Before EDGERTON, WILBUR K. MILLER and DANAHER, Circuit Judges.
UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DANAHER
Appellant Jason was discharged from the Post Office Department on loyalty grounds. He commenced this action seeking a declaratory judgment and injunctive relief, and from the District Court's order granting appellees' motion to dismiss, he brought this appeal. We are presented with the question whether the government after a Loyalty Review Board decision that reasonable grounds did not exist to believe the appellant disloyal under the standard set forth in Executive Order No. 9835, 12 F.R. 1935, 3 C.F.R., (Supp.1947), 5 U.S.C.A. § 631 note, could later, on the same charges, re-examine and determine his loyalty status according to a different standard contained in Executive Order No. 10241, 16 F.R. 3690, 3 C.F.R. 431 (Supp.1951), U.S. Code Congressional and Administrative News 1951, p. 1028. I
". . . reasonable grounds exist for belief that the person involved is disloyal. . . ."
Appellant had been a classified civil service regular clerk in the Philadelphia, Pennsylvania, Post Office from 1923 until 1945 when he became a national officer of a labor organization recognized by the Post Office Department. Since 1949 he devoted full time to his organization duties, on leave without pay pursuant to Department permission.
In 1948 appellant was served with a Notice of Proposed Removal Action pursuant to the provisions of Executive Order No. 9835, setting forth certain charges of disloyalty to the government. *fn1
Appellant filed an answer, a hearing was held on February 28, 1949, and the Department Loyalty Board found, on September 6, 1949, that reasonable grounds did exist for belief that appellant was disloyal. An appeal was then taken to the Postmaster General who found after further hearing, that reasonable grounds existed for believing that appellant was disloyal. On appeal to the Loyalty Review Board in the Civil Service Commission it was concluded on November 2, 1950 that reasonable grounds did not exist for believing that appellant was disloyal. In reversing the rulings of the Department Loyalty Board and of the Postmaster General, the Loyalty Review Board construed and applied as the test or standard for removal the provision from Executive Order No. 9835 that "reasonable grounds exist for belief that the person involved is disloyal to the Government of the United States." The Board recommended that appellant be restored to his position and the Postmaster General then concurred. II
"There is a reasonable doubt as to the loyalty of the person involved. . . ."
On April 28, 1951 Executive Order No. 9835 in one important particular, was amended by Executive Order No. 10241, but in all other respects was continued in full force and effect. The "reasonable grounds" standard was eliminated, and in lieu thereof the Order prescribed that the standard to be applied should read: "There is a reasonable doubt as to the loyalty of the person involved to the Government of the United States." *fn2 On May 23, 1951, the Loyalty Review Board issued its Memorandum No. 66 which provided: "Each department or agency loyalty board having jurisdiction shall adjudicate under the standard of Executive Order No. 10241 all loyalty cases in which unfavorable determinations made by any board were reversed on appeal prior to May 1, 1951, provided the individuals concerned are still employed in the department or agency."
Thereafter, pursuant to the quoted instructions the Department Loyalty Board served on the appellant, on January 10, 1952, a new Notice of Proposed Removal Action. *fn3 Appellant filed his answer, and after a hearing on May 5, 1952 before the Department Loyalty Board and a finding by the Board on August 7, 1952 that "there is a reasonable doubt as to your loyalty to the government of the United States," appellant appealed to the Postmaster General. On December 9, 1952 the Postmaster General issued a similar finding and affirmed the findings and recommendations of the Department Loyalty Board. The decision of the Loyalty Review Board after hearing on appeal, affirmed the decision of the Postmaster General on April 2, 1953, requested that appellant be separated from the service, and on April 10, 1953, appellant was notified of his removal from the Post Office Department. Appellant then commenced this action. III
Appellant's principal contention is that the decision of the Loyalty Review Board in the 1949 hearing precluded re-examination in the 1952 hearing on the same charges under the standard set up in Executive Order No. 10241. We find this contention untenable. In Churchill Tabernacle v. Federal Communications Commission, 1947, 81 U.S.App.D.C. 411, 160 F.2d 244, 246, we rejected an extension of the principle of res judicata to administrative proceedings. Speaking for this Court, Chief Justice Groner pointed out that it is well settled "that res judicata and equitable estoppel do not ordinarily apply to decisions of administrative tribunals . . .." He cautioned against "[transplanting] into the realm of administrative law rules of procedure, trial and review which have evolved in the history and experience of courts." Id. 81 U.S.App.D.C. at page 413, 160 F.2d at page 246.
Even were we inclined to disregard the cogent observations of that distinguished jurist, and we are not, the language of the standard set out in Executive Order No. 10241 cannot be ignored. A markedly different legal situation was presented. *fn4
When the Loyalty Review Board considered appellant's case under the standard found in Executive Order No. 9835, the ultimate fact which was the subject of inquiry was disloyalty, disloyalty to the government of the United States. The standard did not deal in terms with grounds which might have existed in the past for a finding that some person had at some earlier time been disloyal. Rather, the Board was bound in the exercise of prudence and caution to determine whether or not the facts and circumstances established a "belief" - that is, a present or immediate assurance of "disloyalty." The tense of the verbs used, "exist" and "is," was the present tense. The "reasonable grounds" had to be actually or really in being, presently, at the time of review. The "belief" was not some past belief but a then existent belief. The evidence, the mass of details, the facts and the inferences appropriately to be drawn therefrom had to be tested by the standard to be ...