Friedman v. Schwellenbach, 9305.

• Decision Date: 16 December 1946
• Docket Number: No. 9305.,9305.
• Parties: FRIEDMAN v. SCHWELLENBACH et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

159 F.2d 22 (1946)

FRIEDMAN v. SCHWELLENBACH et al.

No. 9305.

United States Court of Appeals District of Columbia.

Argued November 14, 1946.

Decided December 16, 1946.

Writ of Certiorari Denied March 17, 1947.

Mr. Morton Stavis, of New York City, with whom Messrs. Sidney V. Smith and Milton V. Freeman, both of Washington, D. C., were on the brief, for appellant.

Mr. Lawrence V. Meloy, Attorney, United States Civil Service Commission, of Washington, D. C., member of the Bar of the State of California, pro hac vice, by special leave of court, with whom Mr. Edward M. Curran, United States Attorney at the time the brief was filed, of Washington, D. C., was on the brief, for appellees. Mr. Daniel B. Maher, Assistant United States Attorney, of Washington, D. C., also entered an appearance for appellees.

Before GRONER, Chief Justice, and EDGERTON and WILBUR K. MILLER, Associate Justices.

Writ of Certiorari Denied March 17, 1947. See 67 S.Ct. 979.

WILBUR K. MILLER, Associate Justice.

As of September 12, 1944, the appellant, Morton Friedman, was discharged from the position of chief of the classification division of the War Manpower Commission because the United States Civil Service Commission had determined that there was a reasonable doubt as to his loyalty to the Government of the United States. Soon thereafter he sued in the District Court of the United States for the District of Columbia for a declaration that he had been improperly dismissed and that he was entitled to reinstatement. Other relief sought was that the chairman of the War Manpower Commission be required to reinstate him, and that the Civil Service Commission be enjoined from interfering with his reinstatement and directed to restore his general eligibility for examination and reemployment. After the appellees had answered, both sides moved for summary judgment and filed supporting affidavits. Summary judgment for the appellees was granted¹ and this appeal followed.

The appellant was never in what is called the classified Civil Service, a status attained in peacetime through competitive examination. He held the position under a wartime relaxation of the Civil Service procedure. In the early days of World War II it became apparent that of necessity there would be a large and rapid increase in the number of civilians employed by the government and that the use of the ordinary peacetime routine of the Civil Service Commission in examining and certifying applicants probably would retard the nation's war effort. Consequently, on February 16, 1942, the President, by virtue of the authority given him by the Civil Service Act, 5 U.S.C.A. § 632 et seq., issued an executive order, No. 9063, authorizing the Civil Service Commission to adopt such special procedures and regulations as it might deem necessary in order to avoid delay in obtaining qualified persons for government service during the emergency. The order provided that employees appointed solely by reason of any special procedure set up pursuant to the executive order should not thereby acquire a classified Civil Service status, but might be retained for the duration and for six months thereafter should the Commission so decide. Four days later another executive order, No. 9067, authorized the Civil Service Commission to effect the transfer of any employee of an executive department or agency to a department or agency having a higher priority classification if the employee were considered competent for the new assignment. The Commission was authorized to adopt appropriate rules and regulations with respect to such transfers.

Pursuant to these executive orders, the Civil Service Commission adopted War Service Regulations which became effective March 16, 1942. In order to expedite employment and transfers the Commission made free use of conditional appointments and conditional transfers. In this manner the employee required could be put to work at once, subject to character investigation, and the Commission thereafter could make its inquiry concerning qualifications before certifying as to eligibility. It was under this procedure that the appellant was transferred on May 29, 1942, from a government position not under the classified Civil Service to a place in the Division of Central Administrative Services, Office for Emergency Management, a position requiring Civil Service status. The transfer was made expressly "subject to character investigation." While the investigation was taking place the appellant went to the War Manpower Commission as a part of a group transfer of the personnel functions of the Office for Emergency Management.

War Service Regulation II, Section 3, provides as follows:

"An applicant may be denied examination and an eligible may be denied appointment for any one of the following reasons:

* * * * * *

"(g) a reasonable doubt as to his loyalty to the Government of the United States;

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"Any of the reasons stated in the foregoing subdivisions from (b) through (h) inclusive, shall be sufficient cause for removal from the service."

As a result of its investigation the Commission determined that there was a reasonable doubt as to the appellant's loyalty to the Government of the United States and it decided, therefore, that he was ineligible and should be removed. On October 27, 1942, it requested Central Administrative Services, Office for Emergency Management, to release the appellant. Friedman appealed and a hearing before the Board of Appeals and Review of the Civil Service Commission was held on January 26, 1943, at which time the appellant was given full opportunity to present evidence concerning his eligibility for War Service appointment. After reviewing the record made at the hearing, the Commission reaffirmed its determination that the appellant...