RAYMOND J. DONOVAN, SECRETARY OF LABOR, APPELLANT v. DOROTHY BLITZ

   No. 82-611

   In the Supreme Court of the United States

   October Term, 1982

   On Appeal from the United States District Court for the District of
Columbia

   Jurisdictional Statement

            TABLE OF CONTENTS
   Opinion below
   Jurisdiction
   Statute involved
   Statement
   The question is substantial
   Conclusion
   Appendix A
   Appendix B
   Appendix C

                             OPINION BELOW

   The opinion of the district court (App. A, infra, 1a-12a) is
reported at 538 F. Supp.  1119.

                             JURISDICTION

   The order of the district court (App. B, infra, 13a) was entered on
May 14, 1982, and a notice of appeal to this Court (App. C, infra,
14a) was filed on June 9, 1982.  On July 29, 1982, Justice Brennan
extended the time for docketing the appeal to October 7, 1982.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1252.

                           STATUTE INVOLVED

   Pub. L. No. 97-92, 95 Stat. 1183, /1/ provides in part:

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

                          QUESTIONS PRESENTED

   1. Whether the Daniel Amendment, which prohibits persons who
advocate the violent overthrow of the United States government from
participating in a program under the Comprehensive Employment and
Training Act, and is interpreted by the Secretary of Labor to apply
only where such advocacy is directed to inciting or producing imminent
lawless action and is likely to incite or produce such action,
violates the First Amendment.

   2. Whether, in view of the administrative procedures, culminating
in review by the courts of appeals, provided by Congress to consider
complaints concerning the administration of programs under the
Comprehensive Employment and Training Act, appellee's claim that she
was unlawfully excluded from a CETA program was properly brought
directly in the district court.

                               STATEMENT

   1. The Comprehensive Employment and Training Act of 1973 (CETA) is
designed to "provide job training and employment opportunities for
economically disadvantaged, unemployed, or underemployed persons"
through a "decentralized system of Federal, State and local programs."
29 U.S.C. (Supp. IV) 801.  Most CETA programs are administered at the
local level by a "prime sponsor" -- generally, a unit of state or
local government.  29 U.S.C. (Supp. IV) 811;  see 29 U.S.C. (Supp. IV)
841 et seq.  The Secretary of Labor has overall responsibility for
administering the Act.

   CETA requires every prime sponsor to "establish and maintain a
grievance procedure * * * for handling complaints about the program
arising from its participants * * * and other interested persons." 29
U.S.C. (Supp. IV) 816(a)(1).  The Act provides that a prime sponsor
must hold a hearing within 30 days after a grievance is filed and must
render a decision on the grievance within 60 days after it is filed
(29 U.S.C. (Supp. IV) 816(a)(1)).  The Secretary of Labor has issued
regulations governing the prime sponsors' grievance procedure.  20
C.F.R. 676.83, 676.84.

   After exhausting the prime sponsor's remedy, a party may file a
complaint with the Secretary.  29 U.S.C. (Supp. IV) 816(b).  The Act
requires the Secretary to investigate the complaint;  if the Secretary
finds substantial evidence that a prime sponsor or other recipient of
funds is not complying with the Act, he must hold a hearing to
determine whether the allegations in the complaint are true (29 U.S.C.
(Supp. IV) 816(b)).  Regulations provide that this hearing, if
requested, will be held on the record before an Administrative Law
Judge.  20 C.F.R. 676.88(f).  The parties have the right to subpoena
witnesses and to discovery according to the Federal Rules of Civil
Procedure.  20 C.F.R. 676.89(e).  The Secretary is authorized to take
a wide range of corrective measures, including revocation of a prime
sponsor's CETA plan and a cut off of funds, if he finds that a sponsor
has violated the Act or its implementing regulations.  See 29 U.S.C.
816(c)-(g).

   The Act provides that "any interested person (who) is dissatisfied
with or aggrieved by any final action of the Secretary" taken under
the Act's grievance procedure may file a petition for review in the
appropriate United States court of appeals.  29 U.S.C. (Supp. IV)
817(a).  The court of appeals may set aside the Secretary's action if
it is not supported by substantial evidence (29 U.S.C. (Supp. IV)
817(b)).

   2. In December 1981, as part of a statute appropriating funds for
the Department of Labor, Congress enacted the Daniel Amendment, which
prohibits the expenditure of CETA funds in connection with "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." /2/ The Daniel Amendment makes no reference to a
provision in CETA itself specifying that "(n)o person * * * shall on
the ground of * * * political affiliation or belief be excluded from
participation in, be denied the benefits of, (or) be subjected to
discrimination under * * * any program or activity funded" under the
Act (29 U.S.C. (Supp. IV) 834(a)).

   From May 1980 to May 1981, appellee participated in a CETA job
training program sponsored by the Virginia Employment Commission
(VEC).  In May 1981, after completing 600 of the required 700 hours of
study, appellee obtained a leave of absence from the training program
(App. A, infra, 2a).

   In January 1982, after passage of the Daniel Amendment, appellee
sought to be readmitted to the VEC program (App. A, infra, 3a).
Acting without instructions from the Secretary of Labor, the VEC
required appellee and other applicants to answer the question:  "Do
you now, or have you within the past five years, publicly advocated
the violent overthrow of the Federal Government?" (ibid.).  The VEC
specified that an applicant who answered this question in the
affirmative or refused to answer would be disqualified from
participating in the program (id. at 3a-4a).  Appellee declined to
answer the VEC question (id. at 4a).

   3. Without invoking any of the CETA grievance procedures, and
before the VEC had acted on her application, appellee brought this
suit against the Secretary of Labor in the United States District
Court for the District of Columbia.  She sought a declaration that the
Daniel Amendment is unconstitutional and an injunction requiring the
Secretary to direct the VEC to process her application without regard
to her political views (App. A, infra, 4a).  The Secretary, in papers
filed in the district court, stated that as he interpreted the Daniel
Amendment, "the only type of advocacy which would result in a
determination of ineligibility for participation in the CETA program
would be advocacy of the use of force or violence to overthrow the
government where such advocacy is directed to inciting or producing
imminent lawless action and is likely to incite or produce such
action." Memorandum of Points and Authorities of the Secretary of
Labor at 14;  see App. A, infra, 8a.

   The district court granted appellee's motion for summary judgment.
It rejected the Secretary's contention that appellee had to exhaust
the grievance process specified in CETA and could not bring this
action directly in district court.  The district court acknowledged
that litigants ordinarily are required to exhaust administrative
remedies in order "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" (App. A, infra, 6a).  The court declared, however, that it
would be "entirely inappropriate" to require appellee to pursue the
remedies established by CETA because "the sole question here is the
'purely legal' one of the constitutionality of a congressional
enactment" (id. at 7a) and the Secretary's "expertise * * * is of
doubtful quality in the resolution of a constitutional challenge" (id.
at 6a).  The court added that requiring the exhaustion of
administrative remedies also would be inappropriate because (id. at
7a):

      The Secretary has failed to provide the VEC with any guidance as
      to the implementation of (the Daniel A)mendment * * *.  As a
      result, the Virginia officials have merely applied the plain
      language of the amendment.  (Appellee's) action, then, is
      properly construed as challenging the Secretary's failure to
      insist that this amendment is implemented in a fashion
      consistent with the first amendment.  The administrative
      remedies allegedly available to (appellee) apply to disputes
      between a prime sponsor and a CETA employee, not between an
      employee and the Secretary.

   The district court then concluded that the Daniel Amendment is
invalid on its face because it "does not draw a line between mere
advocacy and advocacy which incites and is likely to produce violent
action" (App. A, infra, 8a), while the Constitution protects advocacy
that does not amount to incitement (id. at 7a-8a).  The court
recognized that the Secretary's interpretation of the Daniel Amendment
drew such a line, and that if the Secretary's construction of the
Daniel Amendment were accepted, the amendment would be consistent with
the distinction between protected and unprotected expression
established in Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (App. A,
infra, 8a).  But the district court ruled, for two reasons, that the
Secretary's interpretation was not "a valid and forceful legal
exercise" (id. at 11a).

   First, the court concluded that since the Secretary's
interpretation of the Daniel Amendment had not been published for
notice and comment under the provisions of the Administrative
Procedure Act, 5 U.S.C. 553, that interpretation must be an
"interpretative rule" not a "legislative rule" (App. A, infra, 9a).
Interpretative rules, the court declared, "do not have the same legal
significance as legislative rules" and "lack() 'the force of law'"
(ibid.).  The court added that it further discounted "the legal
significance of (the Secretary's) interpretation" because "the sole
expression of the Secretary's view of the amendment is contained
within the pleadings filed in this litigation" (id. at 10a).  /3/

   Second, the district court rejected the Secretary's interpretation
because it was inconsistent with the Daniel Amendment.  Specifically,
the court found "no support" for the Secretary's interpretation in the
congressional debates on the Daniel Amendment (App. A, infra, 10a).
The court also ruled that it would not "take it upon itself to narrow
the amendment so as to (make) it free from constitutional defect" (id.
at 11a).

   Finally, the district court strongly suggested that although the
Daniel Amendment as interpreted by the Secretary would comply with the
Brandenburg test, it would nevertheless be unconstitutional (App. A,
infra, 11a-12a).  /4/ The court said that the Amendment would still
"fail() to provide the procedural safeguards essential in the first
amendment area" such as "prompt final administrative or judicial
decision" (id. at 11a).  The court stated, in addition, that it
"perceive(d) no rational objective whatsoever which is furthered by"
the Daniel Amendment as interpreted by the Secretary (id. at 12a).

   The district court accordingly declared that the Daniel Amendment
"violates the first amendment to the United States Constitution" and
ordered the Secretary to "(e)nsure that (appellee's) application for
employment training under the CETA is processed without regard to her
political affiliations or beliefs" (App. B, infra, 13a).

                      THE QUESTION IS SUBSTANTIAL

   This case is now moot.  Appellee has completed the CETA training
program to which she sought admission;  she therefore has obtained all
the relief she requested.  No exception to the mootness doctrine is
applicable here.

   If the Court concludes that the case is not moot, it should note
probable jurisdiction because the district court has unnecessarily and
erroneously invalidated an Act of Congress.  The district court erred,
first, in invalidating the Daniel Amendment even though a limiting and
undoubtedly constitutional interpretation of the Amendment was
available.  That interpretation is urged by the Secretary, is strongly
suggested by the overall structure of the Act, and is consistent with
both the legislative history of the Daniel Amendment and this Court's
decisions interpreting similar statutes.

   Second, the court gave no adequate reason for excusing appellee
from the requirement that she exhaust the administrative remedies
prescribed by CETA.  Those remedies could have provided appellee
complete relief.  The administrative proceedings also would have
afforded the Secretary an opportunity to apply the Daniel Amendment,
as he interpreted it, to the facts of appellee's case.  Thus, a
constitutional issue might never have arisen, and any issue that did
arise would not have been in the abstract form of the issue resolved
by the district court.

   1. This case is now moot.  We are advised by the Secretary that
appellee was readmitted to the CETA program pursuant to the order of
the district court and, in June 1982, completed her training.  /5/
Appellee has, therefore, "obtained all the relief that (she) sought.
In these circumstances, no live controversy remains" (Lane v.
Williams, No. 80-1240 (Mar. 23, 1982), slip op. 9).  This is not a
class action, and we have no reason to believe that appellee intends
to reapply to another CETA program.  See Weinstein v. Bradford, 423
U.S. 147, 149 (1975).

   The mootness of this case follows a fortiori from DeFunis v.
Odegaard, 416 U.S. 312 (1974).  In DeFunis, the petitioner challenged
a law school admissions policy, prevailed in the trial court, and was
accordingly admitted to the law school.  By the time the case was
submitted to this Court, the petitioner was in his final term of law
school.  The respondent law school officials represented that even if
they prevailed in this Court, they would not alter the petitioner's
status.  Id. at 314-317.  The Court concluded that "(b) ecause the
petitioner will complete his law school studies * * * regardless of
any decision this Court might reach on the merits of this litigation,"
the case was moot and under Article III, the Court lacked jurisdiction
to decide it.  416 U.S. at 319-320.

   The dissent in DeFunis urged that the case was not moot because
"(m)any weeks of the school term remain, and * * * (a)ny number of
unexpected events -- illness, economic necessity, even academic
failure -- might prevent (petitioner's graduation at the end of the
term" (416 U.S. at 348).  If the petitioner failed to complete his
studies, the dissent pointed out, he would again be subject to the
admissions policy he challenged.  Id. at 348-349.  The dissent also
noted that the court's finding of mootness rested in part on the
respondents' voluntary assurances (id. at 399).

   This case lacks even those features that led the dissent to
question whether DeFunis was moot.  There is no possibility that
appellee will not complete the CETA program to which she sought
admission;  she has already completed it.  Moreover, the mootness of
this case does not rest on any assurances given by the Secretary, who
has not changed his position or announced a new policy throughout the
litigation.  This case therefore is not governed by the rule that a
defendant who attempts to show mootness after having voluntarily
ceased the challenged conduct bears a "heavy burden of persuasion"
(United States v. Concentrated Phosphate Export Association, 393 U.S.
199, 203 (1968), citing United States v. W.T. Grant Co., 345 U.S. 629,
633 (1953)).  /6/

   Because the resolution of this case "cannot affect the rights of
(the) litigants" (North Carolina v. Rice, 404 U.S. 244, 246 (1971)),
the judgment of the district court should be vacated and the case
remanded with instructions to dismiss the complaint as moot.  See,
e.g., Great Western Sugar Co. v. Nelson, 442 U.S. 92 (1979);  United
States v. Munsingwear, Inc., 340 U.S. 36, 39-41 (1950).

   2. a. If the Daniel Amendment were interpreted in the way specified
by the Secretary, it would be constitutional.  Congress may not punish
the advocacy of abstract doctrine calling for the violent overthrow of
the government (Yates v. United States), 354 U.S. 298, 318-327
(1957)), but under Brandenburg v. Ohio, supra, it may punish "advocacy
* * * directed to inciting or producing imminent lawless action and *
* * likely to incite or produce such action" (395 U.S. at 447).  See,
e.g., Communist Party v. Whitcomb, 414 U.S. 441 (1974);  Healy v.
James, 408 U.S. 169 (1972).  The Secretary's interpretation follows
the Brandenburg test.  /7/

   The district court declared, however, that the Daniel Amendment
could not be construed, by either the Secretary or the court, to apply
only to unprotected speech;  such a construction, in the court's view,
would not be consistent with Congress's intent (App. A, infra,
10a-11a).  Since the court believed that the amendment prohibited
protected speech, it invalidated the amendment on its face, without
considering whether appellee would have been barred from CETA programs
under the Secretary's interpretation.  The court was in error for
several reasons.

   The Daniel Amendment uses the term "advocate." In an earlier case
involving the construction of a statute limiting expression, this
Court interpreted the term "advocate" to conform to constitutional
requirements, reasoning that "we should not assume that Congress chose
to disregard a constitutional danger zone so clearly marked, or that
it used the word() 'advocate' * * * in (its) ordinary dictionary
meaning() when (it) ha(d) already been construed as (a) term() of art
carrying a special and limited connotation." Yates v. United States,
supra, 354 U.S. at 319.  See also Dennis v. United States, 341 U.S.
494, 499-502 (1951) (plurality opinion);  Scales v. United States, 367
U.S. 203, 221-222, 228-230 (1961).  The district court maintained that
the legislative history of the Daniel Amendment shows that Congress
intended to disregard the limited meaning traditionally given the term
"advocate" and to reach protected expression (App. A, infra, 10a-11a &
n.17);  in fact, the meager legislative history of the Daniel
Amendment -- which was a floor amendment to an appropriations measure
and was not considered by a committee -- shows that a Senator who
introduced the amendment, in explaining the advocacy it covered,
specifically referred to "a series of court decisions which pretty
well characterize those remarks which would be considered advocating
the violent overthrow of the U.S. Government." 126 Cong. Rec. S16742
(daily ed., Dec. 16, 1980) (remarks of Sen. Warner).

   Moreover, as we have noted, CETA contains an explicit prohibition
against discrimination on the basis of "political affiliation or
belief" (29 U.S.C. (Supp. IV) 834(a)).  The Daniel Amendment did not
expressly repeal that prohibition.  Repeals by implication are not
favored (see, e.g., Morton v. Mancari, 417 U.S. 535, 550 (1974)),
particularly "when the provision advanced as the repealing measure was
enacted in an appropriations bill" (United States v. Will, 449 U.S.
200, 222 (1980)).  This "long-established canon of construction
carries special weight when an implied repeal or amendment might raise
constitutional questions" (St. Martin Evangelical Lutheran Church v.
South Dakota, 451 U.S. 772, 788 (1981)).  Since some advocacy is
implicit in affiliation, and is almost always an incident of political
belief, the most reasonable interpretation of the Act as a whole (see
Richards v. United States, 369 U.S. 1, 11 (1962)) is that only those
who engage in unprotected incitement, not those who merely advocate
their political beliefs, may be barred from the CETA program.

   This Court has recently emphasized that "(w)hen a federal court is
dealing with a federal statute challenged as overbroad, it should, of
course, construe the statute to avoid constitutional problems" (New
York v. Ferber, No. 81-55 (July 2, 1982), slip op. 22 n.24).  The
Court will not reject a construction that saves a statute from
unconstitutionality merely because another construction is arguably
more consistent with Congress's intentions;  "an Act of Congress ought
not be construed to violate the Constitution if any other possible
construction remains available" (NLRB v. Catholic Bishop of Chicago,
440 U.S. 490, 500 (1979) (emphasis added)).  Here such a construction
not only was suggested by the conventional indicia of legislative
intent but was specifically urged by the Secretary of Labor, the
official who is responsible for administering CETA and whose view is
therefore entitled to deference (see, e.g., Udall v. Tallman, 380 U.S.
1, 16 (1965);  United States v. Rutherford, 442 U.S. 544, 554 (1979)
("Such deference is particularly appropriate where * * * an agency's
interpretation involves issues of considerable public controversy, and
Congress has not acted to correct any misperception of its statutory
objectives.")).  See also Broadrick v. Oklahoma, 413 U.S. 601, 617-618
(1973);  Law Students Civil Rights Research Council v. Wadmond, 401
U.S. 154, 162-163 (1971).  /8/

   Finally, even if Congress unquestionably intended the Daniel
Amendment to apply to those who engaged in protected speech, the
district court erred in simply striking the statute down on its face
and ordering relief.  "(I)f (a) federal statute is not subject to a
narrowing construction * * * it nevertheless should not be stricken
down on its face;  if severable only the unconstitutional portion is
to be invalidated." New York v. Ferber, supra, slip op. 22 n.24.  See,
e.g., United States v. Thirty-Seven Photographs, 402 U.S. 363, 367-375
(1971);  id. at 375 n.3 (plurality opinion).  See also NLRB v. Jones &
Laughlin Steel Corp., 301 U.S. 1, 30 (1937) ("The cardinal principle
of statutory construction is to save and not to destroy.").
Specifically, the invalid applications of a statute are to be severed,
and the valid applications left standing, "'(u)nless it is evident
that the Legislature would not have enacted those provisions which are
within its power, independently of that which is not'" (Buckley v.
Valeo, 424 U.S. 1, 108 (1976), quoting Champlin Refining Co. v.
Corporation Commission, 286 U.S. 210, 234 (1932)).  Only "in th(e)
rarest of cases (can) this Court * * * justifiably think itself able
confidently to discern that Congress would not have desired its
legislation to stand at all unless it could validly stand in its every
application." United States v. Raines, 362 U.S. 17, 23 (1960).  If, as
the district court supposed, Congress intended the Daniel Amendment to
bar even advocates of abstract ideas from CETA programs, then plainly
Congress, had it recognized that this objective was not within its
power, would have barred those who engage in unprotected incitement.

   b. In light of the Secretary's reasonable interpretation of the
Daniel Amendment, the issues resolved by the district court might
never have arisen at all -- and certainly would not have arisen in
such an abstract form -- if the district court had not erroneously
excused appellee from the requirement that she exhaust the remedies
specified in CETA.  "The doctrine of exhaustion of administrative
remedies is well established * * *.  (It) provides 'that no one is
entitled to judicial relief for a supposed or threatened injury until
the prescribed administrative remedy has been exhausted.'" McKart v.
United States, 395 U.S. 185, 193 (1969), quoting Myers v. Bethlehem
Shipbuilding Corp., 303 U.S. 41, 50-51 (1938).

   A claimant need not, of course, exhaust remedies that are plainly
inadequate to provide the relief he seeks.  See, e.g., Weinberger v.
Salfi, 422 U.S. 749, 765-766 (1975);  Aircraft & Diesel Equipment
Corp. v. Hirsch, 331 U.S. 752, 773-774 (1947).  But the district court
did not conclude, and could not have concluded, that the CETA
procedures were inadequate to provide appellee the relief she sought
-- admission to the VEC program.  Had appellee pursued a grievance
against the VEC, the Secretary might well have concluded that the
Daniel Amendment, as he interpreted it, did not bar her admission;  if
she were otherwise eligible, he would then have ordered the VEC to
admit her.  But the Secretary never had the opportunity to make this
determination.  Indeed, it remains unclear today whether appellee
falls within the Daniel Amendment as interpreted by the Secretary.
/9/

   The district court did not deny that an applicant who, like
appellee, believes a prime sponsor has wrongfully excluded him from a
CETA program generally must exhaust the grievance and review procedure
specified in the Act.  The court asserted, however, that appellee was
not required to exhaust the statutory remedies because "the sole
question here is the 'purely legal' one of the constitutionality of a
congressional enactment" (App. A, infra, 7a), and the Secretary had no
particular expertise in dealing with such a question.  This is
incorrect;  as the remainder of the district court's opinion shows,
the principal issue in this case is the interpretation of the Daniel
Amendment.  The processes appellee failed to invoke would have
provided a particularly appropriate forum in which to resolve this
issue.  Since the Secretary was "charged with (the) execution" of the
Daniel Amendment (Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381
(1969)) Congress must have intended that the be allowed the first
opportunity to interpret it and that his interpretation be given
deference.

   In addition, as we have noted, CETA contains a provision strictly
forbidding discrimination on the basis of political affiliation or
belief.  See page 4, supra.  The provisions of CETA establishing the
grievance procedure specifically require the Secretary promptly to
take "such corrective measures, as necessary," to remedy any violation
of this prohibition by a prime sponsor.  29 U.S.C. (Supp. IV) 816(f).
/10/ Because the Daniel Amendment makes no explicit reference to this
prohibition, the Secretary's resolution of appellee's claim would have
involved (and his interpretation of the Daniel Amendment reflects;
see pages 10-11, supra) an effort to reconcile the Daniel Amendment
with the prohibition against political discrimination.  This exercise
in statutory construction is peculiarly within the Secretary's
"discretion * * * (and) expertise" (McKart v. United States, supra,
395 U.S. at 194).  The district court therefore had no basis for
exempting appellee from the traditional rule requiring the exhaustion
of administrative remedies.  /11/

   By not requiring appellee to invoke the statutory remedies, the
district court in effect created a constitutional controversy between
appellee and the Secretary where none truly existed.  At the time
appellee sued the Secretary, the Secretary had neither taken nor
threatened to take any action against appellee.  Only the VEC had
taken an action, and it is undisputed that the Secretary was not
involved in that action.  The district court observed that "(t)he
administrative remedies allegedly available to (appellee) apply to (a)
dispute() between a prime sponsor and a CETA employee, not between an
employee and the Secretary" (App. A, infra, 7a);  but at the time of
the suit, appellee's only dispute was with the VEC, and as far as
appellee knew the Secretary might have agreed with her that the VEC
should not have excluded her from the program.

   Moreover, if appellee had pursued her statutory remedies and the
Secretary had rejected her complaint, judicial review proceedings
would have focused on the question whether the Daniel Amendment as
interpreted and applied by the Secretary is unconstitutional.  The
court reviewing the Secretary's determination would have had no
occasion to consider the question that the district court decided --
the constitutionality of the Daniel Amendment as broadly interpreted.
See Ashwander v. TVA, 297 U.S. 288, 341 (1936) (Brandeis, J.,
concurring).

                              CONCLUSION

   The judgment of the district court should be vacated and the case
remanded with instructions to dismiss the complaint as moot.  If the
Court determines that the case is not moot, probable jurisdiction
should be noted.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   J. PAUL MCGRATH

      Assistant Attorney General

   KENNETH S. GELLER

      Deputy Solicitor General

   DAVID A. STRAUSS

      Assistant to the Solicitor General

   ROBERT E. KOPP

   MICHAEL F. HERTZ

      Attorneys

   OCTOBER 1982

   /1/ See page 3 note 2, infra.

   /2/ The Daniel Amendment was part of Pub. L. No. 97-92, enacted on
December 15, 1981.  95 Stat. 1183.  Section 101(a)(3) of Pub. L. No.
97-92, 95 Stat. 1183, provided that "when an Act listed in this
subsection has been reported to a House but not passed by that House
as of December 15, 1981, it shall be deemed as having been passed by
that House * * *." The Department of Labor's fiscal 1982
Appropriations Act was listed in Subsection 101(a).  On October 6,
1981, the Daniel Amendment was passed by the House of Representatives
as part of the Department of Labor's Fiscal 1982 Appropriations Act.
H.R. 4560.  97th Cong., 1st Sess. Section 514 (1981);  127 Cong. Rec.
H7089, H7097 (daily ed., Oct. 6, 1981).  The Senate Committee on
Appropriations reported to the Senate a provision identical to the
Daniel Amendment on November 9, 1981. S. Rep. No. 97-268, 97th Cong.,
1st Sess. (1981);  127 Cong. Rec. S13145 (daily ed., Nov. 9, 1981).
Thus, pursuant to Section 101(a)(3) of Pub. L. No. 97-92, the Daniel
Amendment was "deemed as having been passed by (the Senate)." Since
the Daniel Amendment was part of the Department of Labor's Fiscal 1982
Appropriations Act incorporated in Pub. L. No. 97-92, and was passed
by the House and deemed passed by the Senate, it became law when Pub.
L. No. 97-92 was signed by the President.

   The Daniel Amendment would have expired on March 31, 1982 (see Pub.
L. No. 97-92, Section 102, 95 Stat. 1193), but on that date Congress
passed Pub. L. No. 97-161, 96 Stat. 22, extending the Act of which the
Daniel Amendment was a part.  The Amendment would again have expired
on September 30, 1982, but on October 1, 1982, Congress passed a
statute that continued it in effect.  Pub. L. No. 97-276.

   /3/ The court noted that this reasoning had not been put forward by
appellee (App. A, infra, 9a).

   /4/ The court acknowledged that in this respect, too, it went
beyond the arguments made by appellee (App. A, infra, 11a n.19).

   /5/ In an affidavit filed in the district court in support of an
application for attorney's fees, appellee's counsel stated that
appellee had informed him "that she completed the (CETA) brick masonry
program on June 11, 1982." Affidavit of Mark Lynch in Support of
Motion For an Award of Attorney's Fees, Expenses, and Costs Paragraph
15.

   /6/ In addition, this is not a case in which the defendant is
merely "compl(ying) with a court order pendente lite" and can again
damage the plaintiff if the order is vacated as moot.  Indiana
Employment Security Division v. Burney, 409 U.S. 540, 545 (1973)
(Marshall, J., dissenting);  see, e.g., Bakery Sales Drivers Local No.
33 v. Wagshal, 333 U.S. 437, 442 (1948).

   /7/ The district court was plainly incorrect in suggesting that the
Amendment might be unconstitutional even as interpreted by the
Secretary.  Congress may punish as a crime the speech left unprotected
by Brandenburg;  deterring such activity is a sufficient rational
basis for the Daniel Amendment.  The "procedural safeguards" of which
the court spoke (App. A, infra, 11a, citing Freedman v. Maryland, 380
U.S. 51 (1965)) apply to the "administration of a censorship system"
(id. at 57), not to the imposition of an after-the-fact sanction on
unprotected speech (id. at 57-58).

   /8/ The district court discounted the Secretary's construction
because it was not promulgated under the notice and comment provisions
of the Administrative Procedure Act, 5 U.S.C. 553 (App. A, infra, 9a).
 The APA, however, does not require an agency to issue every
interpretation of a statute it is enforcing as a rule subject to
Section 553.  See NLRB v. Bell Aerospace Co., 416 U.S. 267, 290-295
(1974);  NLRB v. Wyman-Gordon Co., 394 U.S. 759, 765-766, 772 (1969).
See also SEC v. Chenery Corp., 332 U.S. 194, 200-203 (1947).
Moreover, in establishing an adjudicatory grievance mechanism in CETA,
Congress plainly envisioned that the Secretary would determine the
proper construction of many provisions in the course of deciding
particular cases.

   It is particularly ironic that the district court criticized the
Secretary for stating his interpretation of the Daniel Amendment only
in "the pleadings filed in this litigaiton" (App. A, infra, 10a);  but
not requiring the exhaustion of adminsitrative remedies, the court
ensured that the Secretary would first be confronted with the specific
facts of appellee's case, and the need to construe the Daniel
Amendment, only in this litigation.  See pages 13-15, infra.

   /9/ For example, the description of appellee's views given by the
district court (App. A, infra, 4a) would not by itself be sufficient
to bar her from a CETA program, under the Secretary's interpretation.

   /10/ The Act also provides that the Secretary "shall * * *
terminate financial assistance" to any prime sponsor who engages in a
pattern or practice of "exclud(ing) any person from participation in"
or "subject(ing any person) to discrimination under" a CETA program
"on the ground of * * * political affiliation or belief" (29 U.S.C.
(Supp. IV) 816(c)(1) and 834(a)).

   /11/ The district court's other reason for not requiring appellee
to exhaust the statutory remedies is in fact a reason to require
exhaustion.  The court characterized appellee's contention as a claim
that the Secretary unlawfully "fail(ed) to insist that (the Daniel A)
mendment (be) implemented in a fashion consistent with the first
amendment" (App. A, infra, 7a).  The statutory grievance procedure is
designed precisely to give applications a way to have the Secretary
"insist" on certain actions by prime sponsors.

   Appendix Omitted