Lead Opinion
announced the judgment of the Court and delivered the following opinion, in which Mr. Justice Douglas joins:
In each of these cases the same issue is raised by the dismissal of a complaint for its failure to state a claim upon which relief can be granted. That issue is whether, in the face of the facts alleged in the complaint and therefore admitted by the motion to dismiss, the At
“part III — RESPONSIBILITIES OF CIVIL SERVICE COMMISSION
“3. The Loyalty Review Board shall currently be furnished by the Department of Justice the name of each foreign or domestic organization, association, movement, group or combination of persons which the Attorney General, after appropriate investigation and determination, designates as totalitarian, fascist, communist or subversive, or as having adopted a policy of advocating or approving the commission of acts of force or violence to deny others their rights under the Constitution of the United States, or as seeking to alter the form of government of the United States by unconstitutional means.
“a. The Loyalty Review Board shall disseminate such information to all departments and agencies.” 3 CFR, 1947 Supp., pp. 129, 131, 12 Fed. Reg. 1935, 1938.
The respective complaints describe the complaining organizations as engaged in charitable or civic activities or in the business of fraternal insurance. Each implies an attitude of cooperation and helpfulness, rather than one of hostility or disloyalty, on the part of the organization toward the United States. Two of the complaints deny expressly that the organization is within any classification specified in Part III, § 3, of the order.
Whatever may be his authority to designate these organizations as Communist upon undisclosed facts in his possession, he has not chosen to limit himself to that authorization. By his present procedure he has claimed authority so to designate them upon the very facts alleged by them in their own complaints. Self-serving or not, those allegations do not state facts from which alone a reasonable determination can be derived that the organizations are Communist. To defend such a designation of them, on the basis of the complaints alone, is an assertion of Presidential authority so to designate an organization at the option of the Attorney General without reliance upon either disclosed or undisclosed facts supplying a reasonable basis for the determination. It is that, and only that outer limit of the authority of the Attorney General that is now before us.
At least since 1939, increasing concern has been expressed, in and out of Congress, as to the possible presence in the employ of the Government of persons disloyal to it. This is reflected in the legislation, reports and executive orders culminating in Executive Order No.
The Attorney General included each of the complaining organizations in the list he furnished to the Loyalty Review Board November 24, 1947. That list was disseminated by the Board to all departments and agencies of the United States December 4, 1947. 13 Fed. Reg. 1473.
No. 8. — The Refugee Committee Case
The complainant is the Joint Anti-Fascist Refugee Committee, an unincorporated association in the City and State of New York. It is the petitioner here. The defendants in the original action were the Attorney General, Tom C. Clark, and the members of the Loyalty Review Board. J. Howard McGrath has been substituted as the Attorney General and he and the members of that Board are the respondents here.
The following statement, based on the allegations of the complaint, summarizes the situation before us: The complainant is “a charitable organization engaged in relief work” which carried on its relief activities from 1942 to 1946 under a license from the President’s War Relief Control Board. Thereafter, it voluntarily submitted its program, budgets and audits for inspection by the Advisory Committee on Vоluntary Foreign Aid of the United States Government. Since its inception, it has, through voluntary contributions, raised and disbursed funds for the benefit of anti-Fascist refugees who assisted the Government of Spain against its overthrow by force and violence. The organization’s aims and purposes "are to raise, administer and distribute funds for the relief and rehabilitation of Spanish Republicans in exile and other
It has disbursed $1,011,448 in cash, and $217,903 in kind, for the relief of anti-Fascist refugees and their families. This relief has included money, food, shelter, educational facilities, medical treatment and supplies, and clothing to recipients in 11 countries, including the United States. The acts of the Attorney General and the Loyalty Review Board, purporting to be taken by them under authority of the Executive Order, have seriously and irreparably impaired, and will continue to so impair, the reputation of the organization and the moral support and good will of the American people necessary for the continuance of its charitable activities. Upon information and belief, these acts have caused many contributors, especially present and prospective civil servants, to reduce or discontinue their contributions to the organization; members and participants in its activities have been “vilified and subjected to public shame, disgrace, ridicule and obloquy . . .” thereby inflicting upon it economic injury and discouraging participation in its activities; it has been hampered in securing meeting places; and many people have refused to take part in its fund-raising activities.
This complaint does not contain an express denial that the complaining organization is within the classifications
No. 7. — The National Council Case
In this case the court below relied upon its decision in the Refugee Committee case and reached the same result, per curiam (unreported). Except as indicated below in our summary of the facts alleged, this case, for our purposes, is like the first. The complainants, who are the
“In all its activities the NATIONAL COUNCIL has sought to further the best interests of the American people by lawful, peaceful and constitutional means. It has never in any way engaged in any conduct or activity which provides any basis for it to be designated as ‘totalitarian, fascist, communist or subversive, or as having adopted a policy of advocating or approving the commission of acts of force or violence to deny others their rights under the Constitution of the United States, or as seeking to alter the form of government of the United States by unconstitutional means.’ ”
The complaining organization, which is the petitioner here, is a fraternal benefit society, organized in 1930 as a corporation under the Insurance Law of the State of New York, operating for the mutual benefit of its members and their beneficiaries and not for profit. It is licensed and operates in the District of Columbia and several states; its purposes are comparable to those of fraternal benefit societies in general; it operates under a lodge system and has a representative form of government; at the time of the promulgation of the Department of Justice list it had 185,000 members, including employees of the Federal Government and of various states and municipalities; it provided life insurance protection for its membership exceeding $120,000,000; its activities have been the subject of administrative and judicial proceedings in addition to those before the insurance departments of the states in which it functions, and, as a result of such proceedings, “the purposes and activities of the order have been held to be free from any illegal or improper taint .
The second amended complaint was dismissed by the District Court,
If, upon the allegations in any of these complaints, it had appeared that the acts of the respondents, from which relief was sought, were authorized by the President under his Executive Order No. 9835, the case would have bristled with constitutional issues. On that basis the complaint would have raised questions as to the justiciability and
The Executive Order contains no express or implied attempt to confer power on anyone to act arbitrarily or capriciously — even assuming a constitutional power to do so. The order includes in the purposes of the President’s program not only the protection of the United States against disloyal employees but the “equal protection” of loyal employees against unfounded accusations of disloyalty. 3 CFR, 1947 Supp., p. 129,12 Fed. Reg. 1935. The standards stated for refusal of and removal from employment require that “on all the evidence, reasonable grounds [shall] exist for belief that the person involved is disloyal . . . .” Id., at 132, 12 Fed. Reg. 1938. Obviously it would be contrary to the purpose of that order to place on a list to be disseminated under the Loyalty Program any designation of an organization that was patently arbitrary and contrary to the uncontroverted material facts. The order contains the express requirement that each designation of an organization by the Attorney General on such a list shall be made only after an “appropriate . . . determination” as prescribed in Part III, § 3. An “appropriate” governmental “determination” must be the result of a process of reasoning. It cannot be an arbitrary fiat contrary to the known facts. This is inherent in the meaning of “determination.” It is implicit in a government of laws and not of men. Where an act of an official plainly falls outside of the scope of his authority, he does not make that act legal by doing it and then invoking the doctrine of administrative construction to cover it.
Since we find that the conduct ascribed to the Attorney General by the complaints is patently arbitrary, the defer
In thus emphasizing an outer limit to what can be considered an authorized designation of an organization under the order, the instant cases serve a valuable purpose. They demonstrate that the order does not authorize, much less direct, the exercise of any such absolute power as would permit the inclusion in the Attorney General’s list of a designation that is patently arbitrary or contrary to fact.
These complaints do not raise the question of the personal liability of public officials for money damages caused by their ultra vires acts. See Spalding v. Vilas,
The respondents are not immune from such a proceeding. Only recently, this Court recognized that “the action of an officer of the sovereign (be it holding, taking or otherwise legally affecting the plaintiff’s property) can be regarded as so ‘illegal’ as to permit a suit for specific relief against the officer as an individual ... if it is not within the officer’s statutory powers or, if within those powers ... if the powers, or their exercise in the particular case, are constitutionally void.” Larson v. Domestic and Foreign Commerce Corp.,
Finally, the standing of the petitioners to bring these suits is clear.
It is unrealistic to contend that because the respondents gave no orders directly to the petitioners to change their course of conduct, relief cannot be granted against what the respondents actually did. We long have granted relief to parties whose legal rights have been violated by unlawful public action, although such action made no direct demands upon them. Columbia Broadcasting System v. United States,
Nothing we have said purports to adjudicate the truth of petitioners’ allegations that they are not in fact communistic. We have assumed that the designations made by the Attorney General are arbitrary because we are compelled to make that assumption by his motions to dismiss the complaints. Whether the complaining organizations are in fact communistic or whether the Attorney General possesses information from which he could rea
For these reasons, we find it necessary to reverse the judgments of the Court of Appeals in the respective cases and to remand each case to the District Court with instructions to deny the respondents’ motion that the complaint be dismissed for failure to state a claim upon which relief can be granted.
Reversed and remanded.
Notes
E. g., § 9A of the Hatch Political Activity Act, August 2, 1939, 53 Stat. 1148, 5 U. S. C. (1946 ed., Supp. III) § 118j; Smith Act, June 28, 1940, 54 Stat. 670, now 18 U. S. C. (1946 ed., Supp. III) §§ 2385, 2387; Voorhis Anti-Propaganda Act, October 17, 1940, 54 Stat. 1201, now 18 U. S. C. (1946 ed., Supp. Ill) § 2386; many appropriation act riders barring the use of funds to pay “any person who advocates, or who is a member of an organization that advocates, the overthrow of the Government of the United States by force or violence: . . .” such as that at 55 Stat. 42; Exec. Order No. 9300, “Establishing the Interdepartmental Committee to Consider Cases of Subversive Activity on the Part of Federal Employees,” February 5, 1943, 3 CFR, 1943 Cum. Supp., p. 1252, 8 Fed. Reg. 1701; and Exec. Order No. 9806, “Establishing the President’s Temporary Commission on Employee Loyalty,” November 25, 1946, 3 CFR, 1946 Supp., p. 183, 11 Fed. Reg. 13863. See also, United States v. Lovett,
“PART V — STANDARDS
“1. 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
“2. Activities and associations of an applicant or employee which may be considered in connection with the determination of disloyalty may include one or more of the following:
“f. Membership in, affiliation with or sympathetic association with any foreign or domestic organization, association, movement, group or combination of persons, designated by the Attorney General as totalitarian, fascist, communist, or subversive, or as having adopted a policy of advocating or approving the commission of acts of force or violence to deny other persons their rights under the Constitution of the United States, or as seeking to alter the form of government of the United States by unconstitutional means." 3 CFR, 1947 Supp., p. 132, 12 Fed. Reg. 1938.
As published in the Federal Register, March 20, 1948, the list includes two groups. The first group contains none of the present complainants. The Attorney General explains that that group “is reported as having been previously named as subversive by the Department of Justice and as having been previously disseminated among the Government agencies for use in connection with consideration of employee loyalty under Executive Order No. 9300, issued February 5, 1943 . . . .” 13 Fed. Reg. 1473. The second group includes each of the complaining organizations. The Attorney General lists this group, with the first, under the general heading “Appendix A — List of Organizations Designated by the Attorney General Pursuant to
13 Fed. Reg. 6137-6138. This classification was disseminated to all departments and agencies September 21, 1948, and the classified list was published October 21, 1948, as an amendment to 5 CFR, 1949, c. II, Pt. 210, pp. 200-202, 203-205.
The six classifications were: “Totalitarian,” “Fascist,” “Communist,” “Subversive,” “Organizations Which Have ‘Adopted a Policy of Advocating or Approving the Commission of Acts of Force and Violence to Deny Others Their Rights Under the Constitution of the United States,’ ” and “Organizations Which ‘Seek to Alter the Form of Government of the United States by Unconstitutional Means.’ ” 5 CFR, 1949, c. II, Pt. 210, pp. 203-205, 13 Fed. Reg. 6137-6138.
The Attorney General also explained that—
“Applying the elementary rule of statutory construction, each of these classifications must be taken to be independent and mutually exclusive of the others. It may well be that a designated organization, by reason of origin, leadership, control, purposes, policies or activities, alone or in combination, may fall within more than one of the specified classifications. In such cases a reasonable interpretation of the Executive order would seem to require that designation be predicated upon its dominant characteristics rather than extended to include all other classifications possible on the basis of what may be subordinate attributes of the group. In classifying the designated*130 organizations the Attorney General has been guided by this policy. Accordingly, it should not be assumed that an organization’s dominant characteristic is its only characteristic.” Id,., at 203, 13 Fed. Reg. 6137.
The complaint adds that—
“Before the end of the war in Europe, this relief consisted of: (1) the release and assistance of those of the aforesaid refugees who were in concentration camps in Vichy France, North Africa and other countries; (2) transportation and asylum for those of the aforesaid refugees in flight; (3) direct relief and aid, to those of the aforesaid refugees requiring help, through the Red Cross and other international agencies. At the present time, the Joint Anti-Fascist Refugee Committee relief work is principally devoted to aiding those Spanish Republican refugees, and other anti-fascist refugees who fought against Franco, located in France and Mexico.”
Executive Order No. 9835 purports to rest, in part, upon the authority of § 9A of the Hatch Act. 3 CFR, 1947 Supp., p. 129, 12 Fed. Reg. 1935.
In this case, unlike the others, the complainant asked that a three-judge District Court be convened, pursuant to 28 U. S. C. (1946 ed.) § 380a, now part of 28 U. S. C. (1946 ed., Supp. III) §§ 2281-2284. The District Court, however, dismissed the complaint without convening such a court.
The complaint also alleges in Part IV:
“8. The purpose, objectives and activities of the Order are in no sense subversive. The Order is not an organization within the meaning of Part III, section 3 of Executive Order No. 9835, and it has not adopted a policy of advocating or approving the commission of acts of force or violence, or to deny other persons the rights under the Constitution or as seeking to alter the form of government by unconstitutional means, but on the contrary, the Order is opposed to the commission of acts of force or violence, fights against the denial of rights to any person, and is opposed to the altering of our form of government by any illegal or unconstitutional means. The Order is dedicated to the democratic ideals and traditions of the United States and the principles of freedom and equality embodied in the Constitution.”
The complaint attacks the constitutionality of § 9A of the Hatch Act but does not ask for the convening of a three-judge District Court.
In this case, A. L. Drayton, as a member of the order and a civil employee of the United States, sought permission from the District Court to intervene under Rule 24 (b) of the Federal Rules of Civil Procedure and to have added as defendants three members of the Loyalty Review Board of the Post Office Department. His motion was denied and his appeal from that denial dismissed. The respondents now advise us that, in a separate proceeding, he appealed to the Loyalty Review Board from a decision adverse to his loyalty, with the result that such decision has been reversed and that he has returned to duty. While he has not withdrawn his appeal from the denial of his motion to intervene, we find no reason to review the discretion exercised by the District Court in denying that motion. Allen Calculators v. National Cash Register Co.,
The designation of these organizations was not preceded by any administrative hearing. The organizations received no notice that they were to be listed, had no opportunity to present evidence on their own behalf and were not informed of the evidence on which the designations rest. See Chin Yow v. United States,
We have noted the following recitals made by the Attorney General in describing his standard procedure in the preparation of his lists:
“After the issuance of Executive Order No. 9835 by the President, the Department of Justice compiled all available data with respect to the type of organization to be dealt with under that order. The investigative reports of the Federal Bureau of Investigation concerning such organizations were correlated. Memoranda on each such organization were prepared by attorneys of the Department. The list of organizations contained herein has been certified to the Board by the Attorney General on the basis of recommendations of attorneys of the Department as reviewed by the Solicitor General, the As*139 sistant Attorneys General, and the Assistant Solicitor General, and subsequent careful study of all by the Attorney General.” 5 CFR, 1949, c. II, Pt. 210, pp. 199-200, 13 Fed. Reg. 1471.
These recitals, however, relate to the mechanics used rather than to the appropriateness of the determination or the justification for the respective designations. They fall short of disclosing that there has been such an administrative hearing as would offset the admissions of the specific allegations of the complaints which are inherent in the respondents’ motions to dismiss. See Fed. Rules Civ. Proc., 12 (b) and 56 (c), and Reagan v. Farmers’ Loan & Trust Co.,
We have treated the designation of an organization by the Attorney General in his list as including his furnishing of that list to the Loyalty Review Board with knowledge of that Board’s obligation to disseminate it to all departments and agencies of the Government.
As an illustration of the meaning of § 559, the Restatement suggests:
“2. A writes in a letter to B that C is a member of the Ku Klux Klan. B lives in a community in which a substantial number of the*140 citizens regard this organization as a discreditable one. A has defamed C.”
See also, Spanel v. Pegler,
We do not reach either the validity of the Employees Loyalty Program or the effect of the respondents’ acts in furnishing and disseminating a comparable list in any instance where such acts are within the authority purportedly granted by the Executive Order. Cf. Carter v. Carter Coal Co.,
Rule 17 (b) of the Federal Rules of Civil Procedure gives unincorporated associations the right to sue in their own names for the enforcement of rights existing under the Constitution or laws of the United States. And see Restatement, Torts, § 561 (2) and Comment
Utah Fuel Co. v. National Bituminous Coal Comm’n,
United States v. Los Angeles & S. L. R. Co.,
Concurrence Opinion
concurring.
Without notice or hearing and under color of the President’s Executive Order No. 9835, the Attorney General found petitioners guilty of harboring treasonable opinions and designs, officially branded them as Communists, and promulgated his findings and conclusions for particular use as evidence against government employees suspected of disloyalty. In the present climate of public opinion it appears certain that the Attorney General’s much publicized findings, regardless of their truth or falsity, are the practical equivalents of confiscation and death sentences for any blacklisted organization not possessing extraordinary financial, political or religious prestige and influence. The Government not only defends the power of the Attorney General to pronounce such deadly edicts but also argues that individuals or groups so condemned have no standing to seek redress in the courts, even though a fair judicial hearing might conclusively demonstrate their loyalty. My basic reasons for rejecting these and other contentions of the Government are in summary the following:
(2) Assuming, though I deny, that the Constitution permits the executive officially to determine, list and publicize individuals and groups as traitors and public enemies, I agree with Mr. Justice Frankfurter that the Due Process Clause of the Fifth Amendment would bar such condemnation without notice and a fair hearing. My views previously expressed under similar circumstances are relevant here. E. g., dissenting opinion in Ludecke v. Watkins,
(3) More fundamentally, however, in my judgment the executive has no constitutional authority, with or without a hearing, officially to prepare and publish the lists challenged by petitioners. In the first place, the system adopted effectively punishes many organizations and their members merely because of their political beliefs and utterances, and to this extent smacks of a most evil type of censorship. This cannot be reconciled with the First Amendment as I interpret it. See my dissent in American Communications Assn. v. Douds,
There is argument that executive power to issue these pseudo-bills of attainder can be implied from the undoubted power of the Government to hire and discharge employees and to protect itself against treasonable individuals or organizations.
In this day when prejudice, hate and fear are constantly invoked to justify irresponsible smears and persecution of persons even faintly suspected of entertaining unpopular views, it may be futile to suggest that the cause of internal security would be fostered, not hurt, by faithful adherence to our constitutional guarantees of individual liberty. Nevertheless, since prejudice manifests itself in much the same way in every age and country and since what has happened before can happen again, it surely should not be amiss to call attention to what has occurred when dominant governmental groups have been left free to give uncontrolled rein to their prejudices against unorthodox minorities. As specific illustration, I am adding as an appendix Macaulay’s account of a parliamentary proscription which took place when popular prejudice was high; this is only one out of many similar
APPENDIX TO OPINION OF MR. JUSTICE BLACK.
James II, the last Stuart king of England, was driven from his throne in 1688 by William of Orange. After a brief sojourn at Saint Germains in France, James landed in Ireland where he was supported by those Irish Catholics who had suffered greatly at the hands of the English Protestant colonists. One of his first official acts was to call an Irish Parliament which enacted the bill of attainder described by the historian Macaulay as follows:
“. . . [the Commons] respected no prerogative, however ancient, however legitimate, however salutary, if they apprehended that [James II] might use it to protect the race which they abhorred. They were not satisfied' till they had extorted his reluctant consent to a portentous law, a law without a parallel in the history of civilised countries, the great Act of Attainder.
“A list was framed containing between two and three thousand names. At the top was half the peerage of Ireland. Then came baronets, knights, clergymen, squires, merchants, yeomen, artisans, women, children. No investigation was made. Any member who wished to rid himself of a creditor, a rival, a private enemy, gave in the name to the clerk at the table, and it was generally inserted without discussion. The only debate of which any account has come down to us related to the Earl of Strafford. He had friends in the House who ventured to offer something in his favour. But a few words from*147 Simon Luttrell settled the question. T have/ he said, ‘heard the King say some hard things of that lord.’ This was thought sufficient, and the name of Strafford stands fifth in the long table of the proscribed.
“Days were fixed before which those whose names were on the list were required to surrender themselves to such justice as was then administered to English Protestants in Dublin. If a proscribed person was in Ireland, he must surrender himself by the tenth of August. If he had left Ireland since the fifth of November 1688, he must surrender himself by the first of September. If he had left Ireland before the fifth of November 1688, he must surrender himself by the first of October. If he failed to appear by the appointed day, he was to be hanged, drawn, and quartered without a trial, and his property was to be confiscated. It might be physically impossible for him to deliver himself up within the time fixed by the Act. He might be bedridden. He might be in the West Indies. He might be in prison. Indeed there notoriously were such cases. Among the attainted Lords was Mount joy. He had been induced by the vil-lany of Tyrconnel to trust himself at Saint Germains: he had been thrown into the Bastile: he was still lying there; and the Irish parliament was not ashamed to enact that, unless he could, within a few weeks, make his escape from his cell, and present himself at Dublin, he should be put to death.
“As it was not even pretended that there had been any inquiry into the guilt of those who were thus proscribed, as not a single one among them had been heard in his own defence, and as it was certain that it would be physically impossible for many of them to surrender themselves in time, it was clear that nothing but a large exercise of the royal prerogative of mercy could prevent the perрetration of iniquities so horrible that no precedent could be found for them even in the lamentable history of the*148 troubles of Ireland. The Commons therefore determined that the royal prerogative of mercy should be limited. Several regulations were devised for the purpose of making the passing of pardons difficult and costly: and finally it was enacted that every pardon granted by his Majesty, after the end of November 1689, to any of the many hundreds of persons who had been sentenced to death without a trial, should be absolutely void and of none effect. Sir Richard Nagle came in state to the bar of the Lords and presented the bill with a speech worthy of the occasion. ‘Many of the persons here attainted,’ said he, ‘have been proved traitors by such evidence as satisfies us. As to the rest we have followed common fame.’
“With such reckless barbarity was the list framed that fanatical royalists, who were, at that very time, hazarding their property, their liberty, their lives, in the cause of James, were not secure from proscription. The' most learned man of whom the Jacobite party could boast was Henry Dodwell, Camdenian Professor in the University of Oxford. In the cause of hereditary monarchy he shrank from no sacrifice and from no danger. It was about him that William [of Orange] uttered those memorable words: ‘He has set his heart on being a martyr; and I have set mine on disappointing him.’ But James was more cruel to "friends than William to foes. Dodwell was a Protestant: he had some property in Connaught: these crimes were sufficient; and he was set down in the long roll of those who were doomed to the gallows and the quartering block.
“That James would give his assent to a bill which took from him the power of pardoning, seemed to many persons impossible. . . . He might also have seen that the right course was the wise course. Had he, on this great occasion, had the spirit to declare that he would not shed the blood of the innocent, and that, even as respected the guilty, he would not divest himself of the power of tern-*149 pering judgment with mercy, he would have regained more hearts in England than he would have lost in Ireland. But it was ever his fate to resist where he should have yielded, and to yield where he should have resisted. The most wicked of all laws received his sanction; and it is but a very small extenuation of his guilt that his sanction was somewhat reluctantly given.
“That nothing might be wanting to the completeness of this great crime, extreme care was taken to prevent the persons who were attainted from knowing that they were attainted, till the day of grace fixed in the Act was passed. The roll of names was not published, but kept carefully locked up in Fitton’s closet. Some Protestants, who still adhered to the cause of James, but who were anxious to know whether any of their friends or relations had been proscribed, tried hard to obtain a sight of the list; but solicitation, remonstrance, even bribery, proved vain. Not a single copy got abroad till it was too late for any of the thousands who had been condemned without a trial to obtain a pardon.
“. . . That the colonists, when they had won the victory, grossly abused it, that their legislation was, during many years, unjust and tyrannical, is most true. But it is not less true that they never quite came up to the atrocious example set by their vanquished enemy during his short tenure of power.”
3 Macaulay, History of England from the Accession of James the Second (London, 1855), 216-220. (Footnotes appearing in the original have been omitted.)
In November 1794, there was introduced in Congress a resolution of public disapproval of certain “self-created Democratic societies” thought to be responsible for stirring up the people to insurrection. Madison opposed the resolution, apparently believing that if it were enacted it would be a bill of attainder. His views in this regard are reported as follows: “It is in vain to say that this indiscriminate censure is no punishment. If it falls on classes, or individuals, it will be a severe punishment. ... Is not this proposition, if voted, a vote of attainder?” 4 Annals of Cong. 934 (1794).
But compare Madison in Federalist Paper No. 42: “As treason may be committed against the United States, the authority of the United States ought to be enabled to punish it. But as new-fangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free governments, have usually wreaked their alternate malignity on each other, the Convention have, with great judgment, opposed a barrier to this peculiar danger, by inserting a Constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the Congress, even in punishing it, from extending the consequences of guilt beyond the person of its author.”
One purpose of the Attorney General’s blacklist under Executive Order 9835 is for use as evidence against government employees tried for disloyalty before loyalty boards acting under the same Executive Order. Proof of membership in a blacklisted organization, or of association with its members, can weigh heavily against a government employee’s loyalty. Thus an employee may lose his job because of the Attorney General’s secret and ex parte action. This is well illustrated in the case of Bailey v. Richardson,
The Appendix is an illustration of persecution of Protestants by Catholics. For instances of persecution of Catholics by Protestants, see my dissenting opinion in American Communications Assn. v. Douds,
Concurrence Opinion
concurring.
The more issues of law are inescapably entangled in political controversies, especially those that touch the passions of the day, the more the Court is under duty to dispose of a controversy within the narrowest confines
I.
Limitation on “the judicial Power of the United States” is expressed by the requiremеnt that a litigant must have “standing to sue” or, more comprehensively, that a federal court may entertain a controversy only if it is “justiciable.” Both characterizations mean that a court will not decide a question unless the nature of the action challenged, the kind of injury inflicted, and the relationship between the parties are such that judicial determination is consonant with what was, generally speaking, the business of the Colonial courts and the courts of Westminster when the Constitution was framed. The jurisdiction of the federal courts can be invoked only under circumstances which to the expert feel of lawyers constitute a “case or controversy.” The scope and consequences of the review with which the judiciary is entrusted over executive and legislative action require us to observe these bounds fastidiously. (See the course of decisions beginning with Hayburn’s Case,
(1) The simplest application of the concept of “standing” is to situations in which. there is no real controversy between the parties. Regard for the separation of powers, see Muskrat v. United States,
Adverse personal interest, even of such an indirect sort as arises from competition, is ordinarily sufficient to meet constitutional standards of justiciability. The courts may therefore by statute be given jurisdiction over claims based on such interests. Federal Communications Comm’n v. Sanders Radio Station,
(2) To require a court to intervene in the absence of a statute, however, either on constitutional grounds or in the exercise of inherent equitable powers, something more than adverse personal interest is needed. This additional element is usually defined in terms which assume the an
(a) Will the action challenged at any time substantially ajject the “legal” interests oj any person? A litigant ordinarily has standing to challenge governmental action of a sort that, if taken by a private person, would create a right of action cognizable by the courts. United States v. Lee,
(b) Does the action challenged affect petitioner with sufficient “directness”? Frequently governmental action directly affects the legal interests of some person, and causes only a consequential detriment to another. Whether the person consequentially harmed can challenge the action is said to depend on the “directness” of the impact of the action on him. A shipper has no standing to attack a rate not applicable to him but merely affecting his previous competitive advantage over shippers subject to the rate. Hines Trustees v. United States,
(c) Is the action challenged sufficiently final? Although a litigant is the person most directly affected by the challenged action of the Government, he may not have “standing” to raise his objections in a court if the action has not, as it were, come to rest.
(3) Whether “justiciability” exists, therefore, has most often turned on evaluating both the appropriateness of the issues for decision by courts and the hardship of denying judicial relief. This explains the inference to be drawn from the cases that “standing” to challenge official action is more apt to exist when that action is not within the scope of official authority than when the objection to the administrative decision goes only to its correctness. See United States v. Los Angeles & S. L. R. Co.,
II.
The injury asserted in the cases at bar does not fall into any familiar category. Petitioner in No. 8, the Joint Anti-Fascist Refugee Committee, is, according to its complaint, an unincorporated association engaged in relief work on behalf of Spanish Republican refugees.
In November, 1947, each of these organizations was included in the list of groups designated by the Attorney General as within the provisions of Executive Order No. 9835, the President’s Loyalty Order. The list was disseminated to all departments and agencies of the Government. Six months later, each was with more particularity labeled “communist.” Each alleges substantial injury as a consequence. Publicity and meeting places have become difficult for the Refugee Committee and the Council to obtain. The federal tax exemptions of all three organizations have been revoked; licenses necessary to solicitation of funds have been denied the
The novelty of the injuries described in these petitions does not alter the fact that they present the characteristics which have in the past led this Court to recognize justiciability. They are unlike claims which the courts have hitherto found incompatible with the judicial process. No lack of finality can be urged. Designation works an immediate substantial harm to the reputations of petitioners. The threat which it carries for those members who are, or propose to become, federal employees makes it not a finicky or tenuous claim to object to the interference with their opportunities to retain or secure such employees as members. The membership relation is as substantial as that protected in Truax v. Raich and Pierce v. Society of Sisters, supra. And it is at least doubtful that the members could or would adequately present the organizations’ objections to the designation provisions of the Order.
Only on the ground that the organizations assert no interest protected in analogous situations at common law, by statute, or by the Constitution, therefore, can plausible challenge to their “standing” here be made. But the reasons which made an exercise of judicial power inappropriate in Perkins v. Lukens Steel Co., Tennessee Power Co. v. T. V. A., and Alabama Power Co. v. Ickes, supra, are not apposite here. There the injuries were such that, had they not been inflicted by the Government, they clearly could not have been redressed. In Perkins v. Lukens
This controversy is therefore amenable to the judicial process.
III.
This brings us to the merits of the claims before the Court. Petitioners are organizations which, on the face of the record, are engaged solely in charitable or insurance activities. They have been designated “communist” by the Attorney General of the United States. This desig
Fairness of procedure is “due process in the primary sense.” Brinkerhoff-Faris Co. v. Hill,
The requirement of “due process” is not a fair-weather or timid assurance. It must be respected in periods of calm and in times of trouble; it protects aliens as well as citizens. But “due process,” unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances. Expressing as it does in its ultimate analysis respect enforced by law for that feeling of just treatment which has been evolved through centuries of Anglo-American constitutional history and civilization, “due process” cannot be imprisoned within the treacherous limits of any formula. Representing a profound attitude of fairness between man and man, and more particularly between the individual and government, “due process” is compounded of history,
Fully aware of the enormous powers thus given to the judiciary and especially to its Supreme Court, those who founded this Nation put their trust in a judiciary truly independent — in judges not subject to the fears or allurements of a limited tenure and by the very nature of their function detached from passing and partisan influences.
It may fairly be said that, barring only occasional and temporary lapses, this Court has not sought unduly to confine those who have the responsibility of governing by giving the great concept of due process doctrinaire scope. The Court has responded to the infinite variety and perplexity of the tasks of government by recognizing that what is unfair in one situation may be fair in another. Compare, for instance, Murray’s Lessee v. Hoboken Land & Improvement Co.,
But the significance we attach to general principles may turn the scale when competing claims appeal for supremacy. Achievements of our civilization as precious as they were hard won were summarized by Mr. Justice Brandéis when he wrote that “in the development of our liberty insistence upon procedural regularity has been a large factor.” Burdeau v. McDowell,
It is against this background of guiding considerations that we must view the rather novel aspects of the situation at hand. It is not true that the evils against which the Loyalty Order was directed are wholly devoid of analogy in our own history. The circumstances attending the Napoleonic conflicts, which gave rise to the Sedition Act of 1798, 1 Stat. 596, readily come to mind. But it is true that the executive action now under scrutiny is of a sort not heretofore challenged in this Court. That of itself does not justify the ex parte summary designation procedure. It does make it necessary to consider its validity when judged by our whole experience with the Due Process Clause.
IY.
The construction placed by this Court upon legislation conferring administrative powers shows consistent respect for a requirement of fair procedure before men are denied or deprived of rights. From a great mass of cases, running the full gamut of control over property and liberty, there emerges the principle that statutes should be interpreted, if explicit language does not preclude, so as to observe due process in its basic meaning. See, e. g., Anniston Mfg. Co. v. Davis,
This Court is not alone in recognizing that the right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society. Regard for this principle has guided Congress and the Executive. Congress has often entrusted, as it may, protection of interests which it has created to administrative agencies rather than to the courts. But rarely has it authorized such agencies to act without those essential safeguards for fair judgment which in the course of centuries have come to be associated with due process. See Switchmen’s Union v. National Mediation Board,
An opportunity to be heard may not seem vital when an issue relates only to technical questions susceptible
Man being what he is cannot safely be trusted with complete immunity from outward responsibility in depriving others of their rights. At least such is the conviction underlying our Bill of Rights. That a conclusion satisfies one’s private conscience does not attest its reliability. The validity and moral authority of a conclusion largely depend on the mode by which it was reached. Secrecy is not congenial to truth-seeking and self-righteousness gives too slender an assurance of rightness. ^No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss
v.
The strength and significance of these considerations— considerations which go to the very ethos of the scheme of our society — give a ready answer to the problem before us. That a hearing has been thought indispensable in so many other situations, leaving the cases of denial exceptional, does not of itself prove that it must be found essential here. But it does place upon the Attorney General the burden of showing weighty reason for departing in this instance from a rule so deeply imbedded in history and in the demands of justice. Nothing in the Loyalty Order requires him to deny organizations opportunity to present their case. The Executive Order, defining his powers, directs only that designation shall be made “after appropriate investigation and determination.” This surely does not preclude an administrative procedure, however informal, which would incorporate the essentials of due process. Nothing has been presented to the Court to
We are not here dealing with the grant of Government largess. We have not before us t|ie measured action of Congress, with the pause that is properly engendered when the validity of legislation is assailed. The Attorney General is certainly not immune from the historic requirements of fairness merely because Ke acts, however conscientiously, in the name of security. Nor does he obtain immunity on the ground that .designation is not an “adjudication” or a “regulation” in the conventional use of those terms. Due process is not confined in its scope to the particular forms in which rights have heretofore been
Therefore the petitioners did set forth causes of action which the District Court should have entertained.
The decisions are collected in the dissenting opinion in Larson v. Domestic & Foreign Corp.,
A statute may of course confer standing even in this situation. Federal Communications Comm’n v. Sanders Radio Station,
The Davis & Farnum case held that a subcontractor did not have standing to enjoin a municipal ordinance which prohibited a construction project in violation of a right of the owner of the land on which it was to be built. The Court held that the petitioner had no legal interest in the controversy, since his interest was only “indirect.”
Government action is “final” in the sense here involved when at no future time will its impact on the petitioner become more conclusive, definite, or substantial. “Finality” is also employed in a different sense with which we are not here concerned, in reference to judicial action not subject to subsequent revisory executive or legislative action. Cf. United States v. Ferreira,
The Court expressed the decision in terms of the nonlegislative character of the specification. But since the validity of the specification could be determined in an action for injunction or mandamus
See also decisions treating as “justiciable” bills to enjoin regulations which create duties immediately enforceable by imposition of penalties. Assigned Car Cases,
In the Los Angeles case the Court thus supported its conclusion that the bill was not justiciable under general equity powers: “The investigation was undertaken in aid of the legislative purpose of regulation. In conducting the investigation, and in making the report, the Commission performed a service specifically delegated and prescribed by Congress. Its conclusions, if erroneous in law, may be disregarded. But neither its utterances, nor its processes of reasoning, as distinguished from its acts, are a subject for injunction.”
Compare the decisions which hold that certain executive officers are not liable in suits for damages for erroneous or even malicious conduct in office, so long as they are acting within the scope of the authority given them. Spalding v. Vilas,
A Denver affiliate of the National Council, joined as petitioner in No. 7, has standing identical with its parent. The individual petitioners in that suit, however, have as officers of the Council an interest which is too remote to justify finding the issues justiciable as to them.
The reasonableness of rates has of course been held in part a question for the courts. Ohio Valley Co. v. Ben Avon Borough,
In Southern R. Co. v. Virginia,
The Japanese Immigrant Case,
In Dismuke v. United States,
Thus, no hearing need be granted on the question whether property is needed for a public use. Rindge Co. v. Los Angeles,
Cf. Norwegian Nitrogen Co. v. United States,
In 1941 the Attorney General’s Committee on Administrative Procedure reported that it “found in its investigation of the administrative process few instances of indifference on the part of the agencies to the basic values which underlie a fair hearing.” These values it defined as follows: “Before adverse action is to be taken by an agency, whether it be denying privileges to an applicant or bounties to a claimant, before a cease-and-desist order is issued or privileges or bounties are permanently withdrawn, before an individual is ordered directly to alter his method of business, or before discipline is imposed upon him, the individual immediately concerned should be apprised not only of the contemplated action with sufficient precision to permit his preparation to resist, but, before final action, he should be apprised of the evidence and contentions brought forward against him so that he may meet them. He must be offered a forum which provides him with an opportunity to bring his own contentions home to those who will adjudicate the controversy in which he is concerned. The forum itself must be one which is prepared to receive and consider all that he offers which is relevant to the controversy.” Final Report, p. 62.
The monographs prepared under the direction of the Committee support the conclusion that by statutory direction or administrative interpretation agencies consistently grant at least minimum rights of hearing. For example, the Walsh-Healey Act is enforceable by the Government’s recovery of liquidated damages and by its withholding further contracts for a three-year period. Administrative hearings are employed for all contested action. Monograph of the Attorney General’s Committee on Administrative Procedure, S. Doc. No. 186, 76th Cong., 3d Sess., Part 1, p. 7. It is generally the practice of the Veterans’ Administration to grant hearings on request of claimants. Id., Part 2, p. 11. Hearings are granted on request on applications for permits from the Federal Alcohol Administration, id., Part 5, p. 6, and when licenses granted under the Grain Standards Act are suspended or revoked, id., Part 7, p. 10. The Federal Deposit Insurance Corporation determines admissibility of banks to membership without giving the applicant a hearing or formal opportunity to contradict the bank examiner’s report. However, grounds for disapproval are reported to the applicant. Id., Part 13,
The importance of opportunity to be heard is recognized as well by the English courts. The leading case is Board of Education v. Rice, [1911] A. C. 179. Lord Loreburn said in dictum, “In such cases the Board of Education will have to ascertain the law and also to ascertain the facts. I need not add that in doing either they must act in good faith and fairly listen to both sides, for that is a duty lying upon every one who decides anything. . . . They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for corrеcting or contradicting any relevant statement prejudicial to their view.” Id., at 182. This principle has been approved in a long line of decisions. See Local Government Board v. Arlidge, [1915] A. C. 120, 132-133; General Medical Council v. Spackman, [1943] A. C. 627; Errington v. Minister of Health, [1935] 1 K. B. 249; Rex v. Westminster, [1941] 1 K. B. 53. The Committee on Ministers’ Powers reported in 1936 that while in administrative determination a Minister may “depart from the usual forms of legal procedure or from the common law rules of evidence, he ought not to depart from or offend against ‘natural justice.’ ” Three principles of “natural justice” were
Mr. Justice Holmes made this remark in a letter to Mr. Arthur Garfield Hays in 1928. See Bent, Justice Oliver Wendell
“In a government like ours, entirely popular, care should be taken in every part of the system, not only to do right, but to satisfy the community that right is done.” 5 The Writings and Speeches of Daniel Webster, 163. The same thought is reflected in a recent opinion by the Lord Chief Justice. A witness in a criminal case had been interrogated by the court in the absence of the defendant. Quashing the conviction, Lord Goddard said: “That is a matter which cannot possibly be justified. I am not suggesting for one moment that the justices had any sinister or improper motive in acting as they did. It may be that they sent for this officer in the interests of the accused; it may be that the information which the officer gave was in the interests of the accused. That does not matter. Time and again this court has said that justice must not only be done but must manifestly be seen to be done. . . .” Rex v. Justices of Bodmin, [1947] 1 K. B. 321, 325.
Other evidence is furnished by the State of New York. The Feinberg Law, comparable in purpose and in its scheme to the Loyalty Order, makes notice and hearing prerequisite to designation of organizations. See Thompson v. Wallin,
Act of September 23,1950, §§ 13,14, 64 Stat. 987, 998,1001.
Concurrence Opinion
concurring.
While I join in the opinion of Mr. Justice Burton, which would dispose of the cases on procedural grounds, the Court has decided them on the Constitution. And so I turn to that aspect of the cases.
The resolution of the constitutional question presents one of the gravest issues of this generation. There is no doubt in my mind of the need for the Chief Executive and the Congress to take strong measures against any Fifth Column worming its way into government — a Fifth Column that has access to vital information and the purpose to paralyze and confuse. The problems of security are real. So are the problems of freedom. The paramount issue of the age is to reconcile the two.
In days of great tension when feelings run high, it is a temptation to take short-cuts by borrowing from the totalitarian techniques of our opponents. But when we do, we set in motion a subversive influence of our own design that destroys us from within. The present cases, together with No. 49, Bailey v. Richardson, post, p. 918, affirmed today by an equally divided Court, are simple illustrations of that trend.
I disagree with Mr. Justice Jackson that an organization — whether it be these petitioners, the American Red Cross, the Catholic Church, the Masonic Order, or the Boy Scouts — has no standing to object to being labeled “subversive” in these ex parte proceedings. The opinion
The requirements for fair trials under our system of government need no elaboration. A party is entitled to
The charge that these organizations are “subversive” could be clearly defined. But how can anyone in the context of the Executive Order say what it means? It apparently does not necessarily mean “totalitarian,” “fascist” or “communist” because they are separately listed. Does it mean an organization with socialist ideas? There are some who lump Socialists and Communists together. Does it mean an organization that thinks the lot of some peasants has been improved under Soviet auspices? Does it include an organization that is against the action of the United Nations in Korea? Does it embrace a group which on some issues of international policy aligns itself with the Soviet viewpoint? Does it mean a group which has unwittingly become the tool for Soviet propaganda? Does it mean one into whose membership some Communists have infiltrated? Or does it describe only an organization which under the guise of honorable activities serves as a front for Communist activities?
No one can tell from the Executive Order what meaning is intended. No one can tell from the records of the cases which one the Attorney General applied. The charge is flexible; it will mean one thing to one officer, another to someone else. It will be given meaning according to the predilections of the prosecutor: “subversive” to some will be synonymous with “radical”; “subversive” to others will be synonymous with “communist.” It can be expanded to include those who depart from the orthodox party line — to those whose words and actions (though completely loyal) do not conform to the orthodox view on foreign or domestic policy. These flexible standards, which vary with the mood or political philosophy of the prosecutor, are weapons which can be made as sharp or as blunt as the occasion requires. Since they are sub
It is not enough to know that the men applying the standard are honorable and devoted men. This is a government of laws, not of men. The powers being used are the powers of government over the reputations and fortunes of citizens. In situations far less severe or important than these a party is told the nature of the charge against him. Thus when a defendant is summoned before a federal court to answer to a claim for damages or to a demand for an injunction against him, there must be a “plain statement of the claim showing that the pleader is entitled to relief.”
The trend in that direction is only emphasized by the failure to give notice and hearing on the charges in these cases and by the procedure adopted in Bailey v. Richardson, supra.
The system used to condemn these organizations is bad enough. The evil is only compounded when a government employee is charged with being disloyal. Association with or membership in an organization found to be “subversive” weighs heavily against the accused. He is not allowed to prove that the charge against the organization is false. That case is closed; that line of defense is taken away. The technique is one of guilt by association — one of the most odious institutions of history. The fact that the technique of guilt by association was used in the prosecutions at Nuremberg
It is not without significance that most of the provisions of the Bill of Rights are procedural. It is procedure that spells much of the difference between rule by law and rule by whim or caprice. Steadfast adherence to strict procedural safeguards is our main assurance that there will be equal justice under law. The case of Dorothy Bailey is an excellent illustration of how dangerous a departure from our constitutional standards can be. She was charged with being a Communist and with being active in a Communist “front organization.” The Rеview Board stated that the case against her was based on reports, some of which came from “informants certified to us by the Federal Bureau of Investigation as experienced and entirely reliable.”
Counsel for Dorothy Bailey asked if these informants had been active in a certain union. The chairman replied, “I haven’t the slightest knowledge as to who they were or how active they have been in anything.”
Counsel for Dorothy Bailey asked if those statements of the informants were under oath. The chairman answered, “I don’t think so.”
The Loyalty Board convicts on evidence which it cannot even appraise. The critical evidence may be the word of an unknown witness who is “a paragon of veracity, a knave, or the village idiot.”
Dorothy Bailey was not, to be sure, faced with a criminal charge and hence not technically entitled under the Sixth Amendment to be confronted with the witnesses against her. But she was on trial for her reputation, her job, her professional standing. A disloyalty trial is the most crucial event in the life of a public servant. If condemned, he is branded for life as a person unworthy of trust or confidence. To make that condemnation without meticulous regard for the decencies of a fair trial is abhorrent to fundamental justice.
I do not mean to imply that but for these irregularities the system of loyalty trials is constitutional. I do not see how the constitutionality of this dragnet system of loyalty trials which has been entrusted to the administrative agencies of government can be sustained. Every gov
The problem of security is real; and the Government need not be paralyzed in handling it. The security problem, however, relates only to those sensitive areas where secrets are or may be available, where critical policies are being formulated, or where sabotage can be committed. The department heads must have leeway in handling their personnel problems in these sensitive areas. The question is one of the fitness or qualifications of an individual for a particular position. One can be transferred from those areas even when there is no more than a suspicion as to his loyalty. We meet constitutional difficulties when the Government undertakes to punish by proclaiming the disloyalty of an employee and making him ineligible for any government post. The British have avoided those difficulties by applying the loyalty procedure only in sensitive areas and in using it to test the qualifications of an employee for a particular
The evil of these cases is only emphasized by the procedure employed in Dorothy Bailey’s case. Together they illustrate how deprivation of our citizens of fair trials is subversion from within.
The Bureau of Internal Revenue canceled the tax-exempt status of contributions to eight “subversive” organizations shortly after the Attorney General’s list was released. The Bureau’s announcement of the revocation indicated that the listing provided the basis for it. Treasury Dept. Press Release No. S — 613, Feb. 4, 1948, 5 CCH 1948 Fed. Tax Rep. ¶ 6075.
The New York Feinberg Law, directed at eliminating members of subversive organizations from employment in the public schools, authorizes the Board of Regents to utilize the Attorney General’s list in drawing up its own list of subversive organizations. Membership in a listed organization is prima facie evidence of disqualification. Laws of New York, 1949, c. 360, ¶3022 (2). The New York Superintendent of Insurance recently brought an action to dissolve the International Workers Order, Inc., petitioner in No. 71, on the grounds that it was on the Attorney General’s list. Matter of People of the State of New York, Motion 165, Supreme Court of New York County, Dec. 18, 1950. [See
The Maryland Ober Law requires candidates for appointive or elective office to certify whether they are members of “subversive” organizations. Laws of Maryland, 1949, c. 86, ¶¶ 10-15. The Commission which drafted the Act contemplated that the Attorney General’s list would be employed in policing these oaths. Report of Commission on Subversive Activities to Governor Lane and the Maryland General Assembly, January, 1949, p. 43.
Rule 8 (a), Federal Rules of Civil Procedure.
As Mr. Justice FRANKFURTER points out, due process requires no less. But apart from due process in the constitutional sense is the power of the Court to prescribe standards of conduct and procedure for inferior federal courts and agencies. See McNabb v. United States,
The International Tribunal tried Nazi organizations to determine whether they were “criminal.” Art. 9, Charter of the International Military Tribunal, Nazi Conspiracy and Aggression, Vol. 1, Office of U. S. Chief Counsel, U. S. Government Printing Office (1946) p. 6. That procedure, unlike the present one, provided that accused
Barth, The Loyalty of Free Men (1951), p. 109.
“The oath to be taken by any person elected or appointed to any office of honor or profit either in the civil, military, or naval service, except the President of the United States shall be as follows: T, A B, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and fаithfully discharge the duties of the office on which I am about to enter. So help me God.’ ” 23 Stat. 22, R. S. § 1757, 5 U. S. C. § 16. And see Act of Sept. 6,1950, Pub. L. No. 759, § 1209, 64 Stat. 595, 764.
See the address by Benjamin V. Cohen, 96 Cong. Rec. A785, A786.
448 H. C. Deb. 1703 et seq., 3418 et seq. (5th Ser. 1947-1948). The meticulous care with which this small select group is handled is reflected in the letter of the Prime Minister, dated Dec. 1, 1948, reporting on the purgé of communists and fascists from the civil service. 459 H. C. Deb. 830 (5th Ser. 1948-1949).
The number of cases considered by the end of April, 1950, was 86, classified as follows:
Transferred to nonsecret departments. 32
Resigned . 5
Exonerated and reinstated. 19
Dismissed (including one Fascist). 7
Retired for health reasons before completion of investigations... 1
On special leave, either sub judice or confirmed Communists
awaiting transfer or dismissal. 22
86
See British Information Services, Reference Division, April, 1950.
The Civil Service Commission reports as of February, 1951, the following statistics relating to adjudications of loyalty under Executive Order No. 9835 of March 21,1947:
Total cases received by Loyalty Boards. 14,910
Less: cases where employee left the service during investigations . 1,722
Cases received for adjudication. 13,188
Less: cases where employee thereafter resigned. 1,331
field investigation reports pending in loyalty boards.. 1,060
cases in Department of the Army. 1,304
Cases adjudicated. 9,493
Eligible determination. 8,964
Ineligible, excluding 20 cases on review. 529
Disposition of ineligibles:
Dismissed. 307
Restored after appeal. 197
Remanded after appeal. 19
On appeal. 26
Concurrence Opinion
concurring.
It is unfortunate that this Court should flounder in wordy disagreement over the validity and effect of procedures which have already been pursued for several years. The extravagance of some of the views expressed and the intemperance of their statement may create a suspicion that the decision of the case does not rise above the political controversy that engendered it.
Mr. Justice Burton, and those for whom he speaks, would rescue the Loyalty Order from inquiry as to its validity by spelling out an admission by the Attorney General that it has been arbitrarily misapplied. Mr. Justice Black would have us hold that listing by the Attorney General of organizations alleged to be subversive is the equivalent of a bill of attainder for treason after the fashion of those of the Stuart kings, while Mr. Justice Reed contends, in substance, that the designation is a mere press release without legal consequences.
If the Court agreed that an accused employee could challenge the designation, its effect would be only advisory or prima facie; but as I point out later, the Court refuses so to limit the effect of the designation. In view of these and other diversified opinions, none of which has attracted sufficient adherents for a Court and none of which I can fully accept, I shall state rather than argue my view of the matter.
1. The Loyalty Order does affect substantive legal rights. — I agree that mere designation as subversive de
But the real target of all this procedure is the gоvernment employee who is a member of, or sympathetic to, one or more accused organizations. He not only may be discharged, but disqualified from employment, upon no other ground than such membership or sympathetic affiliation. And he cannot attack the correctness of the Attorney General’s designation in any loyalty proceeding.
The fact that one may not have a legal right to get or keep a government post does not mean that he can be adjudged ineligible illegally. Perkins v. Elg.
3. The organizations may vindicate unconstitutional deprivation of members’ rights. — There are two stages at which administrative hearings could protect individuals’ legal rights — one is before an organization is designated as subversive, the other is when the individual, because of membership, is accused of disloyalty. Either choice might be a permissible solution of a difficult problem inherent in such an extensive program. But an equally divided Court today, erroneously, I think, rejects the claim that the individual has hearing rights.
By the procedures of this Loyalty Order, both groups and individuals may be labeled disloyal and subversive. The Court grants judicial review and relief to the group while refusing it to the individual. So far as I recall, this is the first time this Court has held rights of individuals subordinate and inferior to those of organized groups. I think that is an inverted view of the law— it is justice turned bottom-side up.
This procedure is appropriate here where the Government has lumped all the members’ interests in the organization so that condemnation of the one will reach all. The Government proceeds on the basis that each of these associations is so identical with its members that the subversive purpose and intents of the one may be attributed to and made conclusive upon the other. Having adopted this procedure in the Executive Department, I think the Government can hardly ask the Judicial Department to deny the standing of the organizations to vindicate its members’ rights.
Unless a hearing is provided in which the organization can present evidence as to its character, a presumption of disloyalty is entered against its every member-employee, and because of it, he may be branded disloyal, discharged, and rendered ineligible for government service. I would reverse the decisions for lack of due process in denying a hearing at any stage.
United States v. Morton Salt Co.,
“Boards . . . should not enter upon any evidential investigation of the nature of any of the organizations identified in the Attorney General’s list, for the purpose of attacking, contradicting, or modifying the controlling conclusion reached by the Attorney General in such list. . . . [T] he Board should permit no evidence or argument before it on the point.” Loyalty Review Board, Memorandum No. 2, March 9, 1948.
Eberlein v. United States,
This is true, although reasons stated are alleged to be false or the officer taking the action is alleged to have acted in a biased, prejudicial and unfair manner. Golding v. United States,
“A total of 3,166 Government employees have quit or have been discharged under President Truman’s loyalty program since it began March 21,1947, the Loyalty Review Board reported today.
“Of these, 294 actually were discharged for disloyalty. The remainder, 2,872, quit while under investigation and might or might not have been found disloyal.” New York Times, January 16, 1951.
Bailey v. Richardson,
Dissenting Opinion
The three organizations named in the caption, together with certain other groups and individuals, filed suits in the United States District Court for the District of Columbia primarily to have declared unconstitutional Executive Order No. 9835, March 21, 1947, 12 Fed. Reg. 1935, as applied against these petitioners. Acting un
The list was transmitted to the Board by the Attorney General as a part of the plan of the President, broadly set forth in Executive Order No. 9835, to furnish maximum protection “against infiltration of disloyal persons into the ranks of [government] employees, and equal protection from unfounded accusations of disloyalty” for the loyal employees. 12 Fed. Reg. 1935. Executive Order No. 9835 came after long consideration of the problems of possible damage to the Government from disloyalty among its employees. 92 Cong. Rec. 9601. See the Report of the President’s Temporary Commission on Employee Loyalty (appointed 1946), p. 23:
“The presence within the government of any disloyal or subversive persons, or the attempt by any such persons to obtain government employment, presents a problem of such importance that it must be dealt with vigorously and effectively.”
A list of subversive organizations under Executive Order No. 9300, 3 CFR, 1943 Cum. Supp., 1252, was likewise disseminated to government agencies. 13 Fed. Reg. 1473.
The procedure for designating these petitioners as communists may be summarized as follows: Executive Order No. 9835, Part III, was issued by the President as Chief Executive, “in the interest of the internal management of the Government” and under the Civil Service Act of 1883, 22 Stat. 403, as amended, and § 9A of the Hatch Act, 5 U. S. C. (Supp. II) § 118j. The former acts give general regulatory powers over the employment and discharge of government personnel; the latter is more specific.
The designations made available for the use of the Loyalty Review Board and the departmental or agency loyalty boards, thе result of the investigation of the Attorney General into the character of organizations that might fall under suspicion as totalitarian, fascist, communist or subversive. The list does not furnish a basis for any court action against the organizations so designated. It of course might follow from discovery of facts by the investigation that criminal or civil proceedings would be begun to enforce an applicable criminal statute or to cancel the franchise or some license of a listed organization. In such a proceeding, however, the accused organization would have the usual protections of any defendant. The list is evidence only of the character of the listed organizations in proceedings before loyalty boards to determine whether “reasonable” grounds exist for belief “that the employee under consideration” is disloyal to the Government of the United States. See note 2, supra. The names were placed on the list by the Attorney General after investigation. If legally permissible, as carried out by the Attorney General, there is no question but that a single investigation as to the character of
None of the complaints deny that the Attorney General made an “investigation” of the organizations to determine whether or not they were totalitarian, fascist, communist or subversive as required by Part III, § 3, or that he had material information concerning disloyal activities on their part. The Council came the nearest to such an allegation in the quoted excerpts from their complaint in note 10, but we read them as no more than allegations of unconstitutionality because “investigation” without notice and hearing is not “appropriate.” Certainly there is no specific allegation of the way in which the Attorney General failed to follow the Order. We therefore assume that the designation was made after appropriate investigation and determination.
Procedure under the Executive Order does not require “proof” in the sense of a court proceeding that these communist organizations teach or incite to force and vio
“In all its activities the NATIONAL COUNCIL has sought to further the best interests of the American people by lawful, peaceful and constitutional means.”
The absence of any provision in the Order or rules for notice to suspected organizations, for hearings with privilege to the organizations to confront witnesses, cross-examine, produce evidence and have representation of counsel or judicial review of the conclusion reached by the Attorney General is urged by the petitioners, as a procedure so fundamentally unfair and restrictive of personal freedoms as to violate the Federal Constitution, specifically the Due Process Clause and the First Amendment. No opportunity was allowed by the Attorney General for petitioners to offer proof of the legality of their purposes or to disprove charges of subversive opera
To these complaints, the Government filed motions to dismiss because of failure to state a claim upon which relief could be granted. The motions were granted by the District Court and the Court of Appeals affirmed.
Admissions by motions to dismiss. — It is held in Mr. Justice Burton's opinion that the motion to dismiss should have been denied. It is said:
“The inclusion of any of the complaining organizations in the designated list solely on the facts alleged in the respective complaints, which must be the basis for our decision here, is therefore an arbitrary and unauthorized act. In the two cases where the complaint specifically alleges the factual absence of any*198 basis for the designation, and the respondents’ motion admits that allegation, the designation is necessarily contrary to the record.” P. 137.
I understand Mr. Justice Burton’s opinion to hold that as a motion to strike for failure to state a cause of action admits all well-pleaded facts, respondents’ motion admits such allegations in the complaint as that quoted in the third preceding paragraph from the Council’s complaint and the assertions that petitioners are not “totalitarian, fascist, communist or subversive.” Such statements, however, appear to me to be only conclusions of law as to the effect of facts stated, or empty assertions or conclusions without well-pleaded facts to sustain them.
Standing to sue. — A question is raised by the United States as to petitioners’ standing to maintain these actions. It seems unnecessary to analyze that problem in this dissent. If there should be a determination that petitioners’ constitutional rights are violated by petitioners’ designation under Part III, § 3, of the Order, it would seem they would have standing to seek redress. The “standing” turns on the existence of the federal right.
First Amendment. — Petitioners assert that their inclusion on the disloyal list has abridged their freedom of speech, since listeners or readers are more difficult to obtain for their speeches and publications, and parties interested in their work are more hesitant to become associates. The Refugee Committee brief adds that “thought” is also abridged. A concurring opinion accepts these arguments to the point of concluding that the publication of the lists “with or without a hearing” violates the First Amendment.
This Court, throughout the years, has maintained the protection of the First Amendment as a major safeguard to the maintenance of a free republic. This Nation has never suffered from an enforced conformity of expression or a limitation of criticism. But neither are we compelled to endure espionage and sedition. Wide as are the freedoms of the First Amendment, this Court has never hesitated to deny the individual’s right to use the privileges for the overturn of law and order. Reasonable restraints for the fair protection of the Government against incitement to sedition cannot properly be said to be “undemocratic” or contrary to the guarantees of free speech. Otherwise the guarantee of civil rights would be a mockery.
Due Process. — This point brings us face to face with the argument that whether the Attorney General was right or wrong in listing these organizations, his designation cannot stand because a final decision of ineligibility for employment without notice and hearing rises to the importance of a constitutional defect. If standards for definition of organizations includable on the list are necessary, the order furnishes adequate tests as appears from the text preceding notes 2 and 7 above and the standards set out in those notes. Compare cases cited, note 6, supra.
Does due process require notice and hearing for the Department of Justice investigation under Executive Order No. 9835, Part III, § 3, note 3, supra, preliminary to listing? As a standard for due process one cannot do better than to accept as a measure that no one may be deprived of liberty or property without such reasonable
These petitioners are not ordered to do anything and are not punished for anything. Their position may be analogized to that of persons under grand jury investigation. Such persons have no right to notice by and hearing before a grand jury; only a right to defend the charge at trial.
To allow petitioners entry into the investigation would amount to interference with the Executive’s discretion, contrary to the ordinary operations of Government. Long ago Mr. Chief Justice Taney in Decatur v. Paulding,
“The head of an executive department of the government, in the administration of the various and important concerns of his office, is continually required to exercise judgment and discretion. . . .
“If a suit should come before this Court, which involved the construction of any of these laws, the Court certainly would not be bound to adopt the construction given by the head of a department.*204 And if they supposed his decision to be wrong, they would, of course, so pronounce their judgment. But their judgment upon the construction of a law must be given in а case in which they have jurisdiction, and in which it is their duty to interpret the act of Congress, in order to ascertain the rights of the parties in the cause before them.” P. 515.
“The interference of the Courts with the performance of the ordinary duties of the executive departments of the government, would be productive of nothing but mischief; and we are quite satisfied that such a power was never intended to be given to them.” P. 516.
That rule still stands. Larson v. Domestic & Foreign Corp.,
“But if the matter in respect to which the action of the official is sought, is one in which the exercise of either judgment or discretion is required, the courts will refuse to substitute their judgment or discretion for that of the official entrusted by law with its execution. Interference in such a case would be to interfere with the ordinary functions of government.” P. 633.
It seems clearly erroneous to suggest that “listing” determines any “guilt” or “punishment” for the organizations or has any finality in determining the loyalty of members. The President and the Attorney General pointed this out.
Before stating our conclusions a comment should be made as to the introduction by the concurring opinions of a discussion of the rights of a member of these organizations. It is suggested by one concurrence that as the “Government proceeds on the basis that each of these associations is so identical with its members that the subversive purpose and intents of the one may be attributed to and made conclusive upon the other,” the organization must be permitted to vindicate the members’ rights or due process is not satisfied. Another concurrence states “an employee may lose his job because of the Attorney General’s secret and ex parte action.” Both concurrences indicate, it seems to me, that as a member of petitioner organizations is denied due process by the effect of listing the organizations, the organization is likewise denied due process in the listing. Without accepting the logic of the concurrences, and waiving inquiry as to the standing of a corporation or unincorporated association to defend the rights of a member to employment, we think the suggestions as to lack of due process are based on an erroneous premise. Employees generally, under executive departments and agencies, whether or not members of listed organizations, without special statutory protection such as permanent employees under the competitive and classified civil service laws and regulations or preference eligibles under the Veterans’ Preference Act of 1944, 58 Stat. 387, 5 U. S. C. § 851, 5 CFR, Parts 9 and 22, and Part 2, § 2.104, are subject to summary removal by the appointing officers.
Conclusion. — In our judgment organizations are not affected by these designations in such a manner as to
What petitioners seek is a ruling that the Government cannot designate organizations as communist for the purpose of furthering investigations into employees’ loyalty by the employing agencies without giving those organizations an opportunity to examine and meet the information on which the list is based. One can understand that position. There is a natural hesitation against any action that may damage any person or organization through an error that notice and hearing might correct. Such attitude of tolerance is reflected in § 13 of the Internal Security Act of 1950, 64 Stat. 987, 998. A statutory requirement for notice and administrative hearing, how
The Executive has authority to gather information concerning the loyalty of its employees as congressional committees have power to investigate matters of legislative interest. A public statement of legislative conclusions on infоrmation that later may be found erroneous may damage those investigated but it is not a civil judgment or a criminal conviction. Due process does not apply. Questions of propriety of political action are not for the courts. Information that an employee associates with or belongs to organizations considered communistic may be deemed by the Executive a sound reason for making inquiries into the desirability of the employment of that employee. That is not “guilt by association.” It is a warning to investigate the conduct of the employee and his opportunity for harm.
While we must be on guard against being moved to conclusions on the constitutionality of action, legislative or executive, by the circumstances of the moment, undoubtedly varying conditions call for differences in procedure. Due process requires appraisal in the light of conditions confronting the executive during the continuation of the challenged action.
The judgment of the Court of Appeals should be affirmed.
5 U. S. C. (Supp. II) § HSj:
“(1) It shall be unlawful for any person employed in any capacity by any agency of the Federal Government, whose compensation, or any part thereof, is paid from funds authorized or appropriated by any Act of Congress, to have membership in any political party or organization which advocates the overthrow of our constitutional form of government in the United States.
“(2) Any person violating the provisions of this section shall be immediately removed from the position or office held by him, and thereafter no part of the funds appropriated by any Act of Congress for such position or office shall be used to pay the compensation of such persons.”
See 12 Fed. Reg. 1938, 5 CFR §210.11 (a):
“(a) Standard. 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. The panel shall reach its decision on consideration of the complete file, arguments, brief and testimony presented to it.
“(b) Activities and associations. Among the activities and associations of an applicant or employee which may be considered in connection with the determination of disloyalty may be one or more of the following:
“(6) Membership in, affiliation with or sympathetic association with any foreign or domestic organization, association, movement, group or combination of persons, designated by the Attorney General as totalitarian, fascist, communist, or subversive, or аs having adopted a policy of advocating or approving the commission of acts of force or violence to deny other persons their rights under the Constitution • of the United States, or as seeking to alter the form of government of the United States by unconstitutional means.”
“3. The Loyalty Review Board shall currently be furnished by the Department of Justice the name of each foreign or domestic organization, association, movement, group or combination of persons which the Attorney General, after appropriate investigation and determination, designates as totalitarian, fascist, communist or subversive, or as having adopted a policy of advocating or approving the commission of acts of force or violence to deny others their rights under the Constitution of the United States, or as seeking to alter the form of government of the United States by unconstitutional means.
“a. The Loyalty Review Board shall disseminate such information to all departments and agencies.”
5 CFR § 210.11 (b) (6):
“Such membership, affiliation or sympathetic association is simply one piece of evidence which may or may not be helpful in arriving at a conclusion as to the action which is to be taken in a particular ease. ...”
See 5 CFR §200.1.
13 Fed. Reg. 1471:
“After the issuance of Executive Order No. 9835 by the President, the Department of Justice compiled all available data with respect to the type of organization to be dealt with under that order. The investigative reports of the Federal Bureau of Investigation concerning such organizations were correlated. Memoranda on each such organization were prepared by attorneys of the Department. The list of organizations contained herein has been certified to the Board*193 by the Attorney General on the basis of recommendations of attorneys of the Department as reviewed by the Solicitor General, the Assistant Attorneys General, and the Assistant Solicitor General, and subsequent careful study of all by the Attorney General.”
Cf. United States v. Chemical Foundation,
Cf. Nash v. United States,
5 CFR § 210.11 (b):
“(1) Sabotage, espionage, or attempts or preparations therefor, or knowingly associating with spies or saboteurs;
“ (2) Treason or sedition or advocacy thereof;
“(3) Advocacy of revolution or force or violence to alter the constitutional form of government of the United States;
“(4) Intentional, unauthorized disclosure to any person under circumstances which may indicate disloyalty to the United States, of documents or information of a confidential or non-public character obtained by the person making the disclosure as a result of his employment by the Government of the United States, or prior to his employment;
“(5) Performing or attempting to perform his duties, or otherwise acting, so as to serve the interests of another government in preference to the interests of the United States; See also n. 2, supra.
In Schneiderman v. United States,
The Russian Imperial Government fell quickly in February 1917, because its power had been sapped by bureaucratic rapacity and war losses as well as by communist revolutionary doctrines. Even under those circumstances, there are said to have been more than a thousand casualties in St. Petersburg. I Trotsky, History of the Russian Revolution, 141.
The doctrine and practices of communism clearly enough teach the use of force against an existing noncommunist government to justify an official of our Government taking steps to protect governmental personnel by screening individuals to determine whether they accept force and violence as a political weapon. From the last paragraphs of the Communist Manifesto to the seizure of the last satellite, force and violence appears as a communist method for gaining control. Lenin, Collected Works (1930), Vol. XVIII, pp. 279-280; Trotsky, op. cit., 106, 120, 144, 151; Lenin, The State and Revo
See § 2 of the Internal Security Act of 1950, 64 Stat. 987.
In the Refugee Committee complaint unconstitutionality of the designation was predicated upon repugnancy:
“1) It is repugnant to the Constitution of the United States as a deprivation of freedom of speech, of the press, and of assembly and association in violation of the First Amendment.
“2) ... as a deprivation of the fundamental rights of the people of the United States reserved to the people of the United States by the Ninth and Tenth Amendments.
“3) ... as a deprivation of liberty and property without due process of law in violation of the Fifth Amendment.”
In the Council case, it was predicated upon a lack of “any advance notice” and the Attorney General’s acting “without making ‘an appropriate investigation and determination,’ as required” by the Order. It was said:
“The aforesaid actions of the defendants have been arbitrary, capricious, contrary to law, in excess of statutory right and authority. Such actions have violated the rights of the plaintiffs guaranteed by the First and Fifth Amendments to the Constitution and are contrary to the Ninth and Tenth Amendments.”
The same general allegations of violations of the Due Process Clause and the First Amendment appear in No. 71, International Workers Order, Inc.
Nortz v. United States,
Bell v. Hood,
United Public Workers v. Mitchell,
The fairness of that designation is considered under the next point.
Perhaps they would insist not only on notice that an investigation is to be had but on an opportunity to be present and to have counsel, to cross-examine, to object to the introduction of evidence, to argue and to have judicial review. Cf. Hiatt v. Compagna,
The statutory requirement for a hearing explains the statement in Morgan v. United States,
See the statement in the first Morgan case,
No enforceable rights to a hearing exist in an alien seeking admission to the United States. United States ex rel. Knauff v. Shaughnessy,
Of course, notice to petitioners that an investigation was to be had to determine whether they had seditious purposes would be useless without opportunity for an administrative hearing. That is the effect of petitioners’ argument.
For example, Shields v. Utah Idaho R. Co.,
Reliance on Interstate Commerce Comm’n v. Louisville & N. R. Co.,
United States v. Lovett, 328 U. S. 303, 316, protected an employee against what this Court held was legislative decree of exclusion from government employment without trial.
Columbia Broadcasting System v. United States,
Duke v. United States,
46 Stat. 1421, 40 U. S. C. A. § 258 (a), and annotations; Catlin v. United States,
E. g., Underwriters from bank employment or direction. 48 Stat. 194, as amended, 49 Stat. 709, 12 U. S. C. § 78.
This Court has declared the courts cannot supervise departmental action in discharge for inefficient rating, Keim v. United States,
It said, p. Ill: “It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative.”
And added, pp. 112-113:
“Until the decision of the Board has Presidential approval, it grants no privilege and denies no right. It can give nothing and can take nothing away from the applicant or a competitor. It may be a step which if erroneous will mature into a prejudicial result,*205 as an order fixing valuations in a rate proceeding may foreshow and compel a prejudicial rate order. But administrative orders are not reviewable unless and until they impose an obligation, deny a right or fix some legal relationship as a consummation of the administrative process.”
5 CFR, App. A, p. 200, 13 Fed. Reg. 1471-1473:
“In connection with the designation of these organizations, the Attorney General has pointed out, as the President had done previously, that it is entirely possible that many persons belonging to such organizations may be loyal to the United States; that membership in, affiliation with, or sympathetic association with, any organization designated is simply one piece of evidence which may or may not be helpful in arriving at a conclusion as to the action which is to be taken in a particular easе. ‘Guilt by association’ has never been one of the principles of our American jurisprudence. We must be satisfied that reasonable grounds exist for concluding that an individual is disloyal. That must be the guide.”
Keim v. United States,
5 CFR § 220.2 (a) (6). See note 4, supra.
“A total of 3,166 Government employees have quit or have been discharged under President Truman’s loyalty program since it began March 21,1947, the Loyalty Review Board reported today.
“Of these, 294 actually were discharged for disloyalty. The remainder, 2,872, quit while under investigation and might or might not have been found disloyal.
“The loyalty figures cover all 2,000,000 or more Government employees, plus the additional thousands hired since the program was begun in the spring of 1947.
“The regular monthly loyalty report showed that loyalty boards of the various Federal agencies had received 13,842 reports from the Federal Bureau of Investigation and other investigating agencies since March 21, 1947. This meant investigators found something about those persons that raised a question about their loyalty.
“Of the cases ruled on by loyalty boards, 8,371 were found loyal and 522 disloyal. Of the 522, 294 were discharged, 186 won their jobs back on appeal and forty-two are still awaiting decisions.” New York Times, January 16, 1951.
See also n. 9 of Mr. Justice Douglas’ concurrence.
Disqualification grounds are in 5 CFR § 2.104 (a):
“(a) An applicant may be denied examination and an eligible may be denied appointment for any of the following reasons:
“(1) Dismissal from employment for delinquency or misconduct.
“(2) Physical or mental unfitness for the position for which applied.
“(3) Criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct.
“(4) Intentional false statements or deception or fraud in examination or appointment.
“(5) Refusal to furnish testimony as required by §5.3 of this chapter.
“(6) Habitual use of intoxicating beverages to excess.
"(7) On all the evidence, reasonable grounds exist for belief that the person involved is disloyal to the Government of the United States.
“ (8) Any legal or other disqualification which makes the applicant unfit for the service.”
Paragraph (7) is new. Cf. 12 Fed. Reg. 1938.
5 CFR §9.102 (1):
“No employee, veteran or nonveteran, shall be separated, suspended, or demoted except for such cause as will promote the efficiency of the service and for reasons given in writing. The agency shall notify the employee in writing of the action proposed to be taken. This notice shall set forth, specifically and in detail, the charges preferred against him. The employee shall be allowed a reasonable time for filing a written answer to such charges and furnishing affidavits in support of his answer. He shall not, however, be entitled to an examination of witnesses, nor shall any trial or hearing be required except in the discretion of the agency.”
See Part 22 for appeals under Veterans’ Preference Act of 1944.
5 CFR, Part 220.
5 CFR § 220.2 (f) and (g).
“ (g) . . . The notice of proposed removal action required in paragraph (f) of this section shall state to the employee:
“(1) The charges against him in factual detail, setting forth with particularity the facts and circumstances relating to the charges so far as security considеrations will permit, in order to enable the employee to submit his answer, defense or explanation.
“(2) His right to answer the charges in writing, under oath or affirmation, within a specified reasonable period of time, not less than ten (10) calendar days from the date of the receipt by the employee of the notice.
“(3) His right to have an administrative hearing on the charges before a loyalty board in the agency, upon his request.
“(4) His right to appear before such board personally, to be represented by counsel or representative of his own choosing, and to present evidence in his behalf.”
Id:, § 220.3 (d):
“(d) Presentation of evidence. Both the Government and the applicant or employee may introduce such evidence as the board may deem proper in the particular case.
“The board shall take into consideration the fact that the applicant or employee may have been handicapped in his defense by the non-disclosure to him of confidential information or by the lack of opportunity to cross-examine persons constituting such sources of information.”
The Prime Minister first described this program in a statement in the House of Commons, March 15, 1948, 448 H. C. Deb. 1703 ff., and in further detail on March 25, id. at 3418 if. The standards for the program are set forth at 451 H. C. Deb., Written Answers, p. 118, in the form of instructions to three “advisers on Communists and Fascists in the Civil Service,” retired civil servants designated to perform a function essentially parallel to that of the Loyalty Review Board here:
“1. The Government have stated that no one who is believed to be: — ■
“(i) either a member of the Communist Party or of a Fascist organisation; or
“(ii) associated with either the Communist Party or a Fascist organisation in such a way as to raise legitimate doubts about his reliability;
is to be employed in connection with work the nature of which is vital to the security of the State.
“2. You have been appointed to advise Ministers, in any cases referred to you, whether in your opinion their prima facie ruling that a civil servant comes under (i) or (ii) above is or is not substantiated. The decision on what employment is to be regarded as involving 'connection with work the nature of which is vital to the security of the State’ is one not for you but for Ministers in charge of Departments.
“3. Your functions do not extend beyond advising the Minister whether the prima facie case has or has not been substantiated. You are not concerned with the action which he may decide to take in relation to the matter.”
The Prime Minister stated that the civil servant concerned would be informed as specifically as possible of the charges against him, but
While the program is primarily intended to effect the transfer of unreliable civil servants to jobs not vital to the security of the state (unless their technical training fits them only for security jobs), nevertheless it has apparently been extended to cover all jobs in certain agencies, such as the Air Ministry Headquarters. Id., Yol. 452, at 940-941.
The Prime Minister did not answer directly questions as to the scope of the order in relation to “the telephone service and key telephone exchanges,” id., Vol. 448, at 1705, or “members of the Services who are engaged in dealing with secret processes.” Id. at 1706.
Cf. Standard Computing Scale Co. v. Farrell,
Hirabayashi v. United States,
Home Building & Loan Assn. v. Blaisdell,