Evening star., 1952-10-16
Appellate Court
Upsets Veteran S
Loyalty Custer
Rules Membership
In Subversive Group
Alone Not Conclusive
By Howard [. Dutkin


on the Attorney Generals list Of
subversive organizations is not
necessarily proof in itself of a per-
sons disloyalty, the U. S. Court Of
Appeals for the District of Colum-
bia ruled today.
In a 12-page opinion, the court
|nullif1ed the firing of a legless
World War II veteran from his Job
with the Veterans Administration
and reversed a lower court deci-
sion.
The veteran. James j. Kutcher
OF Newark, N. j.. who lost both his
legs while serving with the United
States infantry in Italy in l943,
had admitted membership in the
Trotzskyite Socialist Workers
Party. The party has been placed
on the Attorney Generals list Of
subversive organizations seeking
to alter the form of the United
States Government by unconsti-
tutional means"
Dismissal Recommended.
Following hearing in 1948, a
VA branch loyalty board recon-
|mended Mr.. Kutcher's dismissal.
Mr.. Kutcher appealed to VA Ad-
ministrator Carl Gray, but that
official also found against him.
However, the appellate court to-
day noted that the administrators
decision was not based on any
declared belief in Kutcher's dis
loyalty, but rested solely upon the
ground of Kutcher's admitted
membership in The Socialist Work.
ers' Party"
The court quoted from President
Truman's executive order relating
to the loyalty program to the ef-
feet that:
"The standard for the refusal
of employment or the removal
from employment on grounds
relating to loyalty shall be that,
on all the evidence, reasonable
grounds exist for belief that the
person involved is disloyal to the
Government"
Evidence Not Determined.
Reasoning from this, the court
said that upon the administrator
"fell the duty to impartially de-
termine on all the evidence"
whether sufficient grounds ex-
listed for belief in Mr.. Kutcher's
disloyalty.
"Kutcher was entitled to the ad-
lministrator's decision on that very
ISSUE" the opinion stated, "but
the administrator neither consid-
cred nor decided it," but instead.
held only that Mr.. Kutcher's
membership in the party made
his removal mandatory.
The court further backed UP its
stand by quoting from a state
|ment of the President in 1947
that membership in any organiza-
ton is simply one piece of evi-
dence which may or may not be
helpful in arriving at a conclusion
as to the action which is to be
taken in a particular case.
Neither the Hatch Act nor the
Executive Order does in terms
prescribe membership in the
Socialist Workers Party by an
employe, and neither Congress
nor the President has seen fit to
make membership in any organi-
zation designated by the Attorney
General cause for removal from
Government employment" the
court said.
But the judges made it clear
they did not mean to suggest that
membership in a designated or
ganization may not "in the cir
cumstances of the case" justify
disbelief in the loyalty of an en-
|ploye.
Administrator Must Decide.
obviously" they said, such
evidence might fairly support that
conclusion and so require an en-
lploye's removal. Yet in each in
stance it rests with the head Of
the department or agency to make
the controlling decision. This
vital question still awaits the ad-
ministrator's decision" the opinion
stated.
The court reversed a District
Court ruling which had been
made against Mr.. Kutcher. It re-
Imanded the case with directions
to set aside the order removing
Mr.. Kutcher from employment
but stated that this was without
prejudice to an order for his stis-
pension and consideration and
determination by the admins
traitor of the ultimate issue as to
whether on all the evidence rea-
|sonable grounds exists for the be-
lief that Kutcher is disloyal. :"
The opinion was written by
Judge James M. Proctor and con-
Cured in by Judges Wilbur K.
Miller and z. Rarrott prettvrnon