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HINTON v. DEVINE

April 8, 1986

WILLIAM H. HINTON
v.
DONALD J. DEVINE, ET AL.



The opinion of the court was delivered by: TROUTMAN

 TROUTMAN, S.J.

 In 1953 the President of the United States issued Executive Order No. 10422, providing for an investigation of United States citizens employed or being considered for employment by the United Nations or other international organizations. The Order establishes an International Organizations Employees Loyalty Board, the function of which is to evaluate all such citizens and render an advisory opinion as to their loyalty to the United States. That opinion is transmitted to the Secretary of State for ultimate transmittal to the executive head of the involved international organization. The opinion is developed in accordance with procedures described in the Order, and rules and regulations promulgated by the Board. *fn1" The plaintiff, William Hinton, a resident of Fleetwood, Pennsylvania, and a graduate of the Cornell College of Agriculture and the author of several books on China, challenges the constitutionality of Executive Order No. 10422.

 In 1980 Hinton was hired by the Food and Agriculture Organization (FAO), an agency of the United Nations, to serve for six months as a consultant to the Grasslands Development Project in the Inner Mongolia Region of the Peoples Republic of China (PRC). Pursuant to Executive Order No. 10422, he requested and received a loyalty clearance. In 1981 and 1982 he received similar FAO offers of employment and again sought and received loyalty clearances. In 1983, having once again been advised that he was being considered for an FAO consultancy, Hinton, for his fourth consecutive year, requested a loyalty clearance. This time his clearance was unaccountably delayed. Having failed to receive a clearance for 1983, Hinton was not offered FAO employment, but did return to the project, on which he had served for the preceding three years, as an employee of the PRC.

 Early in 1984, with another FAO offer allegedly on the horizon, Hinton filed the instant suit, contending that because his 1983 loyalty clearance request had not been processed for over a year, he lost an employment opportunity in 1983. More importantly, he feared that the lack of a clearance would adversely affect his expected 1984 FAO appointment. Accordingly, plaintiff filed a motion for a preliminary injunction, requesting that the Court direct immediate action on his pending application for a loyalty clearance. On April 5, 1984, after a March 28 conference before the Court, Hinton received a loyalty clearance, obviating the need for an immediate ruling on his request for a preliminary injunction. Thereafter, on June 26, 1984, plaintiff filed a motion for summary judgment seeking a declaratory judgment that Executive Order No. 10422 is unconstitutional and a permanent injunction against its further and continued enforcement.

 Contending that plaintiff had received all the relief to which he was entitled when he was granted a loyalty clearance, the government responded with a motion to dismiss the complaint. Alternatively, it sought to postpone a substantive response to plaintiff's summary judgment motion pending discovery.

 Ultimately, the Court held a hearing on defendant's outstanding motion to compel discovery, hoping to resolve what had become an impasse, viz., the defendant's insistence that discovery was essential to the resolution of the case and plaintiff's equally adamant insistence that only legal issues were involved and, hence, the government's discovery requests were interposed only to delay final judgment. The dispute was ultimately eliminated when plaintiff stated that he challenged the Order only on its face and defendant dropped its discovery demands. Counsel and the Court then agreed upon a final briefing schedule and counsel stipulated to the documents that they considered relevant to the Court's decision. Thereafter, defendant filed its motion to dismiss or for summary judgment to which plaintiff replied. Defendant then responded to the reply, oral argument was held and the cross-motions are before the Court for disposition.

 While these preliminary matters were being resolved, another challenge to the same Executive Order was decided by the Court of Appeals for the First Circuit. In Ozonoff v. Berzak, 744 F.2d 224 (1st Cir. 1984), that court affirmed the decision of the district court for the District of Massachusetts, invalidating said Order. The Court of Appeals upheld the district court's determination that Ozonoff, a medical doctor who had once been investigated in connection with employment by the World Health Organization (WHO), had standing to challenge the constitutionality of the Order upon his representation that he would again seek WHO employment and wished to avoid the inconvenience and potential embarrassment of submitting to another loyalty investigation. The Court of Appeals also agreed with the district court's conclusion that the language of the Order is vague and overbroad, but did not reach the other basis for the lower court's decision, namely, that the President lacks the constitutional authority to promulgate such an Order. On that issue the Court of Appeals concluded that its decision as to the language of the Order disposed of the controversy without reaching the issue of Presidential authority. The court also limited its holding to WHO job applicants. *fn2" Understandably, the government argues vigorously that the Ozonoff case is not good law, is not binding upon this Court, and is not applicable to the facts of this case. The specific arguments raised by the government against the Ozonoff decision will be considered as we ultimately reach the issues involved.

 We first consider the plaintiff's contentions that Executive Order No. 10422 is unconstitutional on its face as vague, overbroad, *fn3" a violation of procedural due process and that it exceeds the constitutional boundaries of Executive power. Defendant seeks dismissal of the complaint for lack of subject matter jurisdiction based upon lack of a case or controversy and lack of standing to sue. Alternatively, the government defends the Executive Order as a valid exercise of the President's Article II powers over foreign affairs, disputes each of plaintiff's claimed constitutional deficiencies and thus also seeks summary judgment.

 I. Existence or lack of a case or controversy and standing

 At the outset it is necessary to delineate the issues with respect to standing and whether a case or controversy exists. *fn4" The government contends that, because plaintiff has been granted the loyalty clearance he sought at the time this action was filed, he must now establish that he continues to have standing. Moreover, the government contends that he can do so only by demonstrating that he has a current employment offer from the FAO or another international organization for which he is once again seeking a loyalty clearance. *fn5"

 We first determine whether plaintiff's receipt of the loyalty clearance he sought at the outset, coupled with his lack of an outstanding employment offer, vitiates the primary element of Article III standing, i.e., that the plaintiff must have suffered a real or threatened injury. Singleton v. Wulff, 428 U.S. 106, 96 S. Ct. 2868, 49 L. Ed. 2d 826 (1976), Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U. S. 464, 102 S. Ct. 752, 70 L. Ed. 2d 700 (1982). If standing is found to exist in the constitutional sense, we next determine whether, as a prudential matter, the Court should allow the plaintiff to pursue these claims under the circumstances. Id.

 It is undisputed that Hinton was employed by the FAO in 1980, 1981, 1982 and 1984, and that he was at least considered for an appointment in 1983, but was not employed by any international agency. He did not receive a loyalty clearance in 1983. It is certainly reasonable to infer that there was a cause and effect relationship between his failure to obtain a loyalty clearance and his failure to be employed by the FAO in 1983. This inference is supported by a letter that Hinton received from Ralph Nicolosi of the FAO advising him that the FAO could not make final arrangements for his appointment absent a report pursuant to Executive Order No. 10422. *fn6" (Plaintiff's Exhibit #69). Hinton's loss of an employment opportunity in 1983 certainly qualifies as an injury in fact, notwithstanding his ability to obtain alternative employment for that year. *fn7" It is not necessary that a plaintiff be continuously and unremittingly affected by another's unlawful conduct, from its occurrence through the conclusion of a lawsuit brought as a result of it, to maintain his standing.

 Moreover, the kind of threatened injury also sufficient to establish standing still exists here. Given the plaintiff's employment history since 1980, it is reasonable to assume that he will again seek employment with the FAO and again require a loyalty clearance. It is not essential, to establish standing on this basis, for him to pinpoint exactly when this might occur. Ozonoff, supra. It is important to note, with respect to the concept of threatened injury as it appears in this case, that the plaintiff is not complaining of the possibility that he will not receive a favorable recommendation upon future applications for a loyalty clearance under the Order. Rather, as in the Ozonoff case, the gravamen of his complaint is that he should not be subjected to the process of seeking a loyalty clearance because that in itself carries a threat of potential injury. The facts of this case demonstrate in the clearest possible terms that such a claim is not speculative. Although routinely approved for several years, plaintiff was inexplicably subjected to a delay of some twenty months in connection with his last application. Thus, it is evident that past clearances are no guarantee of prompt or expedited future clearances. With this history, it is entirely possible that Hinton may become a less attractive employment prospect in his chosen field if the FAO or other agency suspects that his clearances may continue to require an exceptionally long time to process. These concerns are in addition to plaintiff's basic claim that the Order itself subjects him to the potential harm of having his activities investigated in violation of basic First and Fifth Amendment rights. This plaintiff is arguably more likely than most citizens to suffer that harm, if found to exist, given the likelihood of his continuing to seek FAO employment.

 A secondary Article III concern is also easily satisfied by the facts of this case. The Court is here presented with a controversy between two parties that are, in the Supreme Court's terms, "classically adverse", Singleton v. Wulff, 428 U.S. at 113, meaning that the Court's decision will result in a clear benefit to the prevailing party and the concomitant loss of a vigorously defended prerogative by the losing side. Indeed, the present controversy is a paradigm of the historical tension, endemic to this nation, between the necessity for, and proper boundaries of, government regulation and the precious rights of free expression and due process guaranteed to the citizenry.

 In addition to the determinative Article III standing requirements, absent which the Court may not properly consider a case, certain prudential considerations must also be addressed. To meet these requirements, a plaintiff must generally assert his own legal rights and interests, so that the issues will be clear and precise and so that the courts do not engage in premature or unnecessary statutory construction or constitutional adjudication. Secretary of State of Maryland v. Munson, 467 U.S. 947, 104 S. Ct. 2839, 81 L. Ed. 2d 786 (1984). Prudential standing concerns will be relaxed in some situations, particularly where a facial First Amendment overbreadth challenge has been made. Singleton v. Wulff, supra. This is necessary because the danger of chilling free speech and other protected activities by allowing the enforcement of an overly broad law or order overcomes the Court's proper reluctance to engage in constitutional adjudication. Id. A challenge on facial overbreadth grounds is allowed primarily to benefit society generally, i.e., "to prevent the statute from chilling the First Amendment rights of other parties not before the court". Maryland v. Munson, 81 L. Ed. 2d at 796. In these situations the prudential standing requirements are framed in terms of whether the plaintiff before the Court is the most effective advocate of the rights he seeks to champion. Singleton v. Wulff, supra. In other words, the Court is primarily concerned with whether the plaintiff can be expected to satisfactorily frame the issues in the case. Maryland v. Munson, 81 L. Ed. 2d at 797. This is not to say that the Court is precluded from determining that the plaintiff who raises an overbreadth claim is one of "those who desire to engage in protected speech that the overbroad statute purports to punish", Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 105 S. Ct. 2794, 86 L. Ed. 2d 394, 406 (1985), and thus meets the normal standing rules. In other words, third-party standing is not required, merely allowed in this context.

 Although the standing requirements for pursuing a claim that a challenged law is void for vagueness are those normally considered necessary, i.e., the plaintiff must "show that his claim falls within the 'zone of interests to be protected or regulated by the statute or constitutional guarantee in question;'", Ozonoff, supra, at 227 (quoting Valley Forge Christian College, 454 U.S. at 475), that is not a problem in this case. Notwithstanding the defendant's arguments to the contrary, it is by no means clear that Hinton's conduct which may have been investigated pursuant to the Executive Order "clearly falls within the permissible purview" of the Order, Aiello v. City of Wilmington, Delaware, 623 F.2d 845, 850 (3d Cir. 1980), the only circumstance under which the plaintiff would not be permitted to proceed in light of his complaint that the vagueness of the Order impermissibly curtails his First and Fifth Amendment rights.

 Thus, it is evident that the plaintiff in this case can withstand the most stringent application of prudential standing principles. The Executive Order he challenges has been applied to him several times in the past and he is more likely than most to encounter it in the future. Moreover, he has engaged in political speech over a period of years *fn8" which is arguably protected and which he contends was the basis for the lengthy delay in processing his 1983 loyalty clearance. *fn9" Consequently, although he is entitled to the application of more lenient standing requirements because he has challenged the Order as substantially overbroad on its face, Hinton does not need to rely on those jus tertii principles. However, even if we were to conclude that he lacked standing on any other basis, Hinton would still be permitted to maintain his suit and challenge the order on facial overbreadth grounds upon the Court's conclusion that he is an effective and interested challenger to the Order he seeks to have overturned. It is abundantly clear that plaintiff easily fulfills that requirement and enjoys standing to litigate a case or controversy which we find and conclude exists.

 II. Lack of Presidential Authority

 We now consider the plaintiff's contention that the authority and power of the President over foreign affairs does not extend to regulating the employment of United States citizens by international organizations. The government contends that the breadth of authority over foreign affairs conferred by Article II of the Constitution, combined with Congress's acquiescence in the loyalty clearance program and its purported support by the United Nations, is sufficient to establish the legitimacy of Executive Order 10422.

 In Ozonoff, the First Circuit declined to reach the issue of presidential authority and power although it had been considered and decided in favor of the plaintiff by the district court.

 We agree with the principles that implicitly motivated the First Circuit's decision not to address this issue. These are the sound and long-standing concerns that govern constitutional adjudication, viz., to decide constitutional issues on the narrowest grounds possible and to refrain from "anticipating [a] question of constitutional law in advance of the necessity of deciding it". Burton v. United States, 196 U.S. 283, 25 S. Ct. 243, 49 L. Ed. 482, Brockett v. Spokane Arcades, supra., 86 L. Ed. 2d at 404. For these reasons, we too decline to decide the issue of Presidential power and authority in this case. It is unnecessary to test the outer bounds of the President's power over foreign affairs in this case.

 The heart of the matter here is not whether, under any conceivable circumstances, the President lacks all authority to regulate or oversee in any manner the employment of United States citizens by international organizations. The true issue presented for our consideration is whether the loyalty clearance program, as presently operating, is a valid exercise of whatever power the President may have in this area. This requires the Court to determine whether there is a sufficiently developed and articulated governmental interest to support investigations into the loyalty of United States citizens employed or being considered for employment by ...


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