Communist Party of United States v. McGrath

• Decision Date: 28 February 1951
• Docket Number: Civ. A. No. 419-51.
• Citation: 96 F. Supp. 47
• Parties: COMMUNIST PARTY OF UNITED STATES OF AMERICA et al. v. McGRATH et al.
• Court: U.S. District Court — District of Columbia

96 F. Supp. 47

COMMUNIST PARTY OF UNITED STATES OF AMERICA et al. v. McGRATH et al.

Civ. A. No. 419-51.

United States District Court District of Columbia.

February 28, 1951.

Vito Marcantonio and John J. Abt, New York City, and Joseph Forer, Washington, D. C., for plaintiffs.

Newell A. Clapp, Acting Asst. Atty. Gen., George Morris Fay, U. S. Atty., Edward H. Hickey and Marvin C. Taylor, Attorneys, Dept. of Justice, all of Washington, D. C., for defendant, the Attorney General.

Howard C. Wood, New York City, General Counsel, Subversive Activities Control Board, George Gallagher, Frank R. Hunter, Jr., Washington, D. C., for defendant Subversive Activities Control Board.

Before BAZELON, Circuit Judge and LETTS and PINE, District Judges, holding a statutory three judge court.

LETTS and PINE, District Judge.

The preliminary relief sought must be denied since plaintiffs have not exhausted their administrative remedies and for the further reason that the public interest is paramount to any threatened loss or damage to plaintiffs pending final determination of the case. Furthermore, the constitutional questions raised by the plaintiffs can be saved before the Board and determined upon review by the United States Court of Appeals pursuant to the direction of Congress for judicial review of the Board's actions under the controlling statute.

Counsel will submit for settlement findings of fact and conclusions of law and appropriate order denying the issuance of preliminary injunction.

BAZELON, Circuit Judge (concurring in the result).

Pursuant to § 13(a) of the Internal Security Act of 1950, 50 U.S.C.A. § 792(a), the Attorney General petitioned the Subversive Activities Control Board to enter a final order requiring plaintiff, the Communist Party of the United States, to register. The Party appeared before the Board and moved to dismiss on several grounds, including the alleged unconstitutionality of the Board's governing statute.¹ The motion to dismiss was denied, the Board stating that it was not empowered to consider the constitutionality of the statute which had created it. Suit was thereupon brought by the Party and two of its officers in the District Court to enjoin the operation of §§ 1-17, 22, 23 and 25 of Title I of the Act of Congress, 50 U.S.C.A. § 781 et seq., 8 U.S.C.A. §§ 137 et seq., 156, 705, under which the Board was acting on the ground that (1) the Act is unconstitutional on its face and as applied; (2) no lawfully appointed Board exists. A statutory three judge court was convened,² argument was heard and affidavits presented in connection with plaintiffs' motion for a preliminary injunction.

Neither a motion to dismiss nor any other responsive pleading has been filed by defendants. The narrow question before us is whether a preliminary injunction should issue against the defendants pending final disposition of this suit. Before considering that question, it is important to note that only the Communist Party and two of its officers are seeking relief. There are no alleged "Communist-front" organizations here nor are there any individuals who have been denied or are imminently threatened with denial of non-elective federal employment under § 5, defense facility employment under § 5, or passports under § 6.

Issuance of a preliminary injunction is a matter within the sound discretion of the court.³ That discretion is traditionally exercised upon the basis of a series of estimates: the relative importance of the rights asserted and the acts sought to be enjoined, the irreparable nature of the injury allegedly flowing from denial of preliminary relief, the probability of the ultimate success or failure of the suit, the balancing of damage and convenience generally. A mere listing of the guiding considerations demonstrates their intangible nature, especially when no attempt is made at this stage to decide finally the questions raised.

Turning to the case before us, we have a motion for a preliminary injunction in a suit to enjoin the operation of certain provisions of an act of Congress on the ground that they are unconstitutional. The strong showing of injury ordinarily required of one seeking an injunction, even where private rights alone are involved, is multiplied manifold when an attempt is made to restrain an act of Congress. Issuance of the preliminary injunction would then be "a declaration for a time that the statute is unconstitutional". Dryfoos v. Edwards, D.C.S.D.N.Y., 1919, 284 F. 596, 603. Of course, in a proper case, we are empowered to do just that. But in the exercise of our discretion, we should view more strictly a request for a preliminary injunction "which will adversely affect a public interest for whose impairment, even temporarily, an injunction bond cannot compensate." In such a case, "the court may in the public interest withhold relief until a final determination of the rights of the parties, though the postponement may be burdensome to the plaintiff." Yakus v. United States, 1944, 321 U.S. 414, 440, 64 S.Ct. 660, 675, 88 L.Ed. 834; Virginian Ry. Co. v. System Federation, No. 40, 1937, 300 U.S. 515, 552, 57 S.Ct. 592, 81 L.Ed. 789.

The case before us crystallizes a conflict of interests as critical as any which has ever confronted this nation. Plaintiffs would have us view it as an instance of liberty being stifled by arbitrary authority, of the democratic process being undermined by an hysterical attempt of the major parties to suppress working class opposition. The Party describes itself as a purely political organization which is being singled out for discriminatory treatment in the form of requirements that it register, that its members be denied non-elective federal employment, employment in defense facilities, passports, etc.⁴ Plaintiffs point also to criminal penalties allegedly directed against them⁵ and conclude that the consequences to the Party have already been serious and will in time be disastrous. It is said that it already has been and will be deprived of members, contributions, the good opinion of the public, freedom of speech and assembly; that these alleged violations of constitutional rights will deprive the nation of those unpopular ideas of today which have, so often in our history, become the majority doctrine of tomorrow.

If there were no more to be said in the matter, plaintiffs' case would seem overwhelming. But much more is involved. Defendants contend that the Act of Congress here sought to be enjoined represents an attempt to balance the interests of liberty with the interest of the nation in combating what was believed to be a clear and present danger to its security. Since it was felt that the label "political party" should not be used as a cloak to shield foreign-controlled groups, conspiratorial in nature and not devoted to constitutional means of change, the problem was how best to remove the cloak and yet leave bona fide participation in the political process unchecked. This Congress sought to meet by a statute which, among other things, requires the registration of "Communist-action" organizations. Such organizations are defined to include only groups controlled from abroad and existing primarily to advance the objectives of the "world Communist movement".⁶ Thus, it is argued, Congress sought to leave political parties, as such, unaffected, so long as such parties are committed to change under the Constitution and are not controlled from abroad— regardless of the economic or political program preached by them.

To assure orderly procedure for testing the status of any organization failing to register, a Board was created to determine the question of applicability of the Act.⁷ The Attorney General may petition such Board for an order requiring registration and must present evidence to sustain his charge. The organization may then make its defense before the Board in a hearing quasi judicial in nature and having all the conventional incidents of procedural due process, such as rights to cross-examination, to subpoena witnesses, to counsel, etc. Review of Board orders may be obtained in the United States Courts of Appeals which will uphold such orders only if they are supported by a "preponderance of the evidence." Individuals required to register as a result of a final order against a "Communist-action organization" may be heard before the Attorney General, the Board and the Court of Appeals on the question of membership.⁸ It is this congressionally-designated administrative and judicial remedy which plaintiffs would by-pass by their suit. The relief they seek is a declaration by this court, in advance of determination of the question of coverage by the Board, that the statute is unconstitutional, both substantively and procedurally.

As I have indicated, our function at this stage of the proceedings is to attempt to strike a balance of convenience, interests and probabilities rather than to determine any questions finally. This is obviously not a case in which public authority is being used to deny freedoms occupying a preferred position under the Constitution, such as freedom of speech and assembly, in the interest of clean streets or minimizing noise. Here, great public interests are arrayed on both sides of the controversy. Until plaintiffs prove to us that the objective here sought to be met by Congress in its attempt to deal with one of the critical issues of our time was not a permissible one, or that the means adopted were not drawn with sufficient narrowness to meet constitutional standards, or that there is no clear and present danger justifying both end and means, we should not exercise our discretion to grant relief at this preliminary stage.

Under the circumstances of this case, I would be disposed to grant the relief sought at this time only if it seemed clear that (1) the statutorily prescribed administrative procedure and judicial review were unconstitutional on their face; or (2) failure to restrain continued...