214 F.2d 273 | D.C. Cir. | 1954
Lead Opinion
Appellant Jason was discharged from the Post Office Department on loyalty grounds. He commenced this action seeking a declaratory judgment and in-junctive relief, and from the . District Court’s order granting appellees’ motion io dismiss, he brought this appeal. We are presented with the question whether the government after a Loyalty Review Board decision that reasonable grounds did not exist to believe the appellant disloyal under the standard set forth in Executive Order No. 9835, 12 F.R. 1935, 3 C.F.R., (Supp.1947), 5 U.S.C.A. § 631 note, could later, on the same charges, reexamine and determine his loyalty status according to a different standard contained in Executive Order No. 10241, 16 F.R. 3690, 3 C.F.R. 431 (Supp.1951), U. S. Code Congressional and Administrative News 1951, p. 1028.
I
" * * * reasonable grounds exist for belief that the person involved is disloyal. * * *”
Appellant had been a classified civil service regular clerk in the Philadel-Pennsylvania, Post Office from 1923 until 1945 when he became a na-ft0nal officer of a labor organization rec-0gnjze(j jjy the Post Office Department. gjnce 1949 he devoted full time to his organizati0n duties, on leave without pay pursuant to Department permission,
In 1948 appellant was served with a ]\y0hiCe of Proposed Removal Action pur-guant t0 the provisions of Executive Or-9835, setting forth certain charges of disloyalty to the government.
Appellant filed an answer, a hearing was held on February 28, 1949, and the Department Loyalty Board found, on September 6, 1949, that reasonable grounds did exist for belief that appellant was disloyal. An appeal was then taken to the Postmaster General who found after further hearing, that reasonable grounds existed for believing that appellant was disloyal. On appeal to the Loyalty Review Board in the Civil Service Commission it was concluded on November 2, 1950 that reasonable grounds did not exist for believing that appellant was disloyal. In reversing the rulings of the Department Loyalty Board and of the Postmaster General, the Loyalty Review Board construed and applied as the test or standard for removal the provision from Executive Order No. 9835 that “reasonable grounds exist for belief that the person involved is disloyal to the Government of the United States.” The Board recommended that appellant be restored to his position and the Postmaster General then concurred.
"There is a reasonable doubt as to the loyalty of the person involved. * * *«
On April 28, 1951 Executive Order No. 9835 in one important particular, was amended by Executive Order No. 10241, but in all other respects was continued in full force and effect. The “reasonable grounds” standard was eliminated, and in lieu thereof the Order prescribed that the standard to be applied should read: “There is a reasonable doubt as to the loyalty of the person involved to the Government of the United States.”
Thereafter, pursuant to the quoted instructions the Department Loyalty Board served on the appellant, on January 10, 1952, a new Notice of Proposed Removal Action.
GI
Appellant’s principal contention is that the decision of the Loyalty Review Board in the 1949 hearing preeluded re-examination in the 1952 hearing on the same charges under the standard set up in Executive Order No. 10241. We find this contention untenable. In Churchill Tabernacle v. Federal Communications Commission, 1947, 81 U.S.
Even were we inclined to disregard the cogent ^ observations of that distinguished jurist, and we are not, the language of the standard set out in Executive Order No. 10241 cannot be ignored. A markedly different legal sitúation was presented.
When the Loyalty Review Board considered appellant’s case under the standard found in Executive Order No. 9835, the ultimate fact which was the subject of inquiry was disloyalty, disloyalty to the government of the United States. The standard did not deal in terms with grounds which might have existed in the past for a finding that some person had at some earlier time been disloyal. Rather, the Board was bound in the exercise of prudence and caution to determine whether or not the facts and circumstances established a “belief” — that is, a present or immediate assurance of “disloyalty.” The tense of the verbs used, “exist” and “is,” was the present tense. The “reasonable grounds” had to be actually or really in being, presently, at the time of review, The “belief” was not some past belief but a then existent belief. The evidence, the mass of details, the facts and the inferences appropriately to be drawn therefrom had to be tested by the standard to be derived from the words employed to state it. Cumulatively all factors had to culminate in a justifiable con-elusion of present disloyalty. It is not a simple matter now, nor was it in 1949 for any Board to say that a person involved is disloyal.
Quite different was the test which the Board was to apply under the prescription of Executive Order No. 10241:
«The standard for the refusal of employment or the removal from employment in an executive department or agency on grounds relating t() loyalty sha¡, be tha<. on aI1 the evidence; there is a reasonable doubt as to the loyalty of the person in_ volved to the Government of the United States.”
The Board’s duty at the second review Was thus to inquire whether or not on all evidence there existed a reasonable basis for a present doubt. But that doubt, if any, was to operate in relation an ultimate fact of loyalty, not disloyalty. The word “doubt” implies an unsettled state of opinion concerning the reality of an event, or the truth of an assertion, or as in this case, a doubt as to the loyalty of the person involved, Stated otherwise, the Board was no longer to be bound to inquire as to whether the proof reasonably was sufficient to convince and direct its understanding and to satisfy its reason and judgment as to disloyalty. Rather, the amended standard applied a more rigid test of suitability for government employment, It contemplated the possible existence of proof or information which, while not capable of inducing a belief that the person “is disloyal,” does cause a reasonable doubt as to whether he is in fact loyal.
Appellant would have us say that the two standards mean the same thing, that the amended standard changed nothing, and he so argued, even as he hastened to assure us that he could not expect that the President would do a vain thing, Throughout World War II, the standard prescribed under Executive Order No. 10241 had prevailed. In 1947 the wartime standard was replaced by that provided in Executive Order No. 9835.
Moreover, there is no vested right in federal employment, and except as restricted by law, the Executive must enjoy wide discretion in determining hiring and firing policies. See Bailey v. Richardson, 1950, 86 U.S.App.D.C. 248, 253, 259, 182 F.2d 46, affirmed by an equally divided court, 1951, 341 U.S. 918, 71 S.Ct 669, 95 L.Ed. 1352, and cases there cited. We can rightfully no more prevent the Executive from reconsidering the standards to be applied in determining the loyalty of federal employees than prescribe the tests in the first place.
One point remains to be noticed. After Executive Order No. 10241 was issued April 30,1951, the Loyalty Review Board promulgated on May 10, 1951 Memorandum No. 65 addressed to all executive departments and agencies on the subject of “reopening loyalty cases under Executive Order No. 10241 when an individual receives a new appointment in the federal service.” The Board took note of the amended standard of Executive Order No. 10241 and advised of its program to review the case of an individual receiving a new appointment notwithstanding that previously as to such persons, “adjudications should not be subject to more than one adjudication on the same set of facts.” Appellant was not a person receiving “a new appointment,” so that he was not affected by Memorandum No. 65. One week was to pass before the Board met to consider its policy with reference to other categories of federal employees,
On May 17, 1951, the Loyalty Review Board met to consider cases such as that 0f the appellant as well as of federal employees falling into certain other categories. There were some 9300 individuals involved.
0n May 23> 19Blj the Loyalty Review Board issued Memorandum No. 66 to all executiVe departments and agencies on the subject «Adjudication under the standard Established by Executive Order No_ 10241 of Loyalty Cases Deter_ mined and cloged Prior to May R 19gl under Executive Order No. 9835.” The Memorandum recited: “The Loyalty Re-view Board took into consideration that under Article II, Section 2, of the Con-stitution of the United States, the Acts of Congress thereunder, and the decisions of the courts, heads of depart-ments and agencies have the right to hire and fire employees. Accordingly, the Board recognized that department and agency heads have an inherent right to review any loyalty cases at any time in order to determine the qualifications of any individual for continued employ-ment.” The Board further pointed out that by Presidential order the head of eac^ department and agency in the Executive Branch of the government was Personally responsible for an effective program to assure that disloyal civil-*an emPl°yees are not retained in em-Pl°yment- Again, pursuant ^ to Presidential order, the Board advised of its Purpose to coordinate employee loyalty P°llcies> to achieve uniformity of treat-men^
It was against that background, that as to “cases reversed on appeal” the “new standard” was prescribed. The Memorandum also dealt with “cases reviewed in post-audit” and “other cases.” Appellant’s case clearly fell within the first category. The Board surely possessed authority to issue its Memorandum No. 65 to deal with an individual receiving a new appointment. It was equally within the Board’s authority to issue its Memorandum No. 66 to deal
We have never heard it disputed that employees in fact disloyal to the government may and should be removed. We see no basis for holding that an executive department must retain in the service those whose loyalty is reasonably doubtful. Even under the standard set up by Executive Order No. 9835, the Department Loyalty Board and the Posimaster General had respectively found and affirmed that reasonable grounds existed for the belief that the appellant was disloyal. The President had promulgated that Executive Order as well as the standard here involved. He had the undoubted right by a later Executive Order to define and proclaim the new standard in Executive Order No. 10241.
Appellant has not demonstrated, m-deed he has not seriously urged, that the removal proceedings against him failed to conform with the procedural require- ... ments ot the civil service laws and regulations and the pertinent executive orders. Cf. Williams v. Cravens, 1954, 93 U.S.App.D.C. 380, 210 F.2d 874 and cases there cited.
The District Court ordered that appellant’s complaint be dismissed for failure to state a claim upon which relief may be granted. With this action we are in accord for the reasons already , given. The District Court also decided that it was without jurisdiction of the subject matter and dismissed the complaint on that basis as well. This we think was error. Our own numerous decisions following challenges to the loyalty and other employee removal procedures permit no doubt as to the jurisdiction of the district courts to hear cases such as this. See e. g. United Public Workers v. Mitchell, 1947, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754; Kutcher v. Gray, 1952, 91 U.S.App.D.C. 266, 199 F. 2d 783; and Deak v. Pace, 1950, 88 U.S. App.D.C. 50, 185 F.2d 997. However, since the complaint was properly dismissed for failure to state a claim for relief, the judgment of the District Court will be
Affirmed,
. The notice read in part: “As a result of a recent investigation made of you as an employee of the Post Office Department, under the provisions of the above-mentioned Executive Order, information has been received which indicates that you have been and that you are affiliated or sympathetic with an organization, association, movement, group, or combination of persons designated by the Attorney General as subversive, and on the basis of this evidence reasonable grounds exist for belief that you are disloyal to the government of the United States, * * * ” Then followed ten specific charges in all, drafted according to the requirements of Title 5 U.S.C.A. § 652.
. Actually this was not a now standard. The President simply readopted the standard of loyalty which had been applied throughout World War II and up to March 21, 1947 when Executive Order No. 9835 was issued. War Service Regulation II, Section 18.2(c), 7 E.R. 7723 (1942), in pertinent part had provided: “An applicant may be denied examination and an eligible may be denied appointment for any one of the following * * * reasons.
* * * * . ,, , , , , , **(7) A reasonable doubt as to his loyx ^ ~ . - ,, TT , alty to the Government of the United States* * * * ’
+ #
“Any of the reasons stated m the foregoing subdivisions from (b) through (h) inclusive, shall be sufficient cause for removal from the service.”
. This new notice apprised the appellant that the “new” standard as contained in Executive Order No. 10241 had been issued, that the Department Loyalty Board had been directed to reopen certain cases including that of the appellant, and then continued in pertinent part:
“While your case was disposed of under the standard set forth in Execulive Order No. 9835 and an investigation was heretofore made of you as an employee of the Post Office Department, an adjudication of your case is now required Pasmas of Executive Order No. 10241 and Loyalty Review Board Memorandum No. 66. The information .*1 received as a result of the investigation previously made of you indicates that you t , .t , ^ / have been or that you are affiliated or . .. sympathetic with an organization, assoeiation, movement, group, or combination of persons designated by the Attorney General as subversive, and on the basis of tMs evidence there is a reasonable doubt as to your loyalty to the government of thc United States. * * * ”
Then followed the same ten specific charges which had been set forth in the earlier Notice of Proposed Removal Action. See note 1, supra.
. Cf. State Farm Mutual Auto Insurance Co. v. Duel, 1945, 324 U.S. 154, 162, 65 S.Ct 573, 89 L.Ed. 812.
. “[The United States] has the right to prescribe the qualifications of its employees and to attach conditions to their employment.” Friedman v. Schwellen-bach, 1946, 81 U.S.App.D.C. 365, 367, 159 F.2d 22, 24, certiorari denied, 1947, 330 U.S. 838, 67 S.Ct. 979, 91 L.Ed. 1285 (which considered the very standard here involved). Moreover, Executive Order No. 9835 expressly stated, Part II, par. 1, “The head of each department and agency in the executive branch of the Government shall be personally responsible for an effective program to assure that disloyal civilian officers or employees are not retained in employment in his department or agen°y-
. This he did in these words:
“EXECUTIVE ORDER 10241 “AMENDING EXECUTIVE ORDER NO 9835 ENTITLED ‘PRESCRIBING PROCEDURES FOR THE ADMINISTRATION OF AN EMPLOYEES LOYALTY PROGRAM IN THE EXECUTIVE BRANCH OF THE GOVERNMENT’
“By virtue of the ■ authority vested in me by the Constitution and statutes of the United States, including the Civil Service Act of 1883 (22 Stat. 403) as amended, and section 9A of the act approved August 2, 1939 (5 U.S.C. U8j), and as President of the United States, it is ordered that paragraph 1 of Part V of Executive Order No. 9835 of March 21, 1947, entitled ‘Prescribing Procedures for the Administration of an Employees Loyalty Program in the Executive Branch of the Government’, be, and it is hereby, amended to read as follows:
“ <1. The standard for the refusal of employment or the removal from employment in an executive department 01. agency on grounds relating to loyalty silau be that, on all the evidence, there is a reasonable doubt as to the loyalty of the person involved to the Government of the United States.’
''Harry S. Truman
“THE WHITE HOUSE,
April 28, 1951.”
Cf. Executive Order No. 10450, 18 F.R. 2489, April 27, 1953, 5 U.S.C.A. § 631 note.
Dissenting Opinion
, j ^
^ , , , Smce “° ExecputlIe Order, but only a ™em°ran 0 e oya y evie^ Board, undertook to authorize repeated . .... .. , , ,, , investigations oí identical loyalty charg- . , , , . es against a government employee, under ,, . old standards or new ones, the question ... _ .. n ’ ,, , whether an Executive Order could do so 18 not before us- Wholly apart from any ^ble question of res judicata, nothm+g ^s than express language m a stat-ate or Executive Order should be regarded as authOT1^ such repeated mvestigatl°ns’ smce they, ^ely injure the ?mp. °yees conceme > ® oc _ e sense of 3UstlCe and thelsenf °± security of other Persons ^ an ou 0 government, and damage the government by lowering morale and by reducing the appeal of pU]blie service