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April 23, 1952


The opinion of the court was delivered by: MORRIS

In each of these cases the then Attorney General of the United States included the complaining organizations in a list of organizations designated by him as communist, and furnished by him to the Loyalty Review Board of the United States Civil Service Commission. He based his authority for this action upon certain provisions in Part III, Section 3, of Executive Order No. 9835, issued by the President March 21, 1947. *fn1" Each of the plaintiff organizations filed these actions, seeking a judgment declaring such action of the Attorney General to be invalid, and for injunctive relief in connection therewith. In each of these cases this Court dismissed the complaint upon the ground that the complaining organizations did not suffer such legal injury as would enable them to maintain the action. Upon appeal in each case, the United States Court of Appeals for the District of Columbia affirmed the action of this Court. Upon writ of certiorari, each case was brought before the Supreme Court, and in each it was held that the dismissal of the complaints was erroneous, and the cases were remanded for further proceedings. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S. Ct. 624, 95 L. Ed. 817. The cases were decided by a divided Court, five justices constituting the majority, three dissenting, and one took no part. For the five justices constituting the majority, Mr. Justice Burton announced the judgment of the Court and delivered an opinion, in which Mr. Justice Douglas joined. It is clear that the majority decided that the complaining organizations had legal rights which gave to each of them standing to complain of the alleged injuries. It is equally clear that, while four of the majority, including Mr. Justice Douglas, expressed in opinions that the action complained of could not be legal and valid in the absence of adequate notice to the complaining organizations and a hearing before they were designated as communist organizations by the Attorney General, the majority of the Court did not so determine, Mr. Justice Burton taking the position that consideration of this must await a determination by the District Court upon consideration of the basis upon which the Attorney General took the action complained of. The three dissenting justices did not consider that the complaining organizations suffered any legal injury which gave them a standing to maintain these actions, and it, of course, followed that there was no necessity that adequate notice be given and hearing had before the action complained of was taken.

Upon remand, the then Attorney General filed answer, admitting certain of the allegations of the complaint, denying others, and asserting that he was without information and belief as to other allegations. As a further defense, the Attorney General asserted that the designation of the complaining organizations was made after appropriate investigation and determination, and was based upon information in the possession of the Attorney General, including confidential investigative reports of the Federal Bureau of Investigation, and upon the recommendations of the Solicitor General, the Assistant Attorneys General, the Assistant Solicitor General, and a careful study of all by the Attorney General. That designation was first made by Tom C. Clark, as Attorney General of the United States, and after re-examination, the said designation has been affirmed and maintained by J. Howard McGrath, successor to Tom C. Clark as Attorney General of the United States. Subsequently the plaintiffs in each case renewed their motion for preliminary injunction and moved for judgment on the pleadings, or in the alternative for summary judgment. Before hearing was had thereon, the defendants in each case moved for summary judgment, based upon the pleadings and an affidavit of J. Howard McGrath, Attorney General of the United States, filed with said motions.

 The affidavits, though in each case differing in some respects as to details, set forth in substance the method of investigation and determination referred to in the answer, and state that public policy and national security will not permit the disclosure of the contents of many confidential reports, nor the presentation by way of testimony through witnesses of any of the confidential information contained in such reports, since such revelation would be detrimental to the national security, and would render valueless for future use confidential sources of information essential to the protection of our national security. The affidavits further state, however, that, within the limits of national security, the Attorney General submitted a summary of information upon which, in part, the designation of the complaining organizations, pursuant to Section 3, Part III, of Executive Order 9835, was based. He stated that this summary does not reflect the complete factual basis upon which the determination rests, but only that part which can be disclosed without jeopardizing the national security. He states that such information is offered to satisfy the Court that the designation complained of was not arbitrary, capricious or without foundation in fact. An abbreviated resume of the summary contained in each affidavit appears in the margin. *fn2"

 'Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.'

 and in that such rule further requires-

 'Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.'

 Plaintiffs also oppose the granting of the summary judgment sought by the defendants, and the defendants oppose the granting of the judgment on the pleadings, or in the alternative summary judgment, sought by the plaintiffs, and also oppose the granting of injunctive relief pendente lite sought by the plaintiffs. A hearing was had upon all motions upon argument of counsel and submitted briefs.

 In the view of the defendants, the critical question is whether or not the Attorney General had such information at the time of the designations complained of that his action in making such designations was reasonable and, therefore, not arbitrary and capricious. Entirely apart from the constitutional question of whether or not adequate notice and a hearing was requisite in a case such as this in order to afford due process of law, a question which will be discussed later, it might well be that an administrative officer of the Government could make a determination based on information upon which he could reasonably rely without being arbitrary or capricious, even though such information was not of the character ordinarily admissible in evidence in the trial of a judicial proceeding. Presumably it is the task of this Court, under the mandate of the Supreme Court, to determine what such basis of action the Attorney General had for the designations here complained of, and it may be that, in the course of that inquiry, recourse must be had to documents, reports, and similar data that would not ordinarily be admissible in proof of the substantive facts to which they relate. But, to say that, is not to say that, in disregard of the requirements of the applicable rule respecting summary judgments, the business of this Court in these cases is terminated by an affidavit of the Attorney General which in effect says that he had information which he believed to be true, and which convinced him that he did not act arbitrarily and capriciously. The only way that I know in which the matter can be properly dealt with is to receive evidence concerning the factual matters upon which the Attorney General based his action, and to determine whether, in the light of such evidence, there was a reasonable basis for his reaching the conclusion which he did. The affidavit filed by the Attorney General, stating, as it does, factual matters which he believed to be true, and which, if true, would undoubtedly justify the conclusion which was reached, might well be treated as an amendment to his answer to the end that all permissible and admissible data relating to such factual matters could be considered by the Court. Motions of defendants for summary judgment must, therefore, be denied.

 With respect to the motions of the plaintiffs for a judgment on the pleadings, or in the alternative for summary judgment, the view of the plaintiffs is that the action taken by the Attorney General in making the designations complained of could not be valid, regardless of the factual basis which he had for taking such action, in the absence of adequate notice to the complaining organization and a hearing which would afford them the protection of the constitutional requirement of due process. Certainly four of the justices participating in the decision in these cases in the Supreme Court agreed with this contention, but, equally as certain, that was not the action of the majority of the Court. As stated earlier in this memorandum, that question was left, so far as the action of the Supreme Court is concerned, for consideration in the light of action which might be taken by this Court after it had examined into and determined the factual basis upon which the designations complained of were made by the Attorney General. With respect to the admitted fact that there was no adequate notice or hearing, the cases are now in precisely the same posture that they were when considered by the Supreme Court. That Court did not see fit to deal with that question then, and I see no reason why this Court should deal with it now before it has had opportunity to examine into the factual basis upon which the designations complained of were made. The motions of the plaintiffs for judgment on the pleadings, or in the alternative for summary judgment are, therefore, denied.

 With respect to the renewed motions of the plaintiffs for temporary injunctive relief pendente lite, it must be considered that the designations complained of, and concerning which plaintiffs claim that irreparable injury threatens, occurred in the year 1947. From the assertions made by plaintiffs, they have already suffered substantially all of the injury which they claim resulted from the action, the legality of which is to be in these cases determined. It does not appear that injunctive relief, if now granted, would, or could, afford to them the protection which injunctive relief is ordinarily intended to afford, and it does appear that at this late date, substantially five years after the action complained of, its effect would be to bring about a change in governmental procedures which have been in operation for a long period, and which ought not to be altered unless and until it is determined that the action in question is illegal and invalid. Balancing the equities of the parties and the public interest, I must conclude that the motions for injunctive relief pendente lite should be denied.

 Counsel will prepare and submit appropriate orders to carry these ...

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