Service v. Dulles

Decision Date17 June 1957
Docket NumberNo. 407,407
Citation354 U.S. 363,77 S.Ct. 1152,1 L.Ed.2d 1403
PartiesJohn S. SERVICE, Petitioner, v. John Foster DULLES et al
CourtU.S. Supreme Court

[Syllabus from pages 363-364 intentionally omitted] Mr. C. Edward Rhetts, Washington, D.C., for the petitioner.

Mr. Donald B. MacGuineas, Washington, D.C., for the respondent.

Mr. Justice HARLAN delivered the opinion of the Court.

On December 14, 1951, petitioner, John S. Service, was discharged by the then Secretary of State, Dean Acheson, from his employment as a Foreign Service Officer in the Foreign Service of the United States. This case brings before us the validity of that discharge.

At the time of his discharge in 1951, Service had been a Foreign Service Officer for some sixteen years, during ten of which, 19351945, he had served in various capacities in China. In April 1945, shortly after his return to this country, Service became involved in the so-called Amerasia investigation through having furnished to one Jaffe, the editor of the Amerasia magazine, copies of certain of his Foreign Service reports. Two months later, Service, Jaffe and others were arrested and charged with violating the Espionage Act, 1 but the grand jury, in August 1945, refused to indict Service. He was thereupon restored to active duty in the Foreign Service, from which he had been on leave of absence since his arrest, and returned to duty in the Far East.

From then on Service's loyalty and standing as a security risk were under recurrent investigation and review by a number of governmental agencies under the provisions of Executive Order No. 9835,2 establishing the President's Loyalty Program, and otherwise. He was accorded successive 'clearances' by the State Department in each of the years 1945, 1946 and 1947, 3 and a fourth clearance in 1949 by that Department's Loyalty Security Board, which, however, was directed by the Loyalty Review Board of the Civil Service Commission, when the case was examined by it on 'post-audit,'4 to prefer charges against Service and conduct a hearing thereon. This was done, and on October 6, 1950, after extensive hearings, the Department Board concluded that 'reasonable grounds do not exist for belief that * * * Service is disloyal to the Government of the United States * * *,' and that '* * * he does not constitute a security risk to the Department of State.' These findings were approved by the Duputy Under Secretary of State, acting pursuant to authority delegated to him by the Secretary.5 Again, however, the Loyalty Review Board, on post-audit, remanded the case to the Department Board for further consideration.6 Such consideration was had, this time under the more stringent loyalty standard established by Executive Order No. 10241,7 amending the earlier Executive Order No. 9835, and again the Department Board, on July 31, 1951, decided favorably to Service. This determination was likewise approved by the Deputy Under Secretary. However, on a further post-audit, the Loyalty Review Board decided to conduct a new hearing itself, which resulted this time in the Board's finding that there was a reasonable doubt as to Service's loyalty, and in its advising the Secretary of State, on December 13, 1951, that in the Board's opinion Service 'should be forthwith removed from the rolls of the Department of State' and that 'the Secretary should approve and adopt the proceedings' had before the Board.8 On the same day the Department notified Service of his discharge, effective at the close of business on the following day.

The authority and basis upon which the Secretary acted in discharging petitioner are set forth in an affidavit later filed by Mr. Acheson in the present litigation, in which he states:

'2. On December 13, 1951, I received a letter from the Chairman of the Loyalty Review Board of the Civil Service Commission submitting to me that Board's opinion, dated December 12, 1951, in the case of John S. Service, a Foreign Service officer of the Department of State and the plaintiff in this action.

'3. On that same day I considered what action should be taken in the light of the opinion of the Loyalty Review Board, recognizing that whatever action taken would be of utmost importance to the administration of the Government Employees Loyalty Program. I understood that the responsibility was vested in me to make the necessary determination under both Executive Order No. 9835, as amended, and under Section 103 of Public Law 188, 82d Congress, as to what action to take.

'4. Acting in the exercise of the authority vested in me as Secretary of State by Executive Order 9835, as amended by Executive Order 10241, and also by Section 103 of Public Law 188, 82d Congress (65 Stat. 575, 581), I made a determination to terminate the services of Mr. Service as a Foreign Service Officer in the Foreign Service of the United States.

'5. I made that determination solely as the result of the finding of the Loyalty Review Board and as a result of my review of the opinion of that Board. In making this determination, I did not read the testimony taken in the proceedings in Mr. Service's case before the Loyalty Review Board of the Civil Service Commission. I did not make any independent determination of my own as to whether on the evidence submitted before those boards there was reasonable doubt as to Mr. Service's loyalty. I made no independent judgment on the record in this case. There was nothing in the opinion of the Loyalty Review Board which would make it incompatible with the exercise of my responsibilities as Secretary of State to act on it. I deemed it appropriate and advisable to act on the basis of the finding and opinion of the Loyalty Review Board. In determining to terminate the employment of Mr. Service, I did not consider that I was legally bound or required by the opinion of the Loyalty Review Board to take such action. On the contrary, I considered that the opinion of the Loyalty Review Board was merely an advisory recommendation to me and that I was legally free to exercise my own judgment as to whether Mr. Service's employment should be terminated and I did so exercise that judgment.'

Section 103 of Public Law 188, 82d Congress,9 upon which the Secretary thus relied, was the so-called McCarran Rider, first enacted as a rider to the Appropriation Act for 1947, which provided:

'Notwithstanding the provisions of * * * any other law, the Secretary of State may, in his absolute discretion, * * * terminate the employment of any officer or employee of the Department of State or of the Foreign Service of the United States whenever he shall deem such termination necessary or advisable in the interests of the United States * * *.'10

Similar provisions were re-enacted in each subsequent appropriation act until 1953.11

After an attempt to secure further administrative review of his discharge proved unsuccessful, petitioner brought this action, in which he sought a declaratory judgment that his discharge was invalid; an order directing the respondents to expunge from their records all written statements reflecting that his employment had been terminated because there was a reasonable doubt as to his loyalty; and an order directing the Secretary to reinstate him to his employment and former grade in the Foreign Service, with full restoration of property rights and payment of accumulated salary.

While cross-motions for summary judgment were pending before the District Court, this Court rendered its decision in Peters v. Hobby, 349 U.S. 331, 75 S.Ct. 790, 99 L.Ed. 1129, holding that under Executive Order No. 9835, the Loyalty Review Board had no authority to review, on post-audit, determinations favorable to employees made by department or agency authorities, or to adjudicate individual cases on its own motion. On the authority of that decision, the District Court declared the finding and opinion of the Loyalty Review Board respecting Service to be a nullity, and directed the Civil Service Commission to expunge from its records the Board's finding that there was reasonable doubt as to his loyalty. But since petitioner's removal rested not only upon Executive Order No. 9835, as amended, but also upon the McCarran Rider, the District Court sustained petitioner's discharge as a valid exercise of the 'absolute discretion' conferred upon the Secretary by the latter provision, and granted summary judgment in favor of respondents in all other respects.12 The Court of Appeals affirmed, 98 U.S.App.D.C. 268, 235 F.2d 215, and this Court granted certiorari, 352 U.S. 905, 77 S.Ct. 147, 1 L.Ed.2d 115, because of the importance of the questions involved to federal administrators and employees alike.

Petitioner here attacks the validity of the termination of his employment on two separate grounds: First, he contends that the Secretary's exercise of discretion was invalid since the findings and opinion of the Loyalty Review Board, upon which alone the Secretary acted, were void, because they were rendered without jurisdiction13 and were based upon procedures assertedly contrary to due process of law. Even conceding that the Secretary's powers under the McCarran Rider were such that he was not required to state the grounds for his decision, petitioner urges, his decision cannot stand because he did in fact rely upon grounds that are invalid. See Securities and Exchange Commission v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626; Perkins v. Elg. 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320. Second, petitioner contends that the Secretary's action is subject to attack under the principles established by this Court's decision in United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681, namely, that regulations validly prescribed by a government administrator are binding upon him as well as the citizen, and that this principle holds even when the administrative action under review is discretionary in nature. Regulations...

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