SERVICE V. DULLES, 354 U. S. 363 (1957)

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U.S. Supreme Court

Service v. Dulles, 354 U.S. 363 (1957)

Service v. Dulles

No. 407

Argued April 2-3, 1957

Decided June 17, 1957

354 U.S. 363


This suit was brought by petitioner, a Foreign Service Officer, to test the validity of his discharge by the Secretary of State under these circumstances: the State Department's Loyalty Security Board had repeatedly cleared petitioner of charges of being disloyal and a security risk, and its findings had been approved by the Deputy Under Secretary, whose approval of findings favorable to an employee were final under the applicable Regulations. No finding unfavorable to petitioner ever had been made by the Department's Loyalty Security Board or the Deputy Under Secretary, and no recommendation unfavorable to petitioner ever had been made by the Deputy Under Secretary to the Secretary. Nevertheless, the Loyalty Review Board of the Civil Service Commission, on its own motion, conducted its own hearing, found that there was reasonable doubt as to petitioner's loyalty, and advised the Secretary that petitioner "should be forthwith removed from the rolls of the Department of State." Acting solely on the basis of the finding of that Board, and without making any independent determination of his own on the record in the case, the Secretary discharged petitioner on the same day. He based this action on Executive Orders No. 9835 and No. 10241 and § 103 of Public Law 188, 82d Congress, commonly known as the McCarran Rider, which authorized the Secretary, "in his absolute discretion," to

"terminate the employment of any officer . . . of the Foreign Service . . . whenever he shall deem such termination necessary or advisable in the interests of the United States."

Held: petitioner's discharge was invalid because it violated Regulations of the Department of State which were binding on the Secretary, and the judgment is reversed. Pp. 354 U. S. 365-389.

1. The Regulations of the State Department governing this subject were applicable to discharges under the McCarran Rider, as well as to those effected under the Loyalty-Security Program. Pp. 354 U. S. 373-381.

Page 354 U. S. 364

(a) The terms of the Regulations, the fact that the Department itself proceeded in this very case under those Regulations down to the point of petitioner's discharge, representations made by the State Department to Congress relating to its practices under the McCarran Rider, and the announced wish of the President to the effect that authority under the McCarran Rider should be exercised subject to procedural safeguards designed to protect "the personal liberties of employees" all combine to support this conclusion. Pp. 354 U. S. 373-379.

(b) The Secretary was not powerless to bind himself by these Regulations as to discharges under the McCarran Rider. Pp. 354 U. S. 379-380.

(c) A different result is not required by the fact that the Regulations refer explicitly to discharges based on loyalty and security grounds, and make no reference to discharges deemed "necessary or advisable in the interests of the United States," which is the sole standard of the McCarran Rider. Pp. 354 U. S. 380-381.

2. The manner in which petitioner was discharged was inconsistent with, and violative of, Regulations of the State Department -- regardless of whether the 1949 Regulations or the 1951 Regulations be considered applicable. Pp. 354 U. S. 382-388.

(a) Under the 1949 Regulations, the Secretary had no right to dismiss petitioner for loyalty or security reasons unless and until the Deputy Under Secretary, acting upon findings of the Department's Loyalty Security Board, had recommended dismissal. Pp. 354 U. S. 383-387.

(b) Under § 393.1 of the 1951 Regulations, a decision in such a case could be reached only "after consideration of the complete file, arguments, briefs, and testimony presented," and the record shows that the Secretary made no attempt to comply with this requirement in this case. Pp. 354 U. S. 387-388.

3. Since the Secretary did not comply with the applicable Regulations of his Department, which were binding on him, petitioner's dismissal cannot stand. Accardi v. Shaughnessy, 347 U. S. 260. Pp. 354 U. S. 388-389.

98 U.S.App.D.C. 268, 235 F.2d 215, reversed and remanded.

Page 354 U. S. 365

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