Blitz v. Donovan

• Decision Date: 14 May 1982
• Docket Number: Civ. A. No. 82-706.
• Citation: 538 F. Supp. 1119
• Parties: Dorothy BLITZ, Plaintiff, v. Raymond J. DONOVAN, Defendant.
• Court: U.S. District Court — District of Columbia

538 F. Supp. 1119

Dorothy BLITZ, Plaintiff, v. Raymond J. DONOVAN, Defendant.

Civ. A. No. 82-706.

United States District Court, District of Columbia.

May 14, 1982.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Mark H. Lynch, Susan W. Shaffer, American Civil Liberties Union Foundation, Washington, D.C., Leonard Rubenstein, American Civil Liberties Union of Virginia, Washington, D.C., Michael Krinsky, Nat. Emergency Civil Liberties Committee, New York City, for plaintiff.

J. Paul McGrath, Asst. Atty. Gen., Stanley S. Harris, U.S. Atty., Richard K. Willard, Paul Blankenstein, Sheila Lieber, Stanley Alderson, Attys., Dept. of Justice, Washington, D.C., for defendant.

MEMORANDUM OPINION

BARRINGTON D. PARKER, District Judge:

This proceeding summons the application of a well-settled principle of constitutional law: when government decides to provide a benefit or an opportunity, it cannot condition the grant on the surrender of unrelated freedoms. In Perry v. Sindermann,¹ Justice Stewart, who authored the view of the Supreme Court, stated the principle forcefully:

The government may not deny a benefit to a person on a basis that infringes his constitutionally protected interests — especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to "produce a result which it could not command directly." Speiser v. Randall, 357 U.S. 513, 526 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460. Such interference with constitutional rights is impermissible.²

The plaintiff Mrs. Dorothy Blitz alleges in her complaint that a recent congressional enactment and its implementation by the Secretary of Labor ran afoul of the principle set forth in Perry and infringed upon her first amendment right of free speech. This Court agrees with her contentions and concludes that she is entitled to appropriate relief.

BACKGROUND

The series of events supporting the plaintiff's claim are not disputed in any material respect. Mrs. Blitz is a member of the Communist Workers Party. In May 1980, she enrolled in an employment training program established under the Comprehensive Employment Training Act (CETA).³ She resided in Martinsville, Virginia and the program was administered by the Virginia Employment Commission (VEC).⁴ One year later, she had completed 600 of the required 700 hours in her course of study. At that time she obtained a leave of absence because of a pregnancy and anticipated childbirth.

In December 1981, the United States Congress enacted into law an amendment to an appropriations bill for fiscal year 1982. The enactment, Public Law 97-92,⁵ provided that:

None of the funds appropriated or otherwise made available by this Act may be used, pursuant to the Comprehensive Employment 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.

The legislative history of the amendment left no doubt that it was specifically intended to exclude Mrs. Blitz from the CETA program because of her political beliefs and affiliations and because she expressed those beliefs in her community.⁶ The enactment has since been referred to as the "Blitz Amendment."

On January 20, 1982, after the birth of her child, Mrs. Blitz reapplied to the Martinsville, Virginia CETA officials with the hope of completing her course of study. Although she was found eligible and qualified to pursue her training, she was told by a VEC representative that the "Blitz Amendment" presented problems as to her enrollment. The representative also informed the plaintiff that the VEC office was awaiting guidance from the Virginia Attorney General on the implementation of this amendment and could not enroll her until such guidance was received.

On January 24, 1982, Mrs. Blitz wrote the Virginia Attorney General requesting a prompt decision on whether she could participate in the program. She was advised on February 15 that the question of her eligibility was still under review. The response also noted that "the Labor Department has declined to prepare field instructions, which has left the various states very much on their own in implementing the amendment."⁷

In late February 1982, the VEC issued a regulation requiring all CETA applicants to respond with a "yes" or "no" answer to the question: "Do you now, or have you within the past five years, publicly advocated the violent overthrow of the Federal Government?" The regulation provided that if the applicant supplied a "yes" answer or refused to answer he would be disqualified from eligibility and participation in the CETA program. It further provided that if the applicant gave an equivocal answer, the matter was to be reported to the Central Office of the Virginia Employment Commission, and the applicant would remain disqualified until that office made a further determination.

Mrs. Blitz refused to answer the question, stating that she had a right to participate in CETA programs "no matter what" her political beliefs and associations. According to her affidavit, she believes:

that the United States government will one day be overthrown in a popular, domestic revolution because the government does not serve the interests of the American people. I also believe that only the American people will be able to overthrow the government and that they will do so when it becomes evident that it is in their best interests to do so. I believe that this revolution may have to be accomplished by force if necessary, and that the American people have an inalienable right to such a revolution as a defense to governmental oppression.

The plaintiff also stated in her affidavit that she does "not advocate and has never advocated, violent revolution at the present time because the majority of Americans do not yet understand that revolution, violent or otherwise, is in their best interests."⁸

Because she could not, under the state regulation, resume her CETA training, Mrs. Blitz sought an injunction ordering the Secretary of Labor to direct the VEC to process her application to the CETA program without reference to her political affiliations or beliefs. She also requested a judgment declaring that the amendment infringes her right of free speech in violation of the first amendment and is a penalty directed specifically at her, thereby violating the Bill of Attainder Clause.⁹

The parties agree that the issues presented here may be resolved on cross-motions for summary judgment. The Court has considered the memoranda of points and authorities and the argument of counsel and concludes that the congressional enactment violates basic first amendment principles. Mrs. Blitz should be awarded summary judgment. The reasons to support that determination are presented in the following analysis.

LEGAL ANALYSIS

In response to Mrs. Blitz's complaint, the Secretary of Labor advances a two-pronged argument: first, that this Court lacks jurisdiction because she failed to exhaust the administrative remedies provided by the CETA; second, that the "Blitz Amendment," as interpreted by the Secretary, is constitutional.

A.

Jurisdiction. The defendant argues that specific provisions for administrative and judicial review under the CETA preclude jurisdiction over this action in district court. Under the Act, a prime sponsor such as the VEC must establish and maintain "a grievance procedure, including provisions for hearings within 30 days after the filing of a grievance, and for handling complaints about the program arising from its participants, subgrantees, contractors, and other interested persons." 29 U.S.C. § 816(a)(1). After exhausting the grievance system, an interested person or organization may submit a complaint to the Secretary of Labor who must investigate, hold a hearing if necessary, and render a final decision on the matter. Id. at § 816(b). The plaintiff, it is argued, failed to pursue her administrative remedies; had she done so, the court of appeals, not the district court, would have had jurisdiction to review the administrative decision. Id. at § 817(a).

The long-settled rationale for the doctrine of exhaustion is that the administrative agency must be afforded an opportunity to correct its alleged wrongful action. The reasons for the doctrine as outlined by the Supreme Court in Weinberger v. Salfi, 422 U.S. 749, 765, 95 S.Ct. 2457, 2466, 45 L.Ed.2d 522 (1975), are to prevent premature interference with agency processes, to afford parties and the courts the benefit of agency experience and expertise, to compile an adequate record for judicial review, and to afford an opportunity for the agency to correct its own errors. While these are strong policy reasons for the exhaustion requirement, those reasons must be examined and reviewed in light of the circumstances presented in a given situation. McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 1662, 23 L.Ed.2d 194 (1969); Association of National Advertisers, Inc. v. FTC, 627 F.2d 1151, 1156 (D.C. Cir. 1979), cert. denied, 447 U.S. 921, 100 S.Ct. 3011, 65 L.Ed.2d 1113 (1980).

In this proceeding, application of the doctrine would be entirely inappropriate. The expertise of the Department of Labor in the administration of the CETA program is of doubtful quality in the resolution of a constitutional challenge where issues are concerned solely with the sensitive area of the speech clause of the first amendment. Indeed, it has been noted that "adjudication of the constitutionality of congressional enactments has generally been thought beyond the jurisdiction of administrative agencies." Oestereich v. Selective Service Local Board, 393 U.S. 233, 242, 89 S.Ct. 414, 419, 21 L.Ed.2d 402 (1968) (Harlan, J.,...