No. 95-1444 In the Supreme Court of the United States OCTOBER TERM, 1995 BRET E. CAHILL, PETITIONER v. UNITED STATES DEPARTMENT OF LABOR, ET AL. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT BRIEF FOR THE RESPONDENTS IN OPPOSITION DREW S. DAYS,III Solicitor General Department of Justice Washington, D.C. 20530 (202) 514-2217 J. DAVITT McATEER Acting solicitor of Labor ALLEN H. FELDMAN Associate Solicitor NATHANIEL I. SPILLER Deputy Associate Solicitor JUDITH D. HEIMLICH Attorney Department of Labor Washington, D.C. 20210 -------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether petitioner lacked standing to sue the Secretary of Labor for allegedly violating his First Amendment rights by failing to require States operating federally subsidized employment offices to give former employees, including petitioner, access to the offices' communication services. ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Opinions below . . . . 1 Jurisdiction . . . . 1 Statement . . . . 2 Argument . . . . 5 Conclusion . . . .8 TABLE OF AUTHORITIES Allen v. Wright, 468 U.S. 737(1984) . . . .6 Bermudez v. United States Dep't of Agriculture, 490 F.2d 718 (D.C. Cir.), cert. denied, 414 U.S. 1104 (1973) . . . .7-8 Califano v. Westcott, 443 U.S. 76 (1979) . . . . 7 Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U. S. 788(1985) . . . . 6, 7 Harris v. McRae, 448 U. S. 297(1980) . . . .7 Heckler v. Chancy, 470 U.S. 821(1985) . . . .4 International Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992) . . . . 6 King v. Smith, 392 U.S. 309 (1968) . . . .8 Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) . . . . 7 McKay v. Horn, 529 F. Supp. 847 (D.N.J. 1981) . . . . 8 Perry Educ. Ass 'n, v. Perry Local Educator's Ass 'n, 460 U.S. 37 (1983) . . . .6, 7 Planned Parenthood v. Danforth, 428 U.S. 52 (1976) . . . . 8 Rivers v. Patino, 524 F. Supp. 136 (N.D. Cal. 1981) . . . . 8 Rosado v. Wyman, 397 U.S. 397 (1970) . . . .8 Rust v. Sullivan, 500 U.S. 173 (1991) . . . . 7 Singleton v. Wulff, 428 U.S. 106 (1976) . . . . 8 (III) ---------------------------------------- Page Break ---------------------------------------- Cases-Continued: Page United States Postal Serv. v. Council of Green- burgh Civic Ass'ns, 453 U.S. 114 (1981) . . . . 6 Warth v. Seldin, 422 U.S. 490 (1975) . . . . 6 Williams v. Zbaraz, 448 U.S. 358 (1980) . . . . 7 Constitution, statutes and regulation U.S. Const.: Art. III . . . . 5, 6 Amend. I . . . . 6, 7 Administrative Procedure Act, 5 U.S.C. 701(a)(2) . . . .4 Job Training Partnership Act, 29 U.S.C. 1501 et seq. . . . 2 29 U.S.C. 1512 . . . . 2 29 U.S.C. 1532 . . . . 2 Wagner-Peyser Act, 29 U.S.C. 49 et seq.: 29 U.S.C. 49 . . . . 2 29 U.S.C. 49b(a) . . . . 2 29 U.S.C. 49c . . . . 2 29 U.S.C. 49g . . . . 2 29 U.S.C. 49g(a) . . . . 2 29 U.S.C. 49g(d) . . . . 2 29 U.S.C. 49g(e) . . . . 2 29 U.S.C. 49k . . . . 3 29 U.S.C. 49l(a) . . . .2 20 C. F. R.: Section 652.2 . . . . 3 Section 652.3 . . . . 3 Section 652.6 (a)(4)(iii) . . . .3 Section 652.8(g)(1) . . . . 3 Section 652.8(j) . . . . 3 Section 652.9 . . . . 3 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1995 No. 95-1444 BRET E. CAHILL, PETITIONER v. UNITED STATES DEPARTMENT OF LABOR, ET AL. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT BRIEF FOR THE RESPONDENTS IN OPPOSITION OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-7a) is not reported, but the judgment is noted at 63 F.3d 1111 (Table). The opinion of the district court (Pet. App. 8a-12a) is unreported. JURISDICTION The judgment of the court of appeals was entered on July 27, 1995. A petition for rehearing -was denied on December 19, 1995. Pet. App. 13a-14a. The petition for a writ of certiorari was filed on March 11, 1996. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). (1) ---------------------------------------- Page Break ---------------------------------------- 2 STATEMENT 1. a. Congress enacted the Wagner-Peyser Act in 1933 to establish the United States Employment Ser- vice (USES) "to promote the establishment and main- tenance of a national system of public employment offices." 29 U.S.C. 49. The Act, as amended by the Job Training Partnership Act, 29 U.S.C. 1501 et seq., directs the Secretary of Labor, through the USES, to assist state public employment services nationwide by, inter alia, "furnishing and publishing information as to opportunities for employment and other infor- mation of value in the operation of the system, and maintaining a system for clearing labor between the several States." 29 U.S.C. 49b(a). To obtain funding under the Act, a `State must, by legislation, accept the Act's provisions and designate or create a state agency with the powers necessary to cooperate with the Department of Labor (DOL). 29 U.S.C. 49c. The state agency must submit to the Secretary a detailed plan for carrying out the pro- visions of the Act. 29 U.S.C. 49g(a); see generally 29 U.S.C. 49g, 1512, 1532. The Act requires the Secre- tary to approve state plans that "are in conformity with [the Act] and- reasonably appropriate and ade- quate to carry out its purposes." 29 U.S.C. 49g(e). The Secretary is authorized "to establish perfor- mance standards for activities under [the Act]," but, in doing so, must "take into account the differences in priorities reflected in State plans." 29 U.S.C 49l(a). The only prescribed content of a state plan under the Act is that it provide opportunities and services for the handicapped. 29 U.S.C. 49g(d). b. The Secretary is authorized to promulgate "such rules and regulations as may be necessary to ---------------------------------------- Page Break ---------------------------------------- 3 carry out the provisions of" the Act. 29 U.S.C. 49k. The Secretary's regulations state that "[t]he basic purpose of the employment service system `is to improve the functioning of the nation's labor markets by bringing together individuals who are seeking employment and employers who are seeking work- ers." 20 C.F.R. 652.2. The regulations require that, "[a]t a minimum, each State shall administer a labor exchange system which has the capacity: (a) To assist jobseekers in finding employment; (b) To assist employers in filling jobs; (c) To facilitate the match between jobseekers and employers; (d) To participate in a system for clearing labor between the States," and "(e) To meet the work test requirements of the State unemployment compensation system: "__ 20 C.F.R. 652.3; see 20 C.F.R. 652.6(a)(4)(iii). 1. The man- ner in which those goals are met is to be set forth in annual state plans. 20 C.F.R. 652.6(a)(4)(iii). The Secretary is authorized to "impose appropriate sanc- tions and corrective actions for violation of the Act, regulations, or State plan," which may include reduc- tion of funding to the State's program. 20 C.F.R. 652.8(g)(1). 2. Petitioner, who is neither a jobseeker nor an employer, wrote to the Department of Labor "demand- ing that it allow-or require the States to allow- `former employees' to use the interstate network" of state-run employment offices to disseminate "infor- mation about employers (e.g. facts about pay scales, turnover, working conditions, and advancement oppor- ___________________(footnotes) 1 The regulations prohibit discrimination in the provision of services under the Act based on, among other things, "political affiliation or belief," 20 C.F.R. 652.8(j), and bar referrals to jobs that are vacant due to labor disputes, 20 C.F.R. 652.9. ---------------------------------------- Page Break ---------------------------------------- 4 tunities) to jobseekers." Pet. App. 3a; see Pet. 4. The Department of Labor responded by letter that the Act vests discretion in the States to establish program priorities and goals. lbid. The Department pointed out that States are free under the Act to establish "a public forum consisting of a reference network of former employees for job seekers to know more about jobs." Ibid. The Department's letter suggested that petitioner "contact the appropriate State official with [his] proposal." Pet. App. 3a-4a; Pet. 5. 3. Petitioner, acting pro se, sued the Department and Secretary of Labor, alleging that "his First Amendment rights are being violated because state- run employment offices prohibit him from using their facilities to disseminate information about employ- ers." Pet. App. 3a. In his view, the Department "vio- lated the First Amendment by failing to issue regu- lations requiring the States to provide these services to non-employers." Id. at 5a. He sought an injunction ordering the Department to require the state employ- ment offices to provide him with the same services as they provide to employers, and to require employment offices to post notice of those services. ld. at 4a, 19a (proposed notice). The district court, relying on Heckler v. Chancy, 470 U.S. 821 (1985), dismissed petitioner's complaint on the ground that the Department's decision "not to implement a former employee's network" was an un- reviewable matter committed to agency discretion under Section 701(a)(2) of the Administrative Pro- cedure Act, 5 U.S.C. 701(a)(2). Pet. App. 11a-12a. 4. The court of appeals, in a per curiam order, affirmed the dismissal on different grounds. Pet. App. 1a-8a. The court held that petitioner lacked standing under Article III to bring this action. Assuming that ---------------------------------------- Page Break ---------------------------------------- 5 petitioner alleged "an actual or threatened First Amendment injury capable of being redressed by ju- dicial action," the court held that he failed to "dem- onstrat[e] that this injury is the proximate result of the DOL's conduct." Id. at 7a. The court noted that the Department took no regulatory or enforcement action that restricted petitioner's rights or that discouraged the States from satisfying his request, and it concluded that petitioner thus failed to allege that any "abridgement of [his] First Amendment rights is `fairly traceable' to" action taken by the Department. Ibid. ARGUMENT The unreported decision of the court of appeals affirming the dismissal of petitioner's complaint is correct. The decision does not conflict with any decision of this Court or with the decision of any other court of appeals. Further review is not warranted. The court of appeals affirmed the dismissal of petitioner's complaint because he failed to "demon- strat[e] that [his] injury is the proximate result of the [Department's] conduct." Pet. App. 7a. Peti- tioner complains that he was not allowed to use the communication services of the state public employ- ment offices on the same basis as employers. As the court of appeals correctly observed, he failed to allege that the restrictions "stem from the DO-L'S violation of, or enforcement of, statutory or regulatory stand- ards," or to "identify regulations or agency decisions that effectively prohibit or discourage States from making their federally-subsidized services available ---------------------------------------- Page Break ---------------------------------------- 6 to non-employ ers." Ibid. Because the complaint established no First Amendment violation that was "fairly traceable" to the Department, the court correctly concluded that petitioner lacked Article III standing. Ibid. Petitioner alleged no injury that "reasonably can be said to have resulted, in any concretely demonstrable way," from the Depart- ment's conduct. Warth v. Seldin, 422 U.S. 490, 504 (1975). 2. Whether that defect is characterized as a lack of standing or as failure to state a cognizable claim against the Department, the judgment of the court of appeals was correct? ___________________(footnotes) 2 This case illustrates the instance where the " `fairly traceable' and `redressability' " components of Article III stand- ing are distinct concepts and not merely "two facets of a single causation requirement." Allen v. Wright, 468 U.S. 737, 753 n.19 (1984), An order enjoining the Department to require States to afford petitioner the access he seeks might redress petitioner's complaint, but it does not follow that the Depart- ment of Labor abridged petitioner's rights. 3 Petitioner's First Amendment claim is without merit in any event. The claim depends on petitioner's mischaracter- ization of the communication channels of state public employ- ment offices as public fora. See Complaint at 2 (Par. 4, 5) (alleg- ing that, public employment offices establish "government fora by custom" and "by designation"). They are, however, neither traditional nor limited public fora, but nonpublic fora. This Court has recognized many comparable facilities as nonpublic fora, See, e.g., International Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 683 (1992) (metropolitan airport ter- minal); Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 806 71995) (Combined Federal Campaign); Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 46-47 (1983) (interschool mail system and teacher mailbox- es); United States Postal Serv. v. Council of Greenburgh Civic Ass'ns, 453 U.S. 114, 132-133 (1981) (government-approved ---------------------------------------- Page Break ---------------------------------------- 7 Petitioner cannot trace his injury to the Depart- ment, or establish a claim against it, by invoking the fact that the overall system of public employment services was developed through "cooperative federal- ism." Pet. 10. The cases petitioner cites (Pet. 10-13) for the proposition that the United States' partici- pation in a scheme of cooperative federalism subjects it to suit involved challenges to federally imposed requirements. See Rust v. Sullivan, 500 U.S. 173 (1991); Williams v. Zbaraz, 448 U.S. 358 (1980); Harris v. McRae, 448 U.S. 297 (1980); Califano v. Westcott, 443 U.S. 76 (1979); Bermudez v. United States Dep't of Agriculture, 490 F.2d 718, 720 n.2 ___________________(footnotes) residential letterboxes); Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) (advertising space on city transit cars). The only basis for petitioner's contention (Pet. 9-10) that he was excluded from the communication services because of viewpoint discrimination is the fact that employers are per- mitted to use the communication services of public employment offices and petitioner, who is not a member of that group, is not permitted to do so. The government may, however, place on nonpublic fora restrictions "reasonable in light of the purpose served by the for[a]," including restrictions against partici- pation by any person "not a member of the class of speakers for whose especial benefit the forum was created." Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 806 (1985); see Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 49 (1983) ("Implicit in the concept of the nonpublic forum is the right to make distinctions in access on the basis of subject matter and speaker identity."). To the extent that petitioner claims (Pet. 15) that the De- partment of Labor's unexercised capacity to require States to create public fora subjects the Department to First Amend- ment liability, there is no basis for that claim. Congress has broad discretion to refrain, or to allow federal agencies to re- frain, from imposing particular requirements as a condition of state participation in a federally funded program. ---------------------------------------- Page Break ---------------------------------------- 8 (D.C. Cir.), cert. denied, 414 U.S. 1104 (1973); McKay V. Horn, 529 F. Supp. 847, 856-857 (D.N.J. 1981); Rivers v. Patino, 524 F. Supp. 136, 142 (N.D. Cal. 1981).4 No such federal requirement or action caused the harm of which petitioner complains. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. DREW S. DAYS, 111 Solicitor General J. DAVITT MCATEER Acting Solicitor of Labor ALLEN H. FELDMAN Associate Solicitor NATHANIEL I. SPILLER Deputy Associate Solicitor JUDITH D. HEIMLICH Attorney Department of Labor MAY 1996 ___________________(footnotes) 4 Other cases petitioner cites (Pet,. 11) did not involve claims against the United States, See Singleton v. Wulff, 428 U.S. 106 (1976); Planned Parenthood v. Danforth, 428 U.S. 52 (1976); Rosado v. Wyman, 397 U.S. 397 (1970); King v. Smith, 392 U.S. 309 (1968).