341 U.S. 123 (1951), 8, Joint Anti-Fascist Refugee Committee v. McGrath

Docket Nº:No. 8
Citation:341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817
Party Name:Joint Anti-Fascist Refugee Committee v. McGrath
Case Date:April 30, 1951
Court:United States Supreme Court

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341 U.S. 123 (1951)

71 S.Ct. 624, 95 L.Ed. 817

Joint Anti-Fascist Refugee Committee



No. 8

United States Supreme Court

April 30, 1951

Argued October 11, 1950




Purporting to act under Part III, § 3 of Executive Order No. 9835, the Attorney General, without notice or hearing, designated the three petitioner organizations as Communist in a list furnished to the Loyalty Review Board for use in connection with determinations of disloyalty of government employees. The Board disseminated the list to all departments and agencies of the Government. Petitioners sued for declaratory judgments and injunctive relief. They alleged that their organizations were engaged in charitable or civic activities or in the business of fraternal insurance; all three implied an attitude of cooperation and helpfulness, rather than one of hostility or disloyalty toward the United States; and two expressly alleged that their respective organizations were not within any classification listed in Part III, § 3 of the Order. Petitioners further alleged that the actions of the Attorney General and the Board greatly hampered their activities and deprived them of rights in violation of the Constitution; that the Executive Order violates the First, Fifth, Ninth, and Tenth Amendments to the Constitution; that § 9A of the Hatch Act, as construed and applied, is void; and that petitioners were suffering irreparable injury and had no adequate remedy at law. The District Court granted motions to dismiss the complaints for failure to state claims upon which relief could be granted. The Court of Appeals affirmed.

Held: The judgments are reversed, and the cases are remanded to the District Court with instructions to deny the motions that the complaints be dismissed for failure to state claims upon which relief could be granted. Pp. 124-125, 142.

85 U.S.App.D.C. 255, 177 F.2d 79; 86 U.S.App.D.C. 287, 182 F.2d 368, reversed.

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For the opinions of the Justices constituting the majority of the Court, see:

Opinion of MR. JUSTICE BURTON, joined by MR. JUSTICE DOUGLAS, pp. 124-142.

Opinion of MR. JUSTIC BLACK, pp. 142-149.

Opinion of MR. JUSTICE FRANKFURTER, pp. 149-174.

Opinion of MR. JUSTICE DOUGLAS, pp. 174-183.

Opinion of MR. JUSTICE JACKSON, pp. 183187.

For the dissenting opinion of MR. JUSTIC REED, joined by THE CHIEF JUSTICE and MR. JUSTICE MINTON, see pp. 187-213.

MR. JUSTICE CLARK took no part in the consideration or decision of any of these cases.

The cases are stated in the opinion of MR. JUSTICE BURTON, pp. 130-135. Reversed and remanded, p. 142.

BURTON, J., lead opinion

MR. JUSTICE BURTON announced the judgment of the Court and delivered the following opinion, in which MR. JUSTICE DOUGLAS joins.

In each of these cases the same issue is raised by the dismissal of a complaint for its failure to state a claim upon which relief can be granted. That issue is whether, in the face of the facts alleged in the complaint and therefore admitted by the motion to dismiss, the Attorney

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General of the United States has authority to include the complaining organization in a list of organizations designated by him as Communist and furnished by him to the Loyalty Review Board of the United States Civil Service Commission. He claims to derive authority to do this from the following [71 S.Ct. 625] provisions in Part III, § 3, of Executive Order No. 9835, issued by the President, March 21, 1947:

Part III -- Responsibilities of Civil Service Commission

* * * *

3. The Loyalty Review Board shall currently be furnished by the Department of Justice the name of each foreign or domestic organization, association, movement, group or combination of persons 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.

a. The Loyalty Review Board shall disseminate such information to all departments and agencies.

3 CFR, 1947 Supp., pp. 129, 131, 12 Fed.Reg. 1935, 1938.

The respective complaints describe the complaining organizations as engaged in charitable or civic activities or in the business of fraternal insurance. Each implies an attitude of cooperation and helpfulness, rather than one of hostility or disloyalty, on the part of the organization toward the United States. Two of the complaints deny expressly that the organization is within any classification specified in Part III, § 3, of the order.

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For the reasons hereinafter stated, we conclude that, if the allegations of the complaints are taken as true (as they must be on the motions to dismiss), the Executive Order does not authorize the Attorney General to furnish the Loyalty Review Board with a list containing such a designation as he gave to each of these organizations without other justification. Under such circumstances, his own admissions render his designations patently arbitrary, because they are contrary to the alleged and uncontroverted facts constituting the entire record before us. The complaining organizations have not been afforded any opportunity to substantiate their allegations, but, at this stage of the proceedings, the Attorney General has chosen not to deny their allegations, and has not otherwise placed them in issue.

Whatever may be his authority to designate these organizations as Communist upon undisclosed facts in his possession, he has not chosen to limit himself to that authorization. By his present procedure, he has claimed authority so to designate them upon the very facts alleged by them in their own complaints. Self-serving or not, those allegations do not state facts from which, alone, a reasonable determination can be derived that the organizations are Communist. To defend such a designation of them on the basis of the complaints alone is an assertion of Presidential authority so to designate an organization at the option of the Attorney General without reliance upon either disclosed or undisclosed facts supplying a reasonable basis for the determination. It is that, and only that outer limit of the authority of the Attorney General that is now before us.

At least since 1939, increasing concern has been expressed, in and out of Congress, as to the possible presence in the employ of the Government of persons disloyal to it. This is reflected in the legislation, reports and executive orders culminating in Executive Order No.

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9835.1 That order announced the President's Employees Loyalty [71 S.Ct. 626] Program in the Executive Branch of the Government. It states that both

maximum protection must be afforded the United States against infiltration of disloyal persons into the ranks of its employees, and equal protection from unfounded accusations of disloyalty must be afforded the loyal employees of the Government . . .

It provides for the Loyalty Review Board, and sets up a standard for refusals of and removals from employment on grounds relating to loyalty. It outlines the use to be made in that connection of the list of organizations to be furnished by the Attorney General.2 The

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organizations to be designated on that list are not limited to those having federal employees in their memberships. They may even exclude such employees from membership. Accordingly, the impact of the Attorney General's list is by no means limited to persons who are subject to the Employees Loyalty Program.

The Attorney General included each of the complaining organizations in the list he furnished to the Loyalty Review Board November 24, 1947. That list was disseminated by the Board to all departments and agencies of the United States December 4, 1947. 13 Fed.Reg. 1473.3 The complaints allege that such action resulted

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in nationwide publicity and caused the injuries to the complaining organizations [71 S.Ct. 627] which are detailed later. September 17, 1948, during the pendency of the instant cases but before action upon the appeals in any of them,

the Attorney General furnished the Loyalty Review Board with a consolidated list containing the names of all of the organizations previously designated by him as within Executive Order 9835, segregated according to the classifications enumerated in section 3, Part III, on the basis of dominant characteristics.4

He enumerated six classifications and classified the three complaining organizations as "Communist."5

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The instant cases originated in the District Court for the District of Columbia, and come here after affirmance by the Court of Appeals. We granted certiorari because of the importance of the issues and their relation to the Employees Loyalty Program. No. 8, 339 U.S. 910; No. 7, 339 U.S. 956; No. 71, 340 U.S. 805.


The complainant is the Joint Anti-Fascist Refugee Committee, an unincorporated association in the City and State of New York. It is the petitioner here. The defendants in the original action were the Attorney General, Tom C. Clark, and the members of the Loyalty Review Board. J. Howard McGrath has been substituted as the Attorney General, and he and the members of that Board are the respondents here.

The following statement, based on the allegations of the complaint, summarizes the situation before us: the complainant is "a charitable organization engaged in relief work" which carried on its relief activities from 1942 to 1946 under a license from the President's War Relief Control Board. Thereafter, it voluntarily submitted its program, budgets and audits for inspection by the Advisory Committee on...

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