Opposition Brief — Friedman v. Schwellenbach

Jurisdiction .. . ...- ~~. -- ~~ -- 222-2 eee ee ee eee ee eee ee ee ee

Question presented. -............-------------------------

Argument... . ~~. ~~~ ~~~ - eo enn ence ee eee ew ee eens ee neece

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CITATIONS

Cases:

Bennett v. United States, 89 C. Cis. 322......-.....--.---

Block v. Sassaman, 26 F. Supp. 105... .......--.-.-----

Bratton v. United States, 90 C. Cls. 604. ........--.----.

ee o. PE. 0 Ws Sonn cnnnnsecsnssccececee

Eberlein v. United States, 257 U. 8. 82.........-.---.---

A er A, Ge Ux. Ok Ennnn056nangaduqemuquesnacas

fant v. United States, 78 C. Cls. 682, certiorari denied,

Hennen, In the Matter of, 13 Pet. 230_...........--..----

Hirabayashi v. United States, 320 U. 8. 81.......--..--.-

Keim v. United States, 177 U. 8. 290__.....-.--.--------

Kellom v. United States. 55 C. Cis. 174..........-.-.---.-

Lellmann v. United States, 37 C. Cis, 128__...........-.-

Levine v. Farley, 107 F. 2d 186, certiorari denied, 308 U. 8.

Ligare v. Harries, 128 F. 2d 582_.............----...---

Love v. United States, 108 F. 2d 43, certiorari denied, 309

Miller v. United States, 45 C, Cis. 500. ............-.-..

People v. Crane, 214 N. Y. 154, affirmed, 239 U. 8. 195...

Perkins v. Lukens Steel Co., 310 U. 8. 113_.....--..-----

Shurmann v. United States, 264 Fed. 917, appeal dismissed,

tt oe ok setae ee eheienhemenneanbobene

United States v. Elchibegoff, No. 442, this Term, rit dis-

SD TE Oh BIEN oo cnc ccccicscncceccccccanctes

United States v. Wickersham, 201 U. 8S. 390_.........-- it

United States ex rel. Palmer v. Lapp, 244 Fed. 377.....- a

(1)

, 733764—47——1

If

Cases—Continued.

United States ex rel. Taylor v. Taft, 24 App. D. C. 95, writ

of error dismissed, 203 U. 8. 461. ....----------------

Von Knorr v, }*iles, 60 F. Supp. 962, modified on other

grounds, 156 F, 2d 287........- ab chinteghiabakcunnes

DU AMAROMAIA.. ..oocccncccccccsscccccccseccccccccss

Act of June 26, 1940, 54 Stat. 611, c. 482, Sec. 15(f)......

Act of November 26, 1940, Sec. 1, 54 Stat. 1211, 5 U. 8. C,

Rik occ neGndueedennscnucteccssaccneccccencte

Act of July 1, 1941, 55 Stat. 396, c. 266, Sec. 10(f).......

Act of July 2, 1942, 56 Stat. 634, c. 479, Sec. 9(f).......-

Civil Service Act of 1883 (Act of January 16, 1883, 22 Stat.

OUR: BU. BG. GBB Ob Citic cnc cciewnncqnscccncscceces.

Hatch Act, Sec. 9 (a), (Act of August 2, 1939, 53 Stat. 1147,

1148, as amended by Act of July 19, 1940, Sec. 2, 54

UR. Faery, Oe Gn GA MO Pec csn ce ccncccnseccncessenc

Selective Training and Service Act of 1940, c. 720, Sec.

8(i), 54 Stat. 885, 892, 50 U. S. C. App. 308(i)........

Miscellaneous:

89 Cong. Rec. 10254-10255... ............------.----e

Executive Order No. 9063 (7 F. R. 1075)_.........-.-.--

Executive Order No. 9067 (7 F. R. 1047)_.......-.....--

Executive Order No. 9617 (10 F. R. 11929)_...........--

Hearings before the Subcommittee of the Committee on

Appropriations, House of Representatives, 78th Cong.,

2d Sess., Independent Offices Appropriation Bill for 1945

(Dec. 9, 1943), pp. 1083-1087... ................-.--

Memorandum of the Attorney General reprinted in Hearings

before the Special Committee on Un-American Activi-

ties, House of Representatives, 78th Cong,, 2d Sess.,

Investigation of Un-American Propaganda Activities in

the United States (Vol. 17), pp. 10282-10284... __....._-

ek is cocci ndkccnmesabscncanconnken

Report of the Special Committee on Un-American Activi-

ties, H. Rep. 1311, 78th Cong., 2d Sess., Investigation

of Un-American Propaganda Activities in the Uniied

BE, Dh na dhdesncnstanccaguccucasencecancenses

United States Civil Service Commission, History of the

Pe Bes HIE CREE) 6 fcc ccd cncndcqcuccccacaasce

United States Civil Service Commission, Rules and Regu-

lations:

Civil Service Act, Rules and Regulations Annotated

ee ee

16, 17

Ynthe Supreme Gourt of the Wnited States

OcroBER TERM, 1946

No. 990

Morton FRIEDMAN, PETITIONER

v.

Lewis B, SCHWELLENBACH, INDIVIDUALLY AND 48

SECRETARY OF LABOR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE DISTRIOT OF

COLUMBIA

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the District Court of the United

States for the District of Columbia (R. 62-71)

is reported at 65 F. Supp. 254. The opinion of

the United States Court of Appeals for the

District of Columbia (R. 73-76) is not as yet

officially reported.

JURISDICTION

The judgment of the court of appeals was

entered on December 16, 1946 (R. 77). The

(1)

ne a

ILL on

tama

2

petition for a writ of certiorari was filed Febru-

ary 6, 1947. The jurisdiction of this Court is

invoked under the provisions of Section 240 (a)

of the Judicial Code, as amended by the Act of

February 13, 1925. aR.

QUESTION PRESENTED

Whether a person having no civil service status,

who was transferred to a war agency subject to

the Civil Service Commission’s approval as to

his qualifications for a War Service appointment

and after the Commission had determined that

he was not qualified for such appointment be-

cause of doubt as to his loyalty to the United

States and his services had been terminated, is

entitled to mandatory, injunctive, and declaratory

relief, including an order directing his rein-

statement. '

EXECUTIVE ORDERS, AND RULES AND REGULATIONS

INVOLVED

The pertinent portions of the executive orders,

and rules and regulations involved are set forth

in the Appendix, infra, pp. 22-25.

STATEMENT

On May 29, 1942, petitioner, who had been

employed by the Federal Works Agency of the

United States in positions excepted from the

classified civil service (Act of November 26, 1940,

Section 1, 54 Stat. 1211, 5 U. S. C. 631 (a)),

was transferred to a war agency, the Division of

_

3

Central Administrative Services, Office for Emer-

gency Management, where, for the first time, he

eame within the jurisdiction of the Civil Service

Commission (R. 47-48). This transfer was ex-

pressly made “subject to character investiga-

tion,’’ after which, if the findings were favorable,

he became entitled to a War Service appoint-

ment.' Without change in status, petitioner,

while said investigation was being conducted and

while certain of the events hereinafter described

were taking place, was involved first in an inter-

office transfer on September 16, 1942, to the War

Manpower Commission Personnel Branch, Cen-

tral Administrative Services, Office for Emer-

gency Management, and later, on March 27, 1943,

in a group transfer shifting all personnel func-

tions of the Office for Emergency Management

to its constituent agencies—in petitioner’s case,

the War Manpower Commission (R. 47).

The Civil Service Commission’s War Service

Regulation IT, Section 3, effective March 16, 1942,

and prepared and adopted by the Civil Service Com-

mission pursuant to Executive Orders No. 9063 and

9067 (Appendix, pp. 22-25), provides as follows:

Sec. 3. Disqualifications—An applicant

may be denied examination and an eligible

may be denied appointment for any of

*A War Service appointment did not confer a classified,

civil service status but permitted the retention of the person

so appointed to a tenure limited to the duration of the war

and six months thereafter (R. 45, 63).

ee

4

the following reasons: (a) Dismissal from

the service for delinquency or misconduct;

(b) physical or mental unfitness for the

position for which he applies: Provided,

that the physical requirements may be

waived in the case of any person entitled

to disability preference; (¢) criminal, in-

famous, dishonest, immoral, or notoriously

disgraceful conduct; (d) intentional false

statements as to any material fact, or de-

ception or fraud in securing examination

or appointment; (e) refusal to furnish

testimony as required by Civil Service Rule

XIV; (f) habitual use of intoxicating

beverages to excess; (g) a reasonable doubt

as to his loyalty to the Government of the

' United States; (h) any legal disqualifica-

tion for appointment.

Any of the reasons stated in the foregoing

subdivisions from (b) through (h) in-

elusive, shall also be sufficient cause for

removal from the service.

Subsequent to petitioner’s conditional transfer

to the Division of Administrative Services, Office

for Emergency Management, the Commission con-

ducted an investigation as to petitioner’s quali-

fications. As a result of the investigation, the

Commission determined that there was a reason-

able doubt as to petitioner’s loyalty to the Gov-

ernment of the United States and that petitioner

was therefore not eligible for federal employment

in a War Service status. On October 27, 1942,

the Commission requested Central Administrative

am

Services, Office for Emergency Management, to

terminate petitioner’s services (R. 50, 54).

Petitioner appealed from this decision and a

hearing was held on January 26, 1943, before the

Board of Appeals and Review of the Commission

(R. 50).* At the hearing petitioner was given

full opportunity to present for consideration all

the evidence and testimony he desired on the

question of his eligibility for a War Service

appointment (R. 37-39). Thereafter, the Com-

mission, upon review and reconsideration of the

entire record, reaffirmed its determination that

petitioner was ineligible for a War Service ap-

pointment and by letter of May 3, 1943, so noti-

fied petitioner (R. 55). The Office of Emergency

Management was also notified on May 3, 1943,

that the Commission’s previous action had been

affirmed (R. 56). On March 27, 1943, however,

petitioner had been part of a group transfer to

the War Manpower Commission (R. 47). In a

letter of May 17, 1943, from the War Manpower

Commission to the Civil Service Commission, it

was stated that the letter of May 3, 1943, was the

first official notification which had been received

by the War Manpower Commission concerning

5

* While the record is silent in this respect, we are advised

by the Civil Service Commission that the Board of Appeals

and Review recommended to the Commission by a two-to-one

vote that petitioner be declared eligible for a War Service

appointment.

| |

the case and because of that fact they wished

“to refrain from taking action in this matter

until the War Manpower Commission can make

a preliminary investigation of the facts in the case,

and give consideration to the possibility of a for-

mal appeal by this agency * * * for hearing

by the United States Civil Service Commission’’

(R. 57-58). On October 13, 1943, the War Man-

power Commission requested the Civil Service

Commission to reconsider petitioner’s case (R.

50). Following reconsideration, the Civil Serv-

ice Commission advised the War Manpower Com-

mission by letter dated February 25, 1944, that it

had reaffirmed its original action (R. 51, 58-59).

On March 23, 1944, the War Manpower Commis-

sion notified the Civil Service Commission that

‘*Mr. Friedman has requested a personal appear-

ance before the Commissioners and action looking

toward his separation is, therefore, not being

taken pending this hearing’? (R. 59-60). The

Civil Service Commission, in accordance with

its usual policy, did not object to petitioner’s con-

tinued employment pending his appeal (R. 51).

- Petitioner was heard by the Commission on

April 19, 1944 (R. 60). The Commission, after

giving ‘‘most careful consideration’’ to the case,

advised petitioner by letter of June 5, 1944, that

it affirmed its previous action (R. 7-9). This

letter set forth some of the principal factors which

—-_

en.

7

led the Commission to conclude that there was a

reasonable doubt as to petitioner’s loyalty, but

the letter did not constitute, nor did it purport

to constitute, a full statement of the specific rea-

sons for the determination of the Civil Service

Commission which was based upon the complete

investigation which had been made, including

confidential reports of the Feder7l Bureau of

Investigation (R. 51).

The War Manpower Commission terminated

petitioner’s employment as of July 10, 1944, plus

accumulated annual leave to September 12, 1944

(R. 2, 52, 60-61). On August 16, 1944, the Civil

Service Commission advised petitioner that any

applications or eligibilities for examinations he

might have had been cancelled* because of in-

formation disclosed through investigation which

indicated that petitioner did not measure up to

the standard of suitability and fitness maintained

for Government employment (R. 52, 61). The

records of the Civil Service Commission did not

disclose, however, that petitioner had any appli-

cations or eligibilities for examinations then

pending (R. 52).

On December 24, 1944, petitioner filed a com-

plaint in the United States District Court for

the District of Columbia seeking ‘‘a declaratory

judgment, mandamus, injunction and further

* See United States Civil Service Commission, Civil Serv-

ice Act, Rules and Regulations Annotated (1943), p. 68.

733764—47—_-2

——

—

8

relief’? (R. 1). He sought a declaratory judg-

ment that he was improperly dismissed from his

position with the War Manpower Commission

and is entitled to reinstatement for the reason

that his dismissal was based upon improper

grounds in violation of the First and Fifth

Amendments to the Constitution of the United

States, the Civil Service Act (Act of January

16, 1883, 22 Stat. 403 ;5 U.S. C. 632 et seq., the Hatch

Act, Section 9 (a) (Act of August 2, 1939, 53 Stat.

1147, 1148, as amended by the Act of July 19, 1940,

Sec. 2, 54 Stat. 767, 18 U.S. C. 61h), and Civil Serv-

ice Rule I, and that the Civil Service Commission

had no authority to require the dismissal of peti-

tioner but that the War Manpower Commission was

required to exercise its own discretion in de-

termining whether there existed proper cause for

* Originally named as defendants were Paul V. McNutt,

individually and as Chairman of the War Manpower Com-

mission, and Harry B. Mitchell, Lucille Foster McMillin,

and Arthur S. Flemming, individually and as members of the

United States Civil Service Commission. Because of the

resignation of Mr. McNutt as Chairman of the War Man-

power Commission and the transfer on September 19, 1945,

pursuant to Executive Order No. 9617 (10 F. R. 11929), of

that wartime agency and all its functions, employees, and

records, with certain exceptions not here material, to the

Department of Labor, Lewis B. Schwellenbach, individually

and as Secretary of Labor, was substituted as a party de-

fendant (R. 43). After defendant Lucille Foster McMillin

had ceased to hold office as a member of the Civil Service

Commission and Frances Perkins had been appointed as a

member and inducted into office, an order was entered sub-

stituting Frances Perkins, individually and as a member of

the Civil Service Commission, as a party defendant (R. 76a).

x < Reteettn oaeneageeenes

une

the removal of the petitioner. Petitioner fur-

ther sought an order directing the then defendant

McNutt, as Chairman of the War Manpower

Commission, to reinstate him. He also sought

an injunction enjoining the members of the Civil

Service Commission from interfering in any way

with his reinstatement with the War Manpower

Commission or his employment in any other

position, for which he might otherwise be eligible,

with any other agency of the United States

Government, and an order directing the members

of the Civil Service Commission to withdraw

their cancellation of any pending applications

and eligibilities for examination which he might

have.

After respondents answered, both sides moved

for summary judgment and filed supporting affi-

davits. The district court granted respondents’

motion for summary judgment, holding that the

Civil Service Commission had “acted pursuant

to law and the courts are without jurisdiction to

control its action so long as it complies with the

law”? (R. 70-71). On appeal, the court below

affirmed the judgment of the district court.

After holding that the War Service Regulation in

question ‘‘was reasonable and proper and the mak-

ing of it was well within the scope of the authority

conferred on the Commission by the Act and the two

executive orders’’, the Court stated (R. 76) :

It is beyond our province, and it was

beyond the province of the District Court,

to review the finding of the Civil Service

9

8-0 ARR EAN a ant at OD

ee

10

Commission that it had a reasonable doubt

as to whether Friedman was loyal to the

government, because it has long been held

that the courts will not review managerial

acts, not clearly arbitrary, of executive

officials performed within the scope of their

authority, and will not substitute their

judgment in such matters for that of the

officials.

ARGUMENT

Although the petition herein, as well as the

amicus brief of the United Public Workers of

America (C. I. O.), devotes most of its discussion

to an alleged infringement of petitioner’s civil

liberties, the action which petitioner has brought

is relatively simple in character, and its disposi-

tion is, we submit, controlled by principles which

make it unnecessary to pass upon the civil liberty

contentions which petitioner seeks to urge. Peti-

tioner neither has nor claims a civil service status.

What he seeks is a declaratory judgment that he

was illegally dismissed and an order directirg his

reappointment to a position wherein his tenure

would be limited to the duration of the war and

six months thereafter. We do not understand

him to challenge the legality of the Civil Service

Rule pursuant to which he was removed, nor to

contend that any procedural requirement, estab-

lished either by statutes or regulations, has not

been followed. His contention is and must be that

-

the determination of the Civil Service Commis-

sion in respect of any finding made by it under

War Service Regulation II, 3, is subject to judi-

cial review, at least to the extent that it is

arbitrary and capricious. We submit that under

settled law a determination of this character by

the Civil Service Commission is not subject to

judicial review and that even if it were the deter-

mination was not arbitrary or capricious.

1. It is settled law that the courts will not re-

view the acts of executive officials performed

within the scope of the executive authority, nor

will the court substitute its judgment for that

of the officials. Decatur v. Paulding, 14 Pet. 497,

515; Perkins v. Lukens Steel Co., 310 U. 8. 113,

131-132. This principle of non-intervention in

the internal administration of the executive

branch of the Government has been uniformly

applied in the field of personnel administration.

Keim v. United States, 177 U. 8. 290; Eberlein v.

United States, 257 U. S. 82; White v. Berry, 171

U. S. 366; Hammond v. Hull, 131 F. 2d 23 (App.

D. C.), certiorari denied, 318 U. S. 777; Love v.

United States, 108 F. 2d 43 (C. C. A. 8), certiorari

denied, 309 U. 8. 673; Levine v. Farley, 107 F. 2d

186 (App. D. C.), certiorari denied, 308 U. 8. 622;

United States ex rel. Taylor v. Taft, 24 App. D.

C. 95, writ of error dismissed, 203 U. S. 461;

Lellmann v. United States, 37 CO. Cls. 128; Miller

v. United States, 45 C. Cls. 509; Kellom v. United

cy ee

see PIO wtih se i

~~

12

States, 55 C. Cls. 174; Golding v. United States,

78 C. Cls. 682, certiorari denied, 292 U. S. 643;

Bennett v. United States, 89 C. Cls. 322; Bratton

v. United States, 90 C. Cls. 604; Block v. Sassa-

man, 26 F. Supp. 105 (D. Minn.); Waterman v.

Somervell, 34 F. Supp. 695 (S. D. N. Y.), cer-

tiorari to C. C. A. 2 denied, 317 U. 8. 630.

In Keim v. United States, 177 U. S. 290, the

plaintiff was discharged as_ inefficient. He

brought suit in the Court of Claims requesting

that court to find that his discharge was ‘“‘without

just cause’’ and that at the time of his discharge

he was an efficient clerk who, had ‘‘discharged his

duties faithfully and efficiently’? and possessed

“‘the necessary business capacity for the proper

discharge of the duties of said clerkship’’ (177

U.S. at 292). These findings the Court of Claims

declined to make, ‘“‘deeming said requested find-

ings, if true, to be irrelevant to the issue pre-

sented”? (177 U. 8. at 292). In affirming the dis-

missal of plaintiff’s action, this Court stated (177

U. S. at 292, 293):

Upon these facts we are asked to decide

whether the courts may supervise the ac-

tion of the head of a department in dis-

charging one of the clerks therein.

It has been repeatedly adjudged that

the courts have no general supervising

power over the proceedings and action of

the various administrative departments of

government. * * *

—

13

The appointment to an official position

in the Government, even if it be simply a

clerical position, is not a mere ministerial

act, but one involving the exercise of judg-

ment. The appointing power must de-

termine the fitness of the applicant;

whether or not he is the proper one to dis-

charge the duties of the position. There-

fore it is one of those acts over which

the courts have no general supervising

acl

Under the principle established by the above

eases, the action of the Civil Service Commission

here involved is not subject to review by the

courts.’ This principle has particular applicabil-

ity to this case. Here petitioner was in no sense

a permanent employee, nor did he have any tenure

or civil service status whatsoever. He has been

given a conditional transfer, which for present

purposes is completely analogous to a conditional

appointment, and such conditional transfer was

expressly made subject to investigation. He is

in no better position therefore than any outsider

who applies for a position with the United States

Government, and, in such circumstances, it would

seem clear that no one would question the right of

* The instant case is sharply distinguishable from United

States v. Wickersham, 201 U. S. 390, and United States v.

Elchibegoff, No. 442, this Term, writ dismissed Feb. 3, 1947,

Recovery was allowed in both those cases because of the fail-

ure of the government officials to follow procedural require-

ments prescribed by statute in dismissing the employee.

Here, the procedural requirements were followed.

ean ae Td

eee a

14

the executive branch of the Government to refuse

to employ him if in its opinion he did not have

the requisite qualifications. It is submitted that

the court below was clearly correct in holding

that it was not within its province to interfere

with the Civil Service Commission in its refusal

to approve petitioner for a War Service

appointment.

2. Moreover, even assuming that a limited right

of judicial review existed, the Commission’s de-

termination was not arbitrary or capricious. The

petitioner admits (R. 9, 35) that he was not

merely a member but was “prominently and

actively affiliated’? with the American Peace

Mobilization, a recognized Communist ‘‘front”’

organization, ‘“‘participated actively in their

*The Attorney General has found that American Peace

Mobilization (of which the Washington Peace Mobilization

was a subsidiary) was a Communist-inspired and Communist

“front organization (Memorandum of the Attorney General

reprinted in full in Hearings before the Special Committee

on Un-American Activities, House of Representatives, 78th

Cong., 2d Sess., Investigation of Un-American Propaganda

Activities in the United States (Vol. 17), pp. 10282-10284) :

“American Peace Mobilization was formed in the summer

of 1940, under the auspices of the Communist Party and the

Young Communist League as a “front” organization de-

signed to mold American opinion against participation in

the war against Germany. Its existence terminated within

a month after the German invasion of Russia, when it be-

eame American People’s Mobilization and adopted a program

favoring complete assistance to Britain, Russia, and

Chim ° °'*

* * * * *

15

meetings and affairs,’’ and was ‘‘active in the

affairs of the Washington Peace Mobilization and

served on several of its committees.’” Moreover,

petitioner admitted that he was opposed to the

participation of the United States in the war

before the invasion of Russia by Germany, but

thereafter soon changed his mind and adopted

the view that the United States should enter the

war (R. 7-9). This shift in position was one

of the tests recognized not only by the Commis-

“ * * * American Peace Mobilization sponsored the

march on Washington, January 25-27, 1941, when the dele-

gates attempted to picket the Capitol and to see congressional

and administration leaders. Later, on April 4 and 5, 1941, it

sponsored the so-called American People’s Meeting in New

York City. These meetings were dominated by leaders of

Communist-front organizations and the programs and

pamphlets issued in connection with these meetings contained

advertisements and greetings of Communist-penetrated or-

ganizations. * * * Each of the foregoing positions

[taken by American Peace Mobilization] conformed exactly

to the Communist Party line. American Peace Mobilization

numbered among its officers and sponsors several leading

Communists and the heads of several Communist-penetrated

groups.

» * * ~ *

“Ever since 1918, and before, there have been in existence

in the United States organizations devoted to peace and to

the goal of keeping America out of war. Not one of these

organizations, however, was formally represented as an

organization in afiy way in American Peace Mobilization.

These organizations devoted to antiwar activities have been

continuously ignored in the columns of the Daily Worker

and other Communist publications, whereas these same

periodicals gave full support to American Peace Mobiliza-

tion.”

733764—47—_3

16

sion for determining extreme Communistic sym-

pathies (see Appendix, pp. 26-31) but also was a

frequently employed test for determining Com-

munist ‘‘party line’’ affiliations.’

Confronted with this evidence the Commiasion

had to make a decision under the applicable

regulation. It may be argued that this evi-

dence is insufficient to compel the conclusion

that petitioner was disloyal to the United States,

but it certainly cannot be seriously contended that

it is not sufficient to present noncapricious rea-

sons for doubt as to such loyalty. In these cir-

cumstances the Commission found, as it rationally

could, that there was reasonable doubt as to peti-

tioner’s loyalty.’

3. Petitioner contends that the Civil Service

* The Communist Party line test has been frequently cited.

See, e.g., Report of the Special Committee on Un-American

Activities, H. Rep. 1311, 78th Cong., 2d Sess., Jnvestigation

of Un-American Propaganda Activities in the United States,

p. 186.

® Civil Service Commissioner Arthur S. Flemming, testify-

ing before the Subcommittee of the Committee on Appro-

priations of the House of Representatives (78th Cong., 2d

Sess.), discussed the Commission’s position concerning its

requirement that a person’s loyalty to the United States be

established before he is appointed to a war job. He stated

(Hearings before the Subcommittee of the Committee on

Appropriations, House of Representatives, 78th Cong., 2d

Sess., Independent Offices Appropriation Bill for 1945

(December 9, 1943), pp. 1083-1087) :

«“* * * the Commission keeps in mind the fact that

working for the Government is a privilege which is extended

>>_"

wo oneee

17

Commission infringed his constitutional rights

under the First and Fifth Amendments by in-

vestigating his political expressions, actions, and

affiliations in order to discover whether there was

a reasonable doubt as to his loyalty, and also that

the standards applied by the Commission in de-

termining his loyalty conflicted with applicable

laws. We submit that these contentions are with-

out merit.

(a) Prior to the enactment of the Civil Service

Act in 1883, practically all federal employees were

appointed and removed, advanced and demoted,

on the basis of their political opinions and affilia-

tions (United States Civil Service Commission,

to citizens of this country, and is not a right. No applicant

or appointee can demand that the records before us prove

beyond reasonable doubt that he is guilty of some of the

accusations made against him. On the contrary, the record

must establish that he is a fit person to be entrusted with

the duties which devolve upon a public official in time of war.

* * * * *

“No one has questioned the Commission’s right to inquire

as to whether or not a person is pro-Fascist, pro-Nazi, or

pro-Japanese. '

“The Commission believes that a member of the Com-

munist party, or a follower of the Communist Party line

has clearly indicaged that his primary loyalty is to a foreign

political group owing its allegiance to a foreign government

and that there is, therefore, a strong presumption in favor

of his willingness to take steps designed to overthrow our

constitutional form of government, if directed so to do.

Clearly we are justified in classifying such a person as a

potentially disloyal person.”

POEL BF

FP ree

AOI Nate BO BOON APR as 4

18

History of the Federal Civii Service (1941)),

And although this practice was frequently de-

plored, it was to our knowledge never held uncon-

stitutional. Nor, indeed was the unconstitution-

ality of the exercise of the executive power on

this basis even suggested.’ In fact, the cases point

in the opposite direction (Jn the Meter of

Hennen, 13 Pet. 230; White v. Berry, 171 U.S. 366;

United States ex rel. Taylor v. Taft, 24 App. D. C.

95, writ of error dismissed, 203 U. S. 461; United

States ex rel. Palmer v. Lapp, 244 Fed. 377, 384-385

(C. C, A. 6)), and it was only the constitutionality

of civil service restrictions upon the executive’s

power of appointment which were subject to con-

stitutional doubts (see 13 Op. Atty. Gen. 516).

If the United States Government has the

power in time of war to inquire into loyalty

at all, and that right is conceded (R. 69), that

right has meaning only if the statements and

acts of the person under consideration for ap-

pointment may be examined, for, as the courts

have frequently declared, ‘‘loyalty is a matter

of the heart and mind.’’ Ez parte Endo, 323

U. S. 283, 302; Hirabayashi v. United States,

320 U. S. 81, 107; Schurmann v. United States,

* It is, of course, common knowledge that many offices and

positions in the Federal service, not subject to the Civil

Service Act, have traditionally been filled and held by persons

of a particular political affiliation without any intimation that

this is violative of the fundamental law.

a

19

264 Fed. 917, 920 (C. C. A. 9), appeal dismissed,

257 U. S. 621. In no way other than by probing

opinions, conduct, and affiliations, political in

a broad sense, can doubts as to loyalty ordi-

narily be resolved. As Wyzanski, D. J., de-

clared in another context, ‘‘Saboteurs do not

parade with foreign credentials of professional

competence.’’ Von Knorr v. Miles, 60 F. Supp.

962, 970 (D. Mass.), modified on other grounds,

156 F. 2d 287 (C. C. A. 1).

Nor can petitioner successfully claim a de-

privation of property without due process of law

in contravention of the Fifth Amendment. It

is plain that he could not have any ‘‘property”’

in his federal employment, and particularly is this

true in the instant case where petitioner had no civil

service status but only a conditional appointment.

Love v. United States, 108 F. 2d 43, 45-46 (C. C. A.

8), certiorari denied, 309 U. S. 673; Ligare v.

Harries, 128 F’. 2d 582, 583 (C. C. A. 7); People v.

Crane, 214N. Y. 154, 170, 179-180, affirmed, 239 U.S.

195.

(b) The action of the Commission is not in

conflict with the Civil Service Act nor the Hatch

Act. While the former provides that no person

has the right to use his official authority or

influence to coerce the political action of any

person, and the latter provides that all persons

subject to the Act may express ‘“‘their opinions

on all political subjects,”’ there is nothing in

either Act which countenances conduct disloyal

to the United States. And here the question is

a

Pe ee he

a Aagememeen 8

—

20

not one of freedom of political opinion, but

whether the course of conduct followed by peti-

tioner indicated a possible loyalty to the Com-

munist party line creating a reasonable doubt

as to petitioner’s loyalty to the United States.

The attitude of Congress toward Communism is

set forth in the Selective Training and Service Act

of 1940, c. 720, Section 8 (i), 54 Stat. 885, 892, 50

U.S.C. App. 308 (i), which states that:

‘*Tt is the expressed policy of the Congress

that whenever a vacancy is caused in the em-

ployment rolls of any business or industry

by reason of induction into the service of the

United States of an employee pursuant to

the provisions of this Act such vacancy shall

not be filled by any person who is a member of

the Communist Party or the German-

American Bund.”’

A like attitude is illustrated by the Acts of June

26, 1940, 54 Stat. 611, c. 432, Section 15 (f) ; July 1,

1941, 55 Stat. 396, c. 266, Section 10 (f) ; and July 2,

1942, 56 Stat. 634, c. 479, Section 9 (f), which pro-

vide that:

No alien, no Communist, and no member

of any Nazi Bund Organization shall be

given employment or continued in employ-

ment on any work project prosecuted under

the appropriations contained in this joint

resolution. * * *

We submit that there is no conflict between the

course adopted by the Commission and Congres-

sional intent as evidenced by the applicable

statutes.

4. Contrary to the contentions of petitioner

-— =

21

(Pet. 30-32) and the United Public Workers of

America (Brief for Amicus Curiae, pp. 13-14),

the power to provide during the war emergency

for ‘‘filling positions in the Federal service with

qualified persons’’ and for their retention or dis-

missal was delegated to the Civil Service Com-

mission, not to the War Manpower Commission

or other war agencies. Executive Orders No.

9063 and 9067 (Appendix, infra, pp. 22-25) spe-

cifically authorized the Civil Service Commission

to prescribe regulations with respect to ‘‘recruit-

ment, placement, and changes in status of person-

nel for all departments, independent establish-

ments, and other Federal agencies,’’ and provided

that persons appointed under these procedures

“in the discretion of the Civil Service Commis-

ston, may be retained for the duration of the war

and for six months thereafter.’’ (Italics provided.)

CONCLUSION

The decision below is correct and there exists

no conflict. It is respectfully submitted, there-

fore, that the petition for a writ of certiorari

should be denied.

'GrorcE T. WASHINGTON,

Acting Solicitor General.

| Jonn F. Sonnet,

| Assistant Attorney General.

JOHN F. BAaEcHER,

Special dunt to the Attorney General.

Pau A. SwEENEY,

Ray B. Hovston,

Attorneys.

FEBruary 1947.

ee

APPENDIX

1. Executive Order No, 9063, dated February

16, 1942, provides as follows (7 F. R. 1075):

AUTHORIZING THE CIVIL SERVICE COMMISSION

TO ADOPT SPECIAL PROCEDURES RELATING TO

RECRUITMENT, PLACEMENT, AND CHANGES

IN STATUS OF PERSONNEL FOR THE FEDERAL

SERVICE

WHEREAS millions of the citizens of this

country are engaged in war industries or

have been or expect to be called to duty

with the armed forces of the United States,

which militates against their competing for

employment in the Federal service, and

greatly diminishes the number of persons

available for competitive positions in the

Federal service ; and

o* WHEREAS iti is essential that there be no

delay during the present emergency in

poe positions in the Federal service with

qualified persons;

NOW, THEREFORE, by virtue of the

authority vested in me by section 2 of the

Civil Service Act (22 Stat. 404), it is hereby

ordered as follows:

1. The United States Civil Service Com-

mission is authorized to adopt and pre-

scribe such special procedures and regula-

tions as it may determine to be necessary

in connection with the recruitment, place-

ment, and changes in status of personnel

for all departments, independent establish-

ments, and other Federal agencies, except

positions in the field service of the postal

(22)

—— an

establishment. The procedures and regu-

lations thus adopted and prescribed shall

be binding with respect to all positions

affected thereby which are subject to the

on aap of the Civil Service Act and

es.

2. Persons appointed solely by reason of

any special procedures adopted under au-

thority of this order to itions subject

to the provisions of the Civil Service Act

and Rules shail not thereby acquire a classi-

fied (competitive) civil-service status, but,

in the discretion of the Civil Service Com-

mission, may be retained for the duration

of the war and for six months thereafter.

FRANKLIN D. RoosEvELT

THe Wuite Hovse,

February 16, 1942.

2. Executive Order No. 9067, dated February

20, 1942, provides as follows (7 F. R. 1407):

PROVIDING FOR THE TRANSFER OF PERSONNEL

TO WAR AGENCIES

By virtue of the authority vested in me

by the Civil Service Act (22 Stat. 403),

and by Section 1753 of the Revised Statutes

of the United States (U.S. C., title 5, sec.

631), and in order to expedite the transfer

of personnel to war agencies, it is hereby

ordered as follows:

1. For the purpose of facilitating trans-

fers of employees under the provisions of

this Order, the Director of the Bureau of

the Budget shall from time to time estab-

lish priority classifications of the several

Executive departments and agencies, or of

parts or activities thereof, in respect to

their relative importance to the war pro-

gram, and such classifications shall be con-

24

trolling as to transfers under the provisions

of this Order.

2. The Civil Service Commission is au-

thorized to secure information as to em-

ployees of Executive departments and

agencies who are deemed competent to per-

form essential war work in departments or

agencies having a higher priority classifi-

cation, and, with the consent of the em-

ployee concerned, to effect the transfer of

any such employee to meet the personnel

needs of a department or agency having

a higher priority classification.

3. Whenever a transfer is proposed un-

der the provisions of section 2, it shall be-

come effective not later than 10 days after

notification to the department or agency in

which the employee is serving. If, within

that period, the employing department or

agency presents to the Civil Service Com-

mission evidence that its work will be jeop-

ardized by the loss of the employee’s serv-

ices, the Civil Service Commission shall

consider such evidence and make a final

decision. Transfers to departments and

agencies having the same or lower classifica-

tions, shall not be effected without the con-

sent of the department or agency in which

the employee is serving.

4. Any employee transferred pursuant to

this Order shall be entitled to all the re-

ase ge benefits provided by Executive

Order No. 8973 [6 F. R. 6420] of December

12, 1941.

5. The Civil Service Commission is au-

thorized to adopt such rules and ‘regula-

tions and to establish such procedures as

may be necessary to carry out its responsi-

bilities under this Order. Each Executive

department and agency shall promptly fur-

ww

25

nish the Civil Service Commission such in-

formation regarding its employees as the

Commission may require for the effectua-

tion of this Order.

6. This Order shall supersede any pro-

visions of Executive Order No. 8973 of

December 12, 1941, or of any other Execu-

tive Order or Rule of the Civil Service

Commission which is in conflict therewith.

FRANKLIN D. ROOSEVELT

Tue Wuire Howse,

February 20, 1942.

3. The Civil Service Commission’s War Service

Regulation II, Section 3, provides as follows:

Sec. 3. Disqualifications—An applicant

may be denied examination and an eligible

may be denied appointment for any of the

following reasons: (a) Dismissal from the

service for delinquency or misconduct;

(b) physical or mental unfitness for the

position for which he applies: Provided,

that the physical requirements may be

waived in the case of any person entitled

to disability preference; (¢c) criminal, in-

famous, dishonest, immoral, or notoriously

disgraceful conduct; (d) intentional false-

statements as to any material fact, or de-

ception or fraud in securing examination

or appointment; (e) refusal to furnish

testimony as required by Civil Service

Rule XIV; (f) habitual use of intoxicating

beverages to excess; (g) a reasonable doubt

as to his loyalty to the Government of the

United States; (h) any legal disqualifica-

tion for appointment.

Any of the reasons stated in the fore-

going subdivisions from (b) through (h)

inclusive, shall also be sufficient cause for

removal from the service.

a

——

26

4. The Communist Party Line test of loyalty

employed by the Civil Service Commission is as

follows (89 Cong. Rec. 10254-10255) :

The Commission, on the basis of its ex-

perience in handling thousands of these

eases, has developed certain policy stand-

ards. It is of primary importance to

record the fact that the Civil Service Com-

mission will not consider charges against

persons who are found merely to possess

a progressive interest in seeking changes

in the country’s economic and _ political

structure but who adhere firmly to the

principle that such changes are only to be

brought about through orderly democratic

processes.

On the other side of the picture, there

have evolved certain fairly well-defined

categories, where, assuming adequate

evidence, a negative conclusion follows.

Typical of these latter categories are the

following:

Persons who have advocated revolution

or the use of force, if necessary, in order

to bring about political or economic

changes.

Persons whose association with organi-

zations in agreement with the attitudes and

policies of the Nazis, Fascists, or Com-

munists, has been such as to indicate sym-

peey with the programs of the Nazis,

ascists, or Communists.

Persons who have expressed a desire to

see the Axis Nations emerge as the victor

in the present conflict.

Persons whose record shows that they

are more concerned with the success or

failure of a foreign government or a foreign

political system than with the welfare of

the United States Government.

—

27

It is clear, of course, that tied up with

the last point mentioned above is the whole

question of communism. In connection

with the handling of these cases, the Com-

mission has issued the following instruc-

tions to its staff:

THE COMMUNIST PARTY LINE

A good definition of a Communist is ‘‘one

who has followed the Communist Party

line through one or more changes.’’ The

Communist Party line is the policy advo-

cated by the various factions of the

Komintern. It is the policy of preserving

and protecting the Soviet Union by what-

ever means are determined by its leaders. ,

It is not of great importance that the

line during the first 10 years of the

existence of the Communist Party be inti-

mately known. It is, however, imperative

that any person investigating Communist

activity should know the last three major

line changes. These are set forth below.

REVOLUTIONARY PERIOD 1929 TO 1934

On May 6, 1929, a Communist Party

spokesman said: “I think the moment is

not far off when a revolutionary crisis will

develop in America.’”’ From that time on

all Communist‘activity in this country was

actively directed toward violent overthrow

of this Government. The literature of the

party constantly promised the members

that the day of reckoning had arrived;

“that the shackles of capitalism were to be

thrown off and that the decadent capitalist

government was to be replaced by a pro-

letarian dictatorship.’’ In order to reduce

the masses to the depth of despair neces-

sary to reduce their resistance to armed

-

28

revolution, it was essential, in the opinion

of the Communists, that the capitalist gov-

ernment refrain from any social changes

which might ‘‘drug the masses into con-

tinued acceptance of the capitalistic sys-

tem.’”’ For this reason the Communists

sought to wreck and destroy attempts by

the New Deal to pass social legislation.

Any person daring to advance such legis-

lation was violently hated by them and

branded with the term of contempt ‘‘Social

Fascist.’’ They included in this categor

President Roosevelt and the New Deal,

John L. Lewis, Norman Thomas and his

Socialist Party, and most liberals. They

harassed the Socialist Party in its attempt

to set up social security and unemployed

workers’ benefits organizations, and gen-

erally attempted to keep the United States

in economic chaos. It must be remembered

that this period included the worst years

of the depression.

COLLECTIVE SECURITY PERIOD DECEMBER 1934

TO AUGUST 1939

In December 1934 Earl Browder re-

turned from a trip to Russia and immedi-

ately called a halt to the revolutionary pro-

gram, and at the same time launched the

most effective period of Communist in-

filtration in this country. This was the

Popular Front period. The party made

a complete about face. They ceased to

apply the term ‘Social Fascist’? to such

persons as President Roosevelt, Thomas,

and Lewis. They adopted the heroes of

the American Revolution as forerunners of

American communism. The picture of

Abraham Lincoln took its place beside that

of Stalin. Where they had previously at-

—

29

tacked attempts at social reform they now

created a multiplicity of ‘‘front’’ o -

izations to further such causes. ere

they had previously chosen to ignore-the

rise of fascism in Germany, they now bit-

terly attacked Hitler and called for a

united front of the great democracies—

Soviet Russia, Great Britain, China, and

the United States—to stop the Mad Do

of Europe. The Daily Worker demand

punitive action against Japan and _ boy-

eotting of other Axis countries. Where

they had previously expressed nothing but

hatred toward liberals and other radicals,

they now courted these persons assiduously

even to the extent of giving a testimonial

dinner for Norman Thomas, the arch foe

of communism in the years gone by. i

COMMUNAZI PERIOD AUGUST 1939 TO JUNE 1941

In August 1939 Russia signed a non-

aggression pact with Germany and the

Communist Party line made a complete

about face. Immediately all preparations

for defense were termed by the Communists

as warmongering. The British war ef-

fort was reviled in the columns of the

Daily Worker as an imperialistic war for

the perpetuation of capitalist rule.

Communists, through their stooges in the

party front organization, violently op-

posed such defense measures as the con-

scription bill and the lend-lease bill and

extensions of the Monroe Doctrine to the

Western Hemisphere as a whole. The

Communists allied’ themselves with other

radical peace groups in an attempt to

keep America from defending _ itself

and from fighting against Hitler. They

spread anti-Yankee imperialist propaganda

om nen —

30

throughout South America in an effort to

divide the Americas. President Roosevelt

was denounced as a warmonger. His de-

fense program was termed an effort to drag

the American people into an imperialistic

war. All of the familiar and time-worn

anti-war arguments were adopted by the

Communists. In the youth faction the ex-

pression ‘‘The Yanks are not coming”’ be-

came extremely popular. Their war cry

became, ‘‘No A. E. F., no convoys.’’ While —

the Communists in America did not openly

support Adolph Hitler and the Axis, they

revived every device for drawing attention

away from the injustice perpetrated by

that regime. American Communists and

fellow travelers sided with Russia in the

war with Finland.

COLLECTIVE SECURITY PERIOD ( REVIVED) JUNE

22, 1941, TO DATE

With the attack of Russia by Germany

on this date, the Communist Party line

over night reverted again to the collective-

security phase. Communists began to vie

with patriotic Americans in purchasing

Defense bonds and volunteering for civilian

defense duties. The slogan ‘‘The Yanks

are not coming,’’ was changed over night to

“Stop Hitler Now,’’ and ‘“‘The Yanks are

not coming too late.’’ This is perhaps the

most difficult period in which to detect an

American Communist.

An earmark of an American Communist

today is an advanced degree of patiotism.

It is, therefore, difficult to distinguish

friend from foe, but it must be remembered

that this cloak of patiotism was not donned

until June 23, 1941. However, it must also

be remembered that many loyal Americans

_

es

31

were sincerely isolationist in viewpoint un-

til the necessity of our participation in the

war become increasingly evident. The

Communist will try to lead one to think

that he is of that category. The fact which

gives him away is the suddenness of his

switch. |

It must be made clear that to identify

one as a erg or a yoga Traveler

(or a sympathizer), it will be necessary to

show a following of the above line through

one or more changes. Many liberals were

taken in by the Communists in the first col-

lective-security period but became aware

of the true situation with the change in line

occasioned by the signing of the com-

munazi pact in August 1939.

U.S. GOVERNMENT PRINTING OFFICE: 1947