Hiss v. Hampton

• Decision Date: 03 March 1972
• Docket Number: Civ. A. No. 1978-70.
• Citation: 338 F. Supp. 1141
• Parties: Alger HISS et al., Plaintiffs, v. Robert E. HAMPTON, Chairman, United States Civil Service Commission, et al., Defendants.
• Court: U.S. District Court — District of Columbia

338 F. Supp. 1141

Alger HISS et al., Plaintiffs, v. Robert E. HAMPTON, Chairman, United States Civil Service Commission, et al., Defendants.

Civ. A. No. 1978-70.

United States District Court, District of Columbia.

March 3, 1972.

Sanford J. Rosen, New York City, of the bar of the Supreme Court of Connecticut, pro hac vice, by special leave of court, with whom Melvin L. Wulf, New York City, and Hope Eastman, Washington, D. C., were on brief for plaintiffs.

George W. Calhoun, Atty., Dept. of Justice, with whom Robert C. Mardian, Asst. Atty. Gen., and Benjamin C. Flannagan, Atty., Dept. of Justice, were on brief for defendants.

Before ROBB, Circuit Judge, and BRYANT and SMITH, District Judges.

ROBB, Circuit Judge:

Plaintiffs Alger Hiss and Richard Strasburger, former employees of the federal government, applied for annuities under the Civil Service Retirement Act. 5 U.S.C. §§ 8331-8348. Their applications were denied by the Civil Service Commission upon the ground that payment to them was prohibited by certain provisions of Public Law 87-299, now codified as 5 U.S.C. §§ 8311-8322, commonly known as the "Hiss Act".¹ The plaintiffs challenge that denial. Plaintiff Strasburger's wife, as his designated beneficiary and as the recipient of survivor benefits under 5 U.S.C. § 8341, joins in the action.

The plaintiffs seek a declaration that the Hiss Act is unconstitutional on its face and as applied to them; or in the alternative that it is not applicable to them. The complaint prays further for an order enjoining the defendants from applying the Act to the plaintiffs and requiring the defendants to make all past-due annuity payments to the plaintiffs. Finally, the complaint alleges that the plaintiffs are proper representatives of all persons similarly situated, making this a valid class action within the intendment of Rule 23, Fed.R.Civ.P., and the plaintiffs therefore seek relief for all members of the class, as well as themselves.

The defendants admit that plaintiffs are "annuitants" or individuals generally qualified for annuity benefits under 5 U.S.C. §§ 8331-8348. The defendants assert, however, that the provisions of the Hiss Act forbid payment of these benefits to the plaintiffs, and that the Act is constitutional and applies to the plaintiffs.

The material facts are not in dispute and the action is before us on cross motions for summary judgment.

The ruling of the Commission in the case of plaintiff Hiss was based on 5 U. S.C. § 8312; and in Strasburger's case, upon 5 U.S.C. § 8315. Accordingly, we state the cases separately.

The Case of Plaintiff Hiss

Alger Hiss entered the federal service October 1, 1929, and thereafter was employed by the government in various capacities. On January 15, 1947 he resigned from his last federal position, which was with the Department of State. His total federal service for retirement purposes is approximately fifteen years. On November 11, 1966, his sixty-second birthday, he met the age and service requirements for a civil service retirement annuity at the rate of $61.00 per month.

On January 27, 1967 Hiss filed a claim for his annuity. By letter dated April 24, 1967 the Director of the Civil Service Commission's Bureau of Retirement and Insurance notified Hiss that he was barred from receiving a retirement annuity by section 1 (a) (3) (B) of Public Law 87-299, approved September 26, 1961 (The Hiss Act). The section of the Act to which the Director referred is now codified as part of 5 U. S.C. § 8312 and provides that:

(a) An individual, or his survivor or beneficiary, may not be paid annuity or retired pay on the basis of the service of the individual which is creditable toward the annuity or retired pay, subject to the exceptions in section 8311(2) and (3) of this title, if the individual —

(1) was convicted, before, on, or after September 1, 1954, of an offense named by subsection (b) of this section, to the extent provided by that subsection;

* * * * * *

(b) The following are the offenses to which subsection (a) of this section applies if the individual was convicted before, on, or after September 1, 1954:

* * * * * *

(3) Perjury committed under the statutes of the United States or the District of Columbia —

* * * * * *

(B) in falsely testifying before a Federal grand jury, court of the United States, or court-martial with respect to his service as an employee in connection with a matter involving or relating to an interference with or endangerment of, or involving or relating to a plan or attempt to interfere with or endanger, the national security or defense of the United States ....

The Director informed Hiss that the basis of his ruling was:

The Commission has information to the effect that you were indicted by the Grand Jury impanelled and sworn in the United States District Court for the Southern District of New York on December 15, 1948 for violation of title 18, section 1621 of the United States Code (perjury). This indictment was a result of your testimony before the aforesaid Grand Jury investigating possible violations of espionage laws of the United States and other criminal statutes. In addition, the Commission has information that you were convicted of the aforesaid perjury violation on January 21, 1950 and were sentenced to five years' imprisonment on January 25, 1950. (Copies of certified court records attached.)

The indictment and conviction to which the Director referred occurred in the case of United States v. Hiss, c 128/40 (S.D.N.Y. Jan. 25, 1950), in the United States District Court for the Southern District of New York. Indicted on two counts for perjury, Hiss was found guilty by a jury and sentenced to imprisonment for a term of five years on each count, the sentences to run concurrently. The judgment was affirmed. United States v. Hiss, 185 F.2d 822 (2d Cir. 1950), cert. denied, 340 U.S. 948, 71 S.Ct. 532, 95 L.Ed. 683 (1951). A motion for a new trial on the ground of newly discovered evidence was denied. United States v. Hiss, 107 F.Supp. 128 (S.D.N.Y.1952), aff'd, 201 F.2d 372 (2d Cir.), cert. denied, 345 U.S. 942, 73 S.Ct. 830, 97 L.Ed. 1368 (1953).

The Director's letter of April 24, 1967 informed Hiss that he was entitled to a refund of his retirement contributions. He was further informed that he had a right to submit an answer and to request a hearing before a final decision was made. Hiss waived a hearing and submitted his case to a hearing examiner on a stipulated record. On June 26, 1968 the examiner issued a decision sustaining the denial of Hiss' claim for an annuity. On appeal the Civil Service Commission on October 22, 1968 sustained the examiner by adopting his findings, conclusions and decision as its own. Having thus exhausted his administrative remedies Hiss commenced this suit. He has not requested or received a refund of his contributions to the annuity fund, which would amount to approximately $3,556, exclusive of interest.

The Case of Richard Strasburger

Plaintiff Richard Strasburger was employed by the Post Office Department in various clerical capacities from December 2, 1930 until February 10, 1950. On September 13, 1964, his sixty-second birthday, he met the age and service requirements for a civil service retirement annuity at the rate of $122.00 per month.

Thereafter Strasburger applied for his annuity. On December 17, 1964 the Chief of the Bureau of Retirement and Insurance of the Civil Service Commission denied the application upon the ground that Strasburger was barred from receiving a civil service annuity by section 2 of Public Law 83-769, as amended by Public Law 87-299, approved September 26, 1961. This section, now codified as part of 5 U.S.C. § 8315, reads as follows:

(a) An individual, or his survivor or beneficiary, may not be paid annuity or retired pay on the basis of the service of the individual which is creditable toward the annuity or retired pay, subject to the exceptions in section 8311(2) and (3) of this title, if the individual knowingly and willfully made or makes a false, fictitious, or fraudulent statement or representation, or knowingly and willfully concealed or conceals a material fact —

(1) before, on, or after September 1, 1954 concerning his —

(A) past or present membership in, affiliation or association with, or support of the Communist Party, or a chapter, branch, or subdivision thereof, in or outside the United States ...

* * * * * *

in a document executed by the individual in connection with his employment in, or application for, a civilian or military office or position in or under the legislative, executive, or judicial branch of the Government of the United States or the government of the District of Columbia.

The specific ground for the denial of Strasburger's application was that "it has been determined that you were a member of the Communist Party and that you knowingly and wilfully made false statements and concealed material facts with respect to that membership". Strasburger appealed this decision to the Civil Service Commission. While the appeal was pending he applied under protest for a refund of his contributions to the annuity fund, and he received a refund of $3,025.96.

The record does not spell out the course of Strasburger's appeal between 1964 and 1966. On February 8, 1966, however, the General Counsel of the Civil Service Commission wrote to Strasburger, informing him that the Commission had decided to reopen and readjudicate his case in accordance with the decision of the United States Court of Claims in Garrott v. United States, 340 F.2d 615, 169 Ct.Cl. 186, decided January 22, 1965. In that case the court held that before an annuity could be denied under Public Law 87-299 an annuitant was entitled to a personal hearing with the right to question witnesses and to offer evidence in his behalf.

The general counsel's letter of February 8, 1966 was followed by various procedural steps, including a letter to Strasburger from the Director of the...