. 81; Thornhill v. State of Alabama, 310 U.S. 88, 104, 105, 60 S.Ct. 736, 745, 84 L.Ed. 1093.
That seems to me the proper course to follow here. The prohibition in § 9(a) of the Hatch Act against government employees taking an 'active part in political management or in political campaigns' applies without discrimination to all employees whether industrial or administrative. The same is true of the Civil Service Rules. See Rules I, § 1, XV, 5 C.F.R.Cum.Supp., §§ 1.1, 15.1. But the supposed evils are both different and narrower in case of industrial workers than they are in the case of the administrative gro p. The public interest in the political activity of a machinist or elevator operator or charwoman is a distinct and different problem. In those cases the public concern is in the preservation of an unregimented industrial group, in a group free from political pressures of superiors who use their official power for a partisan purpose. Then official power is misused, perverted. The Government is corrupted by making its industrial workers political captives, victims of bureaucratic power, agents for perpetuating one party in power.
Offset against that public concern are the interests of the employees in the exercise of cherished constitutional rights. The nature and importance of those rights have been fully expounded in Mr. Justice BLACK'S opinion. If those rights are to be qualified by the larger requirements of modern democratic government, the restrictions should be narrowly and selectively drawn to define and punish the specific conduct which constitutes a clear and present danger to the operations of government. It seems plain to me that that evil has its roots in the coercive activity of those in the hierarchy who have the power to regiment the industrial group or who undertake to do so. To sacrifice the political rights of the industrial workers goes far beyond any demonstrated or demonstrable need. Those rights are too basic and fundamental in our democratic political society to be sacrificed or qualified for anything short of a clear and present danger to the civil service system. No such showing has been made in the case of these industrial workers, which justifies their political sterilization as distinguished from selective measures aimed at the coercive practices on which the spoils system feeds.

## Notes

1 Elkin, Senior Economic Statistician, Railroad Retirement Board; Abelson, Associate Financial Analyst, Social Security Board; Phillips, Labor Economist, War Shipping Administration; Mitchell, Wage Analyst, National War Labor Board; Fagan, Area Director, War Manpower Commission; Winegar, Senior Officer, Bureau of Prisons; Hindin, Procedural Assistant, Federal Security Agency; Rieck, Stock Clerk, Veterans Administration; Poole, Roller, United States Mint; Shane, Lens Grinder, Frankford Arsenal; Weber, Machinist Specialist, Frankford Arsenal; Tempest, Electric Welder, Philadelphia Navy Yard.
2 The case is, therefore, unlike those situations where the Court refused to entertain actions for declaratory judgments, the state of facts being hypothetical in the sense that the challenge was to statutes which had not as yet been construed or their specific application known. See Electric Bond & Share Co. v. Securities and Exchange Commission, 303 U.S. 419, 443, 58 S.Ct. 678, 687, 82 L.Ed. 936, 115 A.L.R. 105; Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 65 S.Ct. 1384, 89 L.Ed. 1725.
3 Where the legal remedy is adequate, it may be the more appropriate one. Thus in Coffman v. Breeze Corporations, supra, declaratory relief was denied a licensor of a patent who sued his licensee for an adjudication that the Royalty Adjustment Act, 35 U.S.C.A. § 89 et seq., was unconstitutional since it appeared that a suit to recover royalties was an adequate legal remedy and that the constitutional issues could be litigated there.
4 If the prayer for declaratory relief be considered separately from the prayer for an injunction, as it may be, allegations of irreparable injury threatened are not required. Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 241, 57 S.Ct. 461, 464, 81 L.Ed. 617, 08 A.L.R. 1000.
5 As stated in the Senate Report:
'The procedure has been especially useful in avoiding the necessity, now so often present, of having to act at one's peril or to act on one's own interpretation of his rights, or abandon one's rights because of a fear of incurring damages. So now it is often necessary, in the absence of the declaratory judgment procedure, to violate or purport to violate a statute in order to obtain a judicial determination of its meaning or validity * * * So now it is often necessary to break a contract or a lease, or act upon one's own interpretation of his rights when disputed, in order to present to the court a justifiable (sic) controversy. In jurisdictions having the declaratory judgment procedure, it is not necessary to bring about such social and economic waste and destruction in order to obtain a determination of one's rights * * * There seems little question that in many situations in the conduct of business serious disputes occur between parties, where, if there were a possibility of obtaining a judicial declaration of rights in a formal action, much economic waste could be avoided and social peace promoted. Persons now often have to act at their peril, a danger which could be frequently avoided by the ability to sue for a declaratory judgment as to their rights or duties.' S. Rep. No. 1005, 73d Cong., 2d Sess., pp. 2-3. And see Borchard, Declaratory Judgments (2d ed.) p. 4.
6 The case is therefore unlike one where the moving party shows no invasion of his legal rights but only possible injury to the public (Perkins v. Lukens Steel Co., 310 U.S. 113, 125, 60 S.Ct. 869, 875, 84 L.Ed. 1108) or one where no judicial remedy for the alleged wrong has been created. General Committee of Adjustment of Brotherhood of Locomotive Engineers for Missouri-K.-T. R.R. v. Missouri K.T.R. Co., 320 U.S. 323, 64 S.Ct. 146, 88 L.Ed. 76.
7 The following are cases in hich the Court has allowed actions for declaratory judgments to be entertained: Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, supra, where an insured claimed and the insurance company denied, that he had become totally and permanently disabled and hence was relieved of the obligation to continue the payment of premiums; Currin v. Wallace, 306 U.S. 1, 59 S.Ct. 379, 83 L.Ed. 441, where tobacco warehousemen and auctioneers claimed the Tobacco Inspection Act, 7 U.S.C.A. § 511 et seq., was unconstitutional; Perkins v. Elg, supra, where one claiming to be a citizen was threatened with deportation as an alien and had been declined a passport on the same ground; Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 61 S.Ct. 510, 85 L.Ed. 826, where a third party was suing an insured and the insurer sought a judgment that it was not liable to defend the insured nor to indemnify the insured if the third party recovered; Altvater v. Freeman, 319 U.S. 359, 63 S.Ct. 1115, 87 L.Ed. 1450, where royalties were being demanded and paid under protest and by reason of an injunction; Mercoid Corp. v. Minneapolis-Honeywell Regulator Co., 320 U.S. 680, 64 S.Ct. 278, 88 L.Ed. 396, where an alleged patent infringer sought a declaration of the invalidity of the patent; Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 64 S.Ct. 698, 88 L.Ed. 949, 152 A.L.R. 1014, where an employer sued representatives of its employees for an adjudication of whether portal-to-portal pay was due under the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq.;
Township of Hillsborough v. Cromwell, 326 U.S. 620, 66 S.Ct. 445, where a taxpayer sued in the federal court to have assessments declared invalid on the ground that they violated the federal Constitution, the state remedy being inadequate to protect the federal right; Katzinger Co. v. Chicago Metallic Mfg. Co., 329 U.S. 394, 67 S.Ct. 416, 424, where a licensee sought a declaration that he owed no royalties because of the invalidity of the patent; Order of Railway Conductors of America v. Swan, 329 U.S. 520, 67 S.Ct. 405, where it was sought to determine which division of the National Railroad Adjustment Board had jurisdiction over railroad vardmasters. Cf. Railway Mail Ass'n v. Corsi, 326 U.S. 88, 65 S.Ct. 1483, 89 L.Ed. 2072, where a labor membership corporation, which did not admit negroes and was threatened with enforcement of a state statute declaring that practice of labor organizations unlawful, sued in a state court for an adjudication that the statute could not constitutionally be applied to it.
8 Report, Committee on Parliamentary, etc., Candidature of Crown Servants (1925), pp. 12, 13.
9 Wallas, Human Nature in Politics (2d ed.), p. 263.
10 Fish, The Civil Service and The Patronage (1905); Meriam, Public Personnel Problems (1938), ch. XI; Mosher & Kingsley, Public Personnel Administration (1941), ch. XVIII; Kingsley, Representative Bureaucracy (1944), ch. X; Morstein Marx, Public Management in the New Democracy (1940), ch. XIV; Field, Civil Service Law (1939), p. 196; Dawson, The Principle of Official Independence (1922), pp. 90 et seq.; Kaplan, Political Neutrality of the Civil Service, 1 Public Personnel Rev. 10; Chen, The Doctrine of Civil Service Neutrality in Party Conflicts in the United States and Great Britain (1937).
11 See Chen, op. cit. supra note 10, ch. I; Report of President's Committee on Civil Service Improvement, H. Doc. No. 118, 77th Cong., 1st Sess., ch. III.
12 See Morstein Marx, op. cit., supra, note 10, pp. 205-206; Report of the Committee on Parliamentary, etc., Candidature of Crown Servants, supra, note 8, p. 32; Finer, The British Civil Service (1937), pp. 203, 204.
13 As stated in Morstein Marx, op. cit., supra, note 10, pp. 205-206:
'The political neutrality of a postal clerk, of a conductor on the city-owned subway system in New York, of a technician in the Chicago Sanitary district, or of an artisan in the labor class, does not have the same significance as the political neutrality of the prominent section chiefs of the Department of State or the political neutrality of an assistant to a commissioner in a New York City department. No discussion of the problem which ignores the differences between categories of employees is anything but an academic consideration of the problem. Top officialdom has such marked opportunities of shaping policy that its political behavior must be so neutral as to raise no question of a divergence in point of view between it and the executive officers of government. It is quite proper, therefore, to require the most impeccable political neutrality from such officials. But the average or typical civil servant has no more opportunity in the sphere of policy making than does the average citizen. He is entrusted with a function ministerial in nature, a routine task almost wholly unaffected by his political point of view. This principle is recognized in the English rule that industrial workers in government employment may stand for election, a privilege denied administrative employees.'
14 Whether the Act, being unconstitutional as applied to Poole, could be separably applied to civil service employees in other categories is a question I do not reach.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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