Before WILBUR K. MILLER, BAZELON and WASHINGTON, Circuit Judges.
UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT.
Nos. 14314-14319. 1958.CDC.107
Date Decided: June 19, 1958.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WASHINGTON
WASHINGTON, Circuit Judge.
These are consolidated appeals by six former employees of the Department of the Army who were discharged as "security risks", purportedly under the authority of the Act of August 26, 1950. 64 Stat. 476, 5 U.S.C.A. 22-1, as implemented by Executive Order 10450, 18 Fed.Reg. 2489 (1953), 5 U.S.C.A. § 631 note, and Army Special Regulation No. 620-220-1, dated December 18, 1953. Each employee sued in the District Court to have his discharge declared invalid. As to each employee the District Court granted the Government's cross motion for summary judgment and dismissed the complaint. Appeals by the employees followed.
These cases present, inter alia, "serious and far-reaching problems in reconciling fundamental constitutional guarantees with the procedures used to determine the loyalty of government personnel." Peters v. Hobby, 1955, 349 U.S. 331, 338, 75 S. Ct. 790, 794, 99 L. Ed. 1129. The Supreme Court, in the Peters case, commented further: "From a very early date, that Court has declined to anticipate a question of constitutional law in advance of the necessity of deciding it. . . ." ibid. That precept, of course, applies to this court as well as to the Supreme Court. The Court continued: "Applying this rule to the instant case, we must at the outset determine whether petitioner's removal and debarment were effected in accord with Executive Order 9835
The regulation applicable to the instant cases is SR No. 620-220-1, dated December 18, 1953, which requires in paragraph 40 that if the Security Review Board reaches an adverse conclusion as to an employee - after either a favorable or an unfavorable determination by the Security Hearing Board - "a letter of notification will be sent to the employee, with copies to all interested offices, advising him of the findings of the Security Hearing Board . . .." *fn1 In five of these cases the employee was advised, purportedly in accord with paragraph 40d, only that "your continued employment . . . would not be clearly consistent with the interests of national security under the provisions of Executive Order 10450." The sixth appellant was advised, purportedly in accord with paragraph 40c, that the Security Hearing Board had found that his continued employment "would be clearly consistent with the interest of national security," but that the Security Review Board had tentatively concluded that his continued employment "would not be clearly consistent with the interests of national security. On the basis of that review and conclusion it is proposed to recommend to the Secretary of the Army that your removal be effected . . . because such action is deemed necessary and advisable in the interests of national security."
The Government argues to us *fn2 that the quoted statements are "the findings of the Security Hearing Board" required by the applicable regulation, and that such statements constitute "substantial compliance" with that regulation.We cannot agree. It is clear to us that the use of the word "findings," in the context of paragraph 40, contemplates something more than a mere conclusory statement notifying the employee that he is a "security risk." These "findings" - sought by each appellant and denied to each appellant - are intended to give the employee information that he may use in seeking further consideration by the Security Review Board or by the Secretary of the Army. Whether the "findings" required by paragraph 40 to be transmitted to the employee are necessarily the same "findings" required by paragraph 39 to be transmitted to the Secretary is a question we do not reach. *fn3 However, in the context of paragraph 39, "findings" would also seem to mean something more than the conclusory statement of a result such as was afforded to each of the appellants here.
Therefore, is accordance with the judicial policy restated in Peters v. Hobby (supra) and applying the rule laid down in United States ex rel. Accardi v. Shaughnessy (supra) and Service v. Dulles (supra) the orders of the District Court are reversed and the cases are remanded for further proceedings not inconsistent with this opinion.
Excerpts from Army Special Regulation No. 620-220-1, dated ...