Cole v. Young, No. 442

CourtUnited States Supreme Court
Writing for the CourtThe Act was expressly made applicable only to the Departments of State, Commerce; CLARK
PartiesKendrick M. COLE, Petitioner, v. Philip YOUNG et al
Decision Date11 June 1956
Docket NumberNo. 442

351 U.S. 536
76 S.Ct. 861
100 L.Ed. 1396
Kendrick M. COLE, Petitioner,

v.

Philip YOUNG et al.

No. 442.
Argued March 6, 1956.
Decided June 11, 1956.

[Syllabus from pages 536-537 intentionally omitted]

Page 537

Mr.David I. Shapiro, New York City, for petitioner.

Mr. Donald B. MacGuineas, Washington, D.C., for respondents.

Page 538

Opinion of the Court by Mr. Justice HARLAN, announced by Mr. Justice BURTON.

This case presents the question of the meaning of the term 'national security' as used in the Act of August 26, 1950, giving to the heads of certain departments and agencies of the Government summary suspension and unreviewable dismissal powers over their civilian employees, when deemed necessary 'in the interest of the national security of the United States.'1

Page 539

Petitioner, a preference-eligible veteran under § 2 of the Veterans' Preference Act of 1944, 58 Stat. 387, as amended, 5 U.S.C. § 851, 5 U.S.C.A. § 851, held a position in the classified civil service as a food and drug inspector for the New York

Page 540

District of the Food and Drug Administration, Department of Health, Education, and Welfare. In November 1953, he was suspended without pay from his position pending investigation to determine whether his employment should be terminated. He was given a written statement of charges alleging that he had 'a close association with individuals reliably reported to be Communists' and that he had maintained a 'sympathetic association' with, had contributed funds and services to, and had attended social gatherings of an allegedly subversive organization.

Although afforded an opportunity to do so, petitioner declined to answer the charges or to request a hearing, as he had the right to do. Thereafter, the Secretary of the Department of Health, Education, and Welfare, after 'a study of all the documents in (petitioner's) case,' determined that petitioner's continued employment was not 'clearly consistent with the interests of national security' and ordered the termination of his employment. Petitioner appealed his discharge to the Civil Service Commission, which declined to accept the appeal on the ground that the Veterans' Preference Act, under which petitioner claimed the right of appeal, was inapplicable to such discharges.

Petitioner thereafter brought an action in the District Court for the District of Columbia seeking a declaratory judgment that his discharge was invalid and that the Civil Service Commission had improperly refused to entertain his appeal, and an order requiring his reinstatement in his former position. The District Court granted the respondents' motion for judgment on the pleadings and dismissed the complaint. 125 F.Supp. 284. The

Page 541

Court of Appeals, with one judge dissenting, affirmed. 96 U.S.App.D.C. 379, 226 F.2d 337. Because of the importance of the questions involved in the field of Government employment, we granted certiorari. 350 U.S. 900, 76 S.Ct. 181.

Section 14 of the Veterans' Preference Act, 58 Stat. 390, as amended, 5 U.S.C. § 863, 5 U.S.C.A. § 863, provides that preference eligibles may be discharged only 'for such cause as will promote the efficiency of the service' and, among other procedural rights, 'shall have the right to appeal to the Civil Service Commission', whose decision is made binding on the employing agency. Respondents concede that petitioner's discharge was invalid if that Act is controlling. They contend, however, as was held by the courts below, that petitioner's discharge was authorized by the Act of August 26, 1950, supra, which eliminates the right of appeal to the Civil Service Commission. Thus the sole question for decision is whether petitioner's discharge was authorized by the 1950 Act.

The 1950 Act provides in material part that, notwithstanding any other personnel laws, the head of any agency to which the Act applies

'may, in his absolute discretion and when deemed necessary in the interest of national security, suspend, without pay, any civilian officer or employee of (his agency) * * *. The agency head concerned may, following such investigation and review as he deems necessary, terminate the employment of such suspended civilian officer or employee whenever he shall determine such termination necessary or advisable in the interest of the national security of the United States, and such determination by the agency head concerned shall be conclusive and final: * * *.'

The Act was expressly made applicable only to the Departments of State, Commerce, Justice, Defense, Army,

Page 542

Navy, and Air Force, the Coast Guard, the Atomic Energy Commission, the National Security Resources Board, and the National Advisory Committee for Aeronautics. Section 3 of the Act provides, however, that the Act may be extended 'to such other departments and agencies of the Government as the President may, from time to time, deem necessary in the best interests of national security', and the President has extended the Act under this authority 'to all other departments and agencies of the Government.'2 While the validity of this extension of the Act depends upon questions which are in many respects common to those determining the validity of the Secretary's exercise of the authority thereby extended to her,3 we will restrict our consideration to the latter issue and assume, for purposes of this decision, that the Act has validly been extended to apply to the Department of Health, Education, and Welfare.

The Act authorizes dismissals only upon a determination by the Secretary that the dismissal is 'necessary or advisable in the interest of the national security.' That determination requires an evaluation of the risk of injury to the 'national security' that the employee's retention would create, which in turn would seem necessarily to be a function, not only of the character of the employee and the likelihood of his misconducting himself, but also of the nature of the position he occupies and its relationship to the 'national security.' That is, it must be determined whether the position is one in which the employee's misconduct would affect the 'national security.' That, of course, would not be necessary if 'national security' were

Page 543

used in the Act in a sense so broad as to be involved in all activities of the Government, for then the relationship to the 'national security' would follow from the very fact of employment. For the reasons set forth below, however, we conclude (1) that the term 'national security' is used in the Act in a definite and limited sense and relates only to those activities which are directly concerned with the Nation's safety, as distinguished from the general welfare; and (2) that no determination has been made that petitioner's position was affected with the 'national security,' as that term is used in the Act. It follows that his dismissal was not authorized by the 1950 Act and hence violated the Veterans' Preference Act.

I.

In interpreting the 1950 Act, it is important to note that that Act is not the only, nor even the primary, source of authority to dismiss Government employees. The general personnel laws—the Lloyd-LaFollette4 and Veterans' Preference Acts—5 authorize dismissals for 'such cause as will promote the efficiency of the service', and the ground which we conclude was the basis for petitioner's discharge here—a reasonable doubt as to his loyalty—was recognized as a 'cause' for dismissal under those procedures as early as 1942. 6 Indeed, the President's so-called Loyalty Program, Exec.Order No. 9835, 12 Fed.Reg.1935, 5 U.S.C.A. § 631 note, which prescribed an absolute standard of loyalty to be met by all employees regardless of position, had been established pursuant to that general authority three years prior to the 1950 Act and remained in

Page 544

effect for nearly three years after its passage.7 Thus there was no want of substantive authority to dismiss employees on loyalty grounds, and the question for decision here is not whether an employee can be dismissed on such grounds but only the extent to which the summary procedures authorized by the 1950 Act are available in such a case.

As noted above, the issue turns on the meaning of 'national security,' as used in the Act. While that term is not defined in the Act, we think it clear from the statute as a whole that that term was intended to comprehend only those activities of the Government that are directly concerned with the protection of the Nation from internal subversion or foreign aggression, and not those which contribute to the strength of the Nation only through their impact on the general welfare.

Virtually conclusive of this narrow meaning of 'national security' is the fact that, had Congress intended the term in a sense broad enough to include all activities of the Government, it would have granted the power to terminate employment 'in the interest of the national security' to all agencies of the Government. Instead, Congress specified 11 named agencies to which the Act should apply, the character of which reveals, without doubt, a purpose to single out those agencies which are directly concerned with the national defense and which have custody over information the compromise of which might endanger the country's security, the so-called 'sensitive' agencies. Thus, of the 11 named agencies, 8 are concerned with military operations or weapons development, and the other 3, with international

Page 545

relations, internal security, and the stock-piling of strategic materials. Nor is this conclusion vitiated by the grant of authority to the President, in § 3 of the Act, to extend the Act to such other agencies as he 'may, from time to time, deem necessary in the best interests of national security.' Rather, the character of the named agencies indicates the character of the determination required to be made to effect such an extension. Aware of the difficulties of attempting an...

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86 practice notes
  • City & Cnty. of S.F. v. Trump, No. 17-17478
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 1, 2018
    ...President. For one thing, a president's 897 F.3d 1243statements guide those tasked with enforcing the Executive Order. See Cole v. Young , 351 U.S. 536, 556, 76 S.Ct. 861, 100 L.Ed. 1396 (1956) ("[An executive order's] failure to state explicitly what determinations are required leaves no c......
  • Mohamed v. Holder, Civil Action No. 1:11cv0050 (AJT/MSN)
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • July 20, 2017
    ...at 20–21; Pl.'s Mem. Supp. Pl's Mot. 15.15 See also Zemel v. Rusk, 381 U.S. 1, 13–17, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965), Cole v. Young, 351 U.S. 536, 546, 76 S.Ct. 861, 100 L.Ed. 1396 (1956) ; United States v. Sterling, 724 F.3d 482, 509 (4th Cir. 2013) ; United States v. Ghailani, 733 F......
  • Kaplan v. Conyers, 2011-3207
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • August 20, 2013
    ...of classifying information based on a combination of unclassified items of information). The Board nevertheless cites Cole v. Young, 351 U.S. 536 (1956), and references the Court's discussion of the legislative history of the Act of August 26, 195010 ("the Act") in support of its propositio......
  • Kaplan v. Conyers, No. 2011–3207.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • August 20, 2013
    ...of classifying information based on a combination of unclassified items of information). The Board nevertheless cites Cole v. Young, 351 U.S. 536, 76 S.Ct. 861, 100 L.Ed. 1396 (1956), and references the Court's discussion of the legislative history of the Act of August 26, 1950 10 (“the Act......
  • Request a trial to view additional results
84 cases
  • City & Cnty. of S.F. v. Trump, No. 17-17478
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 1, 2018
    ...President. For one thing, a president's 897 F.3d 1243statements guide those tasked with enforcing the Executive Order. See Cole v. Young , 351 U.S. 536, 556, 76 S.Ct. 861, 100 L.Ed. 1396 (1956) ("[An executive order's] failure to state explicitly what determinations are required leaves no c......
  • Mohamed v. Holder, Civil Action No. 1:11cv0050 (AJT/MSN)
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • July 20, 2017
    ...at 20–21; Pl.'s Mem. Supp. Pl's Mot. 15.15 See also Zemel v. Rusk, 381 U.S. 1, 13–17, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965), Cole v. Young, 351 U.S. 536, 546, 76 S.Ct. 861, 100 L.Ed. 1396 (1956) ; United States v. Sterling, 724 F.3d 482, 509 (4th Cir. 2013) ; United States v. Ghailani, 733 F......
  • Kaplan v. Conyers, 2011-3207
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • August 20, 2013
    ...of classifying information based on a combination of unclassified items of information). The Board nevertheless cites Cole v. Young, 351 U.S. 536 (1956), and references the Court's discussion of the legislative history of the Act of August 26, 195010 ("the Act") in support of its propositio......
  • Kaplan v. Conyers, No. 2011–3207.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • August 20, 2013
    ...of classifying information based on a combination of unclassified items of information). The Board nevertheless cites Cole v. Young, 351 U.S. 536, 76 S.Ct. 861, 100 L.Ed. 1396 (1956), and references the Court's discussion of the legislative history of the Act of August 26, 1950 10 (“the Act......
  • Request a trial to view additional results
2 books & journal articles
  • The Duty to Take Care: President Obama, Public Administration, and the Capacity to Govern
    • United States
    • Public Administration Review Nbr. 71-1, January 2011
    • January 1, 2011
    ...of law (see, e.g., Kendall v. United States, 37 U.S. (12 Pet.) 524 [1838]; United States v. Symonds, 120 U.S. 46 [1887]; Cole v. Young, 351 U.S. 536 [1956]).  e framers took pains to explain that the chief executive was not to be a monarch (see Federalist No. 69, Hamilton, Madison, and Jay......
  • The British Security Program, 1948-1958
    • United States
    • Political Research Quarterly Nbr. 13-3, September 1960
    • September 1, 1960
    ...2489 (April 29, 1953). 7 Debate on government interception of communications, 572 H.C. Deb. col. 411-22 (June 27, 1957). 8 Cole v. Young, 351 U.S. 536 For British changes, see text following.10 For American changes see Ralph S. Brown, Jr., "The Operation of Personnel Security Programs," Ann......

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