the most recent particular occasion for consideration of the issue has come and gone." Women Strike for Peace v. Hickel, 420 F.2d 597, 604 (D.C. Cir. 1969) (footnote and citations omitted). See, Moore v. Ogilvie, 394 U.S. 814, 816 (1969); Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 178-79 (1968); Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515 (1911). The government next contends that since the SWP was placed on the Attorney General's list in 1953, and made no objection to its listing at that time, laches prevents SWP from making such challenge now. The Court of Appeals for this Circuit had ruled that failure to object to being placed on the Attorney General's list within the allotted statutory time period precludes judicial review of the propriety of such listing. Industrial Workers of the World v. Clark, 385 F.2d 687 (D.C. Cir. 1967). See, Veterans of the Abraham Lincoln Brigade v. Attorney General, 409 F.2d 1139 (D.C. Cir. 1969). Thus, plaintiff may not now challenge the basis for its being placed on the list. However, as the Court of Appeals said in Industrial Workers, supra, "To say that the IWW can no longer demand a judicial hearing on the validity of the 1953 listing is a far cry from concluding that the organization is eternally ousted from resort to the courts for other, subsequent complaints." Id., at 692. Accordingly, the SWP is not now precluded from attacking the use of the list as it affects its members or the constitutionality of the list, itself. These "other, subsequent complaints" are not barred by laches because the harm in question is continual. Moreover, since the govern+ ment is not prejudiced by the delay in the constitutional challenge to the list because no witnesses are needed and the parties are in the same position today as in 1953, laches does not apply. See, Major v. Shaver, 187 F.2d 211 (D.C. Cir. 1951). The final argument advanced by the government is that plaintiff SWP may not invoke the jurisdiction of this Court without first exhausting available administrative remedies. The only such remedy specifically referred to, however, contained in 28 C.F.R. 41.1, relates only to challenging the validity of the listing. This Court has already found that the SWP may not now challenge the basis for its listing. The government has cited no administrative remedy now available to the SWP to challenge the use of the list or its constitutionality. As such, the SWP is entitled to a decision on the merits of its remaining contentions, that the manner in which the list is used by the Civil Service Commission is erroneous and that the list, itself, is unconstitutional. Section thirteen of Executive Order 10450, April 27, 1953, as amended, authorizes the Attorney General to "render to the heads of departments and agencies such advice as may be requisite to enable them to establish and maintain an appropriate employee-security program." Under such authority the Attorney General has made available to appropriate departments and agencies a list of organizations the Attorney General believes to come under the purview of the order. In the case at bar the Attorney General, under Executive Order 9835, the predecessor of 10450, in a list submitted to the Loyalty Review Board, September 17, 1948, included the SWP in a list of "communist" organizations, a list of "subversive" organizations, and in another list, as an "organization which seeks to alter the form of government of the United States by unconstitutional means." When Executive Order 10450 superseded 9853 the SWP was redesignated without characterization, May 12 1953, 18 C.F.R. 2741. Finally, on July 2, 1971, President Nixon further amended 10450. The statutory authority for 10450 as currently amended includes, but is not limited to, 5 U.S.c. SS 1101 et seq., 3301, 3571, 7301, 7313, 7501(c), 7512, 7532, and 7533. Thus, even in light of the fact that the statutory authority which provided the primary support for Executive 3/ Order 10450 as originally promulgated, sections 7311 and 3333 have been declared unconstitutional, ample statutory authority exists to support Executive Order 10450 as a valid exercise of authority. See, Cummings and Rudd v. Hampton, (N.D. Cal. 1971). F. Supp. The manner in which the Civil Service Commission has used the list is another matter. The government had conceded 3/ Stewart v. Washington, 301 F. Supp. 610 (D.D.C. 1969) 59-933 O 72 pt. 4 19 that it made a mistake in the case of Gordon and he has been reinstated with full back pay. As this Court analyzes the attachments relating to Mr. Evenhuis, discussed infra at page 3, the list was used in the exact way in his case as it was in Gordon's. If it was a mistake to separate Gordon, it is equally a mistake to separate Evenhuis. Plaintiff SWP is entitled to the correction of such mistakes and assurance that the list will not be used in what is conceded as an unlawful manner in the future. Accordingly, summary judgment is granted in favor of the government on all issues but the use of the list. On that issue summary judgment is granted in favor of plaintiffs. Date Nov. 3ri 1971 Judge APPENDIX C Mr. Preyer, subcommittee chairman, addressed similar letters dated August 20, 1971, one of which is set forth below, to the following independent agencies and departments of the executive branch: 1. Department of Agriculture 2. U.S. Arms Control and Disarmament Agency 5. Department of Commerce 6. Department of Defense 7. Federal Communications Commission 8. Federal Power Commission 9. Federal Trade Commission 10. General Services Administration 11. Department of Health, Education, and Welfare 14. Interstate Commerce Commission 15. Department of the Interior 16. Department of Justice 17. Department of Labor 18. National Aeronautics and Space Administration 19. National Labor Relations Board 20. National Science Foundation 21. Department of State 22. Department of Transportation 23. Department of the Treasury CONGRESS OF THE UNITED STATES, DEAR MR. HOUSE OF REPRESENTATIVES, COMMITTEE ON INTERNAL SECURITY, Washington, D.C., August 20, 1971. As you know, the subcommittee which I chair has for some months been conducting an oversight inquiry with respect to the administration of the Federal civilian employee loyalty and security program within the agencies and departments of the executive branch. The subcommittee is addressing inquiries (identical to that contained herein) to all agencies and departments whose views have been received by the subcommittee, seeking information with respect to the employment of certain persons. |