Cole v. Young, No. 12526.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: EDGERTON, PRETTYMAN and BASTIAN, Circuit
• Citation: 226 F.2d 337
• Decision Date: 28 July 1955
• Docket Number: No. 12526.
• Parties: Kendrick M. COLE, Appellant, v. Philip YOUNG, Chairman, United States Civil Service Commission, et al., Appellees.

226 F.2d 337 (1955)

Kendrick M. COLE, Appellant,
v.
Philip YOUNG, Chairman, United States Civil Service Commission, et al., Appellees.

No. 12526.

United States Court of Appeals District of Columbia Circuit.

Argued April 6, 1955.

Decided July 28, 1955.

226 F.2d 338

Mr. David I. Shapiro, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of Court, with whom Mr. James H. Heller, Washington, D. C., was on the brief, for appellant. Mrs. Helen M. Rosenthal, Washington, D. C., also entered an appearance for appellant.

Mr. Donald B. MacGuineas, Washington, D. C., of the bar of the Supreme Court of Illinois, pro hac vice, by special leave of Court, with whom Mr. Samuel D. Slade, Attorney, Department of Justice, was on the brief, for appellees. Mr. John D. Lane, Assistant United States Attorney, also entered an appearance for appellees.

Before EDGERTON, PRETTYMAN and BASTIAN, Circuit Judges.

PRETTYMAN, Circuit Judge.

Appellant Cole was a five-point veterans' preference eligible employed in the classified Civil Service as a food and

226 F.2d 339

drug inspector in the Department of Health, Education and Welfare. After an investigation pursuant to Executive Order 10450¹ he received a written statement of charges, which were, generally speaking, that he had continued in close association with individuals reliably reported to be Communists and had donated to and attended meetings of an organization designated by the Attorney General under Section 12 of the Executive Order. He replied to this letter, declining to make any explanation of the charges, saying that the request of the Government was an invasion of his private rights and of his right of freedom of association. His letter was forwarded to the Secretary, who ordered that his employment be terminated. Some two weeks later Cole, by his counsel, wrote the Secretary, asking a reopening of the case and stating that if it were reopened he would prove that he had not knowingly had the associations or relations which were alleged. The Secretary denied the reopening and later denied a second request for a reopening. Cole appealed to the Civil Service Commission under Section 14 of the Veterans' Preference Act,² but the Director would not accept the appeal. The Commission approved the Director's decision, holding that Act not applicable to dismissals under Public Law 733.³ Thereupon Cole filed a civil action in the District Court, praying for a declaratory judgment and for an order restoring him to his position. The District Court, with an exhaustive opinion,⁴ granted the defendants' motion for judgment on the pleadings, dismissing the complaint for failure to state a claim upon which relief could be granted

Upon his appeal to this court Cole makes three principal points, and the Government makes one additional point, which it raised in its motion for judgment on the pleadings. It says Cole failed to exhaust his administrative remedy and so his action in court must fail. While Cole failed to pursue the administrative remedy offered him — he affirmatively rejected it — nevertheless the administrative process was exhausted and a final administrative decision was reached and rendered. This is the nub of the rule that the administrative remedy must be exhausted. We think the Government's point is not well taken.

Cole's first point is that the President could not extend the summary dismissal provisions of Public Law 733 to employees holding non-sensitive, non-policy-making positions in a Department such as Health, Education and Welfare. He makes an extensive argument based upon the congressional debates and several writings in the field, plus a rationalization of the purposes of such a statute. The trouble with the argument is that the statute itself is explicit on the point. It provides:

"Sec. 3. The provisions of this Act shall apply 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."⁵

The statute puts the selection of the agencies to be affected in the hands of the President. It says nothing about sensitiveness or policy-making. The basic provision of the statute (Section 1) applies in terms to "any civilian officer or employee" in the named departments and agencies. When the President, under Section 3, supra, makes the statute applicable to other departments, he makes the "any civilian" provision applicable.

The foregoing is entirely constitutional. The Constitution vests all executive power in one person, the President. It

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provides:⁶ "The executive Power shall be vested in a President of the United States." His is a lone, personal responsibility in so far as carrying out the laws which Congress has enacted is concerned. The business of the Congress is to make laws. The business of the President is to carry them out. Authority is ordinarily a concomitant of responsibility. But we need not here venture into the intricacies of executive-legislative relationship in respect to executive employees. It is enough to say that, when the Congress recites that the President may dismiss summarily executive employees whenever he deems dismissal necessary or advisable in the interest of the national security, the enactment is valid. The policies to be pursued in the matter by the Congress and by the President are for them to determine, not for us

Cole's second point is that Public Law 733 at most authorizes summary dismissal when such termination of employment is "necessary or advisable in the interest of the national security", while Executive Order 10450 requires agency heads to insure that the retention of any employee "is clearly consistent with the interests of the national security." He says the latter quoted clause is not within the former and, therefore, the Order is not within the statute. But we think the Executive Order is a pronouncement by the President that in his judgment it is advisable in the interest of the national security under present circumstances that no employee be retained unless his retention is clearly consistent with the interests of the national security. That is a rational and reasonable position. It is fully within the terms of the statute; and this is quite apart from the consideration that the President may have such power (to dismiss executive employees whose retention he deems not clearly consistent with the national security) as a part of the direct constitutional grant of "executive power". There is a line somewhere beyond which Congress cannot go in enacting prescriptions in respect to executive power over executive employees. It might be, for example, that, if Congress required the hiring of executive personnel whose employment the President deemed not consistent with the national security, the enactment would be void. Congress has the power to make the laws and so can make laws concerning Government employ; but the President has the power, and so the responsibility, of carrying out all the laws, and Congress cannot impinge upon that power. There is a boundary between the two powers. We do not have that problem in...