barred by laches because the harm in question is continual. Moreover, since the government 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, 88 U.S. App. D.C. 148, 187 F.2d 211 (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 When Executive Order 10450 superseded 9853 the SWP was redesignated without characterization, May 12, 1953, 18 C.F.R. 2741.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. §§ 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 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).
The manner in which the Civil Service Commission has used the list is another matter. The government has conceded 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 supra at page 1273, 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.