177 F.2d 79 (D.C. Cir. 1949), 10002, Joint Anti-Fascist Refugee Committee v. Clark

Docket Nº:10002.
Citation:177 F.2d 79
Case Date:August 11, 1949
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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177 F.2d 79 (D.C. Cir. 1949)



CLARK, Attorney General et al.

No. 10002.

United States Court of Appeals, District of Columbia Circuit.

August 11, 1949

Argued March 16, 1949.

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Mr. O. John Rogge, Washington, D.C., with whom Messrs. Murray A. Gordon and Robert H. Goldman, New York City, were on the brief, and Mr. Benedict Wolf, New York City, for appellant.

Mr. Edward H. Hickey, Special Assistant to the Attorney General, with whom Messrs. H. G. Morison, Assistant Attorney General, George Morris Fay, United States Attorney, and Richard E. Guggenheim, Attorney, Department of Justice, Washington, D.C., were on the brief, for appellees.

Messrs. Carl W. Berueffy, Washington, D.C. Osmond K. Fraenkel and James L. Fly, New York City, were on the brief for the American Civil Liberties Union as amicus curiae, urging reversal.

Before EDGERTON, CLARK and PROCTOR, Circuit Judges.

PROCTOR, Circuit Judge.

This appeal is from an order of the District Court dismissing the complaint of the Joint Anti-Fascist Refugee Committee, appellant, (an unincorporated association alleged to be engaged in raising and distributing funds for relief of anti-fascist refugees) hereafter referred to as Committee, against Tom C. Clark, as Attorney General

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of the United States, Seth W. Richardson, as Chairman of the Loyalty Review Board of the United States Civil Service Commission, and other named members of said Board, hereafter referred to as Board.

The complaint is based upon the action of the Attorney General, without notice or hearing, in designating the Committee as an organization falling under Part III, Section 3, of Executive Order 9835, 5 U.S.C.A. § 631 note, 12 Fed.Reg. 1935, March 21, 1947, and listing its name as such in a letter to the Board, and the action of the Board in distributing the letter and list to departments and agencies in the executive branch of the Government and releasing the same to the public press. The foregoing steps were taken pursuant to directions of the President in said Executive Order 9835. The declared purpose of this order is to assure the employment of persons loyal to the United States. To that end it prescribes detailed procedures for the administration of an employees loyalty program in the executive branch of the Government, involving investigation of officers and employees therein and applicants for employment. The order recites that it is based upon authority vested in the President by the Constitution and statutes, including the Civil Service Act of 1883, 22 Stat. 403, as amended, and Section 9A of the Hatch Act, approved August 2, 1939, 18 U.S.C.A. § 61i, now 5 U.S.C.A. § 118:, and by authority of the President as Chief Executive of the United States, in the interests of the internal management of the Government. Section 9A of the Hatch Act provides:

'(1) It shall be unlawful for any person employed in any capacity by any agency of the Federal Government, whose compensation, or any part thereof, is paid from funds authorized or appropriated by any Act of Congress, to have membership in any political party or organization which advocated the overthrow of our constitutional form of government in the United States.

'(2) Any person violating the provisions of this section shall be immediately removed from the position or office held by him, and thereafter no part of the funds appropriated by any Act of Congress for such position or office shall be used to pay the compensation of such person.'

Part III, Section 3, of the order provides that the Board shall currently be furnished by the Department of Justice with the name of each organization 'which the Attorney General, after appropriate investigation and determination, designates as totalitarian, fascist, communist or subversive, or as having adopted a policy of advocating or approving the commission of acts of force or violence to deny others their rights under the Constitution of the United States, or as seeking to alter the form of government of the United States by unconstitutional means.' By sub-section 'a' Part III, Sec. 3, the Board is directed to 'disseminate such information to all departments and agencies.' The order further provides that among activities and associations of an applicant or employee, which may be considered in determining disloyalty, are membership in, affiliation with or sympathetic association with any of the organizations designated by the Attorney General. Executive Order 9835, Part V, Sec. 2, f, 5 U.S.C.A. § 631 note. In his letter to the Board the Attorney General, in designating the Committee classified it under Part III, Section 3, of the Executive Order. For brevity, we refer to the several groups indicated therein under the general term 'subversive,' although the Attorney General did not specifically so designate the Committee. In the foregoing letter, the Attorney General reiterates an admonition by the President that membership in or association with a designated organization 'is simply one piece of evidence which may or may not he helpful in arriving at a conclusion as to the action which is to be taken in a particular case.' The complaint contains no express denial that the Committee falls within the designation made by the Attorney General. In view of the extraordinary relief sought by way of equity a denial would seem to be appropriate. This is, in no sense, a simple action for libel.

The gist of the complaint is that Section 9A of the Hatch Act, 'as applied by' the Executive Order, and the order itself are unconstitutional and that the actions of the

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Attorney General in designating and listing the Committee as subversive, and of Richardson in disseminating and publishing the list have caused the Committee to suffer loss of reputation and 'business and patronage,' including contributions from former and potential contributors, especially present and prospective civil servants; also to be deprived of its tax exempt status as a charitable organization; to be refused necessary licenses to solicit funds; to be hampered in obtaining places and supporters to carry on its fund-raising activities, and its 'members and others' to be disgraced to their 'economic injury,' and discouraged in continuing their activities in behalf, all to its irreparable damage. Those are the only direct allegations of damage or loss of rights suffered by the Committee. Nevertheless the complaint goes on to charge that the foregoing actions of defendants were 'without warrant in law and amount to a deprivation of the rights of the plaintiff in violation of the Constitution * * *' and that Section 9A of the Hatch Act is void as applied by Executive Order 9835, because a deprivation of freedom of speech, of the press and of assembly and 'association' (1st Amendment), of reserved rights of the people (9th and 10th Amendments) and of liberty and property without due process of law (5th Amendment). Wherefore, the Committee seeks a judgment declaring Section 9A of the Hatch Act, 'as applied by Executive Order No. 9835,' and the order itself, to be unconstitutional; also for broad injunctive relief to annul the alleged illegal acts of the Attorney General and the Board and overcome their ill effects. The motion to dismiss is laid upon the ground that the complaint fails to state a justiciable controversy or a claim upon which relief can be granted.

We are convinced that the complaint does not present a justiciable controversy. The Executive Order imposes no obligation or restraint upon the Committee. It commands nothing of the Committee. It denies the Committee no authority, privilege, immunity or license. It subjects the Committee to no liability, civil or criminal. Cf. United States v. Los Angeles & S.L.R. Co., 1927, 273 U.S. 299, 309, 310, 47 S.Ct. 413, 71 L.Ed. 651. Nor does the designation by the Attorney General have any such effect. His letter to the Board simply complies with the directions of the President in whose behalf he was acting. He has done for the President only that which the President could have done for himself. Had the President done so his action would have been within the realm of his executive power, not subject to judicial review. Marbury v. Madison, 1803, 1 Cranch. 137, 164-166, 5 U.S. 137, 164-166, 2 L.Ed. 60; Keim v. United States, 1900, 177 U.S. 290, 293, 20 S.Ct. 574, 44 L.Ed. 774; Humphrey's Executor v. United States, 1935, 295 U.S. 602, 629-630, 55 S.Ct. 869, 79 L.Ed. 1611.

The letter of the Attorney General and his list of designated organizations were furnished the Board only by way of information and advice. That is made clear by the terms of the Executive Order and the letter of the Attorney General. They cannot be put in the category of laws or regulations within the meaning of constitutional prohibitions against abridgement of the rights of the people. The case is much like that of Standard Computing Scale Company v. Farrell, 1919, 249 U.S. 571, 39 S.Ct. 380, 63 L.Ed. 780, where an injunction was sought against issuing certain scale specifications, injurious to plaintiff's business, upon the claim that it would constitute an invalid exercise of police power and violate constitutional rights and privileges. In upholding dismissal of the bill, the Court says, 249 U.S.at page 575, 39 S.Ct.at page 381:

'The information given in the specifications' complained of may, as the plaintiff contends, be incorrect; the instruction may be unsound, and if it is so, may be mischievous and seriously damage the property rights of innocent persons. But the opinions and advice, even of those in authority, are not a law or regulation such as comes within the scope of the several provisions of the federal Constitution designed to secure the rights of citizens as against...

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