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Bailey v. Richardson

March 22, 1950

BAILEY

v.

RICHARDSON ET AL.



Before EDGERTON, PRETTYMAN and PROCTOR, Circuit Judges.

Writ of Certiorari Granted June 5, 1950.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PRETTYMAN

PRETTYMAN, Circuit Judge.

This is a civil action brought in the United States District Court for the District of Columbia for a declaratory judgment and for an order directing plaintiff-appellant's reinstatement in Government employ. *fn1 The defendants-appellees are the Administrator of the Federal Security Agency, the members of the Civil Service Commission, members of its Loyalty Review Board, and members of its Loyalty Board of the Fourth Civil Service Region. Answer to the Complaint was made by the defendants-appellees, and affidavits were filed. Both plaintiff and defendants made motions for summary judgment. The District Court granted the motion of the defendants. This appeal followed. Upon motion filed in this court by the appellant, the Secretary of Labor was added as party appellee.

The Facts.

Appellant Bailey was employed in the classified civil service of the United States Government from August 19, 1939, to June 28, 1947. Upon the latter date she was separated from the service due to reduction in force. On March 25, 1948, she was given a temporary appointment, and on May 28, 1948, she was reinstated under circumstances to be related.

The regulations of the Civil Service Commission in effect at the time of appellant's reinstatement *fn2 made reinstatements subject to the condition that removal might be ordered by the Commission if investigation of the individual's qualifications, made within eighteen months, disclosed disqualification. The regulations listed as a disqualification: *fn3

"(7) On all the evidence, reasonable grounds exist for belief that the person involved is disloyal to the Government of the United States."

On July 31, 1948, two months after her reinstatement, Miss Bailey received from the Regional Loyalty Board of the Commission a letter and an enclosed interrogatory. The letter said in part:

"During the course of an investigation of your suitability for appointment, information was received which the Commission believes you should be given an opportunity to clarify. Consequently, there are enclosed an original and copy of an interrogatory to be answered by you under affirmation or oath.

"Your cooperation in this matter will be appreciated."

The interrogatory said in part:

"As part of the process of determining your suitability for Federal Employment, an investigation of you has been conducted under the provisions of Executive Order 9835, which established the Federal Employees Loyalty Program. This investigation disclosed information which, it is believed, you should have an opportunity to explain or refute.

"The questions in the attached Interrogatory are based on the information received, and are to be answered in writing in sufficient detail to present fairly your explanation or answers thereto. . . .

"You are further advised that you have the right, upon request, to an administrative hearing on the issues in the case before the Regional Loyalty Board. You may appear personally before the Board and be represented by counsel or representative of your own choice; and you may present evidence in your behalf. Such evidence may be presented by witnesses or by affidavit.

"The Commission has received information to the effect that you are or have been a member of the Communist Party or the Communist Political Association; that you have attended meetings of the Communist Party, and have associated on numerous occasions with known Communist Party members.

"The Commission has received information to the effect that you are or have been a member of the American League for Peace and Democracy, an organization which has been declared by the Attorney General to come within the purview of Executive Order 9835.

"The Commission has received information to the effect that you are or have been a member of the Washington Committee for Democratic Action, an organization which has been declared by the Attorney General to come within the purview of Executive Order 9835.

"Are you now, or have ever been, a member of, or in any manner affiliated with, the Nazi or Fascist movements or with any organization or political party whose objective is now, or has ever been, the overthrow of the Constitutional Government of the United States?"

Miss Bailey answered the interrogatories directly and specifically, denying each item of information recited therein as having been received by the Commission, except that she admitted past membership for a short time in the American League for Peace and Democracy. She vigorously asserted her loyalty to the United States. She requested an administrative hearing. A hearing was held before the Regional Board. She appeared and testified and presented other witnesses and numerous affidavits. No person other than those presented by her testified.

On November 1, 1948, the Regional Board advised the Federal Security Agency, in which Miss Bailey was employed, that:

"As a result of such investigation and after a hearing before this Board, it was found that, on all the evidence, reasonable grounds exist for belief that Miss Bailey is disloyal to the Government of the United States.

"Therefore, she has been rated ineligible for Federal Employment; she has been barred from competing in civil service examinations for a period of three years, and your office is instructed to separate her from the service."

On the same day, a letter was sent by the Board to Miss Bailey, reading in part:

"As shown in the attached copy of a letter to your employing agency, it has been found that, on all the evidence, reasonable grounds exist for belief that you are disloyal to the Government of the United States.

"Your application for or eligibility from each of the examinations mentioned below has been cancelled and you have been barred from civil service examinations in the Federal service for a period of three years from October 29, 1948. When the period of debarment has expired the Commission will, upon request, consider the removal of the bar.

"If you wish to appeal the Board's decision, the Loyalty Review Board, U.S. Civil Service Commission, Washington 25, D.C., should be notified within 20 days from the date of receipt by you of this letter."

Miss Bailey appealed to the Loyalty Review Board and requested a hearing. Hearing was held before a panel of that Board. Miss Bailey appeared, testified, and presented affidavits. No person other than Miss Bailey testified, and no affidavits other than hers were presented on the record.

On February 9, 1949, the Chairman of the Loyalty Review Board advised the Federal Security Agency that the finding of the Regional Board was sustained, and he requested that the Agency remove Miss Bailey's name from the rolls. Notice to that effect was sent to counsel for Miss Bailey on the same day. The full Board subsequently declined to review the conclusions of its panel.

Miss Bailey's position from May 28, 1948, to November 3, 1948, was that of training officer (general fields) CAF-13.

The Question.

The rights claimed by and for appellant must be discovered accurately and defined precisely. The events with which we are concerned were not accidental, thoughtless or mere petty tyrannies of subordinate officials. They were the deliberate design of the executive branch of the Government, knowingly supported by the Congress.

The case presented for Miss Bailey is undoubtedly appealing. She was denied reinstatement in her former employment because Government officials found reasonable ground to believe her disloyal. She was not given a trial in any sense of the word, and she does not know who informed upon her. Thus viewed, her situation appeals powerfully to our sense of the fair and the just. But the case must be placed in context and in perspective.

The Constitution placed upon the President and the Congress, and upon them alone, responsibility for the welfare of this country in the arena of world affairs. It so happens that we are presently in an adversary position to a government whose most successful recent method of contest is the infiltration of a government service by its sympathizers. This is the context of Miss Bailey's question.

The essence of her complaint is not that she was denied reinstatement; the complaint is that she was denied reinstatement without revelation by the Government of the names of those who informed against her and of the method by which her alleged activities were detected. So the question actually posed by the case is whether the President is faced with an inescapable dilemma, either to continue in Government employment a person whose loyalty he reasonably suspects or else to reveal publicly the methods by which he detects disloyalty and the names of any persons who may venture to assist him.

Even in normal times and as a matter of ordinary internal operation, the ability, integrity and loyalty of purely executive employees is exclusively for the executive branch of Government to determine, except in so far as the Congress has a constitutional voice in the matter. All such employees hold office at the pleasure of the appointing authority; again except only for statutory limitations. Never in our history, even under the terms of the Lloyd-Lafollette Act (infra, note 8), has a Government employee been entitled as of right to the sort of hearing Miss Bailey demands in respect to dismissal from office. These well-established principles give perspective to the present problem.

The presentation of appellant's contentions is impressive. Each detail of the trial which she unquestionably did not get is depicted separately, in a mounting cumulation into analogies to the Dreyfus case and the Nazi judicial process. Thus, a picture of a simple black-and-white fact - that appellant did not get a trial in the judicial sense - is drawn in bold and appealing colors. But the question is not whether she had a trial. The question is whether she should have had one.

If the whole of this case were as appellant pictures it, if we had only to decide the question which she states and as she states it, our task would indeed be simple and attractively pleasant. But it is not so. We are dealing with a major clash between individual and public interests. We must ascertain with precision whether individual rights are involved, and we must then weigh the sum of those rights, if there be any, against the inexorable necessities of the Government. We must examine not only one side of the controversy but both sides. I. Conformity with Executive Order.

Appellant's first contention is that the procedure followed by the Loyalty Boards did not conform to the requirements of the Executive Order *fn4 which established them. That Order provided in part:

"The standard for the refusal of employment or the removal from employment in an executive department or agency on grounds relating to loyalty shall be that, on all the evidence, reasonable grounds exist for belief that the person involved is disloyal to the Government of the United States."

Appellant says that "evidence" does not include, in our jurisprudence, information secretly disclosed to a hearing tribunal. That is certainly true, but the question is whether the President used the term in its jurisprudential sense or whether he merely meant "information". We think he meant the latter. The Order, read as a whole, and particularly Part IV, conclusively and emphatically requires that the names of

It is also suggested that the Executive Order was violated in this case, in that the information furnished Miss Bailey in advance of the hearing lacked the specificity required by the Order. It did not include the names of informants against her or the dates or places of her alleged activities. Part II(2)(b) of the Executive Order provides: "The charges shall be stated as specifically and completely as, in the discretion of the employing department or agency, security considerations permit . . .." That particular section refers to persons in employment, but it may be assumed for present purposes that the same requirement was imposed by implication upon the Civil Service Commission in respect to applicants for employment. Certainly, no greater specification would be given applicants than is given permanent employees. Reading the quoted provision of the Order with the utmost stringency in behalf of the individual, it still leaves specificity a wholly discretionary matter.It is not possible to read the sentence otherwise. It unequivocally says so. II. Applicability of the Lloyd-Lafollette Act.

Appellant next says that she was dismissed in violation of an Act of 1912 known as the Lloyd-Lafollette Act.*fn8 That Act refers to persons "in the classified civil service". Appellant says that during her reinstatement and at the time of her removal she was in that service, because she had "a competitive status" from the time of her original employment and Congress by statute has ...


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