# Opposition Brief — Friedman v. Schwellenbach

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1947
- **Citation:** 331 U.S. 865

## Text

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

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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

——

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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

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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. * * *

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_0990%3A3. Public record. Not legal advice.