Opposition Brief — Merle v. United States

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No. 93-934

In the Supreme Court of the Anited States

ROGER MERLE, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

THEODORE 8. OLSON

Solicitor General

Counsel of Record

PETER D. KEISLER

Assistant Attorney General

PAUL D. CLEMENT

Deputy Solicitor General

MICHAEL JAY SINGER

ScoTT R. MCINTOSH

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

BEST AVAILABLE COPY g

QUESTIONS PRESENTED

The Hatch Act, 5 U.S.C. 7323(a)(8), prohibits federal

employees from “run{ning] for the nomination or as a

candidate for election to a partisan political office.” The

questions presented are:

1. Whether the office of United States Repre-

sentative is a “partisan political office.”

2. Whether the application of the Hatch Act to a

federal employee who wishes to run for the office of

United States Representative violates the Qualifica-

tions Clause of the Constitution (Art. I, § 2, Cl. 2).

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Adams v. Supreme Court of Pa., 502 F. Supp. 1282

GE I ils SNIOD cecsernieniniesevsrecscmnssrvscscesssacssesscstecsemmnareermnennesens 9

Alex v. County of Los Angeles, 111 Cal. Rptr. 285

Dn 10

Chapman v. United States, 500 U.S. 453 (1991) ..........0.. 14

Connick v. Myers, 461 U.S. 138 (1983) .....ccccccceseserereneneees 15

Holloway v. Department of the Interior,

3 848 & 9

Joyner v. Mofford, 706 F.2d 1523 (9th Cir.),

cert. denied, 464 U.S. 1002 (1983) ........... 9, 10, 11, 12, 13, 16

Kane v. MSPB, 210 F.3d 1379 (Fed. Cir. 2000) ..............++ 3

Oklahoma State Election Bd. v. Coats, 610 P.2d 776

ne 10

Posters ‘N’ Things, Ltd. v. United States,

AG, 14

Powell v. McCormack, 395 U.S. 486 (1969) ........:.cccceseees 6

Republican Party of Minn. v. White, 536 U.S. 765

ee 15

Signorelli v. Evans, 637 F.2d 853 (2d Cir.

BE cieesnniseereneieinitencinensiemnomaaiemmmermennaeness 9, 11, 12, 13, 15

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779

SEED eteensensevnitenensnenscesersmnecervseenvernersermmnnevenesenmnnemenes 6, 7-8, 9, 11

United Pub. Workers of Am. v. Mitchell,

BD TS RID cccreseeetverentevincnennnenennmmmnmmnnnmnnnace: 2

United States Civil Serv. Comm'n v. National

Ass'n of Letter Carriers, 413 U.S. 548 (1978) ......... 3, 6, 8-9, 12

(IIT)

Cases—Continued: Page

United States v. Locke, 471 U.S. 84 (1985) .....ccccccccseseesesees 14

United States v. Williams, 504 U.S. 36 (1992) ............0+. 14

Constitution and statutes:

U.S. Const.:

§ 2, Cl. 2 (Qualification Clause) ............. 4, 7,9, 10, 13, 14

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Miscellaneous:

SD Op. Att'y. Gam. GBB CIBED) erccscecessescsssessemecesemnemenmmmenvenses 7

U.S. Office of Special Counsel, Political Activity

and the Federal Empioyee (2000) .......cssesesessseeeeseseseeseees 7

Jn the Supreme Court of the Anited States

No. 03-934

ROGER MERLE, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-9a)

is reported at 351 F.3d 92. The opinion of the district

court (Pet. App. 10a-14a) is reported at 217 F. Supp. 2d

560.

JURISDICTION

The judgment of the court of appeals was entered on

September 30, 2003. The petition for a writ of certiorari

was filed on December 29, 2003. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT |

1. The Hatch Act, 5 U.S.C. 7321-7326, regulates the

partisan political activities of federal employees. The

Act grew out of “[tJhe conviction that an actively

partisan governmental personnel threatens good

[public] administration.” United Pub. Workers of Am.

v. Mitchell, 330 U.S. 75, 97-98 (1947). Its enactment

reflected Congress’s concern with the “danger to the

[civil] service in that political rather than official effort

may earn advancement,” and the related “danger * * *

to the public in that governmental favor may be

channeled through political connections.” Jd. at 98.

In its current form, the Act specifies particular

political activities that may not be engaged in by any

federal employee, together with additional activities

that may not be engaged in by employees responsible

for law enforcement, national security, and federal

election and civil service laws. 5 U.S.C. 7323(a)(1)-(3)

and (b)(1)-(4). The provision of the Act at issue in this

case, 5 U.S.C. 7323(a)(3), prohibits federal employees

from running for election to a “partisan political office.”

The Act defines “partisan political office” to include

“any office for which any candidate is nominated or

elected” on a partisan basis. 5 U.S.C. 7322(2).

A federal employee who violates the Hatch Act is

subject to removal from his position or, in less serious

cases, suspension without pay for thirty days or more.

5 U.S.C. 7326. Apart from removal or suspension,

employees who violate the Act are not subject to any

legal sanctions or disabilities.

On two occasions, this Court has rejected broad

challenges to the constitutionality of the Hatch Act. In

Mitchell, supra, the Court rejected claims that the Act

violated the First, Fifth, Ninth, and Tenth ©

Amendments. A quarter-century later, in United

States Civil Service Commission v. National Ass’n of

Letter Carriers, 413 U.S. 548 (1973), the Court rejected

claims that the Act’s restrictions on partisan political

activities were unconstitutionally vague and overbroad.

The Court explained that the Act’s restrictions serve a

number of vital governmental interests, including

ensuring “the impartial execution of the laws”; avoiding

the public appearance of political favoritism; preventing

the federal workforce from being used to build political

machines; and ensuring that government employment

is not dependent on political performance and that

federal employees are insulated from pressure to

engage in political activities to earn favor from their

superiors. Jd. at 564-567. In light of those substantial

governmental interests, the Court concluded that

“neither the First Amendment nor any other provision

of the Constitution invalidates a law barring * * *

partisan conduct by federal employees.” Jd. at 556.

2. Petitioner Roger Merle is an employee of the

United States Postal Service. As a Postal Service

employee, Merle is subject to the requirements of the

Hatch Act. See Kane v. MSPB, 210 F.3d 1379, 1381-

1382 (Fed. Cir. 2000) (discussing applicability of Hatch

Act to Postal Service employees).

In June 2002, Merle filed nominating petitions with

the New Jersey Division of Elections for the purpose of

qualifying as a candidate for election to the United

States House of Representatives in November 2002.

Pet. App. 2a. Six weeks later, Merle and petitioner

Green Party State Committee filed suit against the

United States in the District Court for the District of

New Jersey. [bid.

Petitioners sought a declaratory judgment that the

office of United States Representative is not a “parti-

san political office” under the Hatch Act and that Merle

therefore was free as a statutory matter to run for

office without giving up his federal employment. Pet.

App. 6a. Alternatively, petitioners sought a declaration

that the application of the Act to Merle would violate

the Qualifications Clause, which provides that “[n]o

person shall be a Representative who shall not have

attained the age of twenty five years, and been seven

years a citizen of the United States, and who shall not *

* * be an inhabitant of that state in which he shall be

chosen.” U.S. Const. Art. I, § 2, Cl. 2." Petitioners also

presented a claim that the Hatch Act violates federal

employees’ First Amendment rights of free speech and

association. Pet. App. 13a n.1.

The district court dismissed petitioners’ complaint

for failure to state a claim for relief. Pet. App. 10a-14a.

The district court concluded that the Hatch Act does

not violate the Qualifications Clause, because it does

not disqualify federal employees from running for

federal office. Id. at 1la-13a. The district court further

noted that the constitutionality of the Hatch Act under -

the First Amendment is settled by Mitchell and Letter

Carriers, supra. Pet. App. 13a n.1.

3. On appeal, petitioners raised their statutory and

Qualifications Clause claims but did not renew their

First Amendment claim. The court of appeals affirmed

in an unpublished decision. Pet. App. la-9a.

The court of appeals held that “the office of United

States Representative is a ‘partisan political office’ as

* In addition to the clause governing the qualifications of

Representatives, Article I contains a separate clause governing

the qualifications of Senators. See U.S. Const. Art. I, § 3, Cl. 3.

References in this brief to the Qualifications Clause refer to the

former of these two clauses.

that term is defined in the Hatch Act.” Pet. App. 7a.

The court pointed out that the office of Representative

fits squarely within the statutory definition of “partisan

political office” in 5 U.S.C. 7322(2). Pet. App. 6a-7a.

The court added that because the statutory definition

does not refer specifically to any office, relying instead

on a general definition, “the office of United States

Representative need not be specifically enumerated in

the statute for it to be included within it.” Jd. at 7a.

Turning to petitioners’ Qualifications Clause claim,

the court pointed out that the Hatch Act “does not

disqualify any individual from running for public office.”

Pet. App. 8a. Instead, it simply functions as a resign-to-

run law, requiring federal employees to give up their

federal employment if they wish to run for a partisan

political office. Ibid. The court concluded that the

difference between laws that bar potential candidates

from running for office and resign-to-run laws “is a key

distinction for the purposes of the Qualifications

Clause,” because while laws of the first sort impose

additional qualifications for officeholding, resign-to-run

laws merely disallow potential candidates from

continuing to work for the government, leaving them

free to run for office if they wish to do so. Ibid. The

court added that while “a ‘resign to run’ law may force

Merle to choose between remaining as an employee of

the federal government and running for elected office,

* * * foreing Merle to make that decision does not

constitute an additional qualification for the office of

United States Representative.” Ibid.

ARGUMENT

The unpublished decision of the court of appeals is

correct and does not conflict with any decision of this

Court or any other court of appeals. The petition for

certiorari therefore should be denied.

1. a. The court of appeals correctly rejected peti-

tioners’ claim that the application of the Hatch Act to

federal employees who wish to run for election to the

House of Representatives violates the Qualifications

Clause. It is well settled that Congress may not seek to

override the preferences of the electorate by adding to

the qualifications set forth in the Qualifications Clause

itself. See U.S. Term Limits, Inc. v. Thornton, 514 U.S.

779, 787-798 (1995); Powell v. McCormack, 395 U.S. 486

(1969). But nothing in the Hatch Act runs afoul of that

principle.

Simply stated, the Hatch Act does not impose any

qualifications on membership in the House of Repre-

sentatives. The Act does not regulate the partisan

office to which Merle aspires, but rather the federal

government positions that he and other federal em-

ployees already hold. Congress’s goal is not one of

limiting who is qualified to serve in the national

legislature, but instead the constitutionally legitimate

goal of regulating partisan activities by persons

employed by the federal government and thereby

furthering “thle] great end of Government—the

impartial execution of the laws.” Letter Carriers, 413

U.S. at 565.

The Hatch Act does not seek to prevent federal

employees from becoming members of Congress or

from holding any other partisan political office. Con-

trary to petitioners’ claim (Pet. 9), the Act does not

“debar[] millions of American citizens from seeking

election to the national legislature.” If Merle wishes to

run for election to the House of Representatives, he is

free to do so, and if the voters of his district wish for

him to represent them, they are free to choose him. As

the court of appeals pointed out, the Hatch Act simply

requires, him to choose between the federal government

position that he currently holds and the partisan one

that he wishes to seek. Pet. app. 8a. Moreover, the Act

does not prohibit him from having his name placed on

the ballot, nor does it prohibit him from taking office if

he is elected. See 39 Op. Att. Gen. 423, 424 (1940)

(holding elective office does not violate Hatch Act

because “the statute [is] directed at political activity

rather than [at] the holding of public office”); U.S.

Office of Special Counsel, Political Activity and the

Federal Employee 5 (2000) (“while the Hatch Act

prohibits candidacy for public office in partisan

elections, it does not prohibit a federal employee from

being appointed to or holding public office”). If he

voluntarily resigns to run, then his actions do not

violate the Hatch Act at all, and if he runs without

resigning, he risks his public employment, but the

available remedies do not affect the ballot or the

seating of elected officials.

Because the object of the Act is to regulate the con-

duct of government employees rather than the com-

position of Congress, and because the Act does not

prohibit anyone who wishes to run for Congress from

doing so, the Act’s provision regarding candidacy for

partisan political office is entirely consistent with the

principles underlying the Qualifications Clause. The

Qualifications Clause embodies “the fundamental prin-

ciple of our representative democracy that the people

should choose whom they please to govern them.”

Thornton, 514 U.S. at 783 (internal quotation marks

omitted). It reflects the conviction that “[t]he people

are the best judges [of] who ought to represent them,”

and that “[t]o dictate and control them, to tell them

whom they shall not elect, is to abridge their natural

rights.” Jd. at 794-795 (internal quotation marks

omitted). Thus, for example, a State may not adopt a

term limit law, like the one in Thornton, that seeks to

exclude incumbent members of Congress from re-

election by denying them access to the ballot. Such

laws embody a legislative judgment about who should

serve in Congress and who should not, and they seek to

enforce that judgment by impermissibly overriding the

preferences of the public about who ought to represent

them.

In contrast, the Hatch Act makes no attempt

whatsoever to “dictate and control” the electorate by

“tell[ing] them whom they shall not elect” to Congress.

It is a matter of indifference under the Hatch Act

whether Merle or anyone else currently employed by

the federal government is elected to serve in Congress.

The Act’s sole goal is to protect the efficiency and

impartiality of the civil service by regulating the terms

and conditions of federal employment. The Act does

not reflect a legislative judgment that federal em-

ployees are unsuited to serve in Congress, and it does

not disqualify them from doing so.

b. Petitioners acknowledge (Pet. 4) that the Hatch

Act does not actually prohibit anyone from running for

Congress. Nevertheless, petitioners argue that the Act

effectively disables federal employees from running for

Congress because the loss of federal employment will

allegedly create an insurmountable economic barrier.

Ibid.

As a factual matter, petitioners’ claims of prohibitive

economic coercion are significantly overstated: federal

employees do voluntarily leave their federal

employment in order to run for partisan political offices,

including Congressional offices. See, e.g., Letter

Carriers, 413 U.S. at 551 n.3 (federal employee “re-

signed his position in the Department of Health,

Education, and Welfare * * * to run as a Republican

candidate for the Maryland State Senate”); Holloway v.

Department of the Interior, 82 M.S.P.R. 435, 437 para. 3

(1999) (employee of Department of the Interior

“resigned in order to run as a Republican candidate for

the U.S. Senate”). But even if it were assumed that the

Hatch Act imposes significant economic burdens on

federal employees who wish to run for partisan political

office, an indirect economic burden alone does not

violate the Qualifications Clause. This Court’s decision

in Thornton suggests that while a law that seriously

burdens the ability of individuals to run for Congress

may run afoul of the Qualifications Clause, it does so

only when “the avowed purpose” of the law is to

“handicap[] a class of candidates.” 514 U.S. at 831. In

contrast, when the object of the law is not to “evad[e]

the requirements of the Qualifications Clauses,” ibid.,

but instead to protect the independence and efficiency

of government employees, the “indirect burden on

potential candidates for Congress * * * igs not

sufficient * * * to constitute an impermissible

qualification for federal office.” Joyner v. Mofford, 706

F.2d 1523, 1531 (9th Cir.), cert. denied, 464 U.S. 1002

(1983).

c. Although this is the first case in which the Hatch

Act has been challenged on the basis of the Qualifi-

cations Clause, similar constitutional challenges have

been pursued against state resign-to-run statutes that,

like the Hatch Act, require a government employee to

give up his government position if he wishes to run for

Congress. Those challenges have been uniformly

rejected. See Joyner, supra; Signorelli v. Evans, 637

F.2d 853 (2d Cir. 1980); Adams v. Supreme Court of

Pa., 502 F. Supp. 1282, 1290-1291 (M.D. Pa. 1980);

Oklahoma State Election Bd. v. Coats, 610 P.2d 776

(Okla. 1980); Alex v. Cownty of Los Angeles, 111 Cal.

Rptr. 285 (Ct. App. 1973).

In Signorelli, the Second Circuit was presented with

a state law that required a state judge to resign his

judicial office before campaigning for political office,

including the office of United States Representative.

The Second Circuit held that the statute did not violate

the Qualifications Clause because “New York’s purpose

is to regulate the judicial office that [the plaintiff] holds,

not the Congressional office that he seeks,” and because

“he is free to run [for Congress] and Une people are free

to choose him.” 637 F.2d at 858-85y. While the Second

Circuit suggested that the Qualifications Clause might

limit New York’s ability to make resign-to-run statutes

applicable to employees in the private sector, such as

lawyers or business executives, id. at 859, the court

concluded that the Clause did not invalidate a law

whose “purpose * * * is to protect the integrity of a

branch of state government.” Jd. at 863.

In Joyner, the Ninth Circuit rejected a similar

constitutional challenge to a provision of the Arizona >

constitution that prohibited any holder of an elective

state office from “offer[ing] himself for nomination or

election to any salaried local, state or federal office.”

706 F.2d at 1526. Like the Second Circuit, the Ninth

Circuit distinguished between statutes that “bar a

potential candidate from running for federal office” and

those that “merely bar[] state officeholders from

remaining in their positions should they choose to run

for federal office.” Jd. at 1528. The Ninth Circuit noted

that “(t]he burden on candidacy, imposed by laws of the

latter category, is indirect and attributable to a desire

to regulate state officeholders and not to impose

additional qualifications to serving in Congress.” Ibid.

In Thornton, this Court cited Signorelli and Joyner

favorably and distinguished the statutes in those cases

from the term limit law struck down in Thornton itself.

See 514 U.S. at 835 n.48. The Court quoted with

approval the Ninth Circuit’s reasoning that “the burden

on candidacy” from resign-to-run laws “is indirect and

attributable to a desire to regulate state officeholders

and not to impose additional qualifications to serving in

Congress.” Id. at 835 (quoting Joyner, 706 F.2d at

1528). The Court also repeated the Second Circuit’s

observation that resign-to-run laws leave a candidate

“free to run” and the electorate “free to choose him,”

Ibid. (quoting Signorelli, 637 F.2d at 858).

The provision of the Hatch Act at issue in this case is

constitutionally indistinguishable from the statutory

provisions sustained in Signorelli and Joyner. Like

State resign-to-run laws, the Hatch Act “places no

obstacle between [a government employee] and the

ballot or his nomination or his election[;] he remains

free to run and the people are free to choose him.”

Signorelli, 637 F.2d at 858; Joyner, 706 F.2d at 1531.

Like those laws, the Act is aimed solely at regulating

the conduct of government employees in the govern-

ment offices that they now hold, not the partisan offices

to which they aspire. Signorelli, 637 F.2d at 859. To

the extent that it may place an incidental burden on

federal employees who wish to run for Congress, the

burden “is indirect and attributable to a desire to regu-

late * * * officeholders and not to impose additional

qualifications to serving in Congress.” Joyner, 706 F.2d

at 1528. Just as resign-to-run laws find their justifi-

cation in a state’s “fundamental interests” in “pro-

tecting the integrity of a branch of state government,”

Signorelli, 637 F.2d at 861, 863, so is the Hatch Act

justified by the fundamental interests of the United

States in protecting the integrity of a branch of the

federal government—interests that this Court has

recognized to be compelling in rejecting other consti-

tutional challenges to the Act. See Letter Carriers, 413

U.S. at 564 (“[T]he balance [Congress] has 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.”); id. at 564-

567 (enumerating legitimate governmental interests

served by restrictions on partisan political activities).

Petitioners argue (Pet. 16-17) that Signorelli and

Joyner conflict with the decision below because they

draw a distinction between laws that impose resign-to-

run obligations on a small number of individuals and

laws such as the Hatch Act that affect a large number

of government employees. The distinction actually

drawn by the Second Circuit and Ninth Circuit is a very

different one: a distinction between laws that regulate

government employees and laws that extend beyond

the confines of government service to regulate the

private sector. The Second Circuit explained that it

was permissible for New York to impose a resign-to-

run requirement on state judges, while it could not

impose the same requirement on lawyers or business

executives, because “[t]he[] fundamental interests in

the structure of government far transcend the interests

involved when a state exercises general regulatory

authority over non-governmental occupations.” 637

F.2d at 859, 861 (emphasis added). When the Ninth

Circuit upheld Arizona’s resign- to-run provision, it

drew the same distinction, explaining that “state office-

holders,” in contrast to lawyers and business execu-

tives, are “engaged in pursuits ‘peculiarly within the

essential regulatory authority of the states.’” 706 F.2d

at 1530 n.6 (quoting Signorelli, 637 F.2d at 859)

(emphasis added by Ninth Circuit). Moreover, the

Ninth Circuit made clear that the Hatch Act itself falls

on the permissible side of this divide, explaining that

“like the civil servants affected by the Hatch Act cases,

the elected salaried state officials covered by the

Arizona provision are within the State’s ‘essential

regulatory authority.” Jd. at 1530. Accordingly,

petitioners’ claims that the Third Circuit’s reasoning

conflicts with Signorelli and Joyner, or that Signorelli

and Joyner are in conflict with each other (see Pet. 18-

20) are mistaken.

2. In addition to challenging the constitutionality of

the Hatch Act under the Qualifications Clause, peti-

tioners also argue (Pet. 20-24) that the Hatch Act

should be construed not to apply to candidacy for

election to the House of Representatives. That argu-

ment cannot be squared with the language of the Act.

The Act’s text is clear and unqualified: “‘partisan

political office’ means any office for which any candi-

date is nominated or elected as representing a party

any of whose candidates for Presidential elector re-

ceived votes in the last preceding election at which

Presidential electors were selected.” 5 U.S.C. 7322(2)

(emphasis added). As the court of appeals recognized,

the office of Representative fits squarely within that

statutory definition, since candidates for the office are

routinely nominated and elected as representatives of

political parties whose Presidential candidates received

votes in the preceding election. Pet. App. 6a-7a.

Petitioners argue (Pet. 21-23) that the Act should be

construed to exclude the office of Representative in

order to avoid the constitutional problems that

Supposedly would arise under the Qualifications Clause

if the Act were applied to federal elective offices. As

shown above, however, applying the Hatch Act to

federal employees who wish to run for Congress does

not present any substantial constitutional problem, and

hence the doctrine of constitutional avoidance does not

come into play. See pp. 6-10, supra. Moreover, even if

the application of the Hatch Act in this case did present

a substantial constitutional question, the statutory text

does not leave room for the kind of judicial interpolation

proposed by petitioners. As this Court has emphasized,

“(t]he canon of construction that a court should strive to

interpret a statute in a way that will avoid an

unconstitutional construction is useful in close cases,

but it is not a license for the judiciary to rewrite langu-

age enacted by the legislature.” Chapman v. United

States, 500 U.S. 453, 464 (1991) (internal quotation

marks omitted); United States v. Locke, 471 U.S. 84, 96

(1985) (“We cannot press statutory construction to the

point of disingenuous evasion even to avoid a consti-

tutional question.”).

3. Finally, petitioners contend (Pet. 25-27) that the

Hatch Act’s prohibition on running for partisan political

offices violates the First Amendment. Although

petitioners raised First Amendment claims in the

district court, they did not pursue those claims on ap-

peal, and the court of appeals therefore did not address

them. This Court’s “traditional rule * * * precludes a

grant of certiorari * * * when the question presented

was not pressed or passed upon below.” United States

v. Williams, 504 U.S. 36, 41 (1992) (internal quotation

marks omitted); see Posters ‘N’ Things, Ltd. v. United

States, 511 U.S. 513, 527 (1994). In any event, this

Court squarely rejected First Amendment challenges

to the Hatch Act in Mitchell and Letter Carriers, and

petitioners provide no reason why those constitutional

holdings should be revisited.

Petitioners argue (Pet. 26) that this Court’s subse-

quent decision in Connick v. Myers, 461 U.S. 138 (1983),

undermines the constitutional reasoning of Mitchell and

Letter Carriers. In Connick, the Court rejected a First

Amendment claim by a state employee who was fired

for making statements that were critical of her super-

visor. The Court held that the First Amendment does

not protect government employees from being discip-

lined for work-related speech that does nat involve

“matters of public concern.” 461 U.S. at 143-147. The

court further held that, even when speech by a govern-

ment employee does involve matters of public concern,

the employee’s constitutional interests must be

balanced against “the government’s legitimate purpose

in promot(ing] efficiency and integrity in the discharge

of official duties.” Jd. at 150-151 (internal quotation

marks omitted). Nothing about that reasoning is even

remotely at odds with the Court’s First Amendment

reasoning in Mitchell and Letter Carriers. To the

contrary, Connick and the line of public-employee

speech cases on which it builds are all consistent with

the notion that the government may impose burdens on

government employees that it could not impose on the

public at large. Cf. Joyner, 706 F.2d at 1530 n.6

(distinguishing limits on public employees’ candidacy

from similar restrictions on private-sector employees);

Signorelli, 637 F.2d at 859, 861 (same).

Petitioners also suggest (Pet. 26) that reconsidera-

tion of Mitchell and Letter Carriers is warranted by

Republican Party of Minnesota v. White, 536 U.S. 765

(2002). In White, the Court held that a state law

prohibiting candidates for judicial office from an-

nouncing their views on “disputed legal or political

issues” violated the First Amendment. 536 U.S. at 788.

The Court subjected the law to strict scrutiny because

it prohibited speech based on its content and burdened

political speech at the core of the First Amendment. Jd.

at 774. In contrast to the law at issue in White, the

Hatch Act does not prohibit federal employees from

expressing their views on any political subject, nor (as

explained above) does it prevent them from pursuing

their political beliefs by seeking elective office.

Nothing in White suggests that the Hatch Act is

subject to strict scrutiny or that its regulation of

political activity by federal employees is

constitutionally suspect.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

THEODORE B. OLSON