Opposition Brief — Connecticut v. United States Merit Systems Protection Board

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In the Supreme Court of the United States

ss OcTOBER TERM, 1989

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se STATE OF CONNECTICUT, DEPARTMENT OF

moos HUMAN RESOURCES, ET AL., PETITIONERS

p! v. 5

UNITED STATES MERIT SYSTEMS PROTECTION BOARD

+ ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

WILLIAM KANTER

Mary K. DOYLE

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

‘BEST AVAILABLE COPY’

QUESTION PRESENTED

A provision of the Hatch Act, 5 U.S.C. 1502(a)

(3), bars a state employee who works in a program

receiving federal funds from being a candidate for

partisan elective office. The question presented is

whether that provision violates the First, Fifth or

Tenth Amendment of the Constitution.

(I)

TABLE OF CONTENTS

Page

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aE I eS ee oe 17

TABLE OF AUTHORITIES

Cases:

Arizona V. Rumsey, 467 U.S. 203 (1984) ................. 11

Bauers Vv. Cornett, 865 F.2d 1517 (8th Cir. 1989)... 14

Broadrick v. Oklahoma, 413 U.S. 601 (1978) ..8, 8-9, 10, 14

City of Cleburne v. Cleburne Living Center, Inc.,

I ceils 13

Civil Service Comm’n V. National Ass’n of Letter

Carriers, 413 U.S. 548 (1978) ...................-..-- 3, 8, 10, 12

Clements Vv. Fashing, 457 U.S. 957 (1982)............ 11, 13, 14

Cleveland Board of Education v. Loudermill, 470

| 8 Se eee eee een 7,17

Connick v. Myers, 461 U.S. 188 (1988) ................... 13

Federal Election Comm’n v. Massachusetts Citi-

zens for Life, Inc., 479 U.S. 238 (1986) ............. 12-13

Garcia v. San Antonio Metropolitan Transit Au-

thority, 469 U.S. 528 (1985) -...........................----- 14

Hodel v. Virginia Surface Mining & Reclamation

pe es | Gt ee 14

Maryland v. Wirtz, 392 U.S. 183 (1968) -................ 14

National League of Cities v. Usery, 426 U.S. 833

REE ESSN OEE ne ee See ee 14

Oklahoma vy. Civil Service Comm’n, 330 U.S. 127

RECS aes 3, 8, 9, 10, 11, 12, 14, 15, 16

Pickering v. Board of Education, 391 U.S. 548

EERE LEE ER Ne OTE 12

Rankin v. McPherson, 483 U.S. 378 (1987) ............. 13

Rutan Vv. Republican Party of Illinois, No. 88-1872

eel 13

South Dakota v. Dole, 483 U.S. 203 (1987) -........ 11, 15-16

(mI)

IV

Cases—Continued : Page

Tashjian v. Republican Party, 479 U.S. 208

atari t al abled cana ehicaiadiee ie iaadalas 12

United Public Workers v. Mitchell, 330 U.S. 75

MTDC Laer eee CNR RT 8, 10, 11, 12

Constitution, statutes and regulations:

U.S. Const. :

Art. I

4. EER aa ey ee ee er 4

§ 8:

Cl. 1 (Spending Clause) ..............0.....0..0....... 15

Cl. 3 (Commerce Clause) ....................-..----- 15

i a ae 10, 11, 12, 13

SE Ue pucsencinicacblest titichicntosicesschcnen 9, 10, 11, 14, 15, 16

Act of Aug. 2, 1939, ch. 410, 53 Stat. 1147...... 3

Act of July 19, 1940, ch. 640 § 4, 54 Stat. 767

IE idid hies ceneseuesdaseoscaaniondseameadunmiamennpenseciains 3

Federal Election Campaign Act Amendments of

1974, Pub. L. No. 93-448, §401(a), 88 Stat.

SEEN let Ne ie Ici NS Be OCLC 3

Hatch Act:

a a sesadimnieaainoni 2

RA ER eat aEnA eta SN PE 9

Ce ccaaness 2,14

Cee cumesmunaioes 9

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gE EE RR er 3-4

Bik Pee CE. ol 7.) Rae 3

a a ceemmeevannmonrmunnse 2, 7,9

| RSE RE RAISE TRC 9

i A Te ae RR Sea aE peck AO 2

RRA ee a aa er 5, 6

= Ss RaeRIELE ES RR nea CC 5, 6, 8, 17

| EDS REIT ae Ie TRL Cae te 10

AR A A it Ee De AION 5

ge OR I SE Se Oe 8

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en I cinsiewbnemabbaiclien 4

th eS ) | ce ee nee 6

Miscellaneous: Page

135 Cong. Rec. (1989) :

wm. HIBSO CGaiie G6. BOG. BT) 2n0.cncccrvcccssscccvesescsene

pp. H1267-H1268 (daily ed. Apr. 17) .................

136 Cong. Rec. (1990) :

pp. S5977-S5979 (daily ed. May 10) ...................

p. H8487 (daily ed. June 12) .....................-000-.--20

pp. H3437-H3449 (daily ed. June 12) ................

pp. H3471-H3472 (daily ed. June 12) ................

Bit TEE sircocndnctsnsstteeinideenendensacdiansanrensinin

pp. H3845-H3846 (daily ed. June 20) ................

p. $8450 (daily ed. June 21) .................22...02-200-

H.R. 20, 101st Cong., lst Sess. (1989) -................-..-.-

H.R. Rep. No. 1239, 93d Cong., 2d Sess. (1974)......

H.R. Rep. No. 27, 101st Cong., Ist Sess. (1989) ........

_ >

POL LLL LLL

Iu the Suprene Court of the United States

OCTOBER TERM, 1989

No. 89-1582

STATE OF CONNECTICUT, DEPARTMENT OF

HUMAN RESOURCES, ET AL., PETITIONERS

Vv.

UNITED STATES MERIT SYSTEMS PROTECTION BOARD

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The order of the court of appeals (Pet. App. 1A-

3A) is unreported. The opinion of the district court

(Pet. App. 4A-21A) is reported at 718 F. Supp. 125.

The final decisions of the Merit Systems Protection

Board (Pet. App. 34A-38A, 55A-60A) are reported

at 33 M.S.P.R. 565 and 36 M.S.P.R. 71, and the

Board’s orders directing the withholding of federal

funding (Pet. App. 39A-45A, 61A-67A) are reported

(1)

2

at 35 M.S.P.R. 170 and 36 M.S.P.R. 692. The rec-

ommended decisions of the administrative law judge

(Pet. App. 22A-33A, 46A-54A) are unreported.

JURISDICTION

The judgment of the court of appeals was entered

on January 12, 1990, and the petition for a writ of

certiorari was filed on April 10, 1990. The juris-

diction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

1. Petitioners challenge the constitutionality of

the Hatch Act’s restrictions on the political activities

of certain state employees. The Hatch Act consists

of two sets of statutory restrictions on the political

activities of public employees. The first applies to

federal employees. 5 U.S.C. 7321 et seg. The second

set, at issue here, applies to employees of state and

local agencies that receive federal loans or grants. 5

U.S.C. 1501 et seq.’

The specific subsection of the Hatch Act involved

in this case is 5 U.S.C. 1502(a) (3), which provides

that a state or local officer or employee “may not

* * * be a candidate for elective office.” * This pro-

1The Hatch Act applies to a “State or local officer or em-

ployee,” which is defined to mean an individual employed by

a state or local agency “whose principal employment is in con-

nection with an activity which is financed in whole or in part

by loans or grants made by the United States or a Federal

agency.” 5 U.S.C. 1501(4).

? There is an exception permitting a state or local employee

to be a candidate in a non-partisan election. See 5 U.S.C. 1503.

That exception is inapplicable here.

3

hibition is much narrower than the predecessor pro-

vision that was enacted by Congress in 1940 and sus-

tained by this Court in Oklahoma vy. Civil Service

Comm’n, 330 U.S. 127 (1947), and the provisions

that were again sustained in 1973 in Civil Service

Comm'n v. National Ass’n of Letter Carriers, 413

U.S. 548 (1973), and Broadrick v. Oklahoma, 413

U.S. 601 (1973). At the time of its enactment and

of this Court’s decisions, the Hatch Act prohibited

employees of state agencies receiving federal funds

from “takfing] any active part in political manage-

ment or in political campaigns.” Act of Aug. 2,

1939, 53 Stat. 1147, §12(a), as added by the Act

of July 19, 1940, ch. 640, § 4, 54 Stat. 767; see 5

U.S.C. 1502(a)(3) (1970). That earlier version

barred a much broader range of political activity, in-

cluding active campaigning for other candidates in

partisan elections and participation in the internal

affairs of a political party. See CSC v. Letter Car-

riers, 413 U.S. at 578 n.21, 581-595; Oklahoma v.

CSC, 330 U.S. at 144 & n.22. Congress eliminated

these additional prohibitions in 1974° in order to

“allow[] State and local government employees to

participate in political campaign activities’ and to

“open up the political process to greater numbers of

people.” H.R. Rep. No. 1239, 93d Cong., 2d Sess. 155

(1974).* By contrast, there has been no narrowing

8 Federal Election Campaign Act Amendments of 1974, Pub.

L. No. 93-443, § 401(a), 88 Stat. 1290.

4The Hatch Act also prohibits a state or local officer or

employee in a federally funded activity from (1) using his

official authority or influence to interfere with or affect the

result of a nomination for or election to office, or (2) directly

or indirectly coercing or advising another such officer or

employee to contribute or lend anything of value to a

party, committee or person for political purposes. 5 U.S.C.

4

of the Hatch Act’s corresponding prohibition against

federal employees’ taking ‘“‘an active part in political

management or in political campaigns.” 5 U.S.C.

7324(a) (2).

1502(a)(1) and (2). These additional prohibitions, which

have remained unchanged since the Hatch Act was passed, are

not at issue here.

5 Congress recently passed a bill, H.R. 20, 101st Cong., 1st

Sess. (1989), that would have narrowed the Hatch Act’s

restrictions on federal employees as well. 136 Cong. Rec.

S5977-S5979 (daily ed. May 10, 1990) ; id. at H3437-H3449,

H3471-H3472 (daily ed. June 12, 1990). On June 15, 1990,

the President, pursuant to Article I, Section 7, Clause 2 of the

Constitution, vetoed H.R. 20. 136 Cong. Rec. H3681-H3682

(daily ed. June 18, 1990). The House repassed the bill over

the President’s veto on June 20, 1990, id. at H8845-H3846

(daily ed. June 20, 1990), but the Senate, on June 21, 1990,

failed to repass the bill by the requisite two-thirds majority,

id. at S8450 (daily ed. June 21, 1990).

As passed by Congress and presented to the President, H.R.

20 would not have made any changes in the prohibitions

applicable to state and local employees. Moreover, it would

have retained for federal employees the prohibition, at issue

in this case, against running for office in a partisan campaign.

See proposed 5 U.S.C. 7323(a) (3) (a federal employee may

not “run for the nomination or as a candidate for election to

a partisan political office’), 186 Cong. Rec. H3437 (daily ed.

June 12, 1990). The version of H.R. 20 that was originally

passed by the House of Representatives would have allowed

federal employees to run for office; it also would have per-

mitted a federal employee to go on leave without pay for that

purpose, although it would have prohibited an agency from

imposing a leave-without-pay requirement unless the employ-

ee’s campaign activities interfered with his official duties.

H.R. Rep. No. 27, 101st Cong., 1st Sess. 26, 47 (1989) ; 135

Cong. Rec. H1240, H1267-H1268 (daily ed. Apr. 17, 1989).

By contrast, the version of H.R. 20 subsequently passed by

the Senate retained the prohibition against a federal employ-

5

The Hatch Act directs the Special Counsel of the

Merit Systems Protection Board (MSPB) to inves-

tigate alleged violations by state and local employees

and present charges to the MSPB. After a hearing,

in which both the employee and the state or local

agency may participate, the MSPB must determine

whether there has been a violation and whether the

violation warrants removal of the employee from his

position. 5 U.S.C. 1504, 1505. If the MSPB finds a

violation and concludes that removal is warranted,

but the employee is not removed within 30 days, the

MSPB must order the appropriate federal agency to

withhold from the state or local agency an amount of

federal grants or loans equal to two years’ pay for

the employee, and the federal agency must withhold

that amount. 5 U.S.C. 1506.

2.a. Petitioner Camillieri began working for peti-

tioner Connecticut Department of Human Resources

(DHR) in 1979. In 1983, when Camillieri held the

position of Human Resources Chief of Social Work

Services in DHR, he was elected to the Hartford City

Council. In January 1985, Camillieri was reassigned

within the DHR to the position of Acting Chief of

the Fair Hearing Unit, where his duties consisted in

part of training and supervising hearing examiners

who reviewed appeals by individuals who applied to

participate in federally funded programs. Pet. App.

TA.

On May 31, 1985, the MSPB’s Office of Special

Counsel (OSC) informed Camillieri by letter that

the Hatch Act prohibited him from seeking reelection

to the city council if he remained in his position with

DHR. It also warned him that seeking reelection

ee’s running for office, and the House accepted the Senate

version.

6

would be considered a willful violation of the Hatch

Act, which could lead to removal from his position.

Camillieri nevertheless ran for reelection while re-

maining on active duty as Acting Chief of the Fair

Hearing Unit. Camillieri was defeated in the Demo-

cratic primary. Pet. App. 8A, 23A.

In March 1986, the Special Counsel filed a com-

plaint with the MSPB pursuant to 5 U.S.C.

1206(e)(1)(B) and 1504, charging Camillieri with

a violation of 5 U.S.C. 1502(a) (3). Pet. App. 25A.

DHR participated in the proceedings, as permitted

by 5 U.S.C. 1505. The administrative law judge

(ALJ) rejected DHR’s argument that a state em-

ployee should not be penalized if his candidacy is

permissible under state law, reasoning that “[i]t

would be anomalous to find that the specific language

of 5 U.S.C. § 1502(a) (3), forbidding a covered em-

ployee’s candidacy in a partisan election, could be

defeated by a state law or regulation requiring less.”

Pet. App. 27A-28A. Turning next to DHR’s consti-

tutional arguments, the ALJ found that, although

couched as an “as applied” challenge, “the tenor of

DHR’s arguments do not disguise that agency’s di-

rect attack on the constitutionality of the Hatch

Act,”’ which was beyond the authority of the MSPB

to adjudicate. Id. at 28A. Finally, the ALJ con-

cluded that removal was an appropriate penalty, in-

asmuch as Camillieri’s violation was _ substantial,

willful, and knowing. Jd. at 30A-31A.

The MSPB adopted the ALJ’s recommended de-

cision and ordered DHR to remove Camillieri from

his position. Pet. App. 34A-87A. The MSPB also

warned DHR that if it failed to remove Camillieri

within 80 days, the MSPB would order the appro-

priate federal agency to withhold from DHR loans

and grants equal to two years’ pay for Camillieri.

7

Id. at 386A n.5. After DHR informed OSC that it

would not remove Camillieri, the MSPB ordered the

Department of Health and Human Services to with-

hold federal funds from DHR in the amount of

$90,150, the equivalent of two years’ pay for Camil-

lieri. Jd. at 8A-9A, 39A-40A.

b. Petitioner Winkleman was principally employed

throughout 1986 as Human Resource Development

Senior Representative with DHR. Pet. App. 47a.

In that position, Winkleman reviewed and evaluated

the management and effectiveness of community and

social service programs supported in large part by

federal funds. In July 1986, having been endorsed

by the Republican Party as a candidate for Probate

Judge, Winkleman asked DHR’s Personnel Division

whether his candidacy might violate the Hatch Act.

The Personnel Division sought advice from OSC,

which urged Winkleman to withdraw from the race

and subsequently sent him a warning letter about

his candidacy. Winkleman nevertheless ran for Of-

fice while remaining an employee of DHR. He was

defeated in the general election. Jd. at 47A-48A.

Thereafter, the Special Counsel filed a complaint

with the MSPB charging Winkleman with a violation

of 5 U.S.C. 1502(a)(8). The ALJ found that

Winkleman’s violation was clear and serious, and

accordingly recommended that Winkleman be re-

moved from his position. Pet. App. 46A-54A.

The MSPB adopted the ALJ’s recommerided de-

cision. Pet. App. 55A-60A. It rejected as legally

irrelevant Winkleman’s contention that there was

no evidence that Winkleman abused his state vosi-

tion, because proof of such abuse is not an element

of a violation. Id. at 57A. The MSPB also rejected

Winkleman’s argument that under Cleveland Boa,

of Education v. Loudermill, 470 U.S. 582 (1985),

8

the State would be required to hold a hearing prior to

terminating him, and that such a hearing would be

a sham because the removal decision would already

have been made. Observing that this argument “bor-

ders on the frivolous,” the MSPB pointed out that 5

U.S.C. 1505 afforded Winkleman a right to be heard

before the MSPB, and “[n]Jeither Loudermill nor the

Hatch Act can be interpreted as requiring that the

State or local agency conduct a second hearing on the

issue of termination if the Board finds that removal

of the offending employee is warranted.” Pet. App.

57A. The MSPB therefore ordered that Winkleman

be removed from his position with DHR and stated

that federal funds equalling Winkleman’s pay for

two years would be withheld if Winkleman was not

terminated within 30 days. Jd. at 58A & n.3. After

DHR informed OSC that it would not remove Win-

kleman, the MSPB ordered the Department of Health

and Human Services to withhold $60,896 from DHR.

Id. at 61A-67A.

3. Pursuant to 5 U.S.C. 1508, petitioners then filed

this action for review of the MSPB orders in the

United States District Court for the District of Con-

necticut. The district court granted summary judg-

ment in favor of the MSPB. Pet. App. 4A-21A. It

sustained the MSPB’s determinations that Camillieri

and Winkleman were covered by the Hatch Act; that

they had willfully violated the Act (especially since

they had received warnings that the Act prohibited

their candidacies); and that their violations there-

fore warranted removal. Jd. at 18A-20A.

The court also rejected petitioners’ constitutional

objections. Pet. App. 11A-18A. First, it concluded

that the “clear consequence” of this Court’s decisions

in United Public Workers v. Mitchell, Oklahoma v.

CSC, CSC v. Letter Carriers and Broadrick v. Okla-

9

homo “is that infringements upon the ability of

government employees, be they federal or state, to

be candidates for elective office do not violate the

First Amendment.” Pet. App. 16A. Second, the

court concluded that Oklahoma v. CSC required re-

jection of petitioners’ Tenth Amendment claim that

the Hatch Act impermissibly interferes with state

sovereignty, and indeed the court noted that peti-

tioners “appear to concede as much.” Pet. App. 16A.

The court also pointed out that 5 U.S.C. 1502(a) (3)

has been amended since the decision in Oklahoma v.

CSC in a manner that renders it “less restrictive”

and therefore presents “even less of a claim for a

Tenth Amendment violation than the argument re-

jected by the Supreme Court in Oklahoma.” Pet.

App. 16A-17A.

Finally, the district court rejected petitioners’ ar-

gument that the Hatch Act denies Camillieri and

Winkleman equal protection of the laws because it

allows certain other state and local officers and em-

ployees*® to be candidates for office in a partisan

campaign. Pet. App. 17A-18A. The court noted that

Broadrick v. Oklahoma had rejected a similar equal

protection objection to a state statute that barred

employees in the “classified” but not the “unclassi-

fied” civil service from engaging in political activi-

ties, 413 U.S. at 607 n.5, and it could see “no reason

why the distinctions between Camillieri and Winkle-

man on the one hand, and the kinds of state em-

ployees not covered on the other hand, are not within

the leeway envisaged by Broadrick.” Pet. App. 18A.

6 The Governor or Lieutenant Governor of the State, the

mayor of a city, individuals holding public office, state employ-

ees outside the executive branch, and individuals employed by

certain educational and research institutions. See 5 U.S.C.

1501(2), 1501(4)(B) and 1502(c).

10

4. The court of appeals affirmed in a brief un-

published order, Pet. App. 1A-3A, relying on the

“well-stated reasons” given by the district court.

Id. at 3A. Like the district court, the court of ap-

peals recognized that it was not free to disregard

this Court’s “definitive rulings” in United Public

Workers v. Mitchell, Oklahoma v. CSC, and CSC v.

Letter Carriers that the Hatch Act does not violate

the First or Tenth Amendment, or the Court’s hold-

ing in Broadrick v. Oklahoma that a similar limita-

tion on the coverage of such a prohibition does not

deny covered employees equal protection of the laws.

Id. at 3A.

ARGUMENT

Petitioners do not challenge the MSPB’s determi-

nations that Camillieri and Winkleman committed

willful violations of the Hatch Act and that their

violations warranted removal from their positions

under 5 U.S.C. 1505(2). Petitioners do contend that

the MSPB’s orders violate the First and Tenth

Amendments and deny Camillieri and Winkleman

the equal protection of the laws. The court of ap-

peals correctly rejected those contentions, and those

rulings do not conflict with any decision of this Court

or another court of appeals.

Indeed, as petitioners concede, this case is con-

trolled by the Court’s rejection of essentially identi-

eal claims in United Public Workers vy. Mitchell, 330

U.S. 75 (1947); Oklahoma v. CSC, 330 U.S. 127

(1947) ; CSC v. Letter Carriers, 413 U.S. 548 (1973) ;

and Broadrick v. Oklahoma, 413 U.S. 601 (1973).’

7 Petitioners cay (Pet. 10 n.10) they are challenging the

Hatch Act only as applied in the circumstances of this case.

Nothing in their legal position is so limited, however, since

they make no argument addressed to their particular circum-

11

Recognizing the obstacles posed by these decisions,

petitioners ask the Court to reconsider them. The

Court has stated, however, that “[a]lthough adher-

ence to precedent is not rigidly required in constitu-

tional cases, any departure from the doctrine of stare

decisis demands special justification.” Arizona v.

Rumsey, 467 U.S. 208, 212 (1984). Petitioners do

not, and cannot, offer any such special justification

here. To the contrary, the Court has reaffirmed those

First Amendment and equal protection rulings in the

specific context of a prohibition against a public

official’s running for office in Clements v. Fashing,

457 U.S. 957 (1982), and it has expressly reaffirmed

the Tenth Amendment analysis of Oklahoma v. CSC

in South Dakota v. Dole, 482 U.S. 203 (1987). The

petition for a writ of certiorari therefore should be

denied.

1. In United Public Workers v. Mitchell, the Court

rejected the argument that the Hatch Act’s prohibi-

tion against “taking an active part in political

management and political campaigns” violates the

First Amendment rights of federal employees, hold-

ing that “Congress may regulate the political con-

duct of government employees ‘within reasonable

limits,’ even though the regulation trenches to some

extent upon unfettered political action.” 330 U.S.

at 102. The Court explained (id. at 103) :

When actions of civil servants in the judg-

ment of Congress menace the integrity and the

competency of the service, legislation to fore-

stall such danger and adequate to maintain its

usefulness is required. The Hatch Act is the

stances. Indeed, the fact that petitioners are asking the

Court to reconsider governing legal principles confirms that

they are making a facial challenge to the Act.

12

answer of Congress to this need. We cannot

say with such a background that these restric-

tions are unconstitutional.

In Oklahoma v. CSC, decided the same day, the Court

held that the decision in United Public Workers v.

Mitchell required rejection of a First Amendment

challenge to the identical Hatch Act provision appli-

cable to state employees. 330 U.S. at 142.

This Court “unhesitatingly reaffirm[ed]” United

Public Workers v. Mitchell in CSC v. Letter Carriers,

413 U.S. at 556. There, the Court recognized that

“the government has an interest in regulating the

conduct and ‘the speech of its employees that dif-

fer[s] significantly from those it possesses in connec-

tion with regulation of the speech of the citizenry in

general.’” 413 U.S. at 564 (quoting Pickering v.

Board of Education, 391 U.S. 563, 568 (1968) ). The

Court therefore held that “[a]lthough Congress is

free to strike a different balance than it has, if it so

chooses, we think the balance it has so far struck is

sustainable by the obviously important interests

sought to be served by the limitations on partisan

political activities now contained in the Hatch Act.”

413 U.S. at 564. And of particular significance here,

the Court also specifically stated that an Act of Con-

gress forbidding such activities as “becoming a can-

didate for, or campaigning for, an elective public

office’ would “unquestionably be valid.” Jd. at 556.

Petitioners ask this Court to reconsider these de-

cisions in light of more recent precedents that have

applied “strict scrutiny” in resolving certain First

Amendment and equal protection claims. See Pet.

11-12 (citing Tashjian v. Republican Party, 479 U.S.

208, 217 (1986); Federal Election Comm’n v. Mass-

achusetts Citizens for Life, Inc., 479 U.S. 238, 256

13

(1986); and City of Cleburne v. Cleburne Living

Center, Inc., 473 U.S. 482, 440 (1985)). None of

those decisions, however, concerned public employees.

In recent cases involving the First Amendment

rights of public employees, the Court has continued

to use the Pickering balancing test. See Rankin v.

McPherson, 483 U.S. 378, 383-384 (1987) ; Connick

v. Myers, 461 U.S. 138, 140 (1983).° Petitioners

have offered no good reason why that approach

should be abandoned here.

Moreover, this case involves only a _ prohibition

against a public official’s becoming a candidate for

office in a partisan election while retaining his posi-

tion. Since the Court rendered the decisions in Letter

Carriers and Broadrick, it has unanimously sus-

tained such a prohibition in Clements v. Fashing, 457

U.S. 957, 972 (1982); id. at 990 n.12 (Brennan, J.,

dissenting). Further review of petitioners’ First

Amendment challenge to the essentially identical pro-

vision here is therefore not warranted.®

8In Rutan v. Republican Party of Illinois, No. 88-1872

(June 21, 1990), the Court dealt with decisions by a govern-

mental employer to hire, transfer, promote, or recall employ-

ees on the basis of the employees’ political affiliations, and held

that the First Amendment protects against discrimination

among employees or applicants for employment on that basis.

But the Court was carefu! to distinguish its treatment of such

political patronage practices from instances where (as in the

Hatch Act) the government “takes measures to ensure the

proper functioning of its internal operations.” Slip op. 7 n.4;

see also id. at 6-11 & n.3 (Scalia, J., with Rehnquist, C.J., and

O’Connor & Kennedy, J.J., dissenting).

® Petitioners do not articulate the basis for their equal pro-

tection objection, which they mention only in passing (Pet.

11). They do pose the rhetorical question (Pet. 12): “Why

should state employees have less ability to fully participate in

the political process, on their own time, than all other mem-

14

2. Petitioners also argue (Pet. 13-16) that the

Hatch Act provisions at issue here impermissibly in-

trude into the internal affairs of the State, in viola-

tion of the Tenth Amendment. Petitioners concede

(Pet. 14) that this Court’s decision in Oklahoma vy.

CSC “determines that the Hatch Act does not violate

the Tenth Amendment,” but they ask (Pet. 15) that

that decision be reconsidered because it was rendered

before Maryland v. Wirtz, 392 U.S. 183 (1968);

National League of Cities v. Usery, 426 U.S. 833

(1976); Hodel v. Virginia Surface Mining d&: Recla-

mation Ass’n, 452 U.S. 264 (1981); and Garcia v.

San Antonio Metropolitan Transit Authority, 469

U.S. 528 (1985). Moreover, in view of the holding

bers of society?” The assumptions underlying this question

are wrong. First, the Hatch Act does not apply to all state

employees. As previously noted, the Act applies only to in-

dividuals “employed by a State or local agency whose prin-

cipal .mployment is in connection with an activity which is

financed in whole or in part by loans or grants made by the

United States or a Federal agency.” 5 U.S.C. 1501(4). Sec-

ond, the restrictions on federal employees are greater than

those on state employees. See pages 3-4 and note 5, supra;

Bauers v. Cornett, 865 F.2d 1517, 1523 (8th Cir. 1989).

Moreover, in Broadrick, the Court upheld a state statute

similar to the Hatch Act against an equal protection challenge

based on the fact that it applied to employees in the “classi-

fied” service but not the “unclassified” service. 413 U.S. at

607 n.5. Similarly, in Clements v. Fashing, the majority re-

jected a similar equal protection challenge to state constitu-

tional provisions that limited the eligibility of certain public

officials to run for office. 457 U.S. at 966-971; id. at 973-976

(Stevens, J., concurring in part and concurring in the judg-

ment). The limitations and exemptions in the Hatch Act,

cited by the district court, Pet. App. 17A-18A (see page 9

and note 6, supra), are clearly valid under these equal protec-

tion rulings.

15

in Garcia (that the Tenth Amendment does not pro-

hibit application of the Fair Labor Standards Act to

a public mass-transit authority), petitioners “are

also asking this Court to seriously consider whether

its determination in Garcia be limited or overruled.”

Pet. 15. All of the intervening decisions upon which

petitioners rely, however, involved direct regulation

of governmental activities through statutes enacted

by Congress under the Commerce Clause, Art. I, § §,

Cl. 3. The provisions of the Hatch Act at issue here

(and in Oklahoma v. CSC), by contrast, were enacted

pursuant to Congress’s distinct power to spend

money to “provide for the * * * general Welfare of

the United States,” Art. 1, § 8, Cl. 1.

In Oklahoma v. CSC, the Court explained that

“lw]hile the United States is not concerned with,

and has no power to regulate, local political activities

as such of state officials, it does have the power to fix

the terms upon which its money allotments to the

states shall be disbursed.” 330 U.S. at 143. In sus-

taining the Hatch Act’s restrictions on the political

activities of state employees in federally funded pro-

grams, the Court continued (ibid.):

The end sought by Congress through the Hatch

Act is better public service by requiring those

who administer funds for national needs to ab-

stain from active political partisanship. So even

though the action taken by Congress does have

effect upon certain activities within the state,

it has never been thought that such effect made

the federal act invalid.

The Court’s conclusion in Oklahoma vy. CSC that

the Hatch Act does not violate the Tenth Amend-

ment is entirely consistent with this Court’s most re-

cent Spending Clause case, South Dakota v. Dole, 483

16

U.S. 203 (1987), which petitioners do not even cite.

Indeed, South Dakota v. Dele discusses with approval

and follows the Tenth Amendment analysis of Okxla-

homa v. CSC. See 483 U.S. at 206-207, 210; accord

id. at 212, 217 (O’Connor, J., dissenting). In light

of the Court’s recent and unanimous reaffirmation of

Oklahoma v. CSC, there is no reason for the Court

to reconsider it here. That is especially so because

Congress has narrowed the reievant Hatch Act provi-

sion since Oklahoma v. CSC was decided. As the dis-

trict court pointed out, “the amended [Section]

1502(a)(3) (prohibiting ‘be[ing] a candidate for

elective office’) is less restrictive than the old provi-

sion (prohibiting ‘tak[ing] an active part in political

management or in political campaigns’), and there-

fore presents even less of a claim for a Tenth Amend-

ment violation than the argument rejected by the

Supreme Court in Oklahoma.” Pet. App. 16A-17A.

This conclusion is buttressed by the carefully tail-

ored nature of the remedy imposed under the Hatch

Act in this case. Once the MSPB found that Camil-

lieri and Winkleman had committed willful viola-

tions of the Act that warranted their removal, DHR

had two options: it could comply with the MSPB’s

order by removing the two willful violators, or it

could face the withholding of federal funds in an

amount equal to two years’ salary for those violators.

DHR chose the latter course, which resulted in the

withholding of approximately $150,000 in federal fi-

nancial assistance. That was a “relatively small per-

centage” of the federal financial assistance DHR re-

ceived (compare South Dakota v. Dole, 483 U.S. at

211), which, in 1986, totalled approximately $60

million. Pet. App. 47a. This limited consequence

17

does not impermissibly intrude upon the State’s sov-

ereignty.”°

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

WILLIAM KANTER

MARY K. DOYLE

Attorneys

JUNE 1990

10 Petitioners also contend (Pet. 14 n.12) that Cleveland

Board of Education v. Loudermill, 470 U.S. 482 (1985), re-

quires that the individual employees be afforded hearings

before they are removed from their positions and that it

would be difficult for a State to complete that process within

30 days of a decision by the MSPB. Thus, petitioners assert

that the State would be confronted with the dilemma of either

losing federa] funds or violating the employees’ due process

rights. This argument is meritless. If we assume that the

individual employees have a protected interest in their jobs,

all that Loudermill requires is that they be given some kind

of a hearing prior to termination. Under the Hatch Act,

petitioners had a right to a hearing before the MSPB, 5

U.S.C. 1505, and they have not challenged the constitutional

adequacy of that hearing. Nothing in Loudermill suggests

that the State would be required to hold a second hearing

prior to removing the individual employees from their posi-

tions on the basis of the MSPB’s decision.

w® U. S. GOVERNMENT PRINTING OFFICE; 1990 262203 956