182 F.2d 46 | D.C. Cir. | 1950
Lead Opinion
This is a civil action brought in the United States District. Court for the District of Columbia for a declaratory judg
The Facts.
Appellant Bailey was employed in the classified civil service of the United States Government from August 19, 1939, to June 28, 1947. Upon the latter date she was separated from the service due to reduction in force. On March 25, 1948, she was given a temporary appointment, and on May 28, 1948, she was reinstated under circumstances to be related.
The regulations of the Civil Service Commission in effect at the time of appellant’s reinstatement
“(7) On all the evidence, reasonable grounds exist for belief that the person involved is disloyal to the Government of the United States.”
On July 31, 1948, two months after her reinstatement, Miss Bailey received from the Regional Loyalty Board of the Commission a letter and an enclosed interrogatory. The letter said in part:
“During the course of an investigation of your suitability for appointment, information was received which the Commission believes you should be given an opportunity to clarify. Consequently, there are inclosed an original and copy of an interrogatory to be answered by you under affirmation or oath.
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“Your cooperation in this matter will be appreciated.”
The interrogatory said in part:
“As part of the process of determining your suitability for Federal Employment, an investigation of you has been conducted under the provisions of Executive Order 9835, which established the Federal Employees Loyalty Program. This investigation disclosed information which, it is believed, you should have an opportunity to explain or refute.
“The questions in the attached Interrogatory are based on the information received, and are to be answered in writing in sufficient detail to present fairly your explanation or answers thereto. * * *
“You are further advised that you have the right, upon request, to an administrative hearing on the issues in the case before the Regional Loyalty Board. You may appear personally before the Board and be represented by counsel or representative of your own choice; and you may present evidence in your behalf. Such evidence may be presented by witnesses or by affidavit.
* * * * * • *
“The Commission has received information to the effect that you are or have been a member of the Communist Party or the Communist Political Association; that you have attended meetings of the Communist Party, and have associated on numerous occasions with known Communist Party members.
*50 “The Commission has received information to the effect that you are or have been a member of the American League for Peace and Democracy, an organization which has been declared by the Attorney General to come within the purview of Executive Order 9835.
******
“The Commission has received information to the effect that you are or have been a member of the Washington Committee for Democratic Action, an organization which has been declared by the Attorney General to come within the purview of Executive Order 9835.
******
“Are you now, or have ever been, a member of, or in any manner affiliated with, the Nazi or Fascist movements or with any organization or political party whose objective is now, or has ever been, the overthrow of the Constitutional Government of the United States ? ”
Miss Bailey answered the interrogatories directly and specifically, denying each item of information recited therein as having been received by the Commission, except that she admitted past membership for a short time in the American League for Peace and Democracy. She vigorously asserted her loyalty to the United States. She requested an administrative hearing^ A hearing was held before the Regional Board. She appeared and testified and presented' other witnesses and numerous affidavits. No person other than those presented by her testified.
On November 1, 1948, the Regional Board advised the Federal Security Agency, in which Miss Bailey was employed, that:
“As a result of such investifgation and after a hearing before this Board, it was found that, on all the evidence, reasonable grounds exist for belief that Miss Bailey is disloyal to the Government of the United States.
“Therefore, she has been rated ineligible for Federal employment; she has been barred from competing in civil service examinations for a period of three years, and your office is instructed to separate her from the service.”
On the same day, a letter was sent by the Board to Miss Bailey, reading in part:
“As shown in the attached copy of a let-ter to your employing agency, it has been found that, on all the evidence, reasonable grounds exist for belief that you are dis-' loyal to the Government of the United States.
“Your application for or eligibility from each of the examinations mentioned below has been cancelled and you have been barred from civil service examinations in the Federal service for a period of three years from October 29, 1948. When the period of debarment has expired the Commission will, upon request, consider the re-moval of the bar.
“If you wish to appeal the Board’s decisión, the Loyalty Review Board, U. S. Civil Service Commission, Washington 25, D. C., should be notified within 20 days from the date of receipt by you of this letter.”
Miss Bailey appealed to the Loyalty Re-view Board and requested a hearing. Hear-ing was held before a panel of that Board, Miss Bailey appeared, testified, and present-ed affidavits. No person other than Miss Bailey testified, and no affidavits other than hers were presented on the record,
0n February 9,1949, the Chairman of the Loyalty Review Board advised the Fed-eral Security Agency that the finding of the Regional Board was sustained, and he requested that the Agency remove Miss Bail-ey’s name from the rolls. Notice to that effect was sent to counsel for Miss Báiley on the same day. The full Board subsequently declined to review the conclusions of* its panel.
Miss Bailey’s position from May 28, 1948, to November 3, 1948, was that of a training officer (general fields) CAF-13.
The Question.
The rights claimed by and for appellant must be discovered accurately and defined precisely. The events with which we are concerned were not accidental, thoughtless or mere petty tyrannies of subordinate officials. They were the deliberate design of the executive branch of the Government, knowingly supported by the Congress.
The Constitution placed upon the President and the Congress, and upon them alone, responsibility for the welfare of this country in the arena of world affairs. It so happens that we are presently in an adversary position to a government whose most successful recent method of contest is the infiltration of a government service by its sympathizers. This is the context of Miss Bailey’s question.
The essence of her complaint is not that she was denied reinstatement; the complaint is that she was denied reinstatement without revelation by the Government of the names of those who informed against her and of the method by which her alleged activities were detected. So the question actually posed by the case is whether the President is faced with an inescapable dilemma, either to continue in Government employment a person whose loyalty he reasonably suspects or else to reveal publicly the methods by which he detects disloyalty and the names of any persons who may venture to assist him.
Even in normal times and as a matter of ordinary internal operation, the ability, integrity and loyalty of purely executive employees is exclusively for the executive branch of Government to determine, except in so far as the Congress has a constitutional voice in the matter. All such employees hold office at the pleasure of the appointing authority; again except only for statutory limitations. Never in our history, even under the terms of the LloydLafollette Act (infra, note 8), has a Government employee been entitled as of right to the sort of hearing Miss Bailey demands in respect to dismissal from office. These, well-established principles give perspective to the present problem.
The presentation of appellant’s contentions is impressive. Each detail of the trial which she unquestionably did not get is depicted separately, in a mounting cumulation into analogies to the Dreyfus case and the Nazi judicial process. Thus, a picture of a simple black-and-white fact — that appellant did not get a trial in the judicial sense ■ — is drawn in bold and appealing colors. But the question is not whether she had a trial. The question is whether she should have had one.
If the whole of this case were as appellant pictures it, if we had only to decide the question which she states and as she states it, our task would indeed be simple and attractively pleasant. But it is not so. We are dealing with a major clash between individual and public interests. We must ascertain with precision whether individual rights are involved, and we must then weigh the sum of those rights, if there be any, against the inexorable necessities of the Government. We must examine not only one side of the controversy but both sides.
I.
Conformity with Executive Order.
Appellant’s first contention is that the procedure followed by the Loyalty Boards did not conform to the requirements of the Executive Order
“The standard for the refusal of employment or the removal from employment in an executive department or agency on grounds relating to loyalty shall be that, on all the evidence, reasonable grounds exist for belief that the person involved is disloyal to the Government of the United States.”
Appellant says that “evidence” does not include, in our jurisprudence, information secretly disclosed to a hearing tribunal. That is certainly true, but the question is whether the President used the term in its jurisprudential sense or whether he merely meant “information”. We think
It is also suggested that the Executive Order was violated in this case, in that the information furnished Miss Bailey in advance of the hearing lacked the specificity required by the Order. It did not include the names of informants against her or the dates or places of her alleged activities. Part 11(2) (b) of the Executive Order provides: “The charges shall be stated as specifically and completely as, in the discretion of the employing department or agency, security considerations permit * * That particular section refers to persons in employment, but- it may be assumed for present purposes that the same requirement was imposed by implication upon the Civil Service Commission in respect to applicants for employment. Certainly, no greater specification would be given applicants than is given permanent employees. Reading the quoted provision of the Order with the utmost stringency in behalf of the individual, it still leaves specificity a wholly discretionary matter. It is not possible to read the sentence otherwise. It unequivocally says so.
II.
Applicability of the LloydLafollette Act.
Appellant next says that she was dismissed in violation of an Act of 1912 known as the Lloyd-Lafo'lette Act.
Appellant’s points are that this Act requires that an employee whose removal is sought shall be furnished with a copy of any charges preferred against him and that the removal must be by the employing agency, not by the Civil Service Commission. At best, these are narrow points upon the facts in this record. This appellant was advised of the nature of the information received, so that the open questions would be whether such information constituted “charges” and whether it was sufficiently specific. The actual removal was by the Federal Security Agency, the employing agency, and the point made is that that Agency could not act upon the request, instruction or order of the Civil Service Commission but must act upon its own independent determination. We think that at
Miss Bailey was in fact separated from the service from June 28, 1947, to either March 25 or May 28, 1948, a period of nine or eleven months. So the first question is whether during that period she was “in the classified civil service” within the meaning of the Lloyd-Lafollette Act. She was certainly unemployed, so far as the Government was concerned, but she says that, having a competitive status, she was in the service by statutory definition. The definition upon which she relies is, so far as material here;
“The expression ‘classified civil service’ as the same occurs in acts of Congress shall, unless otherwise provided, be construed to include all persons who have been or may be given a competitive status in the •classified civil service, with or without competitive examination, by legislative enactment, or under the civil service rules promulgated by the 'President, * *
Despite obvious inadequacies as a definition, that provision shows that in order to be in the classified civil service a person must not only have a competitive status but must be in the service.
Status and service are different terms in civil service parlance. Competitive status is one which permits promotion, transfer, reassignment or reinstatement without competitive examination.
One who has been separated from the service does not occupy a position and so is not in the service, even though he retains his competitive status. The point is made clear by the regulations governing reductions in force, which provide for separation and furlough as two totally different matters,
If appellant was not in the service while she was separated from it, the next question is whether her reinstatement placed her in the service within the meaning of the Lloyd-Lafollette Act. She was in fact reinstated conditionally. So the question is whether a condition imposed by the Commission upon a reinstatement is valid. A probational appointee is not “in the classified service” within the meaning of the Act,
Under the Constitution,
No reason based upon principle appears for holding the imposition of conditions upon reinstatements to be invalid. The scheme of the civil service statutes is that an independent executive agency, under the President, have the function of filling open positions in what is known as the classified service. An employee separated from the service would be as completely out of Government employ as though he had never been in it, except for the regulations of that executive agency. They give him for a designated period of time a preference over other eligibles for placement, if a vacancy for which he is qualified occurs either in his former section or in another.
Our conclusion on the point is that appellant, having been separated from the service for some months, was not “in the classified service” during that period, and that during the period of her conditional reinstatement she was subject to the regulations of the Civil Service Commission and was not in the classified service within the meaning of the Lloyd-Lafollette Act.
While our attention is upon the LloydLafollette Act, it should be noted that this, statute affords an employee less in some respects than does the Executive Order we are studying. It may or may not require greater specificity in the statement of charges, but it requires no oral hearing whatever. And it no more requires confrontation by witnesses than does the Order. Of course, it is obvious that the President is not confined to the choice sought to be imposed upon him by appellant. Even if the full of her contentions were sustained by the court, the President would be free to-refuse to appoint her without assigning any reason or giving her any explanation, or he could refer to a grand jury every person whom he has reasonable grounds to suspect of disloyalty. These are practical aspects of the controversy before us, but they tend to emphasize the fact that in giving to-suspected employees the measures of protection afforded by his Executive Order the-President was not acting from necessity.
III.
Validity of the Bar to Employment.
Appellant next s-ays that the order of the Board which barred her from the federal service for three years, was constitutionally invalid under the decision of;
IV.
Constitutionality of the Dismissal.
We did not understand appellant to urge the unconstitutionality of her dismissal, apart from the three-year bar. But there is a difference of opinion among us in that respect, and we, therefore, state our views upon the point. First we consider the contentions respecting the constitutionality of the procedure pursued, and then we consider the constitutionality of the condition imposed upon the reinstatement. For the first purpose, we must assume that Miss Bailey was in the classified service without condition at the time of her removal from the rolls and that she was, therefore, dismissed from employment and not merely denied appointment; although, as we have indicated, we do not agree with that view of her status. If her status was merely that of an applicant for appointment, as we think it was, her nonappointment involved no procedural constitutional rights. Obviously, an applicant for office has no constitutional right to a hearing or a specification of the reasons why he is not appointed. We, therefore, consider the constitutionality of the procedure followed in this case upon the assumption that a Government employee in the classified service is being dismissed because her superiors have grounds, which to them are reasonable, to believe that she is disloyal.
Sixth Amendment.
Our first inquiry is whether the Sixth Amendment applies to a dismissal from Government service. That Amendment provides:
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which distinct shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”
The Amendment in terms applies to criminal prosecutions, and requires not only confrontation by witnesses but also trial by jury. The process is a judicial process.
The Supreme Court held in the Lovett case, supra, that “punishment” can be inflicted lawfully only upon compliance with the Sixth Amendment. The decision in that case is one of the keys to the contention presented on behalf of appellant. The Court held permanent proscription from Government service to be such “punishment”, but it did not, as we read the case, hold mere dismissal from Government service to be punishment in that sense. It had held in the Myers case,
Again, United Public Workers v. Mitchell
Moreover, if dismissal from Government service requires compliance with the Sixth Amendment, the Lloyd-Lafollette Act, which has been in uncontested effect since 1912, is unconstitutional. That statute spefically provides that in the process of dismissal of an employee from the classified civil service, “no examination of witnesses nor any trial or hearing shall be required except in the discretion of the officer making the removal”.
If dismissal from the classified civil service requires judicial process, all the cases noted in the footnote below,
In the last place, even if there were no decided cases upon the point, we would not think that the Constitution meant that the President could not dismiss a subordinate executive employee without the judicial procedure required by the Sixth Amendment. The fundamental concept of the division of powers, and so of responsibilities, does not, in our opinion,' permit the conclusion that the President cannot remove an employee in the executive branch without referring the matter to the judicial branch. And the long history of the controversy concerning removal from public office, beginning with the First Congress, cannot be read so as to permit that conclusion.
Fifth Amendment.
It is next said on behalf of appellant that the due process clause of the Fifth Amendment requires that she be afforded a hearing of the quasi-judicial type before being dismissed. The due process clause provides: “No person shah * * * be deprived of life, liberty, or property, without due process of law; * * It has been held repeatedly and consistently that Government employ is not “property”
Other considerations lead to the same conclusion. Never in our history has a Government administrative employee been entitled to a hearing of the quasi-judicial type upon his dismissal from Government service. That record of a hundred and sixty years of Government administration is the sort of history which speaks with great force. It is pertinent to repeat in this connectaon that the Lloyd-Lafollette Act, sponsored and enacted by advocates of a merit classified government service, expressly denies the right to such a hearing. Moreover, in the acute and sometimes bitter historic hundred-year contest over the wholesale summary dismissal of Government employees, there seems never to have been a claim that, absent congressional limitation, the President was without constitutional power to dismiss without notice, hearing or evidence; except for the question as to officials appointed with the advice and consent of the Senate. That history has been told many times
The Constitution makes the President responsible for the execution of the laws and makes the Congress responsible for the vesting of appointments in the executive branch.
In the absence of statute or ancient custom to the contrary, executive offices are held at the will of the appointing authority, not for life or for fixed terms.
Constitutionally, the criterion for retention or removal of subordinate employees is the confidence of superior executive officials. Confidence is not controllable by process. What may be required by acts of the Congress is another matter, but there is no requirement in the Constitution that the executive branch rely upon the services of persons in whom it lacks confidence. The opinions in the Myers case, supra, make this proposition amply clear, and those in United Public Workers v. Mitchell, supra, amply confirm it.
Of course, the due process clause may limit executive power and does so when that power is exercised in some fields. So the full of the considerations which we have mentioned in respect to the Sixth Amendment are not applicable here. But the many cases' which we cited in that connection
We hold that the' due process of law clause of the Fifth Amendment does not restrict the President’s discretion or the prescriptive power of Congress in respect to executive personnel.
We 'do not reach the question whether, if the due process of law clause does apply, it requires more than this appellant was given. Miss Bailey was not summarily cut off the rolls. She was advised in writing that information concerning her qualifications for Government employ had been received; she was asked specific questions; and she was told that those questions reflected the information received. The questions revealed the nature of the alleged activities giving rise to the inquiry and the names of the organizations in which she was alleged to have' been active. Everything that she wished to present was received; all affidavits offered by her were, accepted, and all witnesses presented by her testified. She was twice heard orally. She was represented at all stages by competent counsel. Her case was considered by two separate groups of executive officials. On the other hand, she was not told the names of the informants against her. She was not. permitted to face or to cross-examine those informants. She was not given the dates or places at which she was alleged to have been active in the named alleged subversive organizations. So the claim in her behalf necessarily goes farther than an abstract claim for due process of law. The claim must be that the due process clause requires, in dismissals of subordinate Gov-
Here again it is apparently conceded on behalf of appellant that our conclusions in respect to the Fifth Amendment are sound generally speaking, but an exception is claimed in the cases of those dismissed for suspicion of disloyalty. As we have said, we shall discuss that claimed exception in a moment.
First Amendment.
It is next said that appellant’s dismissal impinged upon the rights of free speech and assembly protected by the First Amendment, since the dismissal was premised upon alleged political activity. This suggestion goes not to the procedure but to the ultimate validity of the dismissal itself. But the plain hard fact is that so far as the -Constitution is concerned there is no prohibition against the -dismissal of Government employees because of their political beliefs, activities or affiliations. That document, standing alone, does not prevent Republican Presidents from dismissing Democrats or Democratic Presidents from dismissing Republicans. From the beginning, such has been the practice, with variations in scope. The reason that it has not continued to so great an extent is because the people became convinced that it was not good government and the Congress and the President wrote that view into statutes and regulations. They, not the Constitution, give Government employees such protection as they have against dismissal for political reasons.
Objective perusal of -civil service history reveals two philosophical sides to the controversy. President Washington wrote to Timothy Pickering in 1795, “I shall not, ■whilst I have the honor of administering the government, bring men into any office of consequence knowingly whose political tenets are adverse to the measures the general government is pursuing; for this, in my opinion, would be a sort of political suicide.”
Congress provided in 1939 that “No- officer or employee in the executive branch of the Federal Government, or any agency or department thereof, shall take any active part in political management or in political campaigns.”
The situation of the Government employee is not different in this respect from that of private employees. A newspaper editor has a constitutional right to speak and write as he pleases. But the Constitution does not guarantee him a place in the columns of a publisher with whose political views he does not agree.
Government employment is subject to many restrictions upon otherwise unrestricted individual rights in respect to activities, property ownership, etc., as the Supreme Court long ago pointed out.
Cummings v. Missouri
In the United Public Workers case,
Discrimination.
It is said that the loyalty program as applied in this particular case went beyond the power of the Congress and of the President to regulate the conduct of Government employees.
The first proposition is m effect that reasonable ground for belief of disloyalty is not sufficient prerequisite to dismissal. But we can perceive no basis for holding that the executive departments must retain in the service those whose loyalty is reasonably doubtful. Reasonably grounded suspicion of disloyalty indicates a risk, and no concept of the Constitution requires the executive to endure recognizable and preventable risks in the administration of the law. He may decide to do so, but we see no basis for saying that he must, The Constitution does not require the President to continue to use in the training of Government personnel, the work performed by this appellant, a person whose loyalty to the Government he suspects. There is no reason in the Constitution why the President should not limit the training staff to persons whose loyalty is beyond the faintest shadow of suspicion,
The clear and present danger rule does not help us in this matter,
The second proposition concerns the mode of determining the sufficiency of a doubt of loyalty. If reasonable grounds for belief of disloyalty suffice for dismissal, in whose mind must such reasonable grounds be established?
If the power of removal be not lodged in the President and his designated subordinates, pursuant to prescriptions of the Congress, where is it lodged ? The only alternative is that grounds for dismissal from executive service appear satisfactory to the judicial branch of government. The Supreme Court, in the United Public Workers case, supra, as we have pointed out, defined the criterion as the reasonable judgment of Congress as to the efficiency of the service. And it must have so held, because, as Mr. Madison said to the First Congress, “It is evidently the intention of the constitution, that the first Magistrate should be responsible for the executive department; so far therefore as we do not make the officers who are to aid him in the duties of that department responsible to him, he is not responsible to his. country.”
This brings us to the third proposition upon this subject, which is that the revealed information in this particular case is insufficient ground for suspicion of disloyalty. It is said that the interrogatory showed that the basis for Miss Bailey’s dismissal was an alleged membership in the Communist Party and other allegedly “subversive” organizations, and that this is an invalid discrimination.
It is perfectly true, as the Supreme Court said in the United Public Workers case,
Our conclusion upon this phase of the case, therefore, is that the loyalty program established by the President’s Order and applied to this appellant is not, for any of the reasons thus far discussed, invalid.
An Exception is Claimed.
Thus the controversy develops, step by step, to its ultimate crisis. It is urged upon us that dismissal from Government employ for suspicion of disloyalty is an exception to the established doctrines and rules generally applicable to Government employees and their dismissal from service.
It is said on behalf of appellant that disloyalty is akin to treason and that dismissal is akin to conviction. Forthwith it is asserted that Miss Bailey has been convicted of disloyalty. As we have seen, nothing resembling a conviction from the legal standpoint has been visited upon her. She was merely refused Government employment for reasons satisfactory to the appointing authorities.
But it is said that the public does not distinguish, that she has been stigmatized and her chance of making a living seriously impaired. The position implicit in that assertion dissolves into two contentions. One is that even if executive authorities had power to dismiss Miss Bailey without a judicial hearing, they had no power to hurt her while doing so; that is, they had no power to call her disloyal even if they had power to dismiss her for that reason. But it has long been established that if the Government, in the exercise of a governmental power, injures an individual, that individual has no redress.
The line of cases in which this court has said that courts will not review the action of executive officials in dismissing executive employees, except to insure compliance with statutory requirements, is unvaried.
The rule is applied even when the charges involve offenses of serious moral turpitude. Eberlein was discharged for accepting bribes,
It should be remarked parenthetically that, in so far as the case before us is concerned, any publicity which it received was not pursuant to but in flat contradiction of the Executive Order, the Attorney General’s instructions, and the Loyalty Board’s rules, all of which forbid publicity. Moreover, Miss Bailey accepted voluntarily the conditional reappointment which was premised upon her successful passage of the loyalty test laid down in the Executive Order.
The other contention implicit in the assertion, that Miss Bailey has been stigmatized and injured, is that disloyalty is a thing apart, suspicion of which gives rise to constitutional rights not applicable to suspicion of criminal offenses. It seems to us that in so far- as suspicion of disloyalty has peculiarities which distinguish it from suspicions of bribery, seduction and other offenses, they are adverse to appellant’s conclusions. We must look not only at appellant’s but also at the public side of this controversy. From that point of view, the retention in the Government service of one suspected of theft or a similar offense would not be of great importance, and the revelation of the method of detection and the names of informants would probably not affect the public interest. But disloyalty in. the Government service under present circumstances is a matter of great public concern, and revelation of the methods of detecting it and of the names of witnesses involve public considerations of compelling importance.
We cannot ignore the world situation in which not merely two ideologies but two potentially adverse forces presently exist, and certainly we cannot require that the President and the Congress ignore it. Infiltration of government service is now a recognized technique for the overthrow of government. We do not think that the individual rights guaranteed by the Constitution necessarily mean that a govern
Upon the contention that suspicion of disloyalty has characteristics distinguishing it from suspicion of other offenses, we conclude that the differences tend to solidify rather than to weaken the application of the doctrine that the President and the Congress are responsible for the qualifications, ability, judgment and loyalty of Government employees and that removal from Government employment is within their discretion.
Conclusion.
It is our clear opinion that the President, absent congressional restriction, may remove from Government service any person of whose loyalty he is not completely convinced. lie may do so without assigning any reason and without giving tne employee any explanatory notice. If, as a matter of policy, he chooses to give the employee a general description of the information which concerns him and to hear what the employee has to say, he does not thereby strip himself of any portion of his constitutional power to choose and to remove.
We conclude that the Executive Order before us and the proceedings under it violated no congressional limitation upon the executive power of removal; that no constitutional right was involved in this non-appointment or dismissal; and that, in so far as the circumstances imposed hardship upon the individual, the exigencies of government in the public interest under current conditions must prevail, as they always must when a similar clash arises.
Able pleas are made based upon the American passion for fair play and upon the sincere fears of patriotic men that unqueried and unrestricted power of removal in the President may lead to tyranny.
Finding constitutional power for the procedure here followed, and no violation of congressional mandate, our function is exhausted. We have no concern with executive or legislative policy or with the processes by which those branches of the Gov
The case will be remanded to the District Court with instructions to enter a decree holding invalid those sections of the orders of the Loyalty Boards and fhe Federal Security Agency which would bar Miss Bailey from employment for three years, and holding valid those sections which accomplished her removal from the rolls and from office in the classified civil service.
Reversed in part, affirmed in part, and remanded with instructions.
. We take jurisdiction for declaratory judgment upon authority of United Public Workers v. Mitchell, 1947, 330 U.S. 75, 93, 67 S.Ct. 556, 91 L.Ed. 754.
. Reg. 2.112, 12 Fed.Reg. 5937 (Sept. 6, 1947), 5 Code Fed.Regs. § 2.112 (1949 ed.).
. Reg. 2.104, 12 Fed.Reg. 2832 (1917), as amended, 13 Fed.Reg.1978 (Apr. 13, 1918), 5 Code Fed.Regs. § 2.104 (4949 ed.).
. Exec. Order No. 9835, 5 U.S.C.A. § 631 note, 12 Fed.Reg.1935 (1947), 3 Code Fed. Regs. 132 (Supp.1947).
. F.R.Doc. 48-2337, dated March 13, 1948, 13 Fed.Reg. 1359.
. Bowles v. Seminole Rock Co., 1945, 325 U.S. 410, 414, 65 S.Ct. 1215, 89 L.Ed. 1700.
. See Federal Reserve System v. Agnew, 1947, 329 U.S. 441, 67 S.Ct. 411, 91 L.Ed. 408; Mitchell v. Cohen, 1948, 333 U.S. 411, 68 S.Ct. 518, 92 L.Ed. 774.
. 37 Stat. 555 (1912), as amended, 62 Stat. 354 (1948), 5 U.S.C.A. § 652.
. Act of March 27, 1922, 42 Stat. 470, 5 U.S.C.A. § 679.
. 5 Code Fed.Regs. § 4.301(a) (5) (1949 ed.).
. Classified service, competitive service, classified (competitive) service, classified civil service are interchangeable expressions.
. 5 Code Fed.Regs. § 4.301(a) (4) (1949 ed,).
. 5 Code Fed.Regs. §§ 9.109, 9.110, 12.5, 12.101(e), 12.105 (1938); 5 Code Fed. Regs. § 20.9 (1949 ed.).
. 5 Code Fed.Regs. | 9.104 (1938); 5 U.S.C.A. § 691 et seq.
. Regulations under Civil Service Rule XII, 5 Code Fed.Regs. § 12.101 (1938).
. 5 Code Fed.Regs. § 3.1(a) (1949 ed.).
. Friedman v. Schwellenbaeh, 1946, 81 U.S.App.D.C. 365, 159 F.2d 22, certiorari denied 1947, 330 U.S. 838, 67 S.Ct. 979, 91 L.Ed. 1285, 5 Code Fed.Regs. § 12.101 (1938).
. Art. II. § 2, cl. 2.
. Rev.Stat. § 1753, 5 U.S.C.A. § 631.
. 22 Stat. 403, as amended, 54 Stat. 1216, 5 U.S.C.A. § 632.
. 22 Stat. 408 (1883), as amended, 5 U.S.C.A. § 633.
. Exec. Order No. 9830, § 01.2(c), 3 Code Fed.Regs. 108 (Supp.1947).
. Reg. 2.112(a) (3), 12 Fed.Reg. 5937, 5 Code Fed.Regs. § 2.112(a) (3) (1949 ed.).
. Reg. 2.104(7), 13 Fed.Reg. 1978, 5 Code Fed.Regs. § 2.104(7) (1949 ed.).
. 5 Code Fed.Regs., Part 20 (1949 ed.).
. Borak v. Biddle, 1944, 78 U.S.App.D.C. 374, 141 F.2d 278, certiorari denied. 1944, 323 U.S. 788, 65 S.Ct. 42, 89 L.Ed. 591.
. United States v. Lovett, 1946, 328 U.S. 303. 66 S.Ct. 1073, 90 L.Ed. 1252.
. Myers v. United States, 1926, 272 U.S. 52. 47 S.Ct. 21, 71 L.Ed. 160.
. Humphrey’s Executor v. United States, 1935, 295 U.S. 602, 33 S.Ct. 869, 79 L.Ed. 1611.
. 1897, 167 U.S. 324, 17 S.Ct. 880, 42 L.Ed. 185.
. 1903, 189 U.S. 311, 23 S.Ct. 535, 47 L.Ed. 838.
. 1947, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754.
. The legislative history throws little light on the intent of the provision. It was mentioned in the Senate debate and was subject to a proposed modifying amendment, not adopted. The impression loft is that the provision was intended to mean what it plainly says. 48 Cong.Ree. 4653, 4738, 4988, 5002, 10370-78, 10728, 10790, 10804 (1912).
. Maghan v. Board of Com’rs of District of Columbia, 1944, 78 U.S.App.D.C. 370, 141 F.2d 274; Levine v. Farley, 1939, 70 App.D.C. 381, 107 F.2d 186, certiorari denied 1940, 308 U.S. 622, 60 S.Ct. 377, 84 L.Ed. 519; Gadsden v. United States, 1948, 78 F.Supp. 126, 111 Ct.Cl. 487; Weinstein v. United States, 1947, 74 F.Supp. 554, 109 Ct.Cl. 579; Culligan v. United States, 1946, 107 Ct.Cl. 222, certiorari denied 1947, 330 U.S. 848, 67 S.Ct. 1092, 91 L.Ed. 1292; Golding v. United States, 1934, 78 Ct.Cl. 682, certiorari denied 1934, 292 U.S. 643, 54 S.Ct. 776, 78 L.Ed. 1494; Kellom v. United States, 1920, 55 Ct.Cl. 174; Eberlein v. United States, 1918, 53 Ct.Cl. 466, affirmed 1921, 257 U.S. 82, 42 S.Ct. 12, 66 L.Ed. 140; Page v. Moffett, C.C.N.J.1898, 85 F. 38.
. Fish, Civil Service and the Patronage (N.Y.1905); Sageser, The First Two Decades of the Pendleton Act: A Study of Civil Service Reform (Lincoln, Neb.,
. Taylor v. Beckham, 1900, 178 U.S. 548, 20 S.Ct. 890, 1009, 44 L.Ed. 1187, and cases there cited; Ex parte Sawyer, 1888, 124 U.S. 200, 8 S.Ct. 482, 31 L.Ed. 402; 2 Cooley, Constitutional Limitations 746, n. 1 (8th ed. 1927), and cases there cited.
. Butler v. Commonwealth of Pennsylvania, 1850, 10 How. 402, 13 L.Ed. 472; Crenshaw v. United States, 1890, 134 U.S. 99, 10 S.Ct. 431, 33 L.Ed. 825.
. See Note 35 supra.
. Debate in the First Congress, 1 Annals of Cong. 473-608 (Gales & Seaton’s History 1834).
. Art. II, §§ 2, 3.
. Ex parte Hennen, 1839, 13 Pet. 230, 10 L.Ed. 138; Parsons v. United States, supra; Keim v. United States, 1900, 177 U.S. 290, 20 S.Ct. 574, 44 L.Ed. 774; Shurtleff v. United States, supra; Levine v. Farley, 1939, 70 App.D.C. 381, 107 F.2d 186, certiorari denied 1940, 308 U.S. 622, 60 S.Ct. 377, 84 L.Ed. 519.
. Ex parte Hennen, supra note 41; Parsons v. United States, supra. See Note, Constitutional Limitations on Political Discrimination in Public Employment, 60 Harv.L.Rev. 779 (1947).
. See note 34 supra.
. See Field, Civil Service Law 205 (1939); Comment, Civil Service: Validity of Loyalty Tests for Federal Employees, 36 Cal.L.Rev. 596 (1948).
. Compare Seher v. United States, 1938, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151.
. Fish, Civil Service and the Patronage 13-14 (N.Y.1905), citing Washington, Writings (Ford ed.), xii, 107.
. See Editorial Note, Political Activities of Federal Civil Servants, 15 Geo. Wash. L.Rev. 443 (1947).
. Sec. 9(a) of Act of Aug. 2, 1939, called the Hatch Act, 53 Stat. 1148, as amended, 5 U.S.C.A. g llSi(a).
. Exec. Order No. 642, June 3,' 1907; 24th Annual Report, Civil Service Commission, II.R.Exec.Doe.No.600, 60th Cong., 1st Sess. 104.
. United Public Workers v. Mitchell, supra.
. Id. 330 U.S. at page 99, 67 S.Ct. at page 569, 91 L.Ed. 754.
. Ex parte Curtis, 1882, 106 U.S. 371, 1 S.Ct. 381, 27 L.Ed. 232. See also Note, Restrictions on the Civil Rights of Federal Employees, 47 Col.L.Rev. 1161 (1947); Note, Political Sterilization of Government Employees, 47 Col. L.Rev. 295 (1947); Mosher aid Kingsley, Public Personnel Administration 386 (1941).
. 1867, 4 Wall. 277, 71 U.S. 277, 18 L.Ed. 356.
. 1867, 4 Wall. 333, 71 U.S. 333, 18 L.Ed. 366.
. 4 Wall. 378, 71 U. S. at 378, 18 L.Ed. at 370.
. Supra at 330 U.S. 101, 67 S.Ct. 570, 91 L.Ed. 754.
. For the development of principles and procedure in respect to loyalty among Government employees, see Emerson and Helfield, Loyalty Among Government Employees, 58 Yale L.J. 1. (1948), and reply of J. Edgar Hoover, A Comment on the Article “Loyalty Among Government Employees”, 58 Yale L.J. 401 (1949); Cor-
,58. Supra notice of the Regional Loyalty Board to the Federal Security Agency, later sustained by the Loyalty Review Board.
. National Committee on Constitutional Liberties, National Lawyers Guild, The Constitutional Right to Advocate Political, Social and Economic Change: An Analysis of Proposed Federal Legislation and Executive Order 9835, 7 Law.Guild _ __ nnA-j\ ev' ’
. Contra: See Sherman, Loyalty and the Civil Servant, 20 Rocky Mt. L.Rev. 881 (1948).
. E. g., 1 Annals of Cong. 476 (Gales & Seaton’s History 1834).
. Id. at 480.
. See Shurtleff v. United States, supra; Myers v. United States, supra at 272 U.S. 117, 122, 47 S.Ct. 25, 27, 71 L.Ed. 160.
. Supra at 330 U.S. 100, 67 S.Ct. 569. 91 L.Ed. 754.
. Cooper v. O’Connor, 1938, 69 App. D.C. 100, 104, 99 F.2d 135, 139, 118 A. L.R. 1440, certiorari denied 1938, 305 U. S. 643, 59 S.Ct. 146, 83 L.Ed. 414, and cases there cited; Larson v. Domestic & Foreign Commerce Corp., 1949, 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628; cases collected in United States v. Sanders, 10 Cir. 1944, 145 F.2d 458.
. Gregoire v. Biddle, 1949, 177 F.2d 579, 580.
. See 38 Geo.L.J. 327 (1950).
. Cochran v. Couzens, 1930, 59 App.D.C. 374, 42 F.2d 783, certiorari denied 1930, 282 U.S. 874, 51 S.Ct. 79, 75 L.Ed. 772, and cases there cited.
. United States ex rel. Taylor v. Taft, 1904, 24 App.D.C. 95, dismissed 1906, 203 U.S. 461, 27 S.Ct. 148, 51 L.Ed. 269; Caswell v. Morgenthau, 1938, 69 App.D.C. 15, 98 F.2d 296, certiorari denied 1938, 305 U.S. 596, 59 S.Ct. 81, 83 L.Ed. 378; Maghan v. Board of Com’rs of District of Columbia, 1944, 78 U.S.App.D.C. 370, 141 F.2d 274; Levine v. Farley, 1939, 70 App.D.C. 381, 107 F.2d 186, certiorari denied 1940, 308 U.S. 622, 60 S.Ct. 377, 84 L.Ed. 519; United States ex rel. Brown v. Lane, 1913, 40 App.D.C. 533, writ of error denied 1914, 232 U.S. 598, 34 S.Ct. 449, 58 L.Ed. 748.
. United States ex rel. Taylor v. Taft supra note 69.
. 1948, 84 U.S.App.D.C. 138, 171 F.2d 145, 146.
. Eberlein v. United States, 1918, 53 Ct.Cl. 466, affirmed 1921, 257 U.S. 82, 42 S.Ct. 12, 66 L.Ed. 140.
. Kent v. United States, 1946, 105 Ct.Cl. 280.
. Golding v. United States, 1934, 78 Ct.Cl. 682, certiorari denied 1934, 292 U.S. 643, 54 S.Ct. 776, 78 L.Ed. 1494.
. Barsky v. United States, 1948, 83 U.S. App.D.C. 127, 167 F.2d 241, certiorari denied 1948, 334 U.S. 843, 68 S.Ct. 1511, 92 L.Ed. 1767 (pet. for rehearing pending).
. Bridges v. Wixon, 1945, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103; Schneiderman v. United States, 1943, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796; De Jonge v. Oregon, 1937, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278; Gitlow v. New York, 1925, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138; Stromberg v. California, 1931, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117, 73 A.L.R. 1484; Kessler v. Strecker, 1939, 307 U.S. 22, 59 S.Ct. 694, 83 L.Ed. 1082.
. E. g., John Lord O’Brien, Loyalty Tests, 61 Harv.L.Rev. 592 (1948); Clifford J. Durr, The Loyalty Order’s Challenge to the Constitution, 16 U. of Chi.L.Rev. 298 (3849).
. H. Eliot Kaplan, Loyalty Review of Federal Employees, 23 N.Y.U.L.Q.Rev. 437, 446 (1948).
Dissenting Opinion
(dissenting).
Without trial by jury, without evidence, and without even being allowed to confront her accusers or to know their identity, a citizen of the United States has been found disloyal to the government of the United States.
For her supposed disloyal thoughts she has been punished by dismissal from a wholly nonsensitive position in which her efficiency rating was high. The case received nation-wide publicity. Ostracism inevitably followed. A finding of disloyalty is closely akin to a finding of treason. The public hardly distinguishes between the two.
No charges were served on appellant. The chairman of the Regional Board said “Nobody has presented any charges.” The Board told appellant it was inquiring whether there were reasonable grounds for believing she was disloyal to the government of the United States. The Federal Bureau of Investigation had reported that informants believed to be reliable had made general statements purporting to connect her with the Communist Party. These reports were not disclosed to the appellant and have not been disclosed in court. The informants were not identified to the appellant or even to the Board. Their statements were admittedly not made under oath. The appellant denied under oath any membership in and any relationship or sympathy with the Communist Party, any activities connected with it or with communism, and any affiliation with any organization that advocated overthrow of the government of the United States. She asserted her loyalty to the government of the United States. She admitted attending one Communist meeting in 1932 in connection with a seminar study of the platforms of the various parties while she was a student at Bryn Mawr.
Appellant had no power to subpoena witnesses. Though it takes courage to appear as a voluntary defense witness in a loyaltj case, four appeared. One was the pastor of the Methodist church of which appellant is an active member. He testified: “When this charge or information came to me I was not only surprised, I was dumfounded. * * * People in our community and in our church think of her and her family in the highest terms.” Three officials of appellant’s government agency, the United States Employment Service, who had known appellant professionally and socially for years, testified respectively that they were “extremely shocked” by the suggestion of her being disloyal, that it was “inconceivable” and “out of reason”. Persons prominent in business, government and education who knew appellant but could not be present submitted affidavits.
No witness offered evidence, even hearsay evidence, against appellant. No affidavits were introduced against her. The record consists entirely of evidence in her favor. Yet the Board purported to find “on all the evidence” that there were reasonable grounds for believing she was disloyal to the government of the United States. Appellees admit the Board made this finding “after considering all the evidence, including the confidential reports
Appellant appeared and testified before a panel of the Loyalty Review Board. She submitted her own affidavit and the affidavits of some 70 persons who knew her, including bankers, corporate officials, federal and state officials, union members, and others. Again no one testified against her. She proved she had publicly and to the knowledge of a number of the affiants taken positions inconsistent with Communist sympathies. She showed not only by her own testimony but by that of other persons that she favored the Marshall Plan, which the Communist Party notoriously opposed, and that in 1940, during the Nazi-Soviet Pact, she favored Lend-Lease and was very critical of the Soviet position. In her union she urged its officers to execute non-communist affidavits, opposed a foreign policy resolution widely publicized as pro-Russian, and favored what was then the official CIO resolution on foreign policy.
Against all this, there were only the unsworn reports in the secret files to the effect that unsworn statements of a general sort, purporting to connect appellant with Communism, had been made by unnamed persons. Some if not all of these statements did not purport to be based on knowledge, but only on belief. Appellant sought to learn the names of the informants or, if their names were confidential, then at least whether they had been active in appellant’s union, in which there were factional quarrels. The Board did not furnish or even have this information. Chairman Richardson said: “I haven’t the slightest knowledge as to who they were or how active they have been in anything.” All that the Board knew or we know about the informants 'is that unidentified members of the Federal Bureau of Investigation, who did not appear before the Board, believed them to be reliable. To quote again from the record: “Chairman Richardson: lean only say to you that five or six of the reports come from informants certified to us by the Federal Bureau of Investigation as experienced and entirely reliable.” “Mr. Seasongood: Here is a statement that it was ascertained you were a member of the Communist Party in the District of Columbia as early as 1935, and that in the early days of her Party membership she attended Communist Party meetings. * * * Here is another that says you were a member of the Communist Party, and he bases his statement on his knowledge of your association with known Communists for the past seven or eight years. That is part of the evidence that was submitted to us.” “Mr. Porter: Is it under oath ? Chairman Richardson: I don’t think so. Mr. Seasongood : It is a person of known responsibility who had proffered information concerning Communist activity in the District of Columbia. * * * Here is another one: ‘considers appointee a member of the Communist Party, and if not an actual member, one who is entirely controlled by the wishes of the Communist Leaders in the District of Columbia.’ ”
On such material, the Review Board sustained the action of the Regional Board and directed the Federal Security Agency to dismiss the appellant. Llowever respectable her anonymous accusers may have been, if her dismissal is sustained the livelihood and reputation of any civil servant today and perhaps of any American tomorrow are at the mercy not only of an innocently mistaken informer but also of a malicious or demented one unless his defect is apparent to the agent who interviews him.
Appellant’s dismissal violates both the Constitution and the Executive Order.
The court derives its paradoxical conclusion from premises that do not support it. The court .points out that the Order and a supplementary order require the names of confidential informants, and reports of the proceedings, to be kept confidential. But no order requires the Board to consider only confidential information. To say that confidential informants shall not be disclosed is not to say that willing government witnesses shall not be heard or that findings may be made without evidence. Neither is the prohibition against publication of reports a prohibition against hearing witnesses. On the contrary, Executive Order 9835 expressly authorizes testimony by witnesses for the accused employee.
The requirement of the Order that findings be based on evidence is not merely uncontradicted by the context. It is confirmed by the context. The preamble of the Order says that both the United States and the accused employee must be afforded “maximum protection.”
Moreover the Order provides that “an officer or employee who is charged with being disloyal shall have a right to an administrative hearing * *
No doubt cases arise in which investigation of an employee produces only anonymous accusations. The Executive Order elects to preserve their anonymity. No one questions the validity of that election. But its effect is that the employee must be cleared or the proceedings dropped.
II. Dismissal for disloyalty is pumishment and requires all the safeguards of a judicial trial. Most dismissals, including among others dismissals for colorless or undisclosed reasons and dismissals for incompetence, are plainly not punitive. They do not require a judicial trial or even a full administrative hearing. They are within the authority of the executive. Likewise most tax laws are within the authority of the legislature. It does not follows that all legislative taxation is constitutional or that all executive dismissals are constitutional.
Punishment is infliction of harm, usually for wrong conduct but in appellant’s case for wrong views. Dismissals to provide jobs for persons of certain affiliations, whatever else may be said of such dismissals, are not punitive. But dismissals for disloyal views are punitive. This is what the Supreme Court squarely held in the Lovett case.
' The question whether the rule of the Lovett case extends to dismissals of “disloyal” persons from sensitive positions in which their presence might threaten substantial harm to the government does not arise in the present case and I express no opinion on it. Appellant was dismissed from a nonsensitive position. She was a staff training officer in the United States Employment Service. In the case of such an officer, no way is apparent and none has been suggested in which “suspicion of disloyalty indicates a risk” to the security of the' United States. Appellant’s dismissal for wrong thoughts has nothing to do with protecting the security of the United States.
Congress attempted to dismiss Lovett and two others from their government positions as of November 15, 1943, because of their supposed disloyal views. Their agencies kept them at work on their jobs for varying periods after November 15 but discontinued their salaries after that date. They sued for' and recovered salaries for their post-November 15 work. The Supreme Court held that their dismissals for supposed disloyalty, “which stigmatized their reputation and seriously impaired their chance to earn a living,”
This court is deciding this case as if the Supreme Court had sustained the attempt of Congress to dismiss Lovett and the others, denied their claims to salaries^ and awarded them nothing but an assurance that they would be eligible for possible future appointments if they were ever offered any that they cared to accept. This court interprets the words of the Supreme Court regarding “permanent proscription” as contradicting and overruling the decision of the Supreme Court regarding dismissals. If the Court’s words had been inconsistent with its decision our duty would of course have been to follow the decision, not the words. But they were not inconsistent. The dismissals that the Court held invalid were the immediate phase of the permanent proscription that the Court said was invalid.
The distinction this court draws between dismissal as punishment and ineligibility as punishment not only contradicts the Lovett case but has no basis in reason. Dismissal is more certainly damaging than ineligibility, for the necessary combination of vacancies, qualifications, and desire for public appointment may never occur again. A person dismissed as disloyal can obtain no normal employment, public or private. The President’s Committee on Civil Rights said in 1947: “It is a severe punishment to be discharged from the government for disloyalty, as the Supreme Court pointed out in 1946 in United States v. Lovett. * * * Loss of job and inability to obtain another one is a severe punishment to impose on any man.”
Since dismissal from government service for disloyalty is punishment, due process of law requires that the accused employee be given all the safeguards of a judicial trial before it is imposed. The Supreme Court in the Lovett case did not stop with
Not only the basic right to judicial trial but every one of these basic safeguards, unless it foe the last, was violated here.
Because certain officials should foe free from apprehension that personal harm to them may result from their official acts they cannot, as the court points out, be required to pay damages for their official errors. But that is irrelevant here. The present appellant asks compliance with the 'Constitution, not damages 16r its violation. “Under our constitutional system, certain rights are protected against governmental action and, if such rights are infringed by the actions of officers of the Government, * * the courts have the power to grant relief against those actions.”
III. Appellant’s dismissal abridges freedom of speech and assembly,
The dismissal which the Court upheld in the Mitchell case was not based on views' but on conduct. The Hatch Act sought to restrain civil servants, regardless of their views, 'from devoting more than a limited amount of energy to politics. The Court held that “For regulation of employees it is not necessary that the act regulated be anything more than an act reasonably deemed by Congress to interfere with the efficiency of the public service.”
“In loyalty hearings the following questions have been asked of employees against whom charges have been brought. * * * ‘Do you read a good many books ?’ What books do you read?’ What magazines do you read?’ What newspapers do you buy or subscribe-to?’ ‘Do you think that Russian Communism is likely to succeed?’ ‘How do you explain the fact that you have an album of Paul Robeson records in your home?’ ‘Do you ever entertain Negroes in your home ?’ * * * ‘Is it not true * * * that you lived next door to and therefore were closely associated with a member of the I.W.W.?”’
N-o doubt some boards are quite aware that unconventional views and conduct have no tendency to indicate disloyalty. But the fact remains that some boards imagine the contrary. This fact is only too well known. It puts government employees under economic and social pressure to protect their jobs and reputations by expressing in words and conduct only the most orthodox opinions on political, economic, and social questions.
A regulation that restrains constitutionally protected speech along with other speech cannot be enforced against either. Legislation is unconstitutional as a whole if it “does not aim specifically at evils within the allowable area of state control, but * * * sweeps within its ambit other activities that in ordinary circumstances constitute an exercise of freedom of speech or of the press. The existence of such a statute * * * results in a continuous and pervasive restraint on all freedom of discussion that might reasonably he regarded as within its purview. * * * An accused * * * under such a statute, does not have to sustain the burden of demonstrating that the State could not constitutionally have written a different and specific statute covering his activities as disclosed by the charge and the evidence introduced against him. * * * Where regulations of the liberty of free discussion are concerned, there are special reasons for observing the rule that it is the statute, and not the accusation or the evidence under it, which prescribes the limits of permissible conduct and warns against transgression.”
The Supreme Court has foreseen practically the case now before us. In holding a New York statute unconstitutional the Court said: “The present case as to a vague statute abridging free speech involves the circulation of only vulgar magazines. The next may call for decision as to free expression of political views in the light of a statute intended to punish subversive activities.”
Freedoms that may not be abridged by law may not be abridged by executive order. Executive power to control public employment stands on no higher constitutional ground than legislative power to tax. The taxing power does not extend to sales of propaganda not made for profit; license taxes, though imposed for the legitimate purpose of raising revenue, are unconstitutional in their application to such sales.
Appellant’s dismissal abridges not only freedom of speech but freedom of thought. Whatever disloyalty means in the present connection, it is not speech but a state of mind. The appellant was dismissed for thinking prohibited thoughts. A constitution that forbids speech control does not permit thought control.
Appellant’s dismissal attributes guilt by association, and thereby denies both the freedom of assembly guaranteed by the First Amendment and the due process of law guaranteed by the Fifth. The appellant was dismissed as disloyal because she was believed to be a member or associate of the Communist Party. Undoubtedly many such persons are disloyal in every sense to the government of the United States. But the Supreme Court has held that a particular member of the Communist Party may be “attached to the principles of the Constitution” within the meaning of those words in a naturalization act: “As Justice Holmes said, ‘Surely it cannot show lack of attachment to the principles of the Constitution that * * * [one] thinks it can be improved.’ * * * ‘If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.’.” “Under our traditions beliefs are personal and not a matter of mere association, and * * * men in adhering to a political party or other organization notoriously do not subscribe unqualifiedly to all of its platforms or asserted principles.”
The court thinks Miss Bailey’s interest and the public interest conflict. I think they coincide. Since Miss Bailey’s dismissal from a nonsensitive job has nothing to do with protecting the security of the United States, the government’s right to preserve itself in the world as it is has nothing to do with this case. The ominous theory that the right of fair trial ends where defense of security begins is irrelevant.
On this record we have no sufficient reason to doubt Miss Bailey’s patriotism, or that her ability and experience were valuable to the government. We have no reason to suppose that an unpatriotic person in her job could do substantial harm of any kind. Whatever her actual thoughts may have been, to oust her as disloyal without trial is to pay too much for protection against any harm that could possibly be done in such a job. The cost is too great in morale and efficiency of government workers, in appeal of government employment to independent and inquiring minds, and in public confidence in democracy. But even if such dismissals strengthened the government instead of weakening it, they would still cost too much in constitutional rights. We cannot preserve our liberties by sacrificing them.
. The form of the finding against the appellant is that “reasonable grounds exist for belief” that she is disloyal to the government of the United States. The only important difference between this finding and a direct adjudication of disloyalty is that the former finding is easier to make. Once made, there is no practical difference. Executive Order 9835 recognizes this. In Part I, 2a it describes the form of finding prescribed in the Order and made here as an “ad- ‘ judication of disloyalty”; in Part Y, 2 as a “determination of disloyalty”.
. The Boards that dismissed the appellant are agencies of the Civil Service Commission. Before tlieir proceedings took place, the appellant had been reinstated in her permanent position in the classified civil service from which she had previously been separated by a reduction in force. Therefore both the Lloyd-BaFollette Act, 37 Stat. 555, § 6, 5 U.S.C.A. § 652, and the Executive Order, Part I, 1 and Part II, preclude the Civil Service Commission, or any
. 12 Fed.Reg. 1935.
. Part V, 1.
. Part II, 2a.
. “Whereas maximum protection must be afforded the United States against infiltration of disloyal persons into the the ranks of its employees, and equal protection from unfounded accusations of disloyalty must be afforded the loyal employees' of the Government
. Wigmore, Evidence, §§ 1362, 1367, (3d ed. 1940).
. Part II, 2a.
. Wong Yang Sung v. McGrath, 339 U.S. 33, 48, 70 S.Ct. 445, 453.
. Kessler v. Strecker, 307 U.S. 22, 34, 59 S.Ct. 694, 700, 83 L.Ed. 1082.
. United States ex rel. Vajtauer v. Com’r of Immigration, 273 U.S. 103, 106, 47 S.Ct. 302, 304, 71 L.Ed. 560.
. Bridges v. Wixon, 326 U.S. 135, 154, 65 S.Ct. 1443, 1452, 89 L.Ed. 2103.
. Interstate Commerce Commission v. Louisville & Nashville Railroad, Co., 227 U.S. 88, 93, 33 S.Ct. 185, 187, 57 L.Ed. 431. The Massachusetts Supreme Court has quoted this statement in reviewing the dismissal of a school principal by a board of education. Moran v. School Committee of Littleton, 317 Mass. 591, 594-595, 59 N.E.2d 279, 281.
. Cf. United States v. Grayson, 2 Cir., 166 F.2d 863, 870.
. United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252.
. 328 U.S. at page 314, 66 S.Ct. at page 1078.
. 328 U.S. at page 316, 66 S.Ct. at page 1079.
. To Secure These Rights, p. 51
. 328 U.S. at pages 317-318, 66 S.Ct at page 1079.
. The Supreme Court named additional safeguards, including the right to counsel, which I have omitted from the quotation because they were not violated here.
. 53 Stat. 1148, 5 U.S.C.A. 118j.
. Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 704, 69 S.Ct. 1457, 1468.
. Read literally, the First Amendment forbids only Congress to abridge these freedoms, but as the due process clause of the Fourteenth Amendment extends the prohibition to all state action the due process clause of the Fifth must extend it to all federal action. Cf. United Public Workers v. Mitchell, 330 U.S. 75, 94-95, 67 S.Ct. 556, 91 L.Ed. 764.
. McAuliffe v. City of New Bedford, 155 Mass. 216, 220, 29 N.E. 517.
. Alston v. School Board of City of Norfolk, 4 Cir., 112 F.2d 932, 997. The court also cited Union Pac. R. Co. v. Public Service Comm., 248 U.S. 67, 69, 70, 39 S.Ct. 24, 63 L.Ed. 131, and Hanover Fire Ins. Co. v. Harding, 272 U.S. 494, 507, 47 S.Ct. 179, 71 L.Ed. 372, 49 A.L.R. 713. Cf. Western Union Tel. Co. v. Kansas, 216 U.S. 1, 30 S.Ct. 190, 54 L.Ed. 355; Terral v. Burke Construction Co., 257 U.S. 529, 42 S.Ct. 188, 66 L.Ed. 352, 21 A.L.R. 188.
. Hannegan v. Esquire, Inc., 327 U.S. 146, 155, 156, 66 S.Ct. 456, 461, 90 L.Ed. 588. .
. United Public Workers v. Mitcbell, 330 U.S. 75, 100, 67 S.Ct. 556, 569.
. Id. at 101, 67 S.Ct. at page 570.
. Herndon v. Lowry, 301 U.S. 242, 264, 57 S.Ct. 732, 742, 81 L.Ed. 1066.
. Freedom vs. Security, by Robert E. Cushman, Goldwin Smith Professor of Government in Cornell University; in Physics Today, March 1949, pp. 14, 18.
. Editorial in The Washington Post, Feb. 6, 1949.
. Miss Bailey replied “I have no personal opinion.”
. Thornhill v. Alabama, 310 U.S. 88, 97-98, 68 S.Ct. 736, 742, 84 L.Ed. 1093.
. Winters v. New York, 333 U.S. 507, 518, 68 S.Ct. 665, 671, 92 L.Ed. 840.
. Jones v. City of Opelika, 319 U.S. 103, 63 S.Ct. 890, 87 L.Ed. 1290; Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292, 146 A.L.R. 81; Busey v. District of Columbia, 319 U.S. 579, 63 S.Ct. 1277, 87 L.Ed. 1598; Busey v. District of Columbia, 78 U.S.App.D.C. 189, 138 F.2d 592.
. Jones v. City of Opelika, 316 U.S. 584, 604, 62 S.Ct. 1231, 86 L.Ed. 1691, 141 A.L.R. 514. The dissent of Chief Justice Slone and the other dissents filed at the same time were afterwards adopted as opinions of the Court. Jones v. City of Opelika, 319 U.S. 103, 104, 63 S.Ct. 890, 87 L.Ed. 1290.
. Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 114, 63 S.Ct. 870, 875, 87 L.Ed. 1292, 146 A.L.R. 81.
. Schneiderman v. United States, 320 U.S. 118, 138, 136, 63 S.Ct. 1333, 1342, 1343, 87 L.Ed. 1796.
. Prettyman, Circuit Judge, dissenting, in National Maritime Union of America v. Herzog, D.C., 78 F.Supp. 146, 177, 178. The Supreme Court affirmed the decision of the court on other grounds, saying: “We do not find it necessary to reach or consider the validity of § 9 (h)” of the National Labor Relations Act as amended, 29 U.S.C.A. § 159(h), which requires non-Communist affidavits. National Maritime Union of America v. Herzog, 334 U.S. 854-855, 68 S.Ct. 1529, 92 L.Ed. 1776.
