COLE V. YOUNG

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90-00530R000300560017-5
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 14
• Document Creation Date: December 27, 2016
• Document Release Date: January 9, 2013
• Sequence Number: 17
• Publication Date: June 11, 1956
• Content Type: MISC

.536 Declassified in Part - Sanitized Copy Approved for Release 2013/01/09: CIA-RDP90-00530R000300560017-5
COLE v. YOUNG.
@ID
Syllabus.
ik1451N_?.
El
AL.
351 U.S.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT.
No. 442. Argued March 6, 1956.?Decided June
The Act of August 26, 1950, gave to the heads of certain departments
and agencies of the Government summary suspension and unre-
viewable dismissal powers over their civilian employees, when
deemed necessary "in the interest of the national security," and
its provisions were extended to "all other departments and agencies
of the Government" by Executive Order No. 10450. Petitioner, a
preference-eligible veteran under the Veterans' Preference Act, was
summarily suspended from his classified civil service position as a
food and drug inspector for the Department of Health, Education
and Welfare on charges of close association with alleged Com-
munists and an allegedly subversive organization. Later, he was
dismissed on the ground that his continued employment was not
"clearly consistent with the interests of national security." His
appeal to the Civil Service Commission under the Veterans' Pref-
erence Act was denied on the ground that that Act was inapplicable
to such discharges. Held: His discharge was not authorized by
the 1950 Act and hence it violated the Veterans' Preference Act.
Pp. 538-558.
1. The 1950 Act authorizes a dismissal only upon a determination
that it is 'necessary or advisable in the interest of the national
security.", Such a determination requires an evaluation of the
risk to the "national security" that the employee's retention would
create, which depends not only upon the character of the employee
and the likelihood of his misconducting himself but also upon the
nature of the position he occupies and its relationship to the
"national security." P. 542.
2. The 1950 Act is not the only, nor even the primary, source
of authority to dismiss government employees, and the question
in this case 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. Pp. 543-
544.
3. This depends on the meaning of the term "national security,"
as used in the 1950 Act. Pp. 542-544.
536
Syllabus.
537
4. The term "national security" is not defined in that Act, but
it is clear from the statute as a whole that it was intended to com-
prehend only those activities of the Government that are directly
concerned with the protection of the Nation from internal sub-
version or foreign aggression, and not those which contribute to
the strength of the Nation only-through their impact on the general.
welfare.. Pp. 544-548.
5. This conclusion is supported by the legislative history of the
Act. Pp. 548-551.
6. A condition precedent to the exercise of the dismissal authority
conferred by the 1950 Act is a determination by the agency head
that the position occupied is one affected with the "national secu-
rity," as that term is used in the Act. P. 551.
- 7. No determination was made that petitioner's position was
one in ?vhich he could adversely affect the "national security," as
that term is used in the Act. Pp. 551-558.
(a) Executive Order No. 10450 treats an adverse determina-
tion as to the loyalty of an employee as satisfying the -statute,
I rrespective of the character of lii-S'job or the effect his continued
employment might have upon the "national se( urity." Pp. 551-
556.
(b) The failure of the Executive Order to state explicitly
what was meant is the fault of the Government, and any ambigui-
ties should be resolved against the Government. P. 55(.
(c) From the Secretary's determination that petitioner's em-
ployment was not "clearly consistent with the interests of national
security," in the light of the Executive Order, it may be assumed
only that the Secretary found the charges to be true and that they
created reasonable doubt as to petitioner's loyalty. Pp. 556-557.
96 U. S. App. D. (2. 379, 226 F. 2d :337, reversed and remanded.
David I. Shapiro argued the cause for petitioner. With
him on the brief were James H. Heller and Osmond K.
Fraenkel.
Donald 13. MacGuineas argued the cause for respond-
ents. On the brief were Solicitor General Sobeloff, As-
sistant Attorney General Burger, Samuel D. Slade and
Benjamin Forman.
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STAT
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%,..1 .1 N_1 1J.I.J.LV .1:11%. 1,1, 1 t),J.J. COLE v. YOUNG.
Opinion of the Court. 351 U. S.
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 em-
ployees, when deemed necessary "in the interest of the
national security of the United States." 1
?1. "Notwithstanding the provisions of section 6 of the Act of
August 24, 1912 (37 Stat. 555), as amended (5 U. S. C. 652), or the
provisions of any other law, the Secretary of State; Secretary of
Commerce; Attorney General; the Secretary of Defense; the Sec-
retary of the Army; the Secretary of the Navy; the Secretary of
the Air Force; the Secretary of the Treasury; Atomic Energy Com-
mission; the Chairman, National Security Resources Board; or the
Director, National Advisory Committee for Aeronautics, may, in his
absolute discretion and when deemed necessary in the interest of
national security, suspend, without pay, any civilian officer or em-
ployee of the Department of State (including the Foreign Service
of the United States), Department of Commerce, Department of
Justice, Department of Defense, Department of the Army, Depart-
ment of the Navy, Department of the Air Force, Coast Guard,
Atomic Energy Commission, National Security Resources Board, or
National Advisory Committee for Aeronautics, respectively, or of
their several field services: Provided, That to the extent that such
agency head determines that the interests of the national security
permit, the employee concerned shall be notified of the reasons for
his suspension and within thirty days after such notification any
such person shall have an opportunity to submit any statements or
affidavits to the official designated by the head of the agency con-
cerned to ?show why he should be reinstated or restored to duty.
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: Provided further, That
any employee having a permanent or indefinite appointment, and
having completed his probationary or trial period, who is a citizen
536
Opinion of the Court.
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, held a position in the classified
civil service as a food and drug inspector for the New York
of the United States whose employment is suspended under the
authority of this Act, shall be given after his suspension and before
Iris employment is terminated under the authority of this Act, (1) a
written statement within thirty days after his suspension of the
charges against him, which shall be subject to amendment within .
thirty days thereafter and which shall be stated as specifically as
security considerations permit ; (2) an opportunity within thirty
days thereafter (plus an additional thirty days if the charges are
amemied) to answer such charges and to submit affidavits; (3) a
hearing, at the employee's request, by a duly constituted agency
authority for this purpose; (4) a review of his case by the agency
head, or some official designated by him, before a decision adverse
to the employee is made final; and (5) a written statement of the
decision of the agency head: Provided further, That any person
whose employment is so suspended or terminated under the authority
of this Act may, in the discretion of the agency head concerned, be
reinstated or restored to duty, and if- so reinstated or restored shall
be allowed compensation for all or any part of the period of such
suspension or termination in an amount not: to exceed the difference
between the amount such person would normally have earned during
the period of such suspension or termination, at the rate he was
receiving on the date of. suspension or termination, as appropriate,
and the interim net earnings of such person: Provided further, That
the termination of employment herein provided shall not affect the
right of such officer or employee to seek or accept employment in
any other department or Ngency of tli(? C;overninent: Provided
further, That till' head of any department or agency considering the
appointment of any person whose employment has been terminated
under the provisions of this Act may make such appointment only
after consultation with the Civil Service Commission, which agency
shall have the authority at the written request of either the head of
such agency or such employee to determine whether any such person
is eligible for employment by any other agency or department of
the Government.
"SEc. 3. The provisions of this Act shall apply to such other de-
partments and agencies of the Government .as the President may,
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Opinion of the Court. 351 U. S.
District of the Food and Drug Administration, Depart-
ment of Health, Education, and Welfare. In November
1953, he was suspended without pay from his position,
pending investigation to determine whether his employ-
ment should be terminated. He was given a written
statement of charges alleging that he had "a close asso-
ciation with individuals reliably reported to be Commu-
nists" and that he had maintained a "sympathetic asso-
ciation" 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," deter-
mined that petitioner's continued employment was not
"clearly consistent with the interests of national secu-
rity" 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 reinstate-
ment 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
from time to time, deem necessary in the best interests of national
security. If any departments or agencies are included by the Presi-
dent, he shall so report to the Committees on the Armed Services of
the Congress." 64 Stat, 476, 5 U.S. C. ?? 22-1, 22-3.
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uutz; v. YOUNG. 541
536 Opinion of the Court
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.
Section 14. of the Veterans' Preference Act, 58 Stat,
390, as amended, 5 U. S. C. ? 863, provides that prefer-
ence 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 con-
trolling. 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. notwith-
standing 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, sus-
pend, 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 ad-
visable 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 nuide applicable only to the De-
partments of State, Commerce, Justice, Defense, Army,
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_ 543
Opinion of the Court. 351 U. S.
Navy, and Air Force, the Coast Guard, the. Atomic Energy
Commission, the National Security Resources Board, and
the National Advisory Committee for Aeronautics. Sec-
tion 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 author-
ity "to all other departments and agencies of the Govern-
ment."' While the validity of this extension of the Act
depends upon questions which are in many respects coin-
mon to those determining the validity of the Secretary's
exercise of the authority thereby extended to her," 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, Educa-
tion, and Welfare.
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