NATIONAL COUNCIL, ETC. v. Subversive Activities Cont. Bd.

• Decision Date: 16 May 1963
• Docket Number: No. 13260.,13260.
• Citation: 322 F.2d 375
• Parties: NATIONAL COUNCIL OF AMERICAN-SOVIET FRIENDSHIP, INC., Petitioner, v. SUBVERSIVE ACTIVITIES CONTROL BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

322 F.2d 375 (1963)

NATIONAL COUNCIL OF AMERICAN-SOVIET FRIENDSHIP, INC., Petitioner, v. SUBVERSIVE ACTIVITIES CONTROL BOARD, Respondent.

No. 13260.

United States Court of Appeals District of Columbia Circuit.

Argued October 3, 1962.

Decided May 16, 1963.

Mr. David Rein, Washington, D. C., for petitioner.

Mrs. Lee B. Anderson, Attorney, Department of Justice, with whom Mr. Frank R. Hunter, Jr., General Counsel, Subversive Activities Control Board, Messrs. Kevin T. Maroney and George B. Searls, Attorneys, Department of Justice, and Messrs. Charles F. Dirlam and Peter P. Hanagan, Attorneys, Subversive Activities Control Board, were on the brief, for respondent.

Mr. Edward J. Ennis, New York City, filed a brief on behalf of American Civil Liberties Union, as amicus curiæ.

Before BAZELON, Chief Judge, PRETTYMAN, Senior Circuit Judge, and DANAHER, Circuit Judge.

PRETTYMAN, Senior Circuit Judge.

This is a petition to review an order of the Subversive Activities Control Board, which, having held petitioner to be a Communist-front organization within the meaning of Section 3(4) of the Subversive Activities Control Act of 1950,¹ ordered it to register under Section 7 of that Act.²

Under the statute a Communist-front organization is one which (a) is substantially directed, dominated or controlled by a Communist-action organization and (b) is primarily operated for the purpose of giving aid and support to a Communist-action organization. It has been established³ that the Communist Party of the United States is a Communist-action organization. The Attorney General of the United States alleged in the present proceeding that our present petitioner (National Council of American-Soviet Friendship, Inc.) is substantially directed, dominated or controlled by the Communist Party and is primarily operated for the purpose of giving aid and support to the Communist Party. Hearing was had, evidence received, findings made, and conclusions reached. The ultimate order of the Board was as we have indicated.

I

The first point made by the petitioner in its initial brief here is that the order of the Board is not supported by a preponderance of the evidence and that the order and findings are based upon incompetent and irrelevant evidence, distortions of the evidence, and failure to consider evidence favorable to petitioner. Upon argument counsel for petitioner said that none of the findings are supported by a preponderance of the evidence. The point raises difficult questions for the court in the performance of its duty of judicial review. The statute provides that "The findings of the Board as to the facts, if supported by the preponderance of the evidence, shall be conclusive." Section 14(a). The findings of the Board, including the appendices, are spread throughout 62 single-spaced, typewritten pages. The transcript of the testimony totals 5417 typewritten pages, and there are 300 exhibits, some of which are bound volumes and some are printed pamphlets; one exhibit has fifteen parts. The findings as recorded in the Report and Order of the Board were not annotated to the record. In its reply brief the petitioner listed specific findings as being without support in the evidence or as being contrary to the evidence. The Board later furnished for the assistance of the court copies of its Report and Order annotated to the transcript of testimony and the exhibits. Following oral argument the Government, at the court's request, filed a memorandum in which it made additional references to the transcript and the exhibits. Petitioner filed a memorandum in reply, setting forth other references, claiming that these portions of the record demonstrated that the findings of the Board were based upon hearsay, or ignored vital evidence, or were contrary to the evidence.

Quite obviously, as we pointed out in a pre-argument order in this case,⁴ neither this division of three judges nor any one judge is going to read this entire transcript and the exhibits for the purpose of combing out the bits of relevant material evidence and fitting them to the respective issues of fact, some of them miniscular. That task is one for counsel. A mere reading of the transcript, even at a rate of 250 pages a day, would consume some 20 days, and the exhibits appear to be about as long. Even if a judge read all this raw material, allocation by him of the almost infinite particles of evidence to their proper places in the mosaic would be impossible and, as we conceive it, is no part of the judicial function. If the finder of the facts annotated his initial report to the record, this trouble would be avoided. And that is the way it ought to be done. But absent such an annotation a case of this sort must necessarily move one step beyond the usual petitioner's brief, respondent's brief, and limited replies restricted to alleged errors and such. The petitioner initially makes his claim of no-support; the respondent points to the claimed support; the petitioner then develops his position in the light of respondent's assertions. The petitioner's reply brief thus assumes a major place in the presentation. This course has been followed in the present case. The duty of the court in such a situation is to test the conflicting positions by referring to the cited portions of the record, and no more. We do not conceive it to be the duty of the court to examine other parts of the evidence or to attempt to find matter in support of either party's position not called to its attention by a party. It may do so, of course, but it is under no obligation to do so. We have restricted our consideration in this case to cited parts of the record, with some excursions into adjacent or related passages.

II

The purpose and plan of the statute must be in mind as we consider the evidentiary problems posed. We discussed this matter in detail in Labor Youth League v. Subversive Activities Control Board.⁵ We repeat only in outline here. The scheme of the statute is as follows: The Act defines a Communist-front organization and directs the Attorney General to keep a register of these organizations. Section 9(a). It establishes a Board (Subversive Activities Control Board) and provides that, whenever the Attorney General believes that an organization which has not registered should register, he may file with the Board a petition for an order requiring the organization to register. Section 13(a). If the Board, after hearings (Section 13(c)), determines affirmatively it makes a report in writing and issues an order requiring the organization to register. Section 13(g) (1). The organization may obtain judicial review of the order by filing a petition in this court. If this court affirms the order or dismisses the petition for review, and no petition for certiorari is filed, the order of the Board becomes final.

The registration statement of a Communist-front organization must show the name and address of the organization, the name and last-known address of each officer of the organization (including those who were officers any time during the twelve months preceding the filing), an accounting of moneys received and expended during the preceding twelve months, etc. Section 7(d). The statute does not require that the registration statement of a Communist-front organization show the names of the members.

The Act provides that, when an organization is registered as a Communist front or a final order requiring registration is in effect, it shall be unlawful for any member of the organization (A), in seeking, accepting or holding employment under the United States, to fail to disclose the fact that he is a member of the organization; or (B) to hold any employment under the United States; or (C), in seeking, accepting or holding employment in any defense facility to fail to disclose the fact that he is a member of the organization (Section 5(a)): and further it shall be unlawful for a member of such an organization to make application for a passport or to use a passport (Section 6(a)). The penalties for violation of these provisions are a fine of not more than $10,000 or imprisonment for not more than five years, or both. Section 15(c), last sentence. As we point out in the Labor Youth case, supra, the theory of the statute respecting Communist fronts is that the Communists disguise their true objectives and foster organizations with declared objectives which are attractive. The statute recites that this practice draws support from persons who would not lend such support if they were aware of the true situation. Thus, almost by definition, many members of a Communist front are unsympathetic to Communist aims or Communist philosophy.

III

Before beginning a consideration of the disputed items of fact in detail, we emphasize two important general evidentiary requirements of the statute. First, the provisions of the statute are phrased in the present tense. The statutory definition of a Communist front is cast in the present tense. A Communist-front organization is one which is (not was or has been) substantially directed, etc., and is primarily operated, etc. The restrictions are upon those who are members when the organization is registered or the order requiring registration becomes final. And this would seem to be designedly so, because the public interest is in the activities of such organizations in the present and the potential future. This is not a punitive statute for past affairs. The question on this record and under the statute is whether this Council was a Communist-front organization at the time of the inquiry by the Board. This is an important factor in the case.

The second general evidentiary requirement of the statute is that a Communist-front organization is substantially directed, etc., by a Communist-action organization; it does not say by members of a Communist-action organization. This may appear to be a distinction without any material difference, but Congress has given major...