Blitz v. Donovan, 83-2027
| Decision Date | 07 August 1984 |
| Docket Number | No. 83-2027,83-2027 |
| Citation | 740 F.2d 1241 |
| Parties | Dorothy BLITZ v. Raymond J. DONOVAN, Secretary of Labor, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 82-0706).
Michael J. Singer, Atty., U.S. Dept. of Justice, Washington, D.C., with whom J. Paul McGrath, Asst. Atty. Gen., and Michael F. Hertz, Atty., U.S. Dept. of Justice, Washington, D.C., were on the brief, for appellant. Richard K. Willard, Acting Asst. Atty. Gen., and Joseph E. diGenova, U.S. Atty., Washington, D.C., also entered appearances for appellant.
Mark H. Lynch, Washington, D.C., with whom Susan W. Shaffer, Washington, D.C., was on the brief, for appellee.
Before TAMM and EDWARDS, Circuit Judges, and CLEMENT F. HAYNSWORTH, Jr., * Senior Circuit Judge for the Fourth Circuit.
Opinion for the court filed by Circuit Judge TAMM.
This appeal arises from the district court's award of attorney's fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. Sec. 2412(d) (1982). 569 F.Supp. 58 (D.D.C.1983). The award followed from the district court's determination that the litigation position of the Secretary of Labor (Secretary) in a suit involving restricted participation under the Comprehensive Employment and Training Act (CETA), 29 U.S.C. Secs. 801-999 (Supp. V 1981), lacked substantial justification. Because we find that the Secretary's litigation position was substantially justified, we reverse the district court's award of attorney's fees.
On December 15, 1981, Congress restricted participation in programs funded under CETA. Pub.L. No. 97-92, Sec. 101(a)(3), 95 Stat. 1183 (1981) (enacting by reference H.R. 4560, 97th Cong., 1st Sess. Sec. 514 (1981)) [hereinafter cited as section 514]. Section 514 excluded any individual from a CETA program "who publicly advocate[d] the violent overthrow of the Federal Government or who [had], within the past five years, publicly advocated the violent overthrow of the Federal Government." Id. 1 In February 1982, the Virginia Employment Commission (VEC) implemented section 514 by requiring all applicants to answer the following question: "Do you now, or have you within the past five years, publicly advocated the violent overthrow of the Federal Government?" Blitz v. Donovan, 538 F.Supp. 1119, 1123 (D.D.C.1982), vacated, 459 U.S. 1095, 103 S.Ct. 711, 74 L.Ed.2d 943 (1983). VEC further specified that any applicant who answered the question affirmatively or refused to answer would not qualify for the CETA program. Id.
In January 1982, Ms. Dorothy Blitz sought readmission after a leave of absence to a CETA program sponsored by VEC. Ms. Blitz refused to disclose on her application whether she publicly advocated violent overthrow of the federal government. On February 26 and March 4, 1982, she requested the Secretary to process her application without regard to her political beliefs. On March 11, 1982, having received no answer from the Secretary, Ms. Blitz filed suit. She requested a judgment declaring section 514 unconstitutional and a preliminary injunction ordering the Secretary to process her application without regard to her political beliefs. 538 F.Supp. at 1124.
The Secretary argued that Ms. Blitz's preliminary injunctive relief should be denied because it was unlikely she would prevail on the merits of her case. The Secretary contended the statute withstood constitutional scrutiny when narrowly read to prohibit only that advocacy which is directed to inciting imminent lawless action and is likely to achieve that result. Memorandum of Points and Authorities in Opposition to Plaintiff's Motion for a Preliminary Injunction and in Support of Defendant's Motion to Dismiss (Defendant's Motion to Dismiss), Exhibit 5 at 14, Blitz v. Donovan, 538 F.Supp. 1119 (D.D.C.1982), vacated, 459 U.S. 1095, 103 S.Ct. 711, 74 L.Ed.2d 943 (1983). Alternatively, the Secretary contended that Ms. Blitz's case was not properly before the district court because she had not yet exhausted her administrative remedies. Id. at 21-25.
The district court granted Ms. Blitz's requested relief after rejecting both the Secretary's narrow reading of section 514 and his use of the exhaustion doctrine. The court first noted that Ms. Blitz was not required to exhaust her administrative remedies because her petition raised constitutional questions on which the Secretary had no special expertise. 538 F.Supp. at 1124-25. The court then rejected the Secretary's narrow interpretation of section 514 because neither its text nor its legislative history appeared to distinguish between doctrinal advocacy and advocacy that incites violent action. Id. at 1127. 2
On June 14, 1982, Ms. Blitz petitioned the district court for attorney's fees, expenses, and costs under the EAJA. The court granted the requested relief on the ground that the Secretary failed to show either that his litigation position was substantially justified or that any special circumstances made an award to Ms. Blitz unjust. Blitz v. Donovan, No. 82-0706 at 4, 9 (D.D.C. Aug. 29, 1983), Joint Appendix (J.A.) at 39, 42, 47. The Secretary appeals the district court's award of attorney's fees but does not contest its award of expenses and costs. Brief for Appellant at 12-13 n. 9.
The sole issue before this court is whether the Secretary has demonstrated that his interpretation of section 514 and his use of the exhaustion doctrine were substantially justified. 3 We conclude the Secretary's litigation position was substantially justified in light of relevant case law, principles of statutory interpretation, and the text and legislative history of section 514. 4 Accordingly, we reverse the district court's award of attorney's fees.
The EAJA provides, inter alia, that a prevailing private party shall receive attorney's fees in a suit brought by or against the government unless "the position of the United States was substantially justified or ... special circumstances make an award unjust." 28 U.S.C. Sec. 2412(d)(1)(A) (1982). This court has construed the "position of the United States" to mean "the arguments relied upon by the government in litigation" and not the prelitigation government action that precipitated the suit. Spencer v. NLRB, 712 F.2d 539, 556-57 (D.C.Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1908, 80 L.Ed.2d 457 (1984); see Cinciarelli v. Reagan, 729 F.2d 801, 804 (D.C.Cir.1984). The government has the burden of proving that its litigation position was "substantially justified," and the applicable standard is slightly more stringent than one of reasonableness. Spencer, 712 F.2d at 558. District court determinations regarding the reasonableness of the government's litigation position, insofar as that position consisted of interpretations of law, are subject to de novo review. Id. at 563.
Section 514 as enacted states in full:
None of the funds appropriated or otherwise made available by this [Appropriations] Act may be used, pursuant to the Comprehensive Employment and Training Act, for the participation of individuals who publicly advocate the violent overthrow of the Federal Government or who have, within the past five years, publicly advocated the violent overthrow of the Federal Government.
Pub.L. No. 97-92, Sec. 101(a)(3), 95 Stat. 1183 (1981) (enacting by reference H.R. 4560, 97th Cong., 1st Sess. Sec. 514 (1981)). The Secretary contended that the provision referred only to "such advocacy [as] is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Defendant's Motion to Dismiss at 14. The Secretary's interpretation removed from the scope of section 514 the kind of advocacy held by the Supreme Court to be constitutionally protected. In Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (per curiam), the Court determined that the free speech clause protects advocacy of a doctrine calling for violent governmental overthrow but does not protect advocacy intended and likely to incite imminent lawless action. Id. at 447-48, 89 S.Ct. at 1829-1830.
The Secretary's reading of section 514, insofar as it avoided penalizing constitutionally protected conduct, accorded with a cardinal principle of statutory interpretation. In Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598 (1932), the Supreme Court instructed that interpretations implicating the constitutional validity of congressional enactments should be avoided wherever possible. This court has similarly noted:
[W]hen one interpretation of a statute would create a substantial doubt as to the statute's constitutional validity, the courts will avoid that interpretation absent a "clear statement" of a contrary legislative intent. When a statute is fairly subject to a variety of interpretations all but one of which would make it unconstitutional, then the courts must presume Congress intended the interpretation which is constitutionally permissible.
United States v. Thompson, 452 F.2d 1333, 1337 (D.C.Cir.1971), cert. denied, 405 U.S 998, 92 S.Ct. 1251, 31 L.Ed.2d 467 (1972). See New York v. Ferber, 458 U.S. 747, 769 n. 24, 102 S.Ct. 3348, 3361 n. 24, 73 L.Ed.2d 1113 (1982); United States v. Clark, 445 U.S. 23, 27, 100 S.Ct. 895, 899, 63 L.Ed.2d 171 (1980); 2A Sutherland Statutory Construction Sec. 45.11 (C. Sands 4th ed. 1973). This settled principle of statutory interpretation thus provided sound authority for the Secretary's argument that section 514 applied only to inciteful advocacy. 5
The Secretary's interpretation was also supported by the special meaning given the term "advocacy" in the first amendment context. In Yates v. United States, 354 U.S....
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