'The Commission's action was based mainly on your activities in connection with the American Peace Mobilization and your shift in attitude and point of view following the declaration of war between Germany and Russia. It may be true that many members of the American Peace Mobilization were not aware that it was Communist-dominated and pro-Communist but it is generally recognized that those who were prominently and actively affiliated with that organization were people who over a period of time had shown sympathy with the Communist cause. Your testimony was that you were sent to the first meeting of the American Peace Mobilization in Chicago as a representative of your local union; that you also were sent to a meeting of the organization in New York City as a delegate, and that you participated actively in their meetings and affairs. You also testified that you were active in the affairs of the Washington Peace Mobilization and served on several of its committees.
'You were admittedly opposed to the United States participation in war before the invasion of Russia by Germany but thereafter you changed your mind and were of the opinion that this country should fight along with the other United Nations. Just how long it was before Pearl Harbor that you changed your mind is not definitely established, but on the occasion of your appearance before the Commission you indicated that it was probably in August of 1941, which obviously was soon after June 22, 1941.
'These matters, together with other activities which have been personally discussed with you, are convincing to the Commission that you are not eligible for retention in the service according to the standards observed by the Commission.
'By direction of the Commission:
'(S) William C. Hull 'Executive Assistant.'
Accordingly, plaintiff's employment was terminated September 12, 1944.
Under date of August 16, 1944, the Civil Service Commission advised plaintiff that any and all applications and eligibilities of plaintiff for examinations were cancelled because information disclosed through investigation indicated that plaintiff did not measure up to the required standard of suitability and fitness. The records of the Civil Service Commission do not disclose that plaintiff had any applications or eligibilities for examination then pending.
The position held by plaintiff during the period April 18, 1943, to September 12, 1944, was that of Chief of the Classification Division of the War Manpower Commission. Plaintiff's employment was thus closely related to the efficient operation of an agency having important duties and heavy responsibilities in mobilizing the Nation's war effort.
The action of the Civil Service Commission in determining after thorough investigation, that there was a reasonable doubt as to plaintiff's loyalty and that therefore he was not qualified under the controlling regulations to obtain a War Service appointment, is asserted to be unlawful as in violation of the Civil Service Act, Civil Service Rule I, Sec. 2, and Sec. 9(a) of the Hatch Political Activities Act, 5 U.S.C.A. § 61h(a). It is also argued that such determination by the Commission abridges plaintiff's fundamental rights guaranteed by the First and Fifth Amendments to the Constitution. The further contention is made that the termination of plaintiff's employment by the War Manpower Commission as a result of the Commission's finding of ineligibility was in violation of Section 6 of the Lloyd-LaFollette Act, 5 U.S.C.A. § 652. None of these assertions can be sustained. The Commission's action was in all respects in complete conformity with law. There has been no unlawful infringement of plaintiff's constitutional liberties.
This is not a case of removal after an absolute appointment. Plaintiff's employment was terminated because he was found ineligible or not qualified to receive a War Service appointment. This is not a case in which plaintiff has been determined to be disloyal. The Commission's determination was only that there was a reasonable doubt as to plaintiff's loyalty to the Government of the United States.
The plaintiff conceded that the right to disqualify Federal employees because of a reasonable doubt of their loyalty would seem obvious enough in time of war. The Commission found reasonable doubt of the loyalty of the plaintiff. It based its finding in part upon the fact that the plaintiff was a member of, and prominently and actively affiliated with, the American Peace Mobilization; participated actively in its meetings and affairs, and served on several of its committees. There were reasonable grounds to belive that this organization was formed under the auspices of the Communist Party designed to influence the American people to oppose participation in the war against Germany. Within a month after the German invasion of Russia its name was changed to American Peoples' Mobilization and then favored assistance to Britain and Russia in the war against Germany. It can hardly be said that there could be no reasonable doubt of the loyalty of a member of a communist organization who opposed war against Germany so long as this country was an ally of Great Britain, a democracy, but became an advocate of war when this country became allied with Russia, a communistic and totalitarian state. The defendants did not find that the plaintiff was disloyal. It was not necessary to go so far; it merely found that it had a reasonable doubt of his loyalty.
It is difficult to see that the Hatch Act has any application to this case. That Act prohibits Federal employees from taking any active part in political management or political campaigns. It is true that under that Act Federal employees retain the right to express their opinions on all political subjects to the same extent as other citizens. The plaintiff has not been denied the right to express his opinions, but if his opinions as expressed and his conduct in conformance with those opinions have raised a reasonable doubt in the minds of the Commission of his loyalty, there is nothing in the Hatch Act that would prevent his removal from office.
The plaintiff also claims that the action of the Commission was in violation of the Lloyd-LaFollette Act, but the plaintiff was not in the classified competitive civil service, and the provisions of the Lloyd-LaFollette Act apply only to persons in the classified civil service.
Apart, however, from the question of whether there was any substantial ground for the action of the Commission, it has acted pursuant to law and the courts are without jurisdiction to control its action so long as it complies with the law. This principle has been followed ever since the case of Decatur v. Paulding, 14 Pet. 497, 39 U.S. 497, 10 L. Ed. 559. In Levine v. Farley, 70 App.D.C. 381, 107 F.2d 186, 191 the Court of Appeals of the District of Columbia affirmed the action of the lower court in dismissing the suit of a plaintiff who sought a writ of mandamus against the Postmaster General to compel the reinstatement of the plaintiff in a position from which he had been removed, the plaintiff claiming that he had been unjustly removed as a result of unfair discrimination. The court said: 'We, therefore, hold that, where action is taken in removing from office an employee in the classified service and the action is in accordance with requirements of the statute relating thereto, such action is not reviewable by mandamus, and a court of law has no jurisdiction to inquire into the guilt of innocence of the employee as to the charges upon which he was removed.' There are many decisions to the same effect.
It appears, then, that there has been no violation of law by the Commission.
Both the plaintiff and the defendants have moved respectively for a summary judgment. There are no genuine issues of fact; the case is a proper one for that procedure. The motion of the plaintiff for summary judgment will be overruled; that of the defendants sustained and the complaint dismissed with costs.
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