349 U.S. 331 (1955), 376, Peters v. Hobby

Docket Nº:No. 376
Citation:349 U.S. 331, 75 S.Ct. 790, 99 L.Ed. 1129
Party Name:Peters v. Hobby
Case Date:June 06, 1955
Court:United States Supreme Court

Page 331

349 U.S. 331 (1955)

75 S.Ct. 790, 99 L.Ed. 1129




No. 376

United States Supreme Court

June 6, 1955

Argued April 19, 1955




During his employment as a special consultant in a federal agency, petitioner had been twice cleared by the agency's loyalty board. Subsequently, acting solely on its own motion, the Civil Service Commission's Loyalty Review Board (established under Executive Order 9835) determined that there was a reasonable doubt as to petitioner's loyalty, and notified him that he was barred from federal service for a period of three years. Thereafter, petitioner was removed from his position. By an action in a Federal District Court, petitioner challenged the validity of his removal and debarment from federal employment.


1. This case can be decided without reaching certain constitutional issues raised by petitioner, stemming chiefly from the denial to petitioner of any opportunity to confront and cross-examine his secret accusers. Pp. 337-338.

2. The Loyalty Review Board's action was invalid as beyond the Board's jurisdiction under Executive Order 9835, and was an unwarranted assumption of power. Pp. 338-348.

(a) Under the provisions of the Executive Order, the Loyalty Review Board's jurisdiction to review individual cases was limited to appeals from rulings adverse to employees which were referred to the Board by the employees or their departments or agencies. The Board had no authority to review rulings favorable to employees or to adjudicate individual cases on its own motion. Pp. 339-340, 342-344.

(b) Regulation 14 of the Loyalty Review Board, to the extent that it purports to authorize the Board to adjudicate individual cases on its own motion and despite a favorable determination below, is invalid as inconsistent with the provisions of Executive Order 9835. Pp. 340-345.

(c) While loyalty proceedings may not involve the imposition of criminal sanctions, the limitation on the Board's review power to adverse determinations was in keeping with the deeply rooted principle of criminal law that a verdict of guilty is appealable, while a verdict of acquittal is not. Pp. 344-345.

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(d) The President's failure to express disapproval of Regulation 14 cannot be deemed to constitute acquiescence in it. Pp. 345-347.

(e) The order of debarment, moreover, did not comply with Civil Service Rule V, § 5.101(a), which bars an employee from "the competitive service" within three years after "a final determination" that he is disqualified for federal employment on loyalty grounds, because (i) the order was not limited to the "competitive service," but extended to all federal employment, and (ii) it purported to become effective before the employing agency had made any "final determination." Pp. 347-348.

3. Petitioner is entitled to a declaratory judgment that his removal and debarment were invalid and to an order directing the respondent members of the Civil Service Commission to expunge from its records (a) the Loyalty Review Board's finding that there is a reasonable doubt as to petitioner's loyalty, and (b) any ruling that petitioner is barred from federal employment by reason of that finding. Pp. 348-349.

4. Since it appears that the term of petitioner's appointment would have expired on December 31, 1953, wholly apart from his removal on loyalty grounds, his prayer for reinstatement cannot be granted. P. 349.


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WARREN, J., lead opinion

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

This action was instituted by petitioner in the District Court for the District of Columbia. The principal relief sought is a declaration that petitioner's removal and debarment from federal employment were invalid. Prior to trial, the District Court granted the respondents' motion for judgment on the pleadings. The judgment was affirmed, one judge dissenting, by the Court of Appeals for the District of Columbia Circuit, relying on its decision in Bailey v. Richardson, 86 U.S.App.D.C. 248, 182 F.2d 46, sustained here by an equally divided vote, 341 U.S. 918. We granted certiorari, 348 U.S. 882, because the case appeared to present the same constitutional question left unresolved by this Court's action in Bailey v. Richardson, supra.


The basic facts are undisputed. Petitioner is a professor of medicine, specializing in the study of metabolism at Yale University. For several years prior to 1953, because of his eminence in the field of medical science, he was employed as a Special Consultant in the United States Public Health Service of the Federal Security Agency. On April 10, 1953, the functions of the Federal Security Agency were transferred to the Department of Health, Education, and Welfare, headed by respondent Hobby. Petitioner's duties required his presence in Washington from four to ten days each year, when called upon by the Surgeon General, to render advice concerning proposals to grant federal assistance to various medical research institutions. This work was not of a confidential or sensitive character, and did not entail access to classified material. Petitioner was compensated at a specified per diem rate for days actually worked.

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At the time of his removal, petitioner was employed under an appointment expiring on December 31, 1953.

On March 21, 1947, Executive Order 9835 was issued by the President.1 It provided that the head of each department and agency in the Executive Branch of the Government

shall be personally responsible for an effective program to assure that disloyal civilian officers or employees are not retained in employment in his department or agency.

Toward that end, the Order directed the establishment within each department or agency of one or more loyalty boards

for the purpose of hearing loyalty cases arising within such department or agency and making recommendations with respect to the removal of any officer or employee . . . on grounds relating to loyalty. . . .

The order also provided for the establishment of a central Loyalty Review Board in the Civil Service Commission. The Board, in addition to various supervisory functions, was authorized "to review cases involving persons recommended for dismissal . . . by the loyalty board of any department or agency. . . ." The standard for removal prescribed by the Order was whether, "on all the evidence, reasonable grounds exist for belief that the person involved is disloyal to the Government of the United States." This standard was amended on April 28, 1951.2 As amended, the standard to be applied was whether, "on all the evidence, there is a reasonable doubt as to the loyalty of the person involved to the Government of the United States."

In January, 1949, Joseph E. McElvain, Chairman of the Board of Inquiry on Employee Loyalty of the Federal Security Agency, notified petitioner that derogatory information relating to his loyalty had been received. Accompanying McElvain's letter was a detailed interrogatory

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relating to petitioner's associations and affiliations. Petitioner promptly completed the form and returned it. Shortly thereafter, McElvain advised petitioner that the Agency Board had determined that no reasonable grounds existed for belief that petitioner was disloyal.

In May, 1951, following the amendment of the removal standard prescribed by Executive Order 9835, the Executive Secretary of the Loyalty Review Board advised McElvain that petitioner's case should be reopened and readjudicated pursuant to the amended standard. Three months later, the Acting Chairman of the Loyalty Review Board informed McElvain that a panel of the Loyalty Review Board had considered petitioner's case and had recommended that it be remanded to the Agency Board for a hearing. Acting on the Loyalty Review Board's recommendation, McElvain sent petitioner a letter of charges. Sixteen charges were specified, relating to alleged membership in the Communist Party, sponsorship of certain petitions, affiliation with various organizations, and alleged association with Communists and Communist sympathizers. In his reply, made under oath, petitioner denied that he had ever been a member of the Communist Party and set forth information concerning the other charges.

On April 1 and 2, 1952, the Agency Board conducted a hearing on petitioner's case in New Haven, Connecticut. The sources of the information as to the facts bearing on the charges were not identified or made available to petitioner's counsel for cross-examination. The identity of one or more of the informants furnishing such information, but not of all the informants, was known to the Board. The only evidence adduced at the hearing was presented by petitioner. He testified under oath that he had never been a member of the Communist Party, and also testified concerning the other charges against him. He did not

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refuse to answer any question directed to him. Petitioner's testimony was supported by the testimony of eighteen other witnesses and the affidavits and statements of some forty additional persons. On May 23, 1952, McElvain notified petitioner that the Agency Board had determined that, on all the evidence, there was no reasonable doubt as to petitioner's loyalty.

Thereafter, on April 6, 1953, petitioner was advised by the Loyalty Review Board that it had determined to conduct a "post-audit" of the Agency Board's determination and, to this end, "hold a hearing and reach its own decision."3 The hearing was held on May 12, 1953, in New Haven, before a panel of the Board consisting of respondents Hessey, Amen, and King. Once again, as at the previous hearing, the only evidence adduced was presented by petitioner. In his own testimony, petitioner denied membership in the Communist Party, discussed his political beliefs and his motives for...

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