dissenting:
The American Federation of Government Employees and the National Treasury Employees Union wish to register citizens to vote. The Special Counsel of the Merit Systems Protection Board, who is responsible for bringing charges under the Hatch Act, has advised the unions unequivocally that the Act prohibits federal employees from participating in drives the unions sponsor, no matter how neutrally the drives are conducted. The court today finds no controversy between the unions and the Special Counsel ripe for adjudication; I disagree.
I
I start from the assumption that, as a general matter, federal courts should be available to adjudicate concrete disputes involving federal law. For a variety of reasons, we at times find it necessary or appropriate to refrain from resolving cases brought before us, but I think the public pays us mainly to settle controversies, not to avoid them. Before refusing to hear a case within our jurisdiction, we should therefore consider the costs of our refusal to the parties and the public with at least as much sensitivity as we bring to our assessment of the benefits.
This is especially true when, as today, the court’s concern is ripeness. The Supreme Court has instructed that whether a case is ripe is a “flexible” matter that depends on “both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Abbott Laboratories v. Gardner, 387 U.S. 136, 149-50, 87 S.Ct. 1507, 1515-16, 18 L.Ed.2d 681 (1967). Accordingly, we have taken a pragmatic, balancing approach to the constitutional as well as the prudential component of ripeness. See Andrade v. Lauer, 729 F.2d 1475, 1480 (D.C.Cir.1984); National Student Association v. Hershey, 412 F.2d 1103, 1115 (D.C.Cir.1969). What I find most distressing about today’s decision is that, in sharp contrast to the majority’s extensive analysis of the drawbacks to adjudicating the case before us, the court limits its discussion of the hardship likely to be caused by its restraint to a remarkable suggestion that the Special Counsel's opinion carries no serious threat of enforcement and a passing recommendation that the unions seek relief from the Office of Personnel Management or from Congress.
The majority dismisses far too quickly the appellants’ interest in a prompt adjudication of their dispute with the Special Counsel. The practical consequence of today’s decision is that, unless federal workers are willing to put their jobs on the line, the Special Counsel’s construction of the Hatch Act will remain the law: employees throughout the nation will effectively be barred from participation in neutrally conducted voter registration drives sponsored *322by AFGE or NTEU. The minimum penalty for violation of the Hatch Act is thirty days’ suspension without pay, and outright dismissal is required in all cases in which the Merit Systems Protection Board does not vote unanimously for a lesser sanction. See 5 U.S.C. § 7325 (1982). No matter how infrequently the Special Counsel has brought Hatch Act charges in the past, federal employees can hardly be faulted for concluding that registering voters in flagrant disregard of the Special Counsel’s advice is not worth the grave risk to their livelihoods. Indeed, coerced compliance of this sort may well explain why to date the Special Counsel has rarely found it necessary to initiate enforcement actions.
As the district court recognized, declaratory relief has long been available to alleviate precisely such “debilitating uncertainties about governmental requirements imposed on private parties.” 4 K. Davis, Administrative Law Treatise § 25:16, at 411 (2d ed. 1983). Much of the point behind the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202 (1982), is “to settle legal rights and remove uncertainty and insecurity from legal relationships without awaiting a violation of the rights or a disturbance of the relationships.” Aetna Casualty & Surety Co. v. Quarles, 92 F.2d 321, 325 (4th Cir.1937) (Parker, J.). Moreover, we have noted that “modern case law ... reflects a greater judicial willingness to aid litigants faced with the necessity of risking substantial harm in order to challenge the validity of governmental action,” and that, in particular, employees who wish to challenge administrative implementation of the Hatch Act should not be forced to jeopardize their jobs. Joseph v. United States Civil Service Commission, 554 F.2d 1140, 1149-52 (D.C.Cir.1977).
Although Joseph involved a challenge to regulations, we should be no more grudging about relieving uncertainties imposed by credible threats of enforcement, particularly when the threats may chill the exercise of first amendment rights. This is the unambiguous teaching of Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974), where the Supreme Court held that a leafletter faced with a genuine threat of criminal charges need not “first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.” Id. at 459, 94 S.Ct. 1215. We have recognized that the principle underlying Steffel extends to threats of sanctions other than criminal prosecution. See Kaplan v. Hess, 694 F.2d 847, 851 (D.C.Cir.1982).
The majority depicts the Special Counsel’s opinion as too general and tentative to constitute a credible threat of enforcement or to present a “crystallized controversy.” Maj. op. at 755-757. But no matter how many factors the Special Counsel indicated might be relevant in some situations to determining whether a voter registration drive was partisan, his evaluation of the drives sponsored by AFGE and NTEU was anything but tentative:
Where, as here, the unions have endorsed partisan candidates, and where, as here, the unions have issued public statements and communications to their membership emphasizing the importance of voter registration in advancing the campaigns of candidates which the unions support, the ineluctable conclusion must be that those voter registration drives sponsored or conducted by the unions are, in fact, partisan. Accordingly, we must advise you that participation by federal employees in your unions’ voter registration drives is prohibited political activity within the definition of the Hatch Act.
Letter from K. William O’Connor to Lois Williams and Mark Roth at 7 (Apr. 6, 1984), AFGE J.A. at 34, NTEU J.A. at 47. As the district court recognized, an advisory opinion of such specificity, issued by the official statutorily charged with initiating punitive proceedings under the Hatch Act, is clearly tantamount to a threat of enforcement. The majority’s assertion to the contrary is hard to fathom.
II
Almost as puzzling as the court’s peculiar insensitivity to the first amendment *323interests of federal employees is its exaggerated solicitude for the administrative difficulties our resolution of this controversy might cause. I cannot understand, for example, why fear of litigation would lead the Office of the Special Counsel to keep its views to itself until after a violation of the Hatch Act has occurred, at which point there obviously is no possibility for the Office to vindicate its position without resort to adversary proceedings. Even harder for me to grasp is how the Special Counsel could reasonably fear being haled into court for issuing an advisory opinion that condoned proposed activity — the kind of opinion valued so highly by the Supreme Court and the majority for its role in alleviating coercive uncertainties under the Act. See maj. op. at 754. More mysterious still is why the court so readily discerns the possibility that aversion to litigation will silence the Special Counsel in this way, but not the possibility that the Special Counsel will bring charges against those who disregard his advice, or the possibility that employees might reasonably fear such charges.
Similarly exaggerated is the court’s concern not to “short-circuit” the “congressionally established scheme for deciding Hatch Act eases.” Maj. op. at 754-755. Congress has indeed made the Merit Systems Protection Board “the administrative forum of first resort” for adjudication of certain Hatch Act disputes: those initiated by the Special Counsel rather than by employees. As Judge Edwards points out, however, this statutory grant of authority hardly constitutes a legislative command that courts refrain from considering any Hatch Act controversies before the Board has had its say. At a minimum, it should take a much clearer statement of congressional intent to so circumscribe the historic role of federal courts in protecting federal rights. Cf. Borrell v. United States International Communication Agency, 682 F.2d 981, 989 (D.C.Cir.1982).
As the Supreme Court recognized in Steffel v. Thompson, moreover, the federal courts do not disrupt or circumvent an independent adjudicative system when they resolve matters within their province before proceedings even commence in the other forum, particularly when those proceedings cannot be initiated by the party seeking federal relief. In Steffel, the Court concluded that general principles prohibiting federal courts from interfering with state criminal proceedings do not apply when a declaratory judgment is sought before state proceedings are commenced. To hold otherwise, the Court noted, might “place the hapless plaintiff between the Scylla of intentionally flouting state law and the Charybdis of forgoing what he believes to be constitutionally protected activity in order to avoid becoming enmeshed in a criminal proceeding.” 415 U.S. at 462, 94 S.Ct. at 1217. Surely the interest of federal employees in avoiding a similar dilemma warrants flexibility in our application of whatever silent directives we infer from Congress’ grant of jurisdiction to the Merit Systems Protection Board.
III
The practical implications of today’s decision for the first amendment rights of federal employees can perhaps best be appreciated by considering the situation of AFGE Local 3511, which represents workers at the Veterans Administration hospital in San Antonio. In the past, Local 3511 has registered voters at the hospital. This year, in explicit reliance on the Special Counsel’s advice, the Veterans Administration has denied the union permission to conduct its registration drive. See AFGE J.A. at 22-23.
The Veterans Administration can hardly be faulted for its decision. Contrary to the majority’s suggestion, see maj. op. at 756-757, drives of the sort proposed by Local 3511 were precisely the subject of the Special Counsel’s opinion. The appellant unions expressly informed the Special Counsel that their registration drives would be conducted through their locals and chapters, and the categorical language of the advisory opinion makes clear that the Spe*324cial Counsel deemed the organizational structure of the drives entirely irrelevant.
The court today refuses to second-guess the constitutional wisdom of the Special Counsel, but suggests that Local 3511 may be able sue to the Veterans Administration. It is unclear why the court thinks that such a suit, but not the one presently before us, would leave intact “the authority Congress allocated to [the Merit Systems Protection Board] as tribunal of first instance” for Hatch Act enforcement matters. Maj. op. at 755. In any event, the prospects for obtaining meaningful judicial relief in this way are at best uncertain. Quite apart from the logistical difficulties posed for union litigants by the multiplicity of federal employing agencies, the MSPB — in its “ ‘accustomed role' of refining the law of prohibited political activities through the continual decision of cases and the coordination of the rules that emerge from them,” id. — has concluded that the Special Counsel’s responsibility for Hatch Act enforcement is exclusive, see Sims v. Government of the District of Columbia, 6 M.S.P.B. 652, 654 (1981).
Of course, the members of Local 3511 remain free to disregard the advisory opinion and to challenge the Special Counsel’s view of the law in any subsequent enforcement action. Rights that may be exercised only by risking unemployment, however, are hollow things indeed.
The relevance of the Veterans Administration’s action for today’s decision is not that it renders this case or some other ease justiciable; the justiciability of this case rests firmly on the threat of enforcement implicit in the Special Counsel’s advisory opinion. The action’s relevance is rather that it illustrates quite vividly the effective legal force of the Special Counsel’s construction of the Hatch Act, which the court now refuses to allow federal employees to challenge without endangering their jobs. Because I believe that federal employees, like all citizens, ought not be required to jeopardize their livelihoods in order to vindicate their first amendment freedoms, I dissent.