Evening star., 1950-03-24
The Moral Dilemma of the Bailey Case

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Court of Appeals settles the legal issues
involved in the story of Dorothy Bailey.
The moral dilemma of the loyalty
program, as it operates in such case.
of course, remains. Miss Bailey was fired
last year from an $8,000-a-year United
States Employment Service training job.
She had been denounced to the FBI as
Communist. She was given hearing be-
fore the regional loyalty board and an
other before the Federal review board.
She asked to be confronted by her ac-
cusers. or at least to be told what made
them think she was Communist.
Neither request was granted.
AS set forth in the Appeals Court
majority opinion by Judge E. Barrett
Prettyman, the law is that the Govern
ment had the right to dismiss Miss
Bailey without hearing or an explana-
ton. let alone the kind of hearing she
thinks she should have had. The human
problem, on the other hand, arises from
the fact that she was given two hearings,
which later on became publicized. The
moral question is whether it is fair to
put an individual in position where his
reputation depends on his ability to
disprove charges without having been
told just what the charges are.
Judge Prettyman's opinion, and Judge
Henry w. Edgertons dissent, both struck
close to the heart of this question. Here.
in part. is what they had to say:
Judge Prettyman:
1T is urged upon us that dismissal
from Government employ for suspicion
OF loyalty is an exception to the es-
tablished doctrines and rules generally
applicable to Government employees and
their dismissal from service.
1T is said that disloyalty is akin to
treason and that dismissal is akin to
conviction. Forthwith it is asserted that
Miss Bailey has been convicted of dis
loyalty. AS we have seen, nothing re-
sembling a conviction from the legal
standpoint has been visited upon her.
She was merely refused Government en-
ployment, for reasons satisfactory to the
appointing authorities.
But it is said the public does not dis
tmguish; that she has been stigmatized
and her chance Of making a living
seriously impaired. The position implicit
IN that assertion dissolves into two con-
tentlons. One is that even if executive
authorities had power to dismiss Miss
Bailey without judicial hearing, they
mad no power to hurt her while doing so;
that Is. they had no power to call her
disloyal even if they had power to dis
miss her for that reason.
But it has long been established that
II the Government, in the exercise of a
governmental power, Injuries an individ-
ual, that individual has no redress. - =
So If Miss Bailey had no constitutional
right to her office, and the executive
officers had power to dismiss her, the
fact that she was injured in the process
OF dismissal neither invalidates her dis
missal nor gives her right to re-
dress.
"A person may be publicly stigma
tized and ruined by utterances on the
floor OF Congress without any oppor-
tunity IN any established forum to deny
or to refute. These harsh rules, which
run counter to every known precept Of
fairness to the private individual, have
always been held necessary as a matter
OF public policy, public interest and the
unimpeded performance Of the public
business.
1T Is our clear opinion that the
President, absent congressional restric-
ton. may remove from Government
service any person of whose loyalty he
Is not completely convinced. He may do
so without assigning any reason and
without giving the employe any explain
atory notice. If, as a matter of policy,
he chooses to give the employe general
description Of the information which
concerns him and to hear what the
employe has to say. he does not thereby
strip himself Of any portion of his con-
stitutional power to choose and to re-
move. $50
Finding constitutional power for the
procedure here followed, and no viola
ton Of congressional mandate, our func-
ton is exhausted. We have no concern
with executive or legislative policy or
with the processes by which those
branches Of the Government fulfill their
constitutional responsibilities
Judge Edgerton:
Appellants dismissal violates both
the Constitution. and the Executive
Uoyalty) Order. However respectable
her anonymous accusers may have been,
if her dismissal is sustained the liveli-
hood and reputation of any civil servant
today and perhaps Of any American to-
morrow are at the mercy not only of an
innocently mistaken informer but also
of malicious or demented one, unless
his oefect Is apparent 10 the agent VINO
interviews him.
"The preamble Of the noyalty) Order
states that both the United States and
the accused employe must be afforded
maximum protection. Such protection
plainly includes an opportunity to pro-
duce witnesses and to cross-examine
opposing witnesses. ..
Hardly any protection at all is pos
sible against vague assertions of unseen
and unknown persons. The accused en-
ploye can only deny such assertions and
prove, as the appellant did. that they
are inconsistent with her reputation and
with some of her acts. She can prove
no specific contradictions, no mistaken
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