VITARELLI v. SEATON

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Argument of Clifford J. Hynning

Chief Justice Earl Warren: Number 101, William Vincent Vitarelli, petitioner, versus Fred A. Seaton, Secretary of the Interior, et al.

Mr. Clifford J. Hynning: Mr. Chief Justice --

Chief Justice Earl Warren: Mr. Hynning, is that correct pronunciation?

Mr. Clifford J. Hynning: That's correct.

Please the court.

This case is here on a writ of certiorari to the Court of Appeals of District of Columbia Circuit.

It involves a former governmental employee, an educational employee of the Department of Interior who was removed in 1954 as a security risk from a position, which the government concedes, was non-insensitive, this is, this case doesn't involve any issue of secrets information, confidential information or anything of that sort.

The suit was instituted in the summer of 1956.

It was heard on cross motions for summary judgment in the District Court, which granted the summary motion for the government.

Then it went up to the Court of Appeals, which affirmed it.

Now it is our contention here that the firing of this governmental employee from a non-sensitive position has a security risk and under the purported authority of a security order in the security act, it was unlawful under the decision of this court in Cole versus Young.

And that he was therefore entitled to reinstatement as a result of a fact that his firing was unlawful.

Now we are asked -- we asked in the District Court for both an order expunging the record and declaring the firing to be unlawful and for reinstatement.

We achieved part of that through a so-called voluntary expunging of the record.

The issue here is whether the firing was so unlawful that he was entitled to -- is entitled to reinstatement.

Now turning to the facts --

Justice John M. Harlan: (Inaudible)

Mr. Clifford J. Hynning: That is correct, at the time of his removal.

Now there are certain changes that have occurred in the personnel policy of the Department of Interior that I am going to allude to later which somewhat modifies the answer to that question.

I think it's necessary here to recall a little bit of the political atmosphere of 1954 when this security board -- when he was suspended and when he had his hearing before the security board.

This was at a time prior to the decisions of this Court in Peters, in Service and Cole and there was a common assumption within the government that at a security hearing there were no legal problems or constitutional problems.

That appeared to be the result of the decision of this Court in Bailey against Richardson which had been affirmed by an equal division.

Now Vitarelli, as I said, was a teacher, an educational employee of the Office of Trust Territories of the Department of the Interior.

He was employed to train native teachers out in the Caroline Islands.

Now these Caroline Islands are islands being administered by the United States in trust for the United Nations.

They were the islands that were previously administered by Japan as mandated islands under the League of Nations.

Now this case started initially with a newspaper interview with a high commissioner of the trust territories of the pacific, and this was printed in a Guam newspaper of March 13, 1954 and it's been reproduced as Pages 1 and 2 of the record in this case.

The headline here was that it was going to be a security probe in the trust isles and that five employees were to be ousted as bad risks or asked to resign.

And an example was given of a known conscientious objector where the high commissioner stated that an advocate of pacifism is out of place and so sensitive and strategic in area as the trust territories.

I think this is a little ironic to find the high commissioner of trust territories believing that pacifist is out of place in some islands being administered by the United States in trust for the World Peace Organization.

A few days later he received a cable from the Secretary of the Interior advising him that he was being suspended without stating any of the charges on which he was being suspended.

I assume that this was in the interest of economy, he was going to receive letter a little later stating the charges.

That came about a week later and it's been reproduced in the record on pages 3 through 6.

Now these charges allege that in the years from 1941 to 1945 he was either a member of or affiliated with one sympathetic association with the Communist Party, with members of the Communist Party.

And then he went -- they went to list that he was in association with certain named individuals that in 1945 he had registered a preference for the American Labor Party that while an instructor at Columbia University, he had subscribed to the USSR information bulletin and had purchased copies of the Daily Worker and the New Masses.

That in a previous answer to, under the Truman Loyalty Program, he had stated that his association with these named individuals were casual and it was asserted that this was not true, that his associations were those of an intimate friendship.

It then went on to allege that he was therefore not reliable or trustworthy in view of these facts and that he had deliberately misrepresented falsified or admitted material facts or he might be subject to coercion, influence or pressure.

He was also notified that he was entitled to a hearing under the security order and he was supplied with a copy of the executive order under departmental security regulations as well as the Act of 1950, the Security Act.

At that time, he was given the alternative of returning to Washington at his own expense from half way around the world, try to answer these charges or if he wanted to bring his family back at government expense, he could resign.

He then tried to see how he could raise the funds to travel, but fortunately the government somehow or other was induced to change its mind and gave him a travel request so he could proceed to Washington.

At this time, of course, he was suspended without pay.

He arrived here and prepared an answer together with approximately 44 affidavits principally from his associates on the job out in the trust territories.

In this answer, he denied any sympathy -- membership in or sympathy with the Communist Party or anyone who was a Communist, but he was informed that his answer was insufficient and therefore a hearing was scheduled.

He appeared at this hearing with counsel together with four witnesses, live witnesses.

The only live witnesses at this hearing were the petitioner and his four witnesses in support of him.

One of them was the very distinguished author James Michener, who wrote the Tales of the South Pacific who had been instrumental for Vitarelli's employment in the Office of Trust Territories.

As I said, the government presented no evidence of any kind.

He was asked a great variety of questions.

Now these, the nature of these questions are of the --

Justice John M. Harlan: The records of the procedure are on file in this Court?

Mr. Clifford J. Hynning: No sir, no sir.

This case is submitted here on what is a somewhat abbreviated record of only about 50 pages, the record of the -- consist of the pleadings in the District Court to which were not attached the transcript.

Justice John M. Harlan: I read all of that and I couldn't find in the record, I couldn't find it.

Mr. Clifford J. Hynning: Now the questions that I am referring to were contained in certain allegations in the complaint.

And since case was disposed off on the basis of a motion for summary judgment, these questions were -- are in the record only to the extent they are contained in paragraph 26.

Justice John M. Harlan: (Inaudible)

Mr. Clifford J. Hynning: We have not discussed that question, I have no objection thereto.

Chief Justice Earl Warren: Has it been written up?

Mr. Clifford J. Hynning: It's in type written form.

Chief Justice Earl Warren: Is there any objection from the government?

Argument of John G. Laughlin, Jr.

Mr. John G. Laughlin, Jr.: No, no none.

No objection on behalf of the government.

Chief Justice Earl Warren: So then, will you present it then for the (Inaudible)?

Rebuttal of Clifford J. Hynning

Mr. Clifford J. Hynning: We will.

Now in this paragraph 26 of the complaint where we enumerated the kind of -- or endeavored to describe the kind of hearing that was afforded here and show the nature of questions asked of this witness.

We stated that he was a -- it was inquired at first whether he thought this was a republican plot to get rid of democrats.

What were his views on --

Justice Tom C. Clark: What was that first question?

Mr. Clifford J. Hynning: The question is did he believe the security program was a republican plot to get ride of democrats.

Now the exact question, well it's not in the record, is reproduced in the margin of the brief on page 9, footnote 3.

The security officer stated, do you think that the security program undertaken by Executive Order 10450 is politically inspired from the Republican administration?

Justice Tom C. Clark: Who asked that?

Mr. Clifford J. Hynning: The security officer.

Justice Tom C. Clark: What was the date?

Mr. Clifford J. Hynning: Of the hearing?

Justice Tom C. Clark: The date of that question.

Mr. Clifford J. Hynning: The date of that question was May or June 1954.

Now I think there is an even more extraordinary exchange with respect to his vote for the presidency in 1948, in 1940, which are set forth verbatim in the brief on pages 29 to 30.

They inquired whether he had voted for Mr. Wallace and in the -- who was running on the progressive ticket in 1948.

And he said I voted for Henry Wallace once and the Chairman of the Hearing Board said just one question on that, did you not vote for Henry Wallace when he was a candidate for Vice President?

Yes I did.

The Chairman - Then you voted for him once more, more than once?

Now since the issue of veracity is I believe one of the crucial issues in this administrative hearing, this was one of the means of testing his candor and truthfulness I presume.

Now among the other questions asked of him at this hearing was what were his views on racial equality.

Did he believe there was discrimination against Negros and Jews?

He was asked questions on the methods of pricing cotton in Georgia, whether he had heard of consumers union.

What was Black Mountain transcendentalism?

Justice Tom C. Clark: What is it by the way?[Laughter]

Mr. Clifford J. Hynning: I haven't found anybody who knows.[Laughter]

Justice Tom C. Clark: Did he know?

Mr. Clifford J. Hynning: He said he didn't know.

He was asked whether he was quite hap up over the one world idea, and whether he was still, June 1954, it's in parenthesis by me, a strong advocate of the United Nations.

Unknown Speaker: Who was asking the question?

Mr. Clifford J. Hynning: The security officer.

Chief Justice Earl Warren: This was at the hearing?

Mr. Clifford J. Hynning: At the hearing.

Now these questions have been -- the security officer at that time was the assistant solicitor of the Department of Interior Mr. Reuel Armstrong, who since became solicitor, but I believe has left the government service.

Now that was the nature of the hearing that he had and of course the problem that confronted his then counsel was what were the issues in this proceeding, were this -- were they charges.

They stated at the hearing his loyalty was not in question, and then they went over this whole area of political opinion.

I might say political partisan opinion.

Now a little later the Hearing Board recommended that his retention in employment was not in the interest of the national security and that recommendation was endorsed by the Secretary of the Interior, who said that as a result thereof, the employment of Vitarelli was to be terminated for the reasons specifically set forth in the letter of charges.

Now the letter of charges I have summarized to you and since it was conceded at the hearing, that he was entirely loyal, it would appear that by a process of elimination, the question was one of veracity that somehow or other he was not deemed a person who had fully told the truth.

Now I do not know this, I don't know what -- why he was terminated.

I can only go by the documents and analyze what appears in the transcript.

But I believe that when you have looked at several of these transcripts in here, you find -- tend to find a pattern on the part of the security machinery that can be described only as an obsession with veracity.

That is you are charged with something that isn't perhaps too important, but if you don't admitted and come clean in someway other, we know you are lying, we are going to get you on that.

Now I think that is the explanation of what the Hearing Board did, but it's entirely a deduction or a speculation on my part.

All that I can see in the record is that the Secretary of the Interior said that his employment should be terminated in the interest of national security for the reasons specifically set forth in the charges, and most of those charges seem to disappear if you assume that he is perfectly loyal.

Chief Justice Earl Warren: You say the government concedes that there is no question of loyalty in the case.

Mr. Clifford J. Hynning: I believe that's correct.

It was so stated twice on the face of the transcript by the security officer.

I do not believe there is any controversy with the government on that point at all, nor is there any controversy on the nature of the position he had.

Justice Potter Stewart: That is -- that's being -- as to it's being non-sensitive?

Mr. Clifford J. Hynning: As to it's being non-sensitive, that he was training teachers of native children in the Caroline Islands in the Pacific.

Now the next stage, in this proceeding came up along approximately a year later, and if it were to be written up in fiction, it would be challenged I assume by many reviewers on the ground that it involves too many coincidences.

But Viterelli's counsel was taking a trip around the world, and while he was waiting at the airport out in India, he ran into a person who said he was a personnel officer of the Officer of Trust Territories of the Department of the Interior.

So his counsel introduced himself and said that he had been attorney for Viterelli.

Now the personnel officer said well that was a case that should have been handled differently.

Now this is alleged in our complaint that Viterelli should -- wasn't a person of doubtful loyalty of security, he just didn't have common sense, because he associated with the natives.

Justice Tom C. Clark: Associated with what?

Mr. Clifford J. Hynning: With the natives.

Out in the -- he was supposed to train native teachers in the Caroline Islands, but he permitted his children to associate with native children and this reflected a lack of common sense.

Well his counsel represented these facts to the Secretary of the Interior, and on the occasion of the personnel officer's return to the United States, a supplemental hearing was held in which all of this was testified to under oath by the personnel officer.

So at this second hearing, Viterelli did have a witness on behalf of the government come in and more or less confirm what his counsel had represented had transpired there at that airport in India.

Well this was the posture of the situation, of the case, the time this Court decided Cole versus Young.

Whereupon a demand was made on the Secretary of the Interior for immediate reinstatement on the ground that he held a non-sensitive position.

When that demand was not complied with, the suit went into the District Court.

Now at that time, the government came up with the defense that in as much as Viterelli had held a position called Schedule A, that is one of the scheduled accepted from the competitive civil service under the Lloyd-La Follette Act.

He could be fired for no reason at all and therefore he had no right to -- right of reinstatement.

At that point, we served a notice for the taking of depositions on the Secretary of the Interior and the respondent members of Civil Service Commission to inquire of why they insisted on firing him with a badge of infamy as a security reason when he could have been fired for no reason at all, without any infamy, without damage to his profession and career.

The government opposed this discovery on the ground that these questions were hypothetical and immaterial.

I am now reading from page 11 of the brief, “the only relevant legal issue herein is whether the procedures in fact employed by the defendant's secretary in accomplishing plaintiff's discharged were legal and valid.

Neither the existence of any other procedure which could have been used to discharge plaintiff, nor the reason why it was not in fact employed can have any possible relevance therein.”

Noting this as a concession of record, we abandoned the effort of discovery.

Now the district judge, the -- the next step then was the voluntary expunging of the record by respondents.

They stated that a new personnel form had been issued which struck from it all references to the executive order into the Act of 1950.

And stated that that was the maximum relief to which this petitioner was entitled.

Now the district judge felt that since Vitarelli was not in the competitive civil service and was therefore an employee at will, he could not order him reinstated since the government -- since the employing department could turn around that same day and fire him for no reason at all.

Now in the Court of Appeals we argued the constitutional issue that the -- while Vitarelli could have been dismissed as an employee at will, he was not so dismissed, he was dismissed as a security risk under a legal authority which was not applicable thereto.

Now the manner of his dismissal was defamatory.

It started with a newspaper conference on Guam and it went on from there.

It defamed him in his right to follow his calling as a teacher.

Now the Court of Appeals held that there was a modicum or a minimum of constitutional rights available to an employee such as Vitarelli.

He had a right to be free from dismissal on unconstitutional or flagrantly arbitrary grounds.

But that no such dismissal had occurred here, but the treatment was not arbitrary and was consistent with due process referring to the fact that he has charges, there was the paraphernalia of a hearing and review.

Furthermore the Court of Appeals had held that even these things aside, there was a clear basis for the executive to have fired Vitarelli on the ground that he was untrustworthy.

And they recited here at this paragraph of the letter of charges which said that he was untrustworthy or alleged that he was untrustworthy.

The Court of Appeals further held that he had gotten the maximum relief that he would be entitled to under any circumstances namely an expunging of the record.

Now this expunging of the record is a rather interesting thing in this case, the government recited that they have expunged all references to any adverse findings made with respect to Vitarelli under the security order.

So that means that the letters making a finding that his removal was required by the interest of national security, that's out, and for the reason specifically set forth in letter of charges, he look -- he must then look at the letter of charges to see what remains after the expunging takes place.

Now the subject matter is suspension under the executive order, that's out.

Next paragraph says by authority of the executive order you are suspended, so that's out.

The next paragraph, number two says a specific -- a specific of security interest permits your charge as follows, so that's out, that's under the executive order.

Then you get down to paragraph number three which says your behavior et cetera show you to be unreliable in the light of the facts above alleged that's out, because it refers obviously to the facts above alleged.

Moreover the language of numbered paragraph 3 is paradigm from the criteria for security dismissal under the executive order.

Now in the next paragraph number four, there is your advice of your rights to have a hearing under the executive order.

So that's out.

The last paragraph says you get a copy of the executive order, well that's out.

Unknown Speaker: Where are you reading?

Mr. Clifford J. Hynning: I am reading from the record pages 3 through 6.

Now that follows therefore that this document which furnishes a clear basis for the Secretary's action after being expunged reads to Vitarelli from the Secretary of Interior signed Douglas McKay.

I think that's all that remains under that expunging.

Now the basic contention that remains here I think is that the constitutional rights of an employee such as Vitarelli are coterminous with the rights given to him by Congress and if Congress has given him no rights, he has no constitutional rights.

Justice John M. Harlan: Excuse me Mr. Hynning, but I suppose Vitarelli has stated (Inaudible)

Mr. Clifford J. Hynning: That is one -- no – now I think at this point I should take up the change in the personnel policy that's occurred in the Department of the Interior, and in doing that I want to apologize for bringing it up at this late stage.

But neither counsel for the government nor I knew about this until after the final brief had been filed in this case just a few days ago.

And it took a little clarity now to find, but at the time of Vitarelli's dismissal in 1954 all the overseas positions of educational employees at the Department of Interior were in Schedule A.

But then in 1956, the President authorized a gradual blanketing in of overseas positions and the Secretary of the Interior acting entirely within the Department of the Interior blanketed in all these education positions as of April 1, 1956 before this lawsuit was started.

Justice William J. Brennan: Blanketed in what?

Mr. Clifford J. Hynning: Into the competitive civil service.

Now under and --

Justice Felix Frankfurter: May I trouble you for the date?

When -- when was the dismissal?

Mr. Clifford J. Hynning: The dismissal was made effective September 10, 1954.

He was suspended in April 1954.

The change in the personnel practices of the Department of Interior were made effective on April 1, 1956.

Now under this blanketing in procedure it was necessary for an employee to meet two tests.

He had to pass what was equivalent to an -- passing an unassembled civil service examination that is he was qualified by training and experience.

And secondly he had to have the recommendation of the high commissioner.

Now it is our --

Unknown Speaker: (Inaudible)

Mr. Clifford J. Hynning: Then he became a regular civil servant that is a civil servant in the competitive civil service and entitled to the statutory protections of the Lloyd-La Follette Act.

Justice Hugo L. Black: What date was that?

Mr. Clifford J. Hynning: This was done in the Department of Interior as of April 1, 1956.

Justice Felix Frankfurter: And he satisfied these two conditions?

Mr. Clifford J. Hynning: He satisfies the first condition, the second condition involves the act of the High Commissioner of the Trust Territories, an official of the Department of the Interior.

Now with respect to that I think that the Court must assume that in exercising that discretion the High Commissioner is going to act in an honorable and responsible manner and to the mere fact that Vitarelli is a litigant in this case is not going to leave the High Commissioner to refuse to make such a recommendation.

Justice Felix Frankfurter: Well, but as a matter of fact he has not been covered in because he has not satisfied the two conditions.

Mr. Clifford J. Hynning: He has not been covered in because he has been off the government role since 1954.

Justice Felix Frankfurter: He was not being covered in.

Mr. Clifford J. Hynning: That's correct.

Justice Felix Frankfurter: Therefore he is not within the protection of that.

Mr. Clifford J. Hynning: Well that raises the question whether the position or the employee is in.

Now if -- if he were to be reinstated on the ground that his --

Justice Felix Frankfurter: But it must be – it must be the official because if he wouldn't pass an examination, the office can't pass it.

Mr. Clifford J. Hynning: That is true.

Justice Felix Frankfurter: That was first condition, he must pass a certain examination.

Mr. Clifford J. Hynning: That's correct, that's correct.

Justice Felix Frankfurter: And therefore, it must be individual and not -- and not abstract office.

Mr. Clifford J. Hynning: I -- yes, but I think it also follows that at the time of the order of reinstatement that the position to which he would reinstated under the present personnel situation of the Department of the Interior, he would be ordered reinstatement to a position which is in the competitive civil service.

Justice Felix Frankfurter: He would be eligible for it.

Mr. Clifford J. Hynning: That's correct.

Now this is one of the rights that he stands to lose that is to compete for being blanketed in unless he secures an order of reinstatement, so that at issue here are two things.

Justice Felix Frankfurter: That isn't quite so, is it?

Mr. Clifford J. Hynning: He doesn't need the test of eligibility unless he becomes an employee of the Department of Interior again.

Justice Felix Frankfurter: (Inaudible) employee, it doesn't follow that the high commissioner has to give in (Inaudible).

Mr. Clifford J. Hynning: That is --

Justice Felix Frankfurter: And that wasn't if he had to take an examination (Inaudible).

Mr. Clifford J. Hynning: Well I said the examination here is an unassembled examination, that is based on training and experience not a written examination.

Justice Felix Frankfurter: But the assessment must be made on that.

Mr. Clifford J. Hynning: That's correct.

Justice Felix Frankfurter: And therefore he – that must be satisfied.

Mr. Clifford J. Hynning: That is correct.

Justice Felix Frankfurter: I am not saying that all these things shouldn't happen, I am suggesting they haven't happened, and it is not within the protection of the -- of the Civil Service Commission protection.

Mr. Clifford J. Hynning: Oh, I certainly agree I am not here contending that he is now entitled to the protection of the Lloyd-La Follette Act.

I am contending however that these attempted personnel actions taken in October 1956 by which he was purportedly dismissed without any reason at all, since they related to a position which had been blanketed in under the Lloyd-La Follette Act necessarily did not meet the statutory test of the Lloyd-La Follette Act and therefore those personnel actions were invalid.

Justice Felix Frankfurter: Therefore if those restrictions were illegal imposed, they should be -- they should be expunged or vacated, so that then the process by which he could become again may become (Inaudible).

Mr. Clifford J. Hynning: I don't quite follow Your Honor when you say those restrictions.

Justice Felix Frankfurter: Well I mean if he was properly fired in 1954?

Mr. Clifford J. Hynning: Well then he has -- then he has no cause whatever.

Justice Felix Frankfurter: Therefore all of that should out.

I think I am making a (Inaudible) likely in my mind.

If this (Inaudible) then he is not protected.

Mr. Clifford J. Hynning: He is not at the present time protected, that's granted.

Justice Felix Frankfurter: He is not protect in all fairness or according to all honorable fairness, in your words, he ought to be covered.

Mr. Clifford J. Hynning: I am saying that this suit involves two things, it involves a claim for reinstatement as well a claim for back pay.

Of course, the claim for back pay isn't properly before this Court on certiorari from the District Court.

Justice Felix Frankfurter: But if he isn't covered by the -- If he isn't covered, if he isn't protected by the civil service safeguard, he maybe fired for no reason at all.

Mr. Clifford J. Hynning: That is correct.

Justice Felix Frankfurter: And he says that's sufficient.

Mr. Clifford J. Hynning: Well he was not -- he was not fired for no reason at all here.

Justice Felix Frankfurter: Well but he could be.

Mr. Clifford J. Hynning: He could have been, he could have been.

Justice Felix Frankfurter: And he could deny, if he is not covered?

Justice John M. Harlan: What you are saying --

Mr. Clifford J. Hynning: Well, I am not certain if the answer is necessarily yes to the last question.

He would have to be fired from a position and if that position is covered by the civil service standards, then there is a question --

Justice Felix Frankfurter: Well, we are back where we were.

I don't I think the position is covered, the position must be covered but he must be selected for the covered position.

Justice John M. Harlan: I thought you are claiming there is more than -- that there is not only money at stake here namely his salary.

Mr. Clifford J. Hynning: That is not properly at stake this particular lawsuit.

Justice John M. Harlan: No, I understand that, but that's the consequence or might be the consequence if we reverse this case.

You are saying in addition to that he has sort of a mandatory right to take his civil service examination, don't you?

Mr. Clifford J. Hynning: I am stating that he -- if his dismissal as the security risk in 1954 is unlawful, as we were contending, then he is entitled to reinstatement to the situation he had at that time.

Justice John M. Harlan: Without an examination?

Mr. Clifford J. Hynning: Well he had -- and then he would be entitled it seems to me as one of the rights of reinstatement to compete for securing a competitive civil service status under the blanketing and process.

That would be my answer to the --

Justice Charles E. Whittaker: Even though the government might have the right then meanwhile to discharge him, because it didn't like the color of his hair?

Mr. Clifford J. Hynning: Well, I believe the government concedes that they cannot discharge a man because they don't like the color of his hair, that that is the kind of the thing which even a person outside the civil service is protected for under the constitution.

Justice Felix Frankfurter: But they may not disclose the fact.

Mr. Clifford J. Hynning: They maybe silent on the subject.

Justice Felix Frankfurter: All right.

Mr. Clifford J. Hynning: And it's the fact that they were not silent here, but they said he is a security risk and they discharged him in a defamatory manner.

Justice Felix Frankfurter: That says on the hearing during which he was illegally discharged.

Mr. Clifford J. Hynning: That's correct.

Justice Felix Frankfurter: That's there on the part of the government after -- while he still is and before it covers.

Mr. Clifford J. Hynning: That's correct.

That's correct.

Now it's our contention that -- therefore that his dismissal in -- in 1954 was unlawful under the authority under which it purported to be made.

Justice Charles E. Whittaker: Assume that's true.

Mr. Clifford J. Hynning: Secondly that it was done in such a defamatory manner and a gratuitously defamatory manner, that is the executive here has the power to discharge him for no reason, but it insisted as it were on imposing a badge of infamy on him.

Well that's violated his constitutional rights, so that there he --

Justice Charles E. Whittaker: So that would be void, wouldn't it?

Mr. Clifford J. Hynning: I beg your pardon?

Justice Charles E. Whittaker: So that could be void.

Mr. Clifford J. Hynning: That would be void, now if that's void then he is entitled to reinstatement.

Justice Charles E. Whittaker: All right, but could not the government then the next day discharge properly just by saying, you are discharged without reason?

Mr. Clifford J. Hynning: I so conceded in the District Court and the Court of Appeals and I would concede here today, but for the intervening change of the general personnel policy of the Department of the Interior.

Justice Felix Frankfurter: But you can appeal to the honor of the department and not to any coed legal right.

Mr. Clifford J. Hynning: I think, if as a result of reinstatement he then becomes eligible to compete for recognition of that right.

Now I certainly would go on to concede that I do not believe that the denial of that right to him after his reinstatement is one that can be litigated.

Justice Hugo L. Black: (Inaudible)

Mr. Clifford J. Hynning: Now the government says here that his constitutional right, as I said, is coterminous with a statutory right.

Now I believe that is not true, that is I believe that he has a constitutional right here not to have been defamed gratuitously.

Secondly, we have contended that it is no justification in any court exercising the judicial power to justify an act on the basis of what could have been done, but wasn't done.

And it doesn't, it seems to me, help the government one iota to come in here and say, we could have fired Vitarelli for no reason if in fact you gave the wrong reason.

Justice John M. Harlan: A step without reason, that's your position.

Mr. Clifford J. Hynning: I beg your pardon?

Justice John M. Harlan: A step without reason, and the question is whether or not the procedure under which he was fired was adequate for the reason for the ground on which they purported to fire him, namely as a security, that's your position?

Mr. Clifford J. Hynning: That's correct.

Now I think they are also stuck with the position they took on the discovery motion, that is they at that point presented to the lower court that this firing of him for no reason at all was legally irrelevant.

Now they prevented discovery and I think they are bound by that position having taken it in the lower court.

Now our next contention is that his firing under the departmental security regulations violated the regulations whereby the Secretary of the Interior had provided for the security risk dismissals.

Now the government here seems to challenge this Court's ruling in service, by saying it seems anomalous, that the head of a department would limit its authority.

Well of course, that is precisely what this Court held in Service that there the Secretary of State had limited its authority -- his authority under the McCarran Rider.

So that I think that these regulations are binding on the Secretary of the Interior and I believe they are violated, although the proof of their violation is to be presented in terms, which sounds like the constitutional arguments.

Justice Charles E. Whittaker: Assume that that's all true and I should follow that, yet would not that status end when the government did properly discharge him?

Mr. Clifford J. Hynning: Well the question then you see is what was the illegal effect of these papers in 1956.

Now there were two papers there, one was an expunging of the record.

They said the record is expunged and he is now fired for no reason, and that presents the question, two questions really, can you fire the man without rehiring him, that is can you fire the man in (Voice Overlap)

Justice Charles E. Whittaker: But the theory is he has never been discharged, that the proceeding up until that time was for the discharge was only void and ineffective and he is still an employee and entitled to pay.

Mr. Clifford J. Hynning: Well that of course was the not theory of the government in presenting those documents, because on the face on the document --

Justice Charles E. Whittaker: Because the legal effect of it, if your other argument is sound.

Mr. Clifford J. Hynning: Well I think it -- my argument certainly is that the firing in 1954 was invalid.

Now I am also contending that these attempted firing, this attempted firing in 1956 is equally invalid, on the ground by that time -- and this brings me back to the discussion I had with Mr. Justice Frankfurter.

By that time the position which Vitarelli would have had, but for the intervention of his unlawful firing was in the competitive service -- civil service and therefore subject to the Lloyd-La Follette Act, and that these 56 documents on their face do not comply with the Lloyd-La Follette Act.

So our contention is the 56 firing fails.

And that --

Justice William J. Brennan: Does that add up to what you are contesting?

None of this happened at al in 1956, then they sought (Inaudible) have been done without giving him this opportunity to qualify for the new civil service?

Mr. Clifford J. Hynning: I believe that's correct.

Now in by way of concluding, let me state why I believe reinstatement is necessary in addition to the -- in addition to the reason already given.

This man has suffered a gratuitous defamation.

It's perhaps somewhat unique in the security annals that you start out by telling the press you're going to remove a man as a security risk before you give him charges or have a hearing.

Now where a defamation occurs in -- normally there are two things that happen one is the retraction and the other are the -- are the payment of damages.

Now the government has contented here in the brief in the Greene case, they haven't consented to be sued in tort for damages.

But they haven't made a retraction, what they have done here is to expunge the record but they haven't rectified the error, by saying we were wrong.

They haven't reemployed the man.

Now that is the test of the man in the street in the security case, when is it shown that a security case is wrong the government takes him back.

And I submit that that kind of retraction means reinstatement.

I'd like to reserve the --

Justice John M. Harlan: Could you – are you going to deal at all with the respects in which you claim that the regulations that were --

Mr. Clifford J. Hynning: Yes let me – yes, I will come to those right now.

Justice John M. Harlan: That's why I raised the question about the record, the proceedings that you may have a bearing on.

Mr. Clifford J. Hynning: The regulations, on their face, state that they apply to any removal of any employee on security grounds with the exception of temporary employees.

They then go on to say that, in such a case, where they -- where an employee is being removed on security ground, he is entitled to a written statement of charges, and I am now reading from the regulation, “as specific and detailed as security considerations permit.”

Now we come to the charges to see whether it meets that test.

The charges, in view of the concession that is loyalty was not in issue, gets down to a charge of veracity, and that charge of veracity is that he had stated that his associations with three named individuals were not casual, but were on the contrary associations of an intimate friendship.

Now I submit that you test whether or not a charge is specific by trying to determine whether you can answer the charge on the assumption of innocence.

Of course, if you assume the man is guilty there isn't any point of this inquiry.

But if the assumption of innocence is applicable, then a charge that the man has said his relationship was casual, how can he answer that in terms of something that didn't occur.

I mean if -- if his sole association was casual, that's all it is, how can he answer something more that it was one of intimate friendship without telling him times, places and so on.

We submit that that weighting of the charge doesn't meet the test of specificity.

It's I think entirely subject to the criticism of this Court in Simmons against the United States of a game of blind man's bluff.

Justice William O. Douglas: That's number three at the bottom of Page 5.

Mr. Clifford J. Hynning: That's correct.

Now the second thing he is entitled to a fair hearing.

Well, I think this hearing is one of the strangest hearings I have ever examined, and I believe that the questions asked of a partisan nature clearly demonstrate that.

Now the preceding counsel had dealt very exhaustibly with the issue of confrontation and I don't want to take any more time on that than is necessary other than I think to say, here is the case that requires no balancing of interest.

There is no question here of government secrets, there is no question of a sensitive job.

The man is concededly loyal, what was there in this case that required the secret importance.

I would like to reserve the balance of my time.

Chief Justice Earl Warren: You may.

Mr. Laughlin.

Rebuttal of John G. Laughlin, Jr.

Mr. John G. Laughlin, Jr.: Mr. Chief Justice.

Chief Justice Earl Warren: Mr. Laughlin, to satisfy a curiosity, would you please tell us what Black Mountain Transcendentalism is?

Mr. John G. Laughlin, Jr.: I, I do not know.

Justice Felix Frankfurter: How can we decide this case?

Mr. John G. Laughlin, Jr.: I beg your pardon.

Justice Felix Frankfurter: How can we decide that case?

Mr. John G. Laughlin, Jr.: I will work on that tonight.

In accordance with this Court's decision in Cole v. Young, we concede here as we have conceded in the courts below that petitioner's removal from federal employment was not authorized by the act of August 26th, 1950.

Consistent with that concession, the Civil Service Commission has expunged from its records all adverse findings relating to petitioner that were taken in accordance with Executive Order 10450.

The Department of Interior likewise consistent with that -- this concession has similarly expunged its personnel records with respect to Mr. Viteralli of all implications that his removal from government service was pursuant to the act of August 26 to the executive order and to the departmental order and there is no basis upon his -- from his personnel record from which anyone could infer that Mr. Viteralli is or was a security risk, whether that was the reason or is the reason for his separation from government service.

This administrative relief, which has been accorded to the petitioner is a substantial compliance with the -- one of the prior for relief that he sought in his complaint filed in the District Court.

In addition, however, he asked that his removal in 1954 be declared invalid, and that he -- that the courts direct that he be reinstated to his former position.

These are the two issues, which are involved in this case as we view it.

The question of whether or not his removal was invalid must we think be disassociated from the question of whether or not the authority relied upon by the Secretary of Interior was erroneous.

We concede of course that the authority far fell with the decision in Cole v. Young, but it does not follow because the Secretary's authority that he relied upon has fallen that the removal is necessarily invalid.

We are concerned here with an employee who is not a veteran, who was not in the classified civil service, as such his employment was without fixed tenure, and he was at all times subject to removal for cause or for no cause or for a reason and without assignment of reason.

Justice Felix Frankfurter: May I ask -- might trouble to ask you what -- whether any general policy followed the decision of the Court in the Cole case, is there any -- generalized to this case?

Mr. John G. Laughlin, Jr.: Generally the policy was if the employee were in the classified -- I -- I don't want to be too categorical about this, because I know of one instance in the Court of Claims where restoration was made on the strength of the decision in Cole v. Young.

And this case, we cited in our brief as the Langley v. United States, it was a super back pay.

Now there restoration was affected but that involved an employee who was subject to the Veterans' Preference Act or to the Lloyd-La Follette Act.

Justice Felix Frankfurter: But what happened as to their retention after discharge?

Mr. John G. Laughlin, Jr.: Well the proceedings either had the -- whatever proceedings had been taken were either expunged from the record and commenced new or another possibility which might have been open, say in the Cole case, was that to grant him an appeal to the Civil Service Commission, which was the procedural right that it was denied the petitioner in the Cole v. Young case.

Justice Felix Frankfurter: It involved a good many employees, isn't it, the Cole -- the decision in the Cole case?

Mr. John G. Laughlin, Jr.: It -- I don't have any idea how many it was in terms of numbers Mr. Justice Frankfurter.

Chief Justice Earl Warren: As to those that had no civil service standing, would you give them a same treatment that you gave this man, fire him immediately?

Mr. John G. Laughlin, Jr.: I don't know that that is true, I don't know how many of the Schedule A or accepted employees were affected by the decision.

But here there was of course an application for reinstatement that followed immediately after the Court's decision in Cole v. Young that was denied by the Department of Interior for reason which are not apparent.

So I suppose and I would hope that it was handled on an ad hoc basis and that there was no fixed policy again the blanket dismissal of all such employee, but rather a good faith reevaluation of the action that had been taken in the light of the Court's decision.

Chief Justice Earl Warren: The reason I ask it was because there is an apparent to the session here that this man was a loyal.

Mr. John G. Laughlin, Jr.: Yes that, as I understand it, it appears on the transcript of the hearing unlike Mr. Justice Harlan I have been able to get a hold of that entire hearing as yet, but I do know that he was cleared under the Executive Order 9835 loyalty program.

The validity of his removal must we think be said in the light of the traditional role that the courts have played where employee removals are involved.

This of course, now this case involves a removal by the executive which had, what it was, without any limitations as to your procedural or substantive -- of a substantive character.

Now for a 170 years the inquiry of the courts has been as to whether or not the removal has been effective in compliance with the procedural limitations that had been imposed upon the employment either by Congress or by regulation or by executive order.

That is perhaps open to another limitation that being whether or not the removal was effective for some patently arbitrary or discriminatory reason.

Here however we are dealing with an employee at will without any tenure and no procedural rights, statutory regulatory were involved in affecting his removal.

In these circumstances, we submit, that there is no basis upon which this Court may invalidate that removal.

Justice John M. Harlan: What about the secretary's regulations that you are referring to?

Mr. John G. Laughlin, Jr.: Well, in our view Mr. Justice Harlan.

Justice John M. Harlan: Wouldn't they govern?

Mr. John G. Laughlin, Jr.: I beg your pardon.

Justice John M. Harlan: Wouldn't they govern dismissal on security grounds?

Mr. John G. Laughlin, Jr.: Not necessarily.

First of all in our view the regulations fall with the statute if the -- we can see of course the statute did not authorize his removal.

The regulations were promulgated in accordance with the statute and the executive order.

So we fell it would be bit contradictory to say that while he was not entitled to the procedural protections of the statute or he was no authorized could not have been dismissed under the authority of the statute that the regulations implementing that statute there -- yes that they -- the validity of his removal must be judged by the regulations.

I only say that the regulations, the procedures prescribed in the regulations do not differ in any material respect from those that appear in the statue itself.

And secondly --

Chief Justice Earl Warren: (Inaudible) what you say -- didn't we have the other situation in the cases we have been hearing today the Greene case and the Taylor case, the statute didn't provide for any procedure, but the set up procedure and the question is whether they should abide by that procedure, and I got to this agreement that they should.

Mr. John G. Laughlin, Jr.: Well, here we do not have a procedure set up applicable to or purporting to delimit, the plenary removal authority of the Secretary of Interior.

That is my second point and answer to Mr. Justice Harlan that unlike the Service case where you had positive indication that the Secretary of State had intended to circumscribe his summary removal powers under McCarran Rider, we don't have that here in our view and for these -- for this -- for that additional reason, the validity of his removal should not be measured in terms of those regulations.

Chief Justice Earl Warren: But didn't you have -- didn't the regulations provide a procedure?

Mr. John G. Laughlin, Jr.: They did, procedure for removals we suggest under the Act of 1950.

That Act, of course, did not authorize his removal and the procedures were promulgated implementing they are the same as they are in they are in the statute in substance and in effect, so that there is really is no difference and the procedures that the statute prescribes and what is set out in the Department of Interior order 2738.

The statute falls, we think, the regulations which are in terms the same as the statute necessarily fall too.

So he was --

Justice Charles E. Whittaker: What you are saying that the regulations here apply only to the case where the person had the tenure under civil service, but did not apply if he was Schedule A employee (Inaudible), is that what you saying?

Mr. John G. Laughlin, Jr.: Well, I am concerned here Mr. Justice Whitaker with whether or not his removal was invalid and our position is that the statute did not authorize it, we concede that.

The regulations are not a proper basis for saying the validity of that removal because they, in our view, fall with the statute.

We defend this removal only as an exercise of the plenary authority of this Department of Interior to remove this employee and employee at will.

Justice Charles E. Whittaker: Now then were these regulations applicable to exercise that power?

Mr. John G. Laughlin, Jr.: Not in terms and we say no that they were not intended in contrast to the Service v. Dulles case, they were intended to apply or to delimit the plenary authority upon which we now rely.

Justice Charles E. Whittaker: But when you -- but you did attempt to exercise the power of discharge to use those regulations.

Mr. John G. Laughlin, Jr.: We did and we think moreover that we follow those regulations scrupulously, that this point of course I am saying that they are not simply not a basis.

Later I will explain why we think that they were complied with so that there can be no valid basis for complaint in that respect.

Chief Justice Earl Warren: Is it your position whether you did or did not, did or not follow the regulations, the discharge was lawful?

Mr. John G. Laughlin, Jr.: The discharge is valid and lawful.

Justice William J. Brennan: Well, does that include (Inaudible) originally the statute it was thought to be a limitation upon the plenary power of discharge in this type case required where you were dealing with the security risk to follow certain procedure.

And then when Cole and Young was decided that this was discovered that the statute did apply to this class of employees.

Mr. John G. Laughlin, Jr.: Well, that suggests that the statute in our view was not intended to delimit the plenary authority -- plenary removal authority of the Executive Branch of the government.

Justice William J. Brennan: Well, it was intended where you so -- it was thought before Cole and Young, was it not, that you could not remove on this ground without following the statute?

Whether that was the interpretation or not I don't know, but how many employees at will are relevantly few, to what extent it was considered as applicable or a limitation on that I don't know.

But (Inaudible) that the Act was rather delimitation on the -- or a (Inaudible) to facilitate the removal on -- for some reason (Inaudible) that his employment was not fairly consistent with the national security.

Mr. John G. Laughlin, Jr.: From the fact and if we are correct that the removal was not invalid if necessarily follows that he is not entitled to reinstatement in his former position that I think is a proposition that he is not in dispute here so that the real and critical issue is whether or not he was validly and effectively removed in 1954.

Now further bearing upon his right --

Justice John M. Harlan: The regulations, if we accept your view the regulations don't apply, then you are faced with a constitutional question if there is one or two as to whether what was done is constitutionally --

Mr. John G. Laughlin, Jr.: No, because our answer to that is that the records have been expunged of all security risk matters and that therefore there is no occasion as in the Peters case for this Court to reach the more difficult constitutional question.

Justice John M. Harlan: (Inaudible)

Chief Justice Earl Warren: We will recess now.

Print this transcript Transcript: 

Argument of John G. Laughlin, Jr.

Chief Justice Earl Warren: Number 101, William Vincent Vitarelli, Petitioner, versus Fred A. Seaton, et al.

Mr. Laughlin you may proceed.

Mr. John G. Laughlin, Jr.: Mr. Chief Justice and may it please the court.

The government has been unable to locate the original of the transcript of the hearing of June 22 and July 1 of 1954.

Mr. Hynning has made available his copy of the transcript.

This copy contains certain marginal comments that we will, as soon as practicable, delete and file with the Court at the earliest practicable movement.

Chief Justice Earl Warren: Thank you gentlemen.

Mr. John G. Laughlin, Jr.: On the subject of the hearing of July -- or June 22 and July 1, I would in fact advise the Court that the encyclopedia Britannica devotes a full page to transcendentalism without any reference to Black Mountain transcendentalism.

Black Mountain is a range in the tribal area of West Pakistan.

I hope the Court won't press me as to what is meant by transcendentalism but it will accept my word that it insofar as I am concerned it does not add a semblance or relevancy to the inquiry that was directed to Mr. Vitarelli.

Justice Felix Frankfurter: I think we can stand that.

Thanks Mr. Laughlin.

Mr. John G. Laughlin, Jr.: Mr. Justice Frankfurter I endeavor to enquire -- conform myself as to how many individuals were affected by the Court's decision in Cole versus Young, and with a very rough approximation was some 300 employees.

I don't hold that out as in any sense being accurate but that's a rough approximation that I was able to come up with.

Justice Felix Frankfurter: Can you supply -- the line between sensitive and insensitive -- non-sensitive areas, your figure is (Inaudible)

Mr. John G. Laughlin, Jr.: That is the figure that I was able to come up with now.

Chief Justice Earl Warren: Now what does the 300 represent?

I missed a portion of it.

Justice Felix Frankfurter: Employees removed from government employment pursuant to the act of August 26, 1950 in non -- who were holding at their time of removal non-sensitive positions.

Justice Felix Frankfurter: Oh, you mean that were actually removed would require restoration to their position, is that what you mean?

Mr. John G. Laughlin, Jr.: That's right.

Justice Felix Frankfurter: Well my question was a little broader than that, namely how many were potentially affected and that was turned into hundred or thousand.

Mr. John G. Laughlin, Jr.: Well certainly, I would agree that that would be quite -- quite true.

By way of summation of my remarks yesterday, I would like to say that unlike the situation in Service v. Dulles and in Cole v. Young, additional removal from federal employment did not violate any procedural right conferred upon him by statute, or in our view, by regulation.

If however, the regulations promulgated by the Department of Interior are deemed applicable to a removal of an at-will employee, then of course our position is that these -- these procedural requirements were strictly complied with.

The only inquiry we feel that might be opened as to the sufficiency of this hearing is to the fairness.

And of course the Court will have available if it deems that this is a necessary inquiry in the case to have available the full hearing and we trust and hope that it isn't all as bad as the excerpts of petitioner's counsel have made it out to be.

If we are correct in our position that there was no invalidity as distinguished from a lack of authority, a statutory authority here, in petitioner's removal, then as I said yesterday we think it follows that there is no right to reinstatement in his former position.

Or another reason we think that there is no present right to that -- to reinstatement because of the personal action which was taken in 1956.

I should say that that notification of petitioner's termination bears the same date as the original notification and purports to affect his termination as of September 10, 1954.

Justice Charles E. Whittaker: (Inaudible)

Mr. John G. Laughlin, Jr.: I think that that if the 1954 termination be deemed invalid, that the 1956 notification would not validate that removal.

Petitioner's reference to the fact that the position formerly occupied by petitioner was converted to the competitive service on April 1st of 1956, in our view and as I think Mr. Justice Frankfurter made clear yesterday, becomes a relevance only in the event that there is a reinstatement of the petitioner.

That would be an emolument of his office which presumably he would be entitled to, that is to have the High Commissioner of the Trust Territory exercise his discretion and either recommending or not recommending the petitioner for conversion from accepted to competitive status.

Only in that event, even though that condition has been satisfied, would he be within the classified service so-called and eligible for the procedural protections of the Lloyd-La Follette Act.

Well petitioner's main contention in this Court is that he is entailed to reinstatement and in pursuance of that position, he insists that only by reinstating him in his position can the badge of infamy which has been fastened upon him by the 1954 removal be rectified.

We question whether that is a necessary element of relief and we point to the case of Peters v. Hobby which, as the court knows, was a loyalty case and where a reinstatement could not in the Court's judgment be granted to the petitioner there.

There of course there was fixed 10 year of employment that had expired at the time of decision.

But we think here that because of the status of this particular employee that we have an analogous problem, in the sense that he is and was at all times subject to removal at will and that to reinstate him in these circumstances would not add anything in the way of substantive relief that which is already been administratively accorded to him.

Chief Justice Earl Warren: Assuming Mr. Laughlin that he had never been properly discharged and this Court so -- this Court should so find and assuming also that Secretary of the Interior could fire him without cause if he was on a payroll, why shouldn't he be restored to his position at this time?

Mr. John G. Laughlin, Jr.: Well of course I think if the Court should hold that he has not been properly discharged, then restoration would be in order.

Chief Justice Earl Warren: If this Court should hold for any reason he had not been properly discharged, then he would be entitled to reinstatement?

Mr. John G. Laughlin, Jr.: If he had not been properly discharged in 1954 or 1956 --

Chief Justice Earl Warren: Yes.

Mr. John G. Laughlin, Jr.: -- then he would be entitled to reinstatement.

Chief Justice Earl Warren: Yes, well that's -- that's the point that I am --

Justice Felix Frankfurter: When you say entitled, that would atomically follow, wouldn't it?

Mr. John G. Laughlin, Jr.: I think so from the prior decision of this Court that it would be necessary -

Justice John M. Harlan: Am I right in thinking that the 1956 discharge on its face did not reported his charging at that time, it reported his charging nunc pro tunc?

Mr. John G. Laughlin, Jr.: I think that's the only inference to be drawn from that nullification by -- by reason of the -- the backdating it to the original date of his termination.

Justice Felix Frankfurter: Would that -- would that fall giving it such legal validity as it would be entitled to have if he didn't seek retroactive effect?

Mr. John G. Laughlin, Jr.: No in our view that is nevertheless entailed to prospective application --

Justice Felix Frankfurter: Well, whatever he is entitled to prospectively would not be curtailed or limited or nullified by the fact that he did more than any of (Inaudible) would do.

Mr. John G. Laughlin, Jr.: I think that is correct if I understand --

Justice Felix Frankfurter: That is if it -- if in 1956, they saw it retroactively to validate what was invalid in 1954, it couldn't be completely nugatory effect if it could have prospective effect.

Mr. John G. Laughlin, Jr.: No, I think that well we could not report by dating a notification of personnel action two years back that that discharge would become effective as of that time, but it might well can be suggested, that is the case here, that it might --

Justice Felix Frankfurter: If it -- if it could, if properly praise the remark to the Court to give retroactive effect, it would be giving prospective effect if it's legally curtailed (Inaudible).

Mr. John G. Laughlin, Jr.: Well that is what we urge upon the Court, yes.

We suggest that the judgment here should be according to the Court --

Justice Charles E. Whittaker: (Inaudible) he would then be covered in Civil Service system and that he therefore is not automatically discharged without a cause, because he gets (Inaudible).

Mr. John G. Laughlin, Jr.: If the Court please, the conversion is of the position from --accepted status to competitive status.

As is clear, I think the occupant of that position does not automatically convert from an accepted status to a competitive status.

He must first qualify, second he must have the recommendation of the High Commissioner.

Now until that -- those two conditions are satisfied, the occupant of that position, under civil service regulation, this is what they call a status quo employee, as such he is subject to summary removal in the same fashion that he remains an employee at will.

So that -- and even -- even though he is permitted to remain in that position, a position in the competitive service, he is nevertheless subject to a summary termination.

Justice Felix Frankfurter: Let's see if I understand that.

Assume a man, who was a training specialist that Vitarelli was, assume a man was in that condition at the time that the position was covered in and therefore subject to civil service benefits.

Would such a person automatically -- would such a person automatically be now under civil service protection in that position or would he have to be appointed as such under the new covering in civil service faith?

Mr. John G. Laughlin, Jr.: He would not be in the competitive service.

He would not have to be appointed, if the Court please, there may be a technical difference, but he must be recommended by his -- the employing agency or in this case the High Commissioner of the --

Justice Felix Frankfurter: But covering in the position does not necessitate that the chief should recommend him for the position?

Mr. John G. Laughlin, Jr.: That is right.

It is incumbent upon the agency to recommend to a Civil Service Commission whether or not an individual employee is to be converted in to the civil service.

Justice Charles E. Whittaker: (Inaudible)

Mr. John G. Laughlin, Jr.: That is correct.

Justice Charles E. Whittaker: (Inaudible)

Mr. John G. Laughlin, Jr.: That is the status of -- that would be the status of petitioner, where he restored, and he would, we think in the event of restoration, be entitled to what might be classified as an employment benefit that is accrued during the period of his removal.

Justice Felix Frankfurter: He may be qualified -- he may be qualified with the one out of three -- one in three selection rule apply?

Mr. John G. Laughlin, Jr.: No.

As I understand it in respect to the Schedule A positions of the Department of Interior, particularly the overseas positions here, I don't understand there to be a written examination required.

These are jobs that are not susceptible of written examination that's why -- it's the one reason that they are Schedule A to begin with.

The qualifications as I gather from the civil service regulations are that the employee have completed a satisfactory period of service.

I don't think it --

Justice Felix Frankfurter: It depends on the choice of the head of the division or department, is that right?

Mr. John G. Laughlin, Jr.: That's -- that's right.

It comes down to that and I think that would be the situation in this case where he restored.

Chief Justice Earl Warren: Mr. Laughlin this is rather technical question and it wasn't briefed by either parties, as I understand that the counsel never heard of it or wasn't in a position to know the existence of this until last few days and I wonder if it wouldn't be allowed for each of you to submit a memorandum on this -- on this subject.

Mr. John G. Laughlin, Jr.: We will be glad to do so.

Chief Justice Earl Warren: Covering -- covering that subject.

Mr. John G. Laughlin, Jr.: We will be glad to do so.

Chief Justice Earl Warren: We will have it in my mind (Inaudible).

Thank you.

Will you write the first memorandum on it Mr. --

Mr. John G. Laughlin, Jr.: Will do.

Chief Justice Earl Warren: Thank you.

Mr. Hynning, you may proceed.

Argument of Clifford J. Hynning

Mr. Clifford J. Hynning: If the Court please, I would like to spend a few moments on the 56 personnel document.

As I -- as the record show, there were three documents filed.

There was an affidavit -- this appears on the record starting on Page 32.

There was an affidavit by the personnel officer of the Office of Territories of the Department of the Interior.

And it stated that this affidavit accompanied the defendant's opposition to plaintiff's motion for summary judgment.

And the posture there taken by the Department of Justice was that this was a expunging of the record.

Now the affidavit states that the attached form 50, which is the document on Page 33, is a true copy of the official document reflecting the termination of Vitarelli from a position under the jurisdiction of the Office of Trust Territories, and that is all the affidavit states.

Now the notification of personnel action that's on Page 33 is exactly the same as the documents entitled Notification of Personnel Action on Page 31 except for two particulars.

It omits a sentence and it adds a sentence.

The sentence that it omits is the sentence that appears at the top of Page 32, the 5th line, “This action is being taken in accordance with the provisions of Executive Order 10450.”

That sentence does not appear in the new 56 form 50.

The second change is the addition of a sentence appearing on the top of page 34, “This form 50 is a revision of and replaces the original bearing the same date.”

In all other respects the two documents are identical.

Now that means that there are two dates on each document, a date appearing after line number four, which in normal personnel practice reflects the date on which the document is prepared.

In both instances that date is 9/21/54.

The effective date is line number six, and that's date 9/10/54.

Now I submit that at the time, this document was prepared under the Department of the Interior, sometime in October 1956, it was -- it purported to be an expunging of the reference to the fact that the earlier document had been taken in accordance with the provisions of Executive Order 10450 and was nothing else.

It was not in my opinion a re-firing of the individual.

Justice Felix Frankfurter: Would you be good enough to state what 21 remarks, what's the significant of all that writing?

(Inaudible) what's the point of that?

Mr. Clifford J. Hynning: I -- that appears and it says, this action is subject to all applicable laws, rules and regulations and maybe subject to investigation of -- I don't know what it means.

I assume this is jargon that appears sort of a savings clause on all personnel forms.

I am not attributing any significance to it that -- that this means --

Justice Felix Frankfurter: I still gather you didn't, but I just wonder what is the significance?

Mr. Clifford J. Hynning: Possibly it could be contented that it meant this was subject to the Lloyd-La Follette Act but I don't think that could follow.

Justice Felix Frankfurter: It maybe a formula, you've got (Inaudible).

This maybe a be a routine way of qualifying whatever they say subject to whatever they may or may not be subject to civil service regulation.

Mr. Clifford J. Hynning: Now one of the difficulties here, this was reset in type, in the court below we had a photostat and there we could see whether this was printed or type written, at the moment I don't know whether this was something --

Justice Felix Frankfurter: It has a bearing on our problem?

Mr. Clifford J. Hynning: As far as our view of the case is concerned, no.

Justice Tom C. Clark: United States Civil Service has power to investigate and set aside or refuse to affirm summary dismissals that as explained the (Inaudible) of summary dismissals (Inaudible)?

Mr. Clifford J. Hynning: Assuming -- this may not answer your question directly, but assuming that in 1954 Vitarelli had been summarily removed without any reference to security status whatever.

As of that time he would have had no administrative rights of appeal or review by the Civil Service Commission.

Justice Tom C. Clark: What about 1956?

Mr. Clifford J. Hynning: In 1956 we have two changes in circumstances.

One is the fact that this is a document coming two years after he is off -- out of service.

Justice Tom C. Clark: Well, I am not talking about -- suppose this is just a 1956 document, all he would (Inaudible) 1956 but no prior history that the head of the department (Inaudible).

Could he have done it without asking the civil service and having it approved?

Mr. Clifford J. Hynning: Well, I would like to reserve that question to the answer I am going to try to make in the written brief because I have not determined to what extent it was within the power of the Secretary of the Interior having on April 1 decided that all the positions, educational positions in the Office of Trust Territories were to be put in the competitive civil service.

Whether he could take this long a time, that is from April 1 to let us say October 15 or October 1, to make up his mind.

Now perhaps he could in which case the answer would be that there would be no right to review.

Justice Tom C. Clark: Is that the only statute on which they rely for the right to dismiss summarily for any cause they see there.

Mr. Clifford J. Hynning: I believe the Department of Justice is relying on a statute.

They are relying on the inherent power of the executive to dismiss an executive employee unless that employee has some rights either under a statute or under the constitution.

And of course the rights under the constitution are deemed to be limited to matters of things that are clearly irrational or that involve matters of partisan politics.

Justice Tom C. Clark: But if the head of the department does have such inherent power, what was the reason in 1956 for adding the statement about the rules and regulations?

Mr. Clifford J. Hynning: I do not know sir.

Justice Tom C. Clark: If that's what they are depending on, why did they add this in 1956?

Mr. Clifford J. Hynning: I can't answer that question.

I can speculate as I have I think it's jargon.

Justice Felix Frankfurter: Well, formula -- I mean -- it has application -- it has application so they stick it on everywhere on each --

Mr. Clifford J. Hynning: Well, I think you are trying to subject some of the personnel forms of the government to a logical reasonable analysis and that can't be done sometimes.

Justice Tom C. Clark: Well, I should say that --

Mr. Clifford J. Hynning: At least that's my personal opinion.

Justice Tom C. Clark: -- (Inaudible) but I should think that they have a summary right to dismiss.

And we assume that the Secretary of Interior has a summary right to dismiss and that's what they're basing it on.

There will be no other reason for them to put in something about the civil service supervision.

Mr. Clifford J. Hynning: I want to be fair here to the Departments of Justice.

I suppose they would say -- it's stating that it is subject to the applicable law, its weasel language.

If the law isn't applicable, it isn't subject to that.

Justice Tom C. Clark: Well, maybe it's legal language but its language --

Mr. Clifford J. Hynning: I said we have to --

Justice Tom C. Clark: -- would construe in connection with determining whether they dismissed him summarily at that time as of that date on so-called inherent power subject to no man's supervision.

Mr. Clifford J. Hynning: Well, you persuaded me I should withdraw my earlier answer and give a little more reflection to this in the memorandum I shall submit.

Justice Felix Frankfurter: Well it would be very easy to determine whether this is a regular form, the generality -- but there are no instances where they -- of dismissals or of suspension under the competitive classification, and therefore they used this form when it is not in the competitive class.

I mean that would not surprise me it is a public document that's printed or censored, but easy enough to find out I suppose.

Mr. Clifford J. Hynning: That's more within the knowledge of the respondent than it is mine.

Justice Felix Frankfurter: (Inaudible) we would like to know about that.

Justice John M. Harlan: As I understand your point about the document on 33, which is the 1956 Notification of Personnel Action, you say that has no greater effect than there had been a letter stuck in the file saying that there was typographical error on the original personnel action and that's hereby corrected.

Mr. Clifford J. Hynning: Well, I -- I don't like to ask a question -- which answers a question which speaks in terms of labeling or an error or error in citation.

This -- this was a very substantive wrong done to Vitarelli.

I think this is one of the things in this -- in the brief I have criticized the Court of Appeals very strongly on, saying this is an error in labeling.

I don't think it has any -- in my view the 1956 document means nothing more than they have endeavored partially to comply with our request for an expunging of the record and that alone, and I believe it was on that basis this document was submitted to the district court and used by respondents there.

Now I think this perhaps is further supported by the third document that was submitted in 1956 and that's the document on Page 34, which is an affidavit from the Civil Service Commission, which says that all records of the Commission have been expunged of all adverse findings made with respect to Vitarelli under Executive Order 10450.

Now Mr. Hall (ph) could not make that statement if he did not have a new form 50, which had deleted from it the reference to the Executive Order 10450.

And it would appear to me that this third document clinches my arguments that all that was attempted, intended, or actually done in the 1956 document was an expunging and nothing more and that could not be taken to have the effects of a 1956 firing.

Justice John M. Harlan: In another words what you say is that if the 1954 firing is no good, the man has never been fired.

Mr. Clifford J. Hynning: That is our position.

Now I would like to make one other technical observation on the statute there has been a suggestion here that the 1950 Act or the Act of August 26, 1950 does not apply to persons outside the competitive civil service.

I think that is easily answered by the text of the Act itself, which is printed in the government's brief, Page 28.

And if you look there, after the first italicized proviso, that any employee having a permanent or indefinite appointment, now an indefinite appointment means the person who has an appointment outside the competitive civil service.

And while there may have ben some legislative history to suggest that they wanted additional powers, nonetheless the face of the statute shows that it had application to people in the -- who were not in the competitive civil service so long as their position had some rational relationship with the national security.

I have just apparently one or two minutes left and I would like to urge this Court to overrule Bailey against Richardson.

I believe the premisses under which that case was affirmed without an opinion by this Court have been completely rejected in subsequent decisions in Peters, in Service, in Cole.

And I believe that much of a difficultly in lower courts comes from the facts that the lengthy opinion of the Court of Appeals in the Bailey case still has a certain degree of standing which I believe it should not have and does not have under Peters, Cole, and Service and -- but that is a --

Justice Hugo L. Black: Well, that was an equally divided court.

Mr. Clifford J. Hynning: An equal division, that is correct but that --

Justice Hugo L. Black: Why do you say overrule it?

Mr. Clifford J. Hynning: I -- I say -- I think the principle of Bailey is wrong and the fact that it is wrong I think is demonstrated by the decisions of this Court in Peters, Cole and Service.

Now Bailey essentially held that the a governmental employees has no constitutional right.

He is a policeman -- he has the privilege no one has the constitutional right to be policeman kind of argument.

I believe that has been rejected by this Court, but the language appears to have --

Justice Felix Frankfurter: Whose language?

Mr. Clifford J. Hynning: I beg your pardon.

The language of the Court of Appeals.

Justice Felix Frankfurter: Well, I know but we can't overrule a case that -- it's stopped by overruling any sense, and doesn't overrule a case (Inaudible)

Mr. Clifford J. Hynning: I stand corrected.

Justice Felix Frankfurter: That we can't overrule a case that isn't here.

Mr. Clifford J. Hynning: I stand corrected.

Well, now -- my language was certainly subject to your criticism.

Justice Felix Frankfurter: And then you suggest that if subsequent cases have laid down documents that contradict Bailey below, why should anybody who needs the legal material confidently bother about what the lower court has done when it's to be wiped out in principle by later decisions of this Court?

Mr. Clifford J. Hynning: Because --

Justice Felix Frankfurter: And a divided -- a divided court is -- nearly of necessity (Inaudible) mean the lower court's judgments standing on necessity.

Mr. Clifford J. Hynning: The fact of the matter is Mr. Justice Frankfurter, the governments briefs rely on Bailey against Richardson, that they have persuaded district court that that's good law, and they persuade --

Justice Felix Frankfurter: But if we were to consider all the ruling, every miscitation of even the most eminent counsel, our report would be even thicker than they are?

Mr. Clifford J. Hynning: I believe that if this Court decides Vitarelli versus Seaton in the favor of petitioner, that will be made even clear.

Thank you.