Association of Lithuanian Workers v. Brownell, 12975

• Decision Date: 09 May 1957
• Docket Number: No. 12975,12976.,12975
• Citation: 247 F.2d 64
• Parties: ASSOCIATION OF LITHUANIAN WORKERS, Appellant, v. Herbert BROWNELL, Jr., Attorney General of the United States, Appellee. AMERICAN LITHUANIAN WORKERS LITERARY ASSOCIATION, Inc., Appellant, v. Herbert BROWNELL, Jr., Attorney General of the United States, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

247 F.2d 64 (1957)

ASSOCIATION OF LITHUANIAN WORKERS, Appellant, v. Herbert BROWNELL, Jr., Attorney General of the United States, Appellee.

AMERICAN LITHUANIAN WORKERS LITERARY ASSOCIATION, Inc., Appellant, v. Herbert BROWNELL, Jr., Attorney General of the United States, Appellee.

Nos. 12975, 12976.

United States Court of Appeals District of Columbia Circuit.

Argued December 3, 1956.

Decided May 9, 1957.

Judgment Vacated October 28, 1957.

Mr. Joseph Forer, Washington, D. C., with whom Mr. David Rein, Washington, D. C., was on the brief, for appellants.

Mr. Edward H. Hickey, Atty., Dept. of Justice, with whom Asst. Atty. Gen. George C. Doub and Messrs. Oliver Gasch, U. S. Atty., and Paul A. Sweeney and Howard E. Shapiro, Attys., Dept. of Justice, were on the brief, for appellee.

Messrs. Leo A. Rover, U. S. Atty., at the time record was filed, and Lewis Carroll, and Harold D. Rhynedance, Jr., Asst. U. S. Attys., also entered appearances for appellee.

Before PRETTYMAN, WILBUR K. MILLER and DANAHER, Circuit Judges.

Judgment Vacated October 28, 1957. See 78 S.Ct. 93.

WILBUR K. MILLER, Circuit Judge.

These appeals were heard together because they present practically identical questions. Due to slight factual differences, we shall discuss the cases separately.

No. 12,975. The Attorney General of the United States on April 29, 1953, notified the Association of Lithuanian Workers, which is chartered under New York law as a fraternal insurance company, that he proposed to designate it as an organization coming within the purview of Executive Orders 9835 and 10450.¹ The Association on May 8 gave notice of contest, and on July 8 the Attorney General sent it a statement of the grounds of the proposed designation and a set of interrogatories with respect thereto.² No reply to the statement and interrogatories was filed by the Association at any time. Instead, under date of September 8, 1953, it wrote to the Attorney General asserting its innocence, complaining that the interrogatories were impossible to answer, and attacking the hearing procedure as "unfair and undemocratic and contrary to the laws and traditions of this Nation." The Association did not ask that the interrogatories be modified or withdrawn, nor did it seek a conference or hearing concerning them. Having decided for itself that both the interrogatories and the prescribed hearing procedure were improper and unacceptable, the Association washed its hands of the whole matter and issued an ultimatum to the Attorney General in the closing paragraph of its letter, which we quote:

"In view of the foregoing, we respectfully request that you discontinue this proceeding against the Association. Should you persist in your avowed purpose to list it, the Association will have no alternative except to seek justice in the courts."

After the 60-day period for reply had ended, the Association engaged counsel, who wrote the Attorney General demanding a due process hearing concerning the proposed designation. His letter did not tender a tardy reply signed and verified by the Association's executive officers, and did not itself amount to a formal reply. This was pointed out to counsel. He was also advised that the Association had not filed a reply within the period permitted therefor but in its letter of September 8 had rejected the administrative hearing which would have been available after reply and upon request. In January, 1954, the Attorney General designated the Association, holding that, under the rule, its failure to reply amounted to acquiescence.

Thereupon the Association filed this action in the United States District Court for the District of Columbia to enjoin the Attorney General from "continuing the designation" and to require him to notify all federal departments and agencies, and the public, that the designation "is withdrawn." The complaint attacked the two Executive Orders as unconstitutional and pleaded the procedures and regulations thereunder are illegal and violative of due process. It charged the Attorney General had violated the Executive Orders by designating the Association without appropriate investigation and without notice and hearing.

The Attorney General answered. He outlined the information concerning the Association which his investigation had developed and upon the basis of which he had proposed the designation, and alleged the Association had failed to exhaust its administrative remedies and so was not entitled to judicial review. He then moved for summary judgment or in the alternative for judgment on the pleadings. The latter was granted by the District Court and this appeal followed.

We had before us in National Lawyers Guild v. Brownell, 1955, 96 U.S. App.D.C. 252, 225 F.2d 552, certiorari denied 1956, 351 U.S. 927, 76 S.Ct. 778, 100 L.Ed. 1457, a situation almost identical with that presented here.³ The Guild was notified by the Attorney General that he proposed to designate it. It gave notice of contest, after which it received from the Attorney General a statement of grounds and interrogatories. Without replying thereto, the Guild sued in the United States District Court for judgment declaring Executive Orders 9835 and 10450 unconstitutional and void and the procedures adopted by the Attorney General under those Orders unconstitutional. It also attacked the interrogatories submitted to it. We held that the Executive Orders and procedures prescribed thereunder are valid; that a claim of constitutional invalidity does not negative the requirement for exhaustion of remedies and that the proper place to test the interrogatories in the first instance is before the administrative body. In short, we held the Guild must exhaust the proffered administrative remedy, and so affirmed the District Court's grant of summary judgment to the Attorney General. These holdings are dispositive of the present case unless, as it claims, the Association did not reject but rather was wrongfully denied the administrative remedy.

As we have seen, the appellant did not reply to or challenge the interrogatories before the administrative body, which would have entitled it to a hearing. Instead, it notified the Attorney General that he must withdraw the designation proceeding or be faced with litigation. This was clearly a refusal to utilize the administrative process, and precludes judicial review of the grounds for and the propriety of designation. In National Council of American-Soviet Friendship v. Brownell, 1957, 100 U.S. App.D.C. 116, 243 F.2d 222, 225, we rejected the appellants' insistence "that they may default and still continue to litigate," saying,

"* * * We find no support in the authorities for any such contention, indeed the cases are otherwise. The plight of the appellants is of their own choice and of their own making. We are satisfied that the principles underlying the exhaustion rule are clearly applicable here * * *."

The Association says that "even a rejection of the administrative remedy would not bar judicial determination after designation of whether the designation was made by an invalid procedure and whether the designation power is unconstitutional." If it be assumed that when these questions are raised after designation the court should answer them despite failure to exhaust administrative remedies, the Association is no better off; for in the Lawyers Guild opinion we upheld the constitutionality of the Executive Orders and the validity of the procedures thereunder. We adhere to that holding.

No. 12,976. This case differs from the other in that, when the American Lithuanian Workers Literary Association received from the Attorney General a statement of grounds for designation with interrogatories, it seasonably filed what it termed a reply thereto which was signed and verified by its president and secretary.

The document merely says the Association is engaged in innocent activities and does not come within the purview of Executive Order 10450; that the alleged authority of the Attorney General thereunder and under his own regulations is neither expressly nor impliedly authorized by the Constitution and is violative of the First, Fifth, Ninth and Tenth Amendments. The reply concluded with this paragraph:

"Specifically, proper standards are not set forth in the Executive Order and in the regulations promulgated by the Attorney General; the so-called standards are vague, indefinite and without clear meaning, and the Regulations perpetuate the uncertainty. The proceedings should be dismissed."

A hearing was not requested, even though the Association had purportedly replied. Its arguments for reversal are substantially the same as those we considered and rejected in the previous case.

The so-called reply was not a response to the Attorney General's statement of grounds and interrogatories, but a demand for dismissal on pleas of innocence and unconstitutionality. Having failed to reply, the Association cannot obtain judicial relief from designation.

The judgments are affirmed.

PRETTYMAN, Circuit Judge (concurring in part and dissenting in part).

In No. 12,976, American Lithuanian Workers Literary Association, Inc. v. Brownell, I concur in the result reached by the majority. The Literary Association failed to make to the Attorney General an objection to the proffered procedure with sufficient specificity to enable him to pass upon the challenge. It merely asserted that the whole proceeding was unconstitutional.

In No. 12,975, Association of Lithuanian Workers v. Brownell, I would reverse. I think the Workers were not proffered due process and they adequately tried to obtain valid consideration from the administrative agency.

1. The Regulations¹ provide that "The reply of an organization to a statement of charges and interrogatories shall answer each interrogatory completely and with particularity and shall be limited to statements of fact." They provide further² that "Any organization filing a reply as provided in...