Russell Morton Brown: Thank you Mr. Chief Justice, unless some members of Court have a question for me I would like to reserve the balance of my time Your Honor.
Earl Warren: You may.
Russell Morton Brown: Thank you Your Honor.
Earl Warren: Mr. Claiborne.
Louis F. Claiborne: Mr. Chief Justice may it please the Court. I think at the outset I should mention to the Court as I think Chief Justice probably knows as the Chairman of the Judicial Conference, there are presently two bills pending before the Congress, identical bills, one in the Senate, one in the house, which would resolve both the problem in this case, the question of when the appeal time begins to run and also the question in the following case, in Behrens case, whether the defendants reappearance at the modification of sentence is required. We have no assurance that these bills will be --
Speaker: (Inaudible)
Louis F. Claiborne: The -- it would resolve the question as the government urges its present law. Nothing in the provisions of this subsection shall preclude the defendant from being admitted to bail pending appeal of certiorari and the right to appeal shall run from the date the original sentence was imposed under subsection (b) of this section.
Earl Warren: Have those progressed at all?
Louis F. Claiborne: Hearings, I understand had been heard -- have been held on the house side.
Earl Warren: On the House side?
Louis F. Claiborne: The Director of the Bureau of Prisons has testified favorably. The Department of Justice has recommended to the Senate committee to have such bills. The Judicial Conference of the United States has approved the bill, that's still notified both committees as I understand. However--
Earl Warren: Mr. Claiborne it was originally passed to the conference of the other rule, isn't it?
Louis F. Claiborne: I think not Mr. Chief Justice. The --
Earl Warren: I thought the report they made to the -- the Congress was, it wouldn't be primal until he, until the final sentence. I may be mistaken --. I see Mr. Brown shaking his head so --
Russell Morton Brown: If Your Honor please, the record of the legislative history to which we have referred in the brief does actually show that the judicial conference considered attentive disposition and that final judgment was to be rendered after the reports came back. We've spelled that out and Your Honor's recollection is --.
Speaker: (Inaudible)
Russell Morton Brown: Yes, Your Honor.
Earl Warren: Yes.
Russell Morton Brown: Well I think if the bill has passed --
Speaker: (Inaudible)
Russell Morton Brown: Yes apparently Your Honor fine, I don't mean to intrude.
Earl Warren: Are you going to take that up with you on your record?
Russell Morton Brown: Probably there was recognition that something wasn't clear in the bill.
Earl Warren: Excuse me Mr. Claiborne, you go right ahead.
Louis F. Claiborne: I should say that while the judicial conference's proposal use the word tentative unless one reads that as an indication there was no other statement in the judicial conference proposal or in their recommendation to the Congress which would indicate that they viewed the appeal as running from the final rather than the tentative sentence as they put it. They may have used the word tentative which in some respects is quite accurate as characterizing the initial commitment.
Potter Stewart: Mr. Claiborne wouldn't the basic purpose of this provision be frustrated if the defendant were released on bail pending appeal, if the appeal were taken from the original conviction? In other words, doesn't if the -- isn't it contemplated by this provision that the defendant be incarcerated or at least in the custody of somebody so that he can be observed and interviewed and studied (Inaudible).
Louis F. Claiborne: It certainly is necessary we think for the defendant to be in incarcerated in order for the study to be completed. There is no reason however why that cannot occur after the appeal is completed if the defendant chooses to exercise his right to bail pending appeal. On the other hand if the defendant prefers to begin serving his sentence and goes to the penitentiary, we see no reason why the study cannot go forward. And while there is a problem with reference to the Judges imposing the final sentence while the appeal is pending, we accept the suggestion which Mr. Justice White has made that Section 4208 (b) amends that rule, the extent that that rule was still a viable rule by impliedly permitting the Judge to re-sentence even though the appeal is proceeding on the ground --
Byron R. White: (Inaudible)
Louis F. Claiborne: We do.
Byron R. White: (Inaudible)
Louis F. Claiborne: The study would be postponed. In fact we think one of the reasons why the appeal must be from the initial judgment is that the right to bail would otherwise be in jeopardy.
William J. Brennan, Jr.: (Inaudible)
Louis F. Claiborne: All I would say is, with reference to the present law that this amendment is labeled a clarified amendment. We view it is not changing the law in any way, simply as being more explicit. I might say here that --
Byron R. White: (Inaudible)
Louis F. Claiborne: He might -- there are really two questions Mr. Justice White, one whether he chooses to exercise his right to be enlarged on bail and the second is --
Byron R. White: (Inaudible)
Louis F. Claiborne: Then he is in custody correct.
Byron R. White: He hasn't (Inaudible)
Louis F. Claiborne: His right to bail would be denied, that is we say is one of the reasons why we think the appeal must come first, because we -- for most defendants, this defendant being an exception and he apparently was willing to submit to custody for three to six months without exercising his right of appeal, most defendants we think would want or at least would have a right to choose to exercise their right to be enlarged on bail and to defer actual punishment until merits of the appeal were determined.
Arthur J. Goldberg: (Inaudible)
Louis F. Claiborne: It is true Mr. Justice Goldberg that the decision whether or not to appeal does in fact sometimes depend on the sentence actually imposed. We don't view there is any difficult on the appeal because the Court of Appeal will know that the sentence originally imposed here, the 375 years, is nearly tentative and they will defer consideration of any cruel and unusual punishment argument to the re-sentencing at which time the question will remain open under a 2255 motion or a motion to vacate an illegal sentence under the first part of Rule 35. You don't contemplate that there will be any necessity for second appeal because of course the Judge is not going to affirm the 375 year sentence.
Arthur J. Goldberg: (Inaudible)
Louis F. Claiborne: Well it is only in the rarest case that the severity of the sentence is subject to inquiry upon appeal in the first place. If sometimes the sentence is so outrageous that it does amount to so disproportionate to the offence it does amount to cruel and unusual punishment. That rare case, we suggest, can be adequately handled by subsequent collateral proceeding or a Rule 35 proceeding if the Judge should adhere to the outrageous sentence which of course did not in this case. Here the 375 years sentence was reduced to probation. Now, I think Your Honor was also suggesting that some defendant for fear of what they ultimate sentence will be may appeal while if they knew that they were ultimately going to be placed on probation they would forgo the appeal, that is -- and it's probably true. We do suggest that most defendants appeal not with reference to the extent of sentence imposed, but as they should in order to assert their innocence or to assert that they were only convicted and this consideration is not affected by the sentence actually imposed. I think this case is a particular illustration of that. The defendant here was in fact placed on probation and nevertheless appeals or he makes the argument if Your Honor suggests --
Potter Stewart: But this is a very unusual case and that this defendant was the member of bar of Massachusetts and obviously a criminal conviction or I assume a criminal conviction would result in dismemberment and arrest, this fellow is not a typical Federal criminal defendant.
Louis F. Claiborne: But they are alarmed, many defendants who do appeal in order to clear their name if words of this particular (Inaudible) and who want to remove the stigma of the conviction. If we must choose between the man who claims his absolute innocence and wants to appeal regardless of sentence and he had in fact been wrongly convicted and question was referenced to him of whether he should be made to go to the penitentiary first to wait three to six months before wrong and (Inaudible) and then to spend that time serving punishment which is what happens if he were to await, he is allowed to be put in to operation. If we must balance concerns for that man against the man whose appeal depends on whether the thing it worthwhile in view of the sentence we think we have to prefer the first man.
Potter Stewart: Well, I don't understand the first man because it's not function of a Court of Appeal to decide whether a person is completely innocent or guilty. It's only -- it's function to decide whether or not there was trial and error.
Louis F. Claiborne: That of course is correct Your Honor, but the defendant when appealing asserts perhaps the evidence isn't sufficient to convict him, he puts it in that legal framework but surely what he is saying is that I was innocent. All right then if he says I am not innocent, but I was wrongly convicted.
Potter Stewart: (Inaudible) say anything whether he is innocent or guilty, he talks about the errors committed at the trial?
Louis F. Claiborne: Whether he said so or not Mr. Justice Stewart I suggest that he maybe innocent or he may have been wrongly convicted. In either case he is entitled to a process reversal.
Speaker: (Inaudible)
Louis F. Claiborne: A step in order to attain restitution if that's appropriate. He must actually prove his innocence under relatively new provision of the Court of Claims act --
Earl Warren: It's clearer and another practical factor and the same too. There are several Judges I have known number of them myself who will not consider the probation or clemency on their part unless they believe that a man is (Inaudible) and if he pleads not guilty and stands a jury trial and particularly if he pursues it on appeal, they are of the opinion that he hasn't the first qualification for probation and they just won't consider. Now, if you are up against the Judge of that kind a man would be very worried about the taking an appeal at that stage of the proceeding in a number of years he was going to be in prison depended upon on what that Judge thought of him after he made this survey. I wonder if that wouldn't deter a lot of men who might have good ground for appeal from, from appealing for -- of the affect it would have on the Judge's action.
Louis F. Claiborne: Mr. Chief Justice I hope that there are rare instances in which the Judge will hold it against the defendant that he has appealed.
Earl Warren: Well, you might hope that but it isn't the fact I have experienced it many times through the years.
Louis F. Claiborne: I would point out that the same problem is raised by this Court's holding in Korematsu. There the imposition of sentence was differed and then was placed on probation. This Court held that he might nevertheless appeal. On a revocation of probation the Judge might if he was so he can't hold it against him that he had pursued the matter further by appeal and yet he is perfectly free for the first time to impose any sentence which would be illegal for the original sentence, not a sentence for the violation of probation but a sentence of the original offence. I suggest that the weight or consideration is the notion of our law that a man should not be made to wait to test his conviction, rightness of this conviction by review at least he should not be made to begin serving actual punishment until he has fully exercised his right to review on appeal and that is impossible to avoid if the appeal must wait until reconsideration and re-sentencing.
Arthur J. Goldberg: (Inaudible)
Louis F. Claiborne: That might be very desirable result Mr. Justice Goldberg. Off hand I can see no objection to it because then the man's serving a portion of his sentence would be voluntary at his own option. However, as the law stands I hear no suggestions from the petitioner. I see no possibility in the statutes to call a judgment final at the option of the appellant. I am afraid it must be final or not and while the Congress I should think would be perfectly free to adopt that suggestion if it had not felt so and even the present legislation did not pose that solution.
Earl Warren: Mr. Claiborne how do you dispose this the first sentence of Section that we're concerned with, 4208 (b), where it says if the Court desires more detailed information as a basis for determining the sentence to be imposed, the Court may commit the defendant. Now doesn't that -- doesn't that indicate that the sentence is not final. If the Court desires more detailed information as a basis for determining the sentence to be imposed, the Court may commit the defendant and so forth.
Louis F. Claiborne: I grant Your Honor that Congress should have been more cautious and should have included the word ultimately to be imposed. Later on, however, in the same section we have indication to go the other way. This is the alternative the Judge has affirmed the sentence of imprisonment originally imposed, clearly talking about a sentence already imposed. I do think it's clear from the legislative history of this provision that Congress had in mind that this second sentencing, this reconsideration which I emphasize can only be a reduction was to be treated in the light of Rule 35. It was a modification of an original sentence already imposed. I would add, however, that from the point of view of finality of judgment and appealability the Korematsu case I should think resolves this problem fully. There no sentence whatever was imposed and yet because discipline was imposed the Court held that the time for appeal that appeal was allowed from the order granting probation. I distinguish between the suspension of execution of sentence and the suspension of imposition of sentence. They are very clearly, I think I'm correct in saying Mr. Justice Black was the author of opinion, it was unanimous. The Court found the difficulty because no sentence whatever in the strict sense had been imposed the statute expressively saying, execution of sentence, imposition of sentence had been suspended and yet an appealable judgment, judgment being the termination of guilt and the immediate commitment of the prisoner to, in this case the penitentiary there to the discipline of probation was sufficient to support an appeal. Finally, I would like to draw the Court's attention to one of the progenitors of this statute, which had explicitly provided that the appeal should run from the initial sentence. This was a proposal on the judicial conference. It's shown on page 19 and 20 of our brief in the following case. This is little awkward, but I will, since it isn't a brief in this case, I will read that proposal, certain portion of the proposal, this is in 1943 --
Speaker: What pages?
Louis F. Claiborne: Pages 19 and 20 of the brief in Behrens Your Honor.
Speaker: Not this case.
Louis F. Claiborne: Not this case, the Behrens case. When an offender has appealed from a judgment of conviction and elects to enter upon the service of his original sentence, the definite sentence maybe fixed notwithstanding the pendency of the appeal. Unfortunately between 1943 and 1958, this problem was apparently overlooked and this provision was not carried forward. It would have solved both the question that Mr. Justice White mentioned at the opening of the argument, the possibility for the Court to impose the final sentence notwithstanding the pendency of an appeal at the same time making a perfectly clear that the appeal read from the original judgment and not from the subsequent judgment. In conclusion, I want to emphasize again that if this is a question of balancing interests of defendants, I think we must prefer, we must be more concerned for the right of the defendant who asserts perhaps not his innocence, but the wrongness of his conviction and claims a right to have that matter tested promptly and without the imposition of punishment in the meantime you must prefer his claim over that of the man who says I prefer to wait and see what my sentence is before I appeal. On those grounds --
Potter Stewart: This would concededly add to the burden of the Courts of Appeals and add to the expense of those defendants who felt compelled to appeal, because they didn't know what their sentence is going to be and add to the expense and burden of the government, the rule that you propose would it not, because it would undoubtedly produce an increased number of appeals.
Louis F. Claiborne: I'm afraid that is true though I would think if the -- it would be a limited additional burden and perhaps the solution to it is that Justice Goldberg though I suggest that solution is one that's addressed to the Congress to provide an election.
Earl Warren: Mr. Claiborne, have you any idea how much this section is used and how much it is progressing in use if that is the fact.
Louis F. Claiborne: Our information Mr. Chief Justice is that since 1958 when this statute first came into operation, the use of it increased quite markedly through last year at which time it was invoked in something over 3% of the cases in which – it is still very small figure. We had told that during the last fiscal year the use of it did not diminish, but did not increase. One of the reasons for that it was a doubt as to the two questions presented here, the question of when the appeal begins to run, the question of whether the defendant had to be returned and that is one of the reasons why these matters were suggested to be clarified in the pending legislation. It might be also interesting to note that our figures reflect that the recommendation of the prison authorities is followed by the Judge in something over 80% of the cases that a reduction in sentence from the original sentence occurs in approximately 85% of the cases or perhaps somewhat more and that in --
Potter Stewart: For any change would have to be a reduction would it not?
Louis F. Claiborne: Well that is -- that is great, but the Act, the cases in which the original sentence is affirmed only amount to about 13% and most of those are direct cases in which the maximum sentence is relatively light, five years. Probation is granted on the basis of the most recent year available in something like 21% of the cases on the ultimate disposition over that.
Potter Stewart: How much is the Section 4208 (a) used?
Louis F. Claiborne: I think the percentage is considerably high, I'm sorry I don't have any accurate figures.
Potter Stewart: High it was enacted at the same time.
Louis F. Claiborne: No I think that includes (a) (1) and (a) (2); (a) (1) commits the Judge to set the date the eligibility for that rule and anytime less than one third; (a) (2) which I think is more often used allows the Board of Parole to release the man at anytime.
Potter Stewart: Without limitation.
Louis F. Claiborne: Without limitation. For these reasons we submit the judgment of the Court should be affirmed.
Byron R. White: Do you have any idea (Inaudible)
Louis F. Claiborne: We know of only three cases in which the appeal was not taken from the original commitment.
Byron R. White: (Inaudible)
Louis F. Claiborne: Where appeal is taken that we cite two cases in which pending appeal, the sentence had been modified, we cite those cases in our brief in Behrens.
Byron R. White: (Inaudible)
Louis F. Claiborne: No certainly not, not on the basis of the actual expense.
Earl Warren: Mr. Brown.
Russell Morton Brown: Thank you Your Honor. I'd like to thank the Solicitor General for providing us with various information as this matter moved on to hearing date. In response particularly to Mr. Justice Goldberg's enquiry as to an election, I think that the type of construction we're asking here is in fact an election procedure. For example if the Judge invokes 4208 (b) and says I've proposed a sentence here, this defendant under 4208 (b) that a defendant has an election, he may voluntarily go ahead as our petition did here and receive the benefit of psychiatric studies and that sort of thing or he may say to the Courts through his counsel of course Your Honor please we feel that the trial was not properly conducted and we'd like to appeal and we ask Your Honor to impose a final definite number of years sentence even if you impose the maximum 375 years then we can appeal.
William J. Brennan, Jr.: (Inaudible)
Russell Morton Brown: Well, it is.
William J. Brennan, Jr.: (Inaudible)
Russell Morton Brown: My thought Mr. Justice Brennan is that if he does go along with the 4208 (b) proceeding, he excessively incarceration in the custody of the Attorney General.
William J. Brennan, Jr.: And he says no I would counter appeal.
Russell Morton Brown: I think he says I want to -- yes that he says I want to appeal, the Court, as particularly if this Court would indicate that was a proper procedure in the course of this Court's supervising authority, would say, the Court would then be properly moved to sentenced to a definite term of years, no matter how great, he can appeal.
William J. Brennan, Jr.: But he can insist on it that I would suppose this contemplates that the Court could insist that he shall undergo this procedure.
Russell Morton Brown: Well I certainly wouldn't have any right to insist, I would say that, but this Court in the course of its supervisory authority over the conduct in Lower Courts in the country, if this Court would say that it would be proper for the Court in that kind of case, to impose a definite term of years, that said (Inaudible). Now in this very --
Potter Stewart: Well that's what, that's what 4208 (b) itself provides within a definite terms of years be imposed, the maximum.
Russell Morton Brown: Well no, I beg Your Honor's pardon. In this case for example Mr. Justice Harlan, the Court said, I commit you to the custody of the Attorney General under 4208 (b). Now by construction of law it's deemed to be the maximum.
Potter Stewart: That's correct.
Russell Morton Brown: Now in the Behrens case the very case which is here in number 86 into which the Solicitor General has referred, there was in that case --
Potter Stewart: Trial Court made an explicit --
Russell Morton Brown: Well yes the Court said, I sentence you to 20 years --
Potter Stewart: Yes.
Russell Morton Brown: -- which was the maximum. Now later he sought to appeal and it's not before the Court here, but it's related to (Inaudible), he sought to appeal in forma pauperis. The Court said that there was nothing before the Court after it had imposed that 20 year sentence and at that time for giving that 10-day notice had elapsed and he couldn't appeal. And so he lost his right of appeal in that regard and so far as I am aware he has not carried it forward as we have to raise the propriety of the ruling. But I would say that in that case it's on different basis Mr. Justice Harlan, because the Court did impose that definite term of 20 years. It left nothing further to be done except that he said I would like to have a report under 4208 (c). Now it wasn't b -- it was 4208 (c) which authorizes the Court to get this psychiatric study and advisory report from the Bureau of Prisons and then utilize it in acting say under 35 or what, one very important effect of this 4208 (b) is that it extends from 90 days from 60 to 90 days, the period of the Court's control over the sentence and then for an additional three months if the Court sees fit. And this is designed to be a judicial tool to be used in favor of the defendant and for that reason I would say that it would be appropriate for him to make the election, will he accept the benefits here, or does he want to appeal. Now many times a party will say I am innocent, but I can't take the time and I can't take the expense or I haven't got the facilities for appeal or maybe he doesn't even have the evidence to vindicate himself as a jury verdict that has established his guilt and he has to learn to live with it. However, I think the election procedure is available if this Court prescribes it.
Byron R. White: (Inaudible) I don't want 4208 (b) I want to appeal and please impose a definite term of year.
Russell Morton Brown: Very much so Your Honor, very much so I have seen it many times.
Byron R. White: The Judge has probably imposed --
Russell Morton Brown: Yes I agree but then when we have --
Byron R. White: Then you are supposed to refer.
Russell Morton Brown: Well no, we come back and he may use the 4208 (b) procedure at that time.
Byron R. White: Well arguably further down (Inaudible)
Russell Morton Brown: Well I would like to appeal that the Courts try to administer the rules, you know, on the basis of the law rather than on personalities or get mad if you could Mr. Chief Justice Warren has just suggested that some Judges want a person to (Inaudible). Now in this case, I think the Court will be interested that Judge Boyd and I notice in the Solicitor General's brief he said, I wanted to know that I consider a perjured defense was offered in support of this defendant here. Now I really think that if I had been counsel at that point and if we were permitted to appeal, I would have raised that as prejudicial in the formulation essence, he is entailed to be sentenced for the offense he committed, not for the unspecified perjury that the Judge personally made up his mind to charging with and find him guilty because I don't really believe Mr. Justice White that there was a perjured defense in this case. Now I don't know a great deal about I wasn't present at the trial, but I have talked with the defendant I've reviewed the record. I really doubt that there was a perjured defense. I think we have a, there maybe a very confused defendant, he's got a 30% psychiatric disability in the Veterans Administration as a result of war time service. Now I don't know really, you know, I have to be perfectly frank, but I don't think he committed perjury and the Judge says I am, wanting to know that imposing this sentence, I am taking into consideration that a perjured defense resort. That's citied in a foot note, to the Solicitor General's brief. If I would have made that the subject of appeal myself. I would have said that that was an improper sentence. He is not at liberty to take that into consideration. Now I must move along but in formulating an appeal severity of sentence is always the gauge. If that's going to be suspension of sentence or maybe some very light nominal sentence maybe its best to forgo the appeal. As I say, not everybody can afford these appeals and all that sort of thing. Now --
Tom C. Clark: (Inaudible)
Russell Morton Brown: Well it's my opinion Mr. Justice Clark that under Rule 46 he is entailed to bail as long as its in the District Court, and until the District Court disposes under 46 (a) (1), he is entailed to bail and he is entailed a bail under 46 (a) (2) except in capital cases and this is certainly not that kind of case. Now if he is entitled to bail this puts of to study.
Tom C. Clark: Well let's put it up in (Inaudible)
Russell Morton Brown: Well they believe and I am inclined to agree that if he is not being in the custody of the Attorney General, he must be in custody at some regularly established place, with such custody --
Earl Warren: These studies are made by the prison authorities.
Russell Morton Brown: Yes, Your Honor they are.
Earl Warren: They couldn't very well be made at some (Inaudible) custody.
Russell Morton Brown: No, exactly if we have a very wonderful superintendent of Federal prisons, James V. Benet and he is going to perfectly marvelous job and he has record of system that has really brought into a play, the very finest kind of enlightened study facilities. This man, the petitioner here was very much benefited by his 90 days in Lewisburg Federal Penitentiary and I think if he were asked whether he was where he went I think he would say he was.
Byron R. White: So that be, if there is 4208 (a), 4208 (a) order entered the defendant then nevertheless could go on bail if he wanted to.
Russell Morton Brown: I believe so Your Honor, yes Your Honor.
Byron R. White: In which event the 4208 (a), certainly the 4208 proceeding then vitiated this.
Russell Morton Brown: At least let's differ.
Byron R. White: Differ until when?
Russell Morton Brown: Conclusion of the litigation.
Byron R. White: You mean you had, what you're really saying is that if he goes on bail he should appeal?
Russell Morton Brown: He has too.
Byron R. White: (Inaudible) 4208 order is entered. The prisoner, the defendant then is either going to go be studied in one of Mr. Benet's institutions or he's going to go on bail.
Russell Morton Brown: He can't go on bail unless he's going to appeal.
Byron R. White: But you are suggesting is that he can't appeal.
Russell Morton Brown: Well, I think I receive your point Your Honor and I apologize, (Inaudible) under 4208 (b), at that time he decides either that he wants to appeal or he's going to find out what the results of the 4208 (b) proceedings will be. So he says, I'll accept my sentence and I'll go to the prison and subject myself to the psychiatric study. At that time he comes back into Court and the sentence is pronounced. Under my analysis he then will make up his mind whether he wants to appeal or not. On the other hand if he did not want to go at all to the penitentiary until he had litigated this course, he would say to the Court if Your Honor please I would like to appeal, I would like Your Honor to impose a sentence of definite number of years and he makes the bail, he goes on.
Byron R. White: But unless -- as long as the 4208 orders outstanding though he has in your view no right to bail, until the study is --
Russell Morton Brown: I view it, but it is not a conclusion of this litigation. In the Furman case, Chief Justice Hughes laid down a rule which Mr. Justice Black speaking for the Court (Inaudible) case follows, that finality is that state of affairs that occurs when there is nothing left to be done but enforcement. Now, I think it certainly was the probation, but this was a complete disposition of a case, there was nothing left to be done. In the case at bar that Court must receive the reports from the bureau of prisons, consider them and then take the action contemplated by the statute.
Hugo L. Black: Suppose you are wrong in thinking that he has the right to appeal at the first time to the first (Inaudible) and he cannot get bail what is his remedy, what is his situation?
Russell Morton Brown: If he has no right to appeal --
Hugo L. Black: From the first.
Russell Morton Brown: From the first if it's not final and he can't get bail, presumably he would have been in bail all through the proceeding Your Honor unless the Court had increased the bail he could meet the increased bail after the conviction, but he would have to be in custody during that period, but not in the Federal penitentiary presumably in the local.
Hugo L. Black: Well is that, what is the result of holding if you cannot appeal from the first and insofar as the Attorney General's right to hold him in custody for 75 days (Inaudible)
Russell Morton Brown: 90 days Your Honor.
Hugo L. Black: How many?
Russell Morton Brown: 90 days.
Hugo L. Black: 90 days.
Russell Morton Brown: Yes Your Honor.
Hugo L. Black: What is the situation if he cannot appeal from the first, that the government can do that because the Court have to grant him, comply with his request under this statute to give him a definite, more definite sentence.
Russell Morton Brown: I would say the Court is under no obligation to do so unless this Court should announce in the exercise of supervisory authority that that would be a proper administration of the statute. We welcome the clarification offered by these new bills and hope they will be enacted. Our chief criticism is Your Honor, that in this case at least this petitioner's right to appeal was lost for not understanding that the Right to Appeal was affected by these by 4208 (b) without any mention of the Right of Appeal. If it had been said as was in the legislative history referred to in number 86 the very much earlier legislative history, they proposed to say that the final judgment would be such and such and the Court may act even though appeal is pending. In the Smith case which we have cited in our brief, this Court rules that the District Court had no authority to grant a new trial while an appeal was pending and they issued orders mandamus and probation to grant an interference with the appellate procedure. In other words the District Court was forbidden to act while an appeal was pending and I think that's a proper administration of the law. When an appeal was taken it moves into the Court of Appeals, District Court loses its authority on that. It couldn't possibly minimize the sentence lawfully while the case is on appeal and probably wouldn't itself. And if they did so a fellow might say well I've been in the penitentiary six months and the Court has reduced my sentence to the time served I'll abandon my appeal. Now why should we congest the Appellate Courts with appeals that we know may never be taken and why should we even following that congest this Court with needless petitions for certiorari that may never be brought. In other words, let's wind up the litigation in the District Court. Mr. Justice Goldberg says we have an election that this Court can sort of prescribe by saying that it would be proper for the District Judge to impose a definite appealable sentence on request. Now actually all we say is this. Counsel and defendants has no rights to complaint about administration of law except that the law should be clear enough so that a lawyer below would know when his ten days begins to run or when he should take his appeal. Is there any further questions?
Earl Warren: No.
Russell Morton Brown: Thank you Your Honor.


Earl Warren: Number 442, Kendrick M. Cole versus Philip Young et al. Mr. Shapiro.
David I. Shapiro: May it please the Court. Effective January 20, 1954, Kendrick M. Cole, a World War II veteran, was dismissed from his federal job on the ground that his continued employment was not clearly consistent with the interest of the national security. This is an appeal from a two-to-one decision of the Court of Appeals below which upheld the dismissal of the petitioner's complaint and the granting of respondent's motion for cross judgment on the pleadings. It is conceded by respondents that petitioner Cole, in his job, had no access to any government secrets or classified information, that he could not influence or make policy in his particular position, and that he was not charged with being a disloyal employee. In this last connection, I think I should refer to the respondent's brief in the Court below where they said, and I'd like to quote, “The charges against appellant,” Mr. Cole in that case, “do not imply any knowing acts of disloyalty on his part.” That's at page 6 of their brief. And, on page 17, I quote again, “As appellant correctly said, in the charges made against me, I am not accused of doing or saying anything which would indicate that I am disloyal to the Government of this country.” We contend that, on these conceded facts, former Secretary Hobby could not have discharged Mr. Cole under public law 733, the 1950 security risk Statute for sensitive agencies. We contend that that statute is not applicable to a loyal employee holding a nonsensitive, non-policy making position in an agency whose functions are not directly related to this nation's military, foreign affairs, or preparedness programs.
Speaker: You rest your positions entirely on the statute? You don't --
David I. Shapiro: No, sir, we do not.
Speaker: Do you raise a constitutional question
David I. Shapiro: No, sir, we do not do that either. We raise the constitutional argument only in connection with the interpretation of the statute and we say that we think the Court would have to reach the constitutional question if it held that the statute could properly be applicable to Mr. Cole's dismissal. Secondly, we contend that --
Felix Frankfurter: In short, your confidence -- in short, your confidence, as the Court put it, so that you don't argue the constitutional question. Is that it?
David I. Shapiro: That's correct, sir. Secondly, Section 3 of the statute which authorize the President to extend the provisions of Section 1 of the law, that's the substantive provisions of the law, to other agencies and departments of the Government when he deemed it necessary in the best interest of the national security to do so, we say, did not authorize him to establish a single rigid minimum standard for all federal employment, sensitive and non sensitive alike, in each and every agency and department of the Government. And, that standard, that single rigid minimum standard, was the standard clearly consistent with the interest of the national security. Even if we were to assume --
Speaker: I am sorry but I missed the beginning of that sentence. You say that the Government couldn't -- couldn't establish a single standard for security?
David I. Shapiro: What we are saying, Your Honor, is that the President under Section 3 of this statute which authorized him to extend it to other agencies selectively, just merely to extend the statute, didn't authorize him to extend under the statute a single rigid standard for all kinds of employees within the particular departments. We contend that the authority he had was to extend the statute to the entire Government, but he couldn't establish, for all kinds of employment within the particular agencies themselves, a single standard for determining the security status of employees.
Felix Frankfurter: What you are saying here is that for this employee to ever invoke the standard based on, for instance, the President's order is different from the standard embodied in the Act of Congress.
David I. Shapiro: That's correct, sir. That is what we are saying.
Felix Frankfurter: Could you please tell me why the President can't, by virtue of his office, promulgate any standard reason for the termination of employee of the Government?
David I. Shapiro: The answer, sir, is found in Article 2, Section 2, Clause 2 of the constitution where Congress has spoken with respect to inferior offices and employees of the Government. It is my understanding of the law that Congress can properly restrict his removal power.
Felix Frankfurter: What do you with the Meyers case, where Congress actually passed the statute?
David I. Shapiro: Well, I think, Your Honor, that in the Meyers case, we had a completely different situation because the employee in that question -- in that case, I understand, was the type of employee who was appointed by and with the advice and consent of the Senate.
Felix Frankfurter: And, the Senate imposed a qualification, and the President said that this Court sustained him that you can't make any rules on the inherent power of the President.
David I. Shapiro: Well, I think that that case is not applicable to a situation where the Congress has vested the appointing power in the agency heads rather than in the President. And, in this particular case, the appointing power was vested in the Department of Health, Education, and Welfare. Therefore, since Congress vested the appointing power in the agency head, it could also restrict the power of the agency head with respect to such acts as the Lloyd-LaFollette Acts and the Veterans' Preference Acts which, I understand, are valid restrictions upon the executive's removal power.
Felix Frankfurter: Do you think if Congress tomorrow passes a statute saying the postman is to be appointed by the post master general for, not more than four years, the Meyers case will be out of the way? I just --
David I. Shapiro: I don't know, sir.
Felix Frankfurter: I just wonder what's the scope of that case is. I could assure you, that left me not on the problem of the Court here. However, the Government doesn't raise that point.
David I. Shapiro: We contend that, with respect to this standard established by the executive order, this clearly consistent standard, that it established a much more onerous burden on Mr. Cole than the necessary or advisable standard which was established by the Congress. Now, apart from any other consideration, we contend that the dismissal motives of the secretary, which was furnished to Mr. Cole on about January 15, 1954 and which stated that his continued employment was not clearly consistent with the interest of the national security, was not a written statement of the decision of the agency head as that term was used by Congress in public law 733, the statute under which Mr Cole was dismissed. The facts of this case are as follows. As I said before, Mr. Cole was a food and drug inspector and his job was to inspect for health regulatory and other purposes those foods, drugs, and cosmetics which are normally subject to federal regulation. As a Veterans' Preference eligible, he was covered by both the Veterans' Preference and Lloyd-LaFollette Acts. On November 13, 1953, he was suspended from his job pursuant to an investigation under Executive Order 10450. A few days later, he received a set of charges which alleged that he had a close association with individuals who were reliably reported to be communists, and a sympathetic association with an organization listed as subversive by the Attorney General, the Nature Friends of America. On December 23rd of that year, while just coming out of the hospital from a very serious operation, Mr. Cole wrote a letter refusing to make any explanation of these charges claiming that they violated his inherent basic right of freedom of association. He was then informed that the matter was being referred to the secretary for her determination. And, on January 15th, effective January 20, 1954, he was dismissed from his job. Seven days after the effective date of his dismissal, Mr. Cole's counsel wrote a letter to the secretary which requested a reopening of his case. And, although Mr. Cole offered to prove that he had not knowingly maintained any association with any member of the Communist Party, that his relationship with the Nature Friends of America was completely casual and entirely innocent, that he had specifically refused to become a member of that organization, at the -- that the only donations he had ever made to it were $2 for firewood that he had used at one time on a camping trip, the secretary refused him permission to reopen the case and to have a hearing. And, when she did that, she stated that she had considered this information, as well as other information. On February 10th, 1954, counsel requested reconsideration of the denial of the right to reopen and claimed the violation of the Veterans' Preference Act and invalidity of the particular charges and the executive order, but the request for reconsideration was denied. The next day, Mr. Cole appealed to the United States Civil Service Commission not only from the original dismissal action, but from the two subsequent adverse determinations as well. And, he contended that all three were in violation of his rights under Section 14 of the Veterans' Preference Act. Now, on March 3rd, 1954, the Regional Civil Service Commission refused jurisdiction of Mr. Cole's appeal from any of the three adverse determinations on the ground that public law 733, as extended to the Department of Health, Education, and welfare by Executive Order 10450, had cut off his otherwise mandatory right of appeal as a Veterans' Preference eligible, under the Veterans' Preference Act, to the Commission. Now, on May 5, 1954, United States Civil Service Commission in Washington, to which the regional commissioner's ruling had been appealed, affirmed the decision of the Regional Commission and, three weeks thereafter, this action was instituted in the District Court. Now, public law 733 provides in substance, basically, that certain named agency heads, I think approximately ten agencies originally dealing with national defense, may similarly suspend and, thereafter, terminate employees in their absolute discretion when necessary or advisable in the interest of the national security of the United States. In other words, when they deem employees to be security risks, but an employee who is not disloyal, who has no access to classified material or government secrets of any kind, who is not a policy maker, who is not employed in an agency whose functions bear no relationship to this nation's defense, foreign relations, or preparedness programs cannot be dismissed under the statute because his dismissal cannot be justified in the interest of the national security. In other words, he is not a security risk. We do not merely rely on a definition of the statutory term “the interest of the national security,” a term which certainly is not free from vagueness and a term under which the allowable area of executive discretion is quite large. But, we say that that term has limits, some limits somewhere and that this, certainly, is a case beyond those limits. Respondents say otherwise. They say it's without any limits whatever. And, for this, we rely on the statute primarily which, itself, provides for the reemployment of discharged employees in nonsensitive agencies and positions but, unmistakably also, we rely on the clearly expressed purpose and intent of the Congress in enacting this legislation. That purpose was to provide a permanent legislative authority for the summary termination of employees whose character and associations, when considered in relation to the sensitivity of the particular type of work they were doing, made it necessary or advisable that they could not continue to hold down jobs which were vitally involved in our defense and preparedness programs. That was the expressed Congressional purpose behind public law 733.
Stanley Reed: What do you mean by congressional purpose, is it in the Act?
David I. Shapiro: No, sir. It is in Senate Report 2158 which is the Senate Committee Report of the Armed Services Committee. That report is -- that statement of the Act's purpose is contained both in the Senate Report and in House Report 2230, which is the companion House report on this particular Act, both made in 1950. That statutory purpose was so understood by the executive branch prior to the issuance of Executive Order 10450, the executive order under attack here. And, it was understood by legal -- leading authorities in the field, and we've set them forth in our brief. Judicial authorities in cases decided under comparable security programs have similarly defined the term, “the interest of the national security.” And, the term was defined in the way that petitioner defines it, by the National Security Council's Interdepartmental Committee on Internal Security whose report, in 1952, on the government employee security program is set forth in relevant parts in Appendix B of our main brief. All of these authorities define the interest of the national security solely in relation to those specific matters which vitally affect this nation's military, preparedness, and foreign relations programs. All of the authorities are in complete agreement that the term has absolutely no relationship to, and definitely excludes, those programs and functions of Government which, while intimately connected with the welfare and happiness of the country's people, are not directly related to those programs and functions of Government intimately and directly related to the national safety. Now, Mr. Cole's job bears as much relationship to the national safety, this job of food and drug inspector, as does the job of any butcher in any meat cutting plant, of any baker in any bakery, or of a leaf raker out on the lawn. And, if this was what was meant by Congress when it enacted this particular statute, we think the statute was meaningless because the result that respondents claim that Congress intended could have been achieved in much more simply than by this statute merely by repealing each and every one of the civil service statues on the federal statute clause. Since Mr. Cole had no access to any classified information or government secrets, any associations he might have with alleged subversives could not conceivably have resulted even in his inadvertent disclosure of classified information of government secrets because he didn't have any access to any such material. And, a graphic example of this is contained in this kind of situation even if we were to assume that Mr. Cole had a communist wife, and by the way he is a bachelor, the fact that he might talk in his sleep would cause to be revealed only nonsensitive, non-classified, non-secret information, information available at any public library of the United States. Since he is not charged with disloyalty, by very definition of this Court in the case of Ex Parte Mitsuye Endo, he cannot be deemed a potential saboteur of the food supply, so that we have in this case neither potential espionage, nor potential sabotage, nor potential even inadvertent disclosure of classified or secret information. Thus, we don't think that the respondents can seriously argue to this Court that Mr. Cole's discharge can be justified in the statutory interest, the interest of the national security. We are not saying that Mr. Cole could not ever be discharged. What we are saying is simply this. Even if we assume that the President could validly have extended the statute to each and every agency of the Government, former Secretary Hobby, Secretary of the Department of Health, Education, and Welfare could not validly have dismissed Mr. Cole under this statute on these conceded facts. That's our first argument. Perhaps an even stronger argument is contained right in Section 3 of the statute which authorize the President to extend, as I said before, the substantive provisions of the law to such other departments and agencies of the Government as he might selectively, from time to time, deem necessary in the best interest of the national security. And, in April of 1953, the President did issue Executive Order 10450 which not only extended this particular statute to each and every agency and department of the Government, but it extended it to each and every employee in each and every agency, no matter how sensitive or non-sensitive the job held by that employee. And, this extension was coupled with a mandatory direction to each and every agency head requiring them to judge each and every employee under their supervision and control by the same mutually consistent and no less than minimum standard that is clearly consistent with the interest of the national security standard. At the same time, the President revoked the loyalty program which had been established by Executive Order 9835 and which was under consideration by this Court in Peters against Hobby. Now, under 9835, employees had been permitted to appeal from the adverse decision to a special independent review authority in the United States Civil Service Commission. However, under Public Rule of 733, an agency head's determination is final and the employee cannot appeal where the statute, of course, is validly applied. Now, under Public Rule of 733, an examination of the statute discloses that Congress vested discretion in agency and department heads to determine which positions within their particular departments and agencies would have been covered under the law. Congress also vested them with discretion to dismiss employees when the particular agency head concerned deemed it necessary or advisable, in the interest of the national security, that those employees be dismissed. And, Congress also vested them with discretion to reinstatement, suspended employees to duty not only to the position from which they had been suspended, but to some, perhaps, less sensitive position within the particular agency. However, let's examine the executive order now. Under its mandatory provisions, the statutory discretion to determine which positions within a particular agency are to be covered under the Act and which are not has now been effectively divested by the requirement of the executive order that all positions within a particular agency, including the position of washroom attendant at a branch post office, must be clearly consistent with the interest of the national security of the United States. Under the executive order, an agency has -- no longer has discretion to determine that it is necessary or advisable to dismiss employee Jones. He must dismiss employee Jones unless he can affirmatively establish that employee Jones' continued employment is clearly consistent with national security.
Felix Frankfurter: That applies to you being directly advising him.
David I. Shapiro: Yes, sir, it does.
Stanley Reed: Now, I didn't quite understand why you say that we couldn't dismiss it by destroying the discretion.
David I. Shapiro: Because, Your Honor, what he did was this. It changed the -- it changed -- I think I should make this clear. The necessary or advisable standard used by Congress in the statute is used in two senses. It is a standard of application or of coverage in terms of the statutory application by the agency and of the statute within his particular agency or department. It is also a standard of termination and retention, and the same standard is used in two different ways. Now, it destroyed his discretion, the agency has the discretion in terms of the application of the statute because, under the executive order, he no longer has the discretion to determine where it -- the extent to which it shall be applied within his own particular agency or department. He's got to apply it straight down the line throughout his particular department.
Stanley Reed: Well, he had -- he had that under the statute.
David I. Shapiro: He had the authority to apply it only where he deemed it necessary to apply it in the national security interest.
Stanley Reed: In his discretion.
David I. Shapiro: That's right.
Stanley Reed: And he still has the authority to apply it in his discretion.
David I. Shapiro: No, sir, he does not. He must apply it under the executive order. Each and every employee under the executive order it must be applied to.
Stanley Reed: I -- I don't follow you. If he has -- well, go ahead.
David I. Shapiro: I'd like to make that clear, sir, because I think it is an important point.
Stanley Reed: Well, it seems to me that when the statute says he has discretion and the executive order says you can apply it to all the people in such -- under your discretion and then work for you or for every agency of the Government, why not? Maybe --
David I. Shapiro: Well --
Stanley Reed: -- maybe it shouldn't be applied.
David I. Shapiro: Well, under the executive order, as we will interpret it, I think that the -- Mr. Justice Reed, that you'll see that it is -- it must mandatorily be applied.
Stanley Reed: But, of course, the statute is mandatorily applied in the sense that it may be applied all through the Government?
David I. Shapiro: That's correct. It may be applied in the discretion of the agency head. Now, the agency head hasn't got any discretion to say that a leaf raker shouldn't come within the particular provisions of the statute. The leaf raker, by very perforce by the executive order, is covered under the statute and there isn't any question about it anymore. Now, secondly, with respect to the standards -- the difference in the standards, there is clearly consistent standard as contrasted with the necessary or advisable standards. It was also used by Congress and by the executive order as a standard of termination because the agency had, when it comes time to decide whether the suspended employee shall be reinstated to the suspended position or dropped from his particular position, he must find as an affirmative proposition not that it is necessary or advisable that this employee should be dismissed or discharged, but that he must be discharged unless he can't affirmatively find that his continued employment is clearly consistent with the interests of the national security. And, as approved by the court below in this case, that standard means, without doubt, real or fancy, of any kind. And, we --
Speaker: (Inaudible)
David I. Shapiro: Yes, sir, I think there is a substantial difference and I think that's established by the facts because employees who have been cleared, under the necessary or advisable standard, have been dismissed under the clearly consistent standard.
Speaker: That's (Inaudible)
David I. Shapiro: The same employees, Your Honor, have been -- have gone through the same proceedings four times under the various changes in standards and under the clearly consistent standard, although they have been retained under all of the others, they have been dismissed. We think that hardly anyone, as a matter of fact, can meet the really consistent test. And, we don't think many well-known individuals of questioned integrity, honesty, and loyalty can meet it if only because they were charged with having flirted with the economic concepts of Karl Marx in their college days. And, we think that actual examples of such situations were submitted to this Court in the amicus brief for the American Civil Liberties Union in the case of Peters against Hobby. Now, such a person -- such a person who is accused of flirting with the economic principles of Karl Marx in college days was a post office clerk or a food and drug inspector like Mr. Cole or Claims Examiner in the Veterans' Administration. The heads of those departments would be virtually required to dismiss him unless he was able to completely overcome the presumption of guilt which this particular executive order places upon the employee. That is the basic change in the standard, the tremendous presumption of guilt which the employee is faced with. He is required to show, as an affirmative proposition, once the derogatory information is in his file, that his continued retention in the job that he holds is clearly consistent with national security. I think this is --
Felix Frankfurter: You wouldn't have to have, in derogatory in your file, to have difficulties challenging that?
David I. Shapiro: I believe that may be so, Your Honor.
Felix Frankfurter: I wonder what -- how all of this could lead to that sense that it has to be established superlatively. You couldn't think for the Government to have us where we are.
David I. Shapiro: I think that, under the executive order, this is clear because the department heads cannot consider the non-sensitivity of the employment where the charges relate to political factors, what respondents call “subversion,” as distinct from charges related, for example, to alcoholism or drug addiction. Now, I think a comparison of the standards and criteria of the executive order clearly discloses this fact. In Section 8 (a)(1) of the executive order, which relates to what the Government calls “suitability factors,” the agency head has the authority under the executive order to consider the seriousness of the charge in relationship to the sensitivity of the employee's work. But, under Sections 8 (a)(2) through (8) of the executive order, which relate to the so-called subversion factors, the agency head cannot consider the sensitivity of the employee's work only in connection with the seriousness of the charges. The charges are considered to be derogatory in the absolute sense and the employee must, in order to establish this -- that his retention is clearly consistent, he must completely overcome by independent and affirmative evidence of the entire man that he is that, notwithstanding these charges, he nevertheless must be retained. That, the national security interest would definitely be hurt if he was fired, and that's the burden that this executive order placed on Mr. Cole. Now, I think I must point to this --
Felix Frankfurter: But, could I ask you --
David I. Shapiro: -- because --
Felix Frankfurter: -- do you have to establish that, apart from the Meyers problem, and that is the real problem itself, apart from that problem, you have to establish that this statute promulgated by the President was undermining his power as written by the Congress so?
David I. Shapiro: Yes, sir.
Felix Frankfurter: And, you have to establish that with all the presumption Mr. President of the United States must have some leeway in construing what powers are Congress of United States gave him, even though when it's construed by the President, namely, who should be employees of the Federal Government. Who are the instrument of the executive power?
David I. Shapiro: Yes, sir, we have that --
Felix Frankfurter: Is that a fair statement of your problem?
David I. Shapiro: Yes, sir. That's our hurdle and I think we have come over it. I'd like to point this out, and I think it's pretty clear because I think this is decisive, and I think it's directly related to your question, Mr. Justice Frankfurter. If you will compare Section 6 of the Executive Order with Section 7 of the Executive Order, Section 6 follows virtually in haec verba the standards of the statute. Section 7 establishes the clearly consistent standard with terminations. Now, Section 6 of the Executive Order relates only to suspensions, not to retention or termination once an employee has been suspended. And, although the respondent say that ours was a case which had to do with suspension, the record clearly establishes that it has to do with termination because we don't complain about the suspension in this case. We complain about Mr. Cole's termination effective January 20. Whenever the statute is followed by the executive order, the agency head has discretion, as in the case of suspensions where Section 6 applies, to weigh the relationship between the sensitivity of the work and the seriousness of the charges. But, when it comes to Section 7 of the Executive Order, which follows the clearly consistent standard and not the necessary or advisable standard as does Section 6, there, the agency head does not have discretion to weigh the sensitivity of the work in relationship to the seriousness of the charges except in one kind of case, and that's the 8 (a)(1) case which deals primarily with employee suitability, drug addiction, alcoholism, and the like, but not with subversion. So, on the facts of this case, Mr. Cole could not be dismissed as a security risk because he had no access to any security material. He could not be dismissed as disloyal because the Government concedes that he is loyal. He was dismissed because he is a new creature, a new creature created solely and exclusively by this executive order. He's a non-disloyal subversive and the executive order proposed the continued employment of all non-disloyal subversives, even from the job of porter in the branch post office. That's what this executive order does on the facts of this particular case. We think clearly, therefore, that Mr. Cole was not fired under the standards established by the Congress and the record, that's page 21 of the record, clearly shows that Mrs. Hobby dismissed him under the clearly consistent standard because she said, “I have determined that your continued retention in employment is not clearly consistent with the interest of the national security.”
Felix Frankfurter: Is there any controversy between you and the Government on that point?
David I. Shapiro: Not that I know of, Your Honor.
Felix Frankfurter: I'm suggesting you don't have to make it a point. I don't believe that they wouldn't add up.
David I. Shapiro: Now, in establishing this clearly consistent standard, rather than the necessary or advisable one, we think that the President clearly exceeded the power which was granted him under Section 3 of Public Law 733. Now, I'd like to make clear that we do not attack the power of the Congress to enact a statute worded in the manner of this executive order but, merely, the attempt of the President to substitute his own standards for those of the Congress. And, we say that the fact of the President's lack of power cannot be dispelled as the respondents would have this Court do by leaning on the President's removal power absent congressional limitations on those powers because, here, we say that Congress has validly restricted the President's removable power in the Lloyd-LaFollette and Veterans' Preference Acts, and in Public Law 733 itself, which we say carves out an area of exception to these otherwise valid restrictions, the Lloyd-LaFollette and Veterans' Preference Act. And, we say the boundary lines of that area of exception are the legitimate interest of the national security and, on these facts, this is a case which is clearly beyond those limits. Now --
Speaker: What is that Section 3 you referred to?
David I. Shapiro: Section 3 of Public Law 733. Your Honor will find it at Appendix A, Page 54 of our main brief, 5 United States Code Section 22-3, and I will read it to Your Honor. It says, “The provisions of Sections 22-1 to 22-3 of this title shall apply to such other departments and agencies of the Government as the President may, from time to time, deem necessary in the best interest of national security.” And then, it goes on to say “if any departments or agencies are included to the -- by the President, they must so be reported to the Senate Armed Services Committee. Now, under the standard of the executive order, but not under the standard of the statute, all doubts must be resolved in favor of the Government. And, that's exactly what happened in Mr. Cole's case for, even though his discharge was arbitrary by test of this statute, it was virtually commanded by test to the executive order. We have contended also that the notice of dismissal was not a written statement of the decision that the agency had, but we feel that matter is fully covered in our briefs and we will not go into it in oral argument.
Speaker: Does that say what was it (Inaudible)
David I. Shapiro: There were --
Speaker: (Inaudible)
David I. Shapiro: Sir, there were five charges against him, and I can read them. One, that you established and have continued a close association with individuals who reliably reported to be communists. Two, that you have maintained a continued in sympathetic association with the Nature Friends of America, which organization has been cited by the Attorney General under the provisions of Executive Order 10450. That you have, by your own admission donated funds to the Nature Friends of America that was $2. Four, that you have contributed your services in the form of work to the Nature Friends of America. Five, that you have attended social gatherings of the Nature Friends of America. And, in attempting to reopen his case, Mr. Cole pointed out that the work that he supposedly did for this organization was to blaze trails in connection with his hobby of hiking and camping, that the form of money he contributed was the sum of $2 for firewood that he had used, and that the parties or social gatherings that he had attended were three beer parties or two beer parties and one dance which were held by some friends of his under the auspices of this organization.
Speaker: Let's say (Inaudible)
David I. Shapiro: No, sir. No, sir, she did not. She said, pursuant to this letter of January 15th, that in reply to the charges and the letter which he said he did not answer them because he deemed them to be a violation of his Right to Freedom of Association, she referred to that letter of his. And then, she said that, based on these documents and other documents, of course we don't know what these other documents are, his continued retention in employment was deemed to be not clearly consistent with the interest of the national security, and he was terminated.
Felix Frankfurter: That is all the documents --
Stanley Reed: Your position is that, because that was unfair, it was unconstitutional?
David I. Shapiro: No, sir.
Stanley Reed: That's your argument?
David I. Shapiro: No, sir, that is not our position.
Stanley Reed: Well, I have heard you said statute first.
David I. Shapiro: No, sir. With -- may I ask if Your Honor's question is directed to the written statement of the agency head question or with respect to the other two issues that we -- we are asserting here.
Stanley Reed: The agency head.
David I. Shapiro: Well, with respect to the written statement of the decision of the agency head, we say that that term as used by Congress means that the agency head must give the employee the reasons, the findings for his dismissal. She must find which of the charges, if any, in her own mind, were substantiated by whatever evidence she had.
Stanley Reed: Something in the nature of the trial.
David I. Shapiro: Something in the nature of administrative findings and in terms of her own determination upon the kind of review that she established within her own department.
Stanley Reed: Was there any -- is there any opportunity for a hearing in these cases?
David I. Shapiro: Yes, sir, there is, and he was offered --
Stanley Reed: And an order is handed down?
David I. Shapiro: No, sir, merely --
Stanley Reed: That a statement that conclusion is handed.
David I. Shapiro: The only statement is a statement of the result, not the reasons for the result. Just this naked result, either your retention is deemed to be clearly consistent or that your retention is being not to be clearly consistent.
Stanley Reed: You raise no constitutional question about his right to refuse to answer his associations?
David I. Shapiro: No, sir, we do not. We do not. We only --
Stanley Reed: Just an arbitrary refusal on his part to give the information.
David I. Shapiro: He raised the constitutional issue in terms of his basic inherent Right of Freedom of Association. He did raise that issue in his letter which he said he refused to answer these charges because he said he didn't think, since he was not accused of being disloyal, that the Government had any right to go into his private life and ask him any questions about his friends and, therefore, he would continue to associate with whom he pleased.
Stanley Reed: If the Government does have a right to inquire about the associations and friendships and the private life of an employee, then he would have no objection?
David I. Shapiro: I would think that would be true. I don't think there would be any question about it.
Stanley Reed: That this -- this was your point of view turns on whether or not the secretary, or whoever, that makes the examination has a right to inquire into the associations of employees.
David I. Shapiro: No, sir, not -- not this issue. I would say that it turns -- I think, basically, that what the entire case turns on is rather a simple kind of issue and it boils down to this. We are concerned only with the application of this particular statute to this particular employee on these particular conceded facts and we say that, on these conceded facts, this employee could not conceivably have been dismissed in the interest of the national security of the United States.
Stanley Reed: If he associated with communists?
David I. Shapiro: If he associated with communists, he could be removed at any time, perhaps as an unsuitable employee, under the Lloyd-LaFollette or Veterans' Preference Act, but not in the interest of security.
Stanley Reed: Under this Act, if he associated with communists, he could not be removed as a security measure.
David I. Shapiro: That's correct, where he holds a position where he has --
Stanley Reed: Non-sensitive --
David I. Shapiro: -- absolutely no access to any kind of security information.
Stanley Reed: Non-sensitive position.
David I. Shapiro: That's right, sir. That's our position. That's what we think the basic issue is.
Felix Frankfurter: Mr. Shapiro, let's see if I am -- if I am correct in assuming -- am I correct in assuming, to understand this, that the only documentation before us on the basis of which his employment was terminated was a letter giving these five charges that had been written a while ago in answer to Justice Harlan.
David I. Shapiro: That's correct, sir.
Felix Frankfurter: His reply on paper refusing to answer the inquiry terminated, and the termination letter from the President to say, on the basis of that, those charges and other documents, not disclosed, will all turn into the Government's second hand.
David I. Shapiro: Correct, sir.
Felix Frankfurter: Action concluded.
David I. Shapiro: Yes, sir.
Felix Frankfurter: How you say -- you say, on the basis of that, he wasn't dismissed because he was asked questions as a possible witness. That is not there --
David I. Shapiro: No, sir.
Felix Frankfurter: -- and in this case.
David I. Shapiro: No, sir.
Felix Frankfurter: In your case, as I think, you lead us to private parties to try and attempt an elongated argument that this is here. There's a statute by the Congress enumerating the tests for continuance of employment or, what you say explicitly, that they do it to the satisfaction of security reasons.
David I. Shapiro: Correct, sir.
Felix Frankfurter: There's a further authorization from the President, allowing him to enlarge those specified agencies and such other agencies that he so sees fit to extend and see, and you say that is also limited by the security requirement and, further, the executive order of the President (a) cannot be applied to non-sensitive positions and (b) it cannot enlarge the test which Congress has laid down here. Is that your case?
David I. Shapiro: Yes, sir. But, in one respect, I think that you have stated it inaccurately, sir, in that --
Felix Frankfurter: Please correct me.
David I. Shapiro: -- in this respect. We say that the President, conceivably, could have extended it to every agency of the Government because, for example, that the Battle Monument's Commission, while there may not be any security interest there at the present time in any job, it may conceivably occur at sometime in the future that one job at Battle Monument's Commission --
Felix Frankfurter: But it must be with the reference to security.
David I. Shapiro: Yes, sir, that's the issue.
Felix Frankfurter: I meant to state that. He could enlarge it, he could apply it to all, but if he immediately asked you to leave all potential in his judgment, it must satisfy the test of security, --
David I. Shapiro: Yes, sir.
Felix Frankfurter: -- how ever large that be, and the new case, there is nothing -- there is no proof that it is for the, interim, is an enlargement and, indeed, in some ways contradiction.
David I. Shapiro: I would think that would be an accurate --
Felix Frankfurter: That's your position, isn't it?
David I. Shapiro: -- statement, yes, sir. I would like, with respect to this, --
Felix Frankfurter: Now, what --
David I. Shapiro: -- just, if I might --
Felix Frankfurter: You'd have -- you'd have to satisfy the Court that that is so, and how do you satisfy the Court that that is so? What kind of -- what are the considerations that should lead us to restriction to file the burden (a) on the basis of the statute extended to everybody on the hearing again have a special case finding out what is and what isn't exactly is the test they used and (b) his interpretation of security is the negative form of which is which. That's your test, isn't it?
David I. Shapiro: Yes, sir, and I think I can do it by referring to this, if I might. If Your Honors would look at pages 63 to 65 of the respondent's brief, you will see that they have set forth certain hypotheticals which they claim would justify Mr. Cole's discharge in the interest of the national security. And, I think I am hitting the question that you are raising, sir. They set forth these hypotheticals, one of which says, if I recall, that association with communists might sow the seeds of disloyalty in him. Well, our Ambassador to Russia associates with communists everyday and there is no assumption that he would be treated in this manner because we think that this, basically, is the focal point of this entire case. And, these hypotheticals set forth in their brief annunciate the concept of total security. Total security is a totalitarian and police state doctrine. The interest of the national security of this country weighs the rights of the individuals in relationship to the safety of the state. This statute talks about the national security interests of the United States of America and not the national security interests of some totalitarian nation. And, that, I think, Your Honor, is the answer to that question because unless it weighs the rights of individuals in relationship to the safety of the state, we no longer can, at any point, say that any kind of job, any kind of employment, even life itself anywhere in the confine -- the geographic confines of this country is not invested with some security interest. Somewhere, the line has to be drawn and, on these conceded facts, in weighing and making that balance, it must be drawn here because this is a case completely outside the scope of the limits of the intention of the Congress and the statutory purpose and the statute itself. That's our case. I'd like to save whatever time I might have for rebuttal.
Earl Warren: You may. Mr. MacGuineas.
Donald B. MacGuineas: May it please the Court. The Court will have observed, I believe, that petitioner's argument depends largely upon the reiteration of a series of catch phrases like security risk, access to classified information. He even has a loyal subversive catch phrase. The significant fact is that none of those phrases, with which he weaves his argument, is to be found in the statute involved. I think, in considering the first question as to the permissible reach of the statute, it may be well to devote a minute to consider the situation which existed in the executive branch of the Government prior to its enactment. At that time, there were enforced two or three special statutes limited to the Navy, the Army, and the Coast Guard which gave the heads of those agencies summary dismissal power in the interest of the national security. Those are not the precise words of those statutes but in substance. In addition, there was then in effect a so-called Government employees' loyalty program which have been promulgated in 1947 by Executive Order 9835. That program, beyond dispute, was applicable to all employees and officers in the executive branch of the Government. Apparently, it was felt that the legal authority then in the possession of the executive branch, with respect to dismissal in the security interest, was inadequate. And, the primary reason that that was felt seems to have been that there were many people who were not disloyal in the sense that they had a conscious disattachment to the principles of our constitution, but they may be dope addicts. They could be drunkards. They could suffer from mental illnesses or they could, as Mr. Justice Reed commented, they could be closely associated with communists. And, it was felt that such a person, although not disloyal in the sense that I have indicated, nevertheless, his presence in the job is a detrimental factor to the overall national security of the United States. And, this law was passed to give the executive branch an overall authority to deal with those problems.
Speaker: You are talking about the 1950 Act.
Donald B. MacGuineas: Yes, the statute here involved which we frequently refer to as Public Law 733. Now, if I may direct the Court's attention for a moment to the exact language of Public Law 733. It seems to me that petitioner has not dealt with it as extensively as it deserves. It is set forth in the appendix to our brief. And, it starts out that, notwithstanding the probations of any other law, the heads -- the named heads of 11 agencies Navy, Army, Air force, Justice, Treasury, Commerce, and a few others, that each such head may, in his absolute discretion and when deemed necessary in the interest of national security, suspend any civilian officer or employee of the respectively named departments. And then, it goes on to provide a procedure for the protection of the employee following his suspension and prior to his termination. The employee is given a statement of the charges with the reasons to the extent that security considerations permit. He is afforded 30 days within which to answer the charges and submit affidavits. He is offered a hearing before an agency board. Following that hearing, his case is then reviewed by either the head of the department or someone to whom he has delegated that task. And, finally, the head of the department himself makes the final determination as to whether the termination of that employee is, in the opinion of the agency -- agency head, necessary or advisable in the interest of the national security. As the Court will have observed in this case, petitioner declined his opportunity for agency hearing. So, there is in the record and there can be no questions as to what information he might have received had he availed himself of the tendered opportunity. Now, it seems to us that, as to 11 named agencies specified in the Act itself, there can be no doubt that the Act applies, as it says, to any civilian officer and employee. In other words, as to those 11 agencies, there is no employee, how ever high in hierarchy or how ever low, whom the agency head may not investigate and consider whether or not that person's service is detrimental to the security interests of the United States.
Speaker: But it is still true that all of those agencies, on their face, are agencies that are concerned with the sensitive area of national security.
Donald B. MacGuineas: No doubt, it is true that those 11 agencies were specified by Congress because it deemed those agencies most -- the core of national defense, if I may so put it. In other words, as to those agencies, Congress itself said, “We make the determination that every officer and employee therein shall be -- must meet the test that his retention is consistent with the security interests of the United States.”
Earl Warren: Mr. MacGuineas, you said that he waived his right to a hearing and to all the information --
Donald B. MacGuineas: Yes, sir.
Earl Warren: -- that he might get at such a hearing. What -- what information is he entitled to, under your interpretation?
Donald B. MacGuineas: He is -- well, that is within the discretion of the agency head.
Earl Warren: Is it like in the Peters case where they gave him none?
Donald B. MacGuineas: There can -- I can't prognosticate as to what this man might have be given had he asked for the -- for the information. In other words, whether the charges were based upon classified information or whether there was a neighbor of this man who was prepared to testify to these charges, we have no way of knowing. The petitioner lost his opportunity to make whatever point that he might have by saying, “I don't want any hearing. I choose to associate with whom I please, and that is my inalienable right.”
Felix Frankfurter: Do you agree that you do not join issue with the statement that failure to make comments on these enquiries is not one of the basis for this determination?
Donald B. MacGuineas: Well, the only thing that the record discloses on that is the fact that the termination letter of the secretary did, in fact, point out that petitioner had declined to reply to the charges. That's in record page 21, the middle paragraph of that letter.
Earl Warren: Well, what do you consider was one of the grounds for his dismissal?
Donald B. MacGuineas: You mean the fact that --
Earl Warren: The fact that he did not avail himself of a hearing, did not answer those messages?
Donald B. MacGuineas: Well, I can only interpret the language in the secretary's letter. And, to me, --
Earl Warren: As to your --
Donald B. MacGuineas: -- as a matter of interpretation of that letter, it does not seem that the secretary was saying, as an independent proposition, your failure to answer justifies your termination. I do not so read the secretary's letter. Now, if I may then turn to the next question as to the permissible extension of the statute under the discretionary authority vested in the President. That, of course, is governed by Section 3 of the Act and that is very short and set forth in the appendix to our brief on page 4 (a). That states that the provisions of this Act shall apply to such other departments and agencies as the President may, from time to time, deem necessary in the best interest of the national security. Now, we can read that statute in no other way than as having Congress saying, “we leave it to you, Mr. President, with respect to all agencies of the Government other than the 11 which we ourselves have put under this Act. We leave it to you, Mr. President, to decide whether the interest of the national security require that some or all other agencies of the Government be placed under the same provisions of the Act.”
Speaker: Well, doesn't -- doesn't the fact that there is that discretion up to the -- up to the President indicate that, in relation to the rest of the Act, that Congress had in mind certain distinctions in exercising it? If he want -- if they wanted to put all agencies of the Government under the impact of the statute, they could have enacted it that way.
Donald B. MacGuineas: Well, that point was made at the hearings, particularly in the Senate, referred to in the briefs of both parties, and some senator suggested, “Why don't we just make this Act applicable to all Government agencies?” And the answer of the spokesman for the Department of Defense, which was the sponsor of this bill, was that you could do that. But, I think the better way is to leave it to the President's discretion because, at varying times, the compelling interest of the national security might be more intense at one period than another and rather than, as I say, imposing this requirement throughout the entire executive branch as a matter of permanent legislation, which this is, Congress deemed it more appropriate to vest in the President, what in our view is, the complete discretion to decide, at any time, which other agencies of the Government shall be subject to the Act. And, in order for petitioner to prevail here with respect to the coverage of the Act to the agency, he would have to ask this Court to conclude that the President did not have discretion under this statute to deem it in the interest of the national security to bring the Department of Health, Education, and Welfare under this Act. Now, --
Earl Warren: Do you -- do you take the position that this 1950 Act applied to all employees of the named departments regardless of the sensitivity of their employment?
Donald B. MacGuineas: By all means, Your Honor. In the first place, may I reiterate the Act says nothing about sensitivity, but it -- the only phrase in the Act is “any civilian officer and employee,” and there is a consideration which makes it perfectly plain to us that “any” means “any” because, as I stated, the loyalty program under Executive Order 9835, by everyone's concession, was applied to all Government employees. And, in the legislative history of this Act, it was recognized that, while the Department of Defense -- its present intention was to continue to process the loyalty cases under Executive Order 9835 as long as the President might choose to leave that order in effect. That if 9835 were to be terminated, then loyalty cases would be processed under this statute. And since, as I have said, obviously, the loyalty case concept extends through the entire range of a Government agency and it was recognized that this statute could be used for that purpose. It merely makes it possible what is apparent from the plain words of the statute that any civilian officer or employee means just what those words say.
Felix Frankfurter: Enough of -- enough of the Government's position. Is it not here that Section 3 is entitled to be construed by the President as though Congress has written, instead of what it has written, the provision of this Act shall apply to certain other departments and agencies of the Government as the President may, from time to time, deem necessary in the best interest of the national welfare?
Donald B. MacGuineas: Oh,no, Your Honor. I do not so construe it.
Felix Frankfurter: Do you?
Donald B. MacGuineas: I do not so construe it.
Felix Frankfurter: Why don't you accept that? Why not?
Donald B. MacGuineas: It's because --
Felix Frankfurter: Why don't you accept that?
Donald B. MacGuineas: -- I -- I don't see any point in substituting the word “welfare” for “security.” The statute says “security” and leaves it in the discretion of the President to determine what considerations of security are applicable at a given time.
Felix Frankfurter: I -- I didn't mean to make a -- my argument is intended as an innuendo. It was intended to translate in words what I understood you to translate the position of the Government, namely, that it's not for a Court to consider what the President concedes the national security to be.
Donald B. MacGuineas: Oh, I'm very sorry. I -- I certainly would accept that as a --
Felix Frankfurter: That's why I subsequently consider quarrelling or arguing about security in a restricted sense. He may -- national welfare would be covered. Do you reject that?
Donald B. MacGuineas: I -- no Your Honor. I do --
Felix Frankfurter: Does anyone then -- then, security must have a narrower scope than welfare.
Donald B. MacGuineas: I do not reject Your Honor's statement that it is not for the Court to decide whether the President may deem the national security as requiring the application of this bill to all departments and agencies.
Felix Frankfurter: But whatever discretion, whatever scope he gave you, presidential translation or application of a congressional standard, if it is, as you so admittedly seem to indicate, there is a great deal -- there is a difference to acknowledge here. Obviously, it's in authorizing to apply national security against national welfare. Then, the Court could see whether, in a particular case, he had exceeded the allowable limit of giving concept to “national security.”
Donald B. MacGuineas: Well, I wasn't aware that I was making an instinctive reaction that there was a difference between security and welfare. My point was that, it seems to me, the statute had used the words “national security” and has vested in the President alone the discretion to determine, at a given time, what are the elements that go into the concept of national security.
Felix Frankfurter: Well, but if -- if you may give any stroke to it, any meaning to it, that increase it, then the implication of restriction, using a particular word, a particular concept or area or the number of limits may be, suppose, by the board, is sufficient to mean “welfare.”
Donald B. MacGuineas: I think the only restriction is that Congress said, in effect, --
Felix Frankfurter: You decided --
Donald B. MacGuineas: We trust the President to decide, at a given time, what the national security requires with respect to the scope of the extension of this statute to other Government agencies or departments.
Felix Frankfurter: Well, then, the real argument isn't arguing whether leaf raker or this fellow in the department and you're a tempt, or whatever you are, whether that can argumentatively be found to have some potentiality within security, then the real proposition is that this case is likely to -- that the President's power to pass on to the agency, it did not --
Donald B. MacGuineas: Waterman --
Felix Frankfurter: The Waterman case is not with you. Is that your position?
Donald B. MacGuineas: I -- I agree with that. In other words, I think --
Felix Frankfurter: It's not there.
Donald B. MacGuineas: -- petitioner raises --
Felix Frankfurter: I so understood.
Earl Warren: Well, Mr. MacGuineas, you stated a moment ago that you believe this 1950 Act applied to non-sensitive as well as sensitive employment. Now, if that is true, why did Congress provide as follows in this Act and as it appears on page 3 (a) of the appendix to your brief, “provided further that the termination of employment herein provided shall not affect the right of such officer or employee to seek or accept employment in any another department or agency of the Government”?
Donald B. MacGuineas: Yes. Now, the reason for that, in first place, may I say, Mr. Chief Justice, that I think it is unfortunate to use the phrase “sensitive position” here because the statute doesn't do it and I don't think Congress intended to do it. And, furthermore, I don't think “sensitive position” has a precise meaning in the law.
Earl Warren: What term would you use rather than that?
Donald B. MacGuineas: I would use “any position which -- the incumbent of which may have an effect upon the national security.” That's the language that Congress used. Now, the answer to your question specifically is this.
Earl Warren: Do you claim that, for instance, a leaf raker because that has been used here, do you claim he -- his employment has an effect upon the national security?
Donald B. MacGuineas: I -- I would say that when Congress passed this law in 1950, at a time when the country was engaged in actual armed conflict, Congress would have -- certainly have felt that, for a leaf raker to be a communist or to associate with communists or to advocate the overthrow of the Government by force and violence, that the presence of such a person in a job in the Government, no matter how humble it may be, is detrimental to the national security. I don't think that there is any doubt that Congress had that concept.
Earl Warren: Did they say so in this Act, that “anybody”?
Donald B. MacGuineas: Yes, precisely, they said “any civilian, officer, or employee.” That's -- that's the heart of our argument.
Earl Warren: Yes, who measured up to this standard of danger.
Donald B. MacGuineas: Whom the head of the department --
Earl Warren: Yes.
Donald B. MacGuineas: -- determines.
Earl Warren: That's right.
Donald B. MacGuineas: It's not --
Earl Warren: But, then, why would they -- why would they give one department head the right to discharge an employee because he was a danger to the security of the country and then, in the same statute, give him the right to seek employment in another department and give another department the right to employ him?
Donald B. MacGuineas: Because there are, of course, differing consider -- security considerations and implications with respect to different jobs in the Government. In other words, let's take a case. It may be far more detrimental to security interest of the Government that we have an atomic scientist who was a narcotic addict than it would be if we have an employee of the National Park Service who is a narcotic addict. Now -- and then, this statute -- this provision of the statute which was passed to take care of that provision, assuming that an atomic scientist would be willing to step down into becoming an employee of the park service, that opportunity at least is tendered to the employee and he might be considered not a security risk in the park service, where as he definitely is a security risk as an atomic scientist.
Earl Warren: I can understand that, but let's take the classic employment of a leaf raker, as it's been used in these proceedings. Now, suppose that the department this leaf raker was working in came to the conclusion that he endangered the security of the country and discharged him. What other department of the Government and what other employment can you conceive of his being taken into in the Government under this section of the Act.
Donald B. MacGuineas: Well, now, in the first place, in Your Honor's hypothetical proposition, I think it only fair to assume that, I am assuming there are leaf rakers in the Government but, that that man was terminated under this statute because the head of the department made the determination that the national security required it. Now, a determination of such a hypothetical case may have been on the ground that he habitually associated with persons who were striving to overthrow the Government by force and violence. Now, if that were this case, I confess I would find it difficult to cite to Your Honor at some other position in the Government where I could have any assurance that the head of that agency would deem it appropriate to reemploy the man. But, the point is that, within limits, having regard to the different security considerations and risks involved in different positions of the Government, this does give the employee a chance if his character, his habits are deemed such that he cannot fill one position, nevertheless, he can fill another position.
Earl Warren: We'll recess now, Mr. MacGuineas.