The opinion of the court was delivered by: MCLAUGHLIN
Defendant Brownell, pursuant to the provisions of Executive Order 10450 (18 F.R. 2489) notified Plaintiff on August 27, 1953, that he proposed to designate it as an organization coming within the purview of that Order. The Plaintiff on September 16, 1953, filed a notice of contest with the Attorney General. This notice was in accordance with the Rules of Procedure which afford an organization which is proposed to be designated under the Order an opportunity to contest the designation at an administrative hearing. (18 F.R. 2619)
The plaintiff filed the subject action which seeks:
(1) to enjoin Defendant from designating it under Executive Order 10450.
(2) A declaration that Executive Orders 9835 (12 F.R. 1935, as amended, 16 F.R. 3690) and 10450 insofar as they authorize the listing of organizations are unconstitutional and void, or that the procedures adopted to implement such orders are unconstitutional and illegal, and that Defendant by reason of his prejudgment of the issue is disqualified from further proceedings.
The motion of Plaintiff for a preliminary injunction was denied by another branch of this court. On appeal the denial of the motion was reversed and the action remanded by the Court of Appeals, National Lawyers Guild v. Brownell, D.C.Cir., 215 F.2d 485. In its opinion the Court held that:
'* * * we are of the opinion that the interests of justice would be served best in this matter if the administrative hearing were held in abeyance pending the judgment of the District Court upon the merits of the issues posed in the action. * * * Reversed and remanded.'
Plaintiff in opposition to the motion contends that (1) the Court of Appeals decision precludes contention that the suit is premature, (2) under the circumstances the administrative remedy need not be exhausted, (3) the asserted power to list violates the 1st Amendment, (4) Standards are so vague as to violate 5th Amendment, (5) procedures violate the Administrative Procedure Act, (6) the administrative procedure violates due process, (7) the Defendant has prejudged the action.
The effect of the decision of the Circuit Court of Appeals for the District of Columbia (excerpt above quoted) was to remand the case to this court for judgment upon the merits of the issues posed in the action. Moore in 6 Moore's Federal Practice 2025 (2nd Edition) states:
'The tenor of Rule 56 indicates that the summary judgment procedure deals with the merits; and that if granted in favor of a claimant it affirmatively adjudges the merits of the claim and if in favor of the Defendant the judgment is in bar and not in abatement.'
In the circumstances the instant motion for summary judgment places the case in position for judgment of this Court on the merits of the issues.
The Court of Appeals decision, supra, does not support the Plaintiff's contention that it is not required to exhaust its administrative remedy. The Court's ruling did not touch upon this point. It merely held that the administrative hearing be held in abeyance pending judgment of the District Court upon the merits of the issues involved.
It is contended by the Plaintiff that its challenge of the basic authority for the designation of organizations exempts it from the general rule regarding the exhaustion of administrative remedies. In a recent decision, the Supreme Court considered a similar challenge, Allen v. Grand Central Aircraft Co., 347 U.S. 535, 74 S. Ct. 745. In that case the company questioned the administrative enforcement of the wage stabilization provisions of the Defense Production Act of 1950, 50 U.S.C.A.Appendix, § 2061 et seq. Although that act failed to prescribe an administrative hearing and made no provision for direct judicial review, the Court held that the administrative remedies provided must be exhausted before institution of judicial proceedings. In the circumstances the Court is of the opinion that the Plaintiff is not relieved of the necessity of exhausting its administrative remedies before seeking legal relief of the character sought in the action.
With regard to the constitutional objections to the proceedings which have been raised by Plaintiff, the Court is likewise of the opinion that decision on these matters must be deferred until the administrative remedy has been exhausted. In Allen v. Grand Central ...