Joint Anti-Fascist Refugee Committee v. McGrath Attorney General, et al. (No. 8)
Decided on Apr. 30, 1951; 341 US 123


A. Issues Discussed: Governmental authority, communism, loyalty program

B. Legal Question Presented:

In the face of the facts alleged in the complaint and therefore admitted to be true by the motion to dismiss, did the Attorney General of the United States act within his authority when he included the complaining organizations in a list of organizations designated by him as Communist and furnished by him to the Loyalty Review Board of the United States Civil Service Commission?

A. Background:

"Purporting to act under Part III, 3 of Executive Order No. 9835, the Attorney General, without notice or hearing, designated the three petitioner organizations as Communist in a list furnished to the Loyalty Review Board for use in connection with determinations of disloyalty of government employees. The Board disseminated the list to all departments and agencies of the Government.

Petitioners sued for declaratory judgments and injunctive relief. They alleged that their organizations were engaged in charitable or civic activities or in the business of fraternal insurance; all three implied an attitude of cooperation and helpfulness, rather than one of hostility or disloyalty toward the United States; and two expressly alleged that their respective organizations were not within any classification listed in Part III, 3 of the Order. Petitioners further alleged that the actions of the Attorney General and the Board greatly hampered their activities and deprived them of rights in violation of the Constitution; that the Executive Order violates the First, Fifth, Ninth, and Tenth Amendments to the Constitution; that 9A of the Hatch Act, as construed and applied, is void; and that petitioners were suffering irreparable injury and had no adequate remedy at law.

The District Court granted motions to dismiss the complaints for failure to state claims upon which relief could be granted. The Court of Appeals affirmed."

On certiorari the US Supreme Court reversed the judgment of the Court of Appeals for the District of Columbia.

B. Counsel of Record:
Opposing Side
Unavailable Unavailable
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
 O. John Rogge and Benedict Wolf argued the cause for petitioner in No. 8. With them on the brief was Murray A. Gordon. David Rein argued the cause for petitioners in No. 7. With him on the brief were Abraham J. Isserman and Joseph Forer. Allan R. Rosenberg argued the cause and filed a brief for petitioners in No. 71. Solicitor General Perlman argued the cause for respondents. With him on the briefs were Assistant Attorney General Morison, James L. Morrisson and Samuel D. Slade.

"In each of these cases the same issue is raised by the dismissal of a complaint for its failure to state a claim upon which relief can be granted.

The inclusion of any of the complaining organizations in the (...) list [of organizations designated as communist], solely on the facts alleged in the respective complaints, which must be the basis for our decision here, is (...) an arbitrary and unauthorized act. In the two cases where the complaint specifically alleges the factual absence of any basis for the designation, and the respondents' motion admits that allegation, the designation is necessarily contrary to the record. (...) Since we find that the conduct ascribed to the Attorney General by the complaints is patently arbitrary, the deference ordinarily due administrative construction of an administrative order is not sufficient to bring his alleged conduct within the authority conferred by Executive Order No. 9835. (...)

When the acts of the Attorney General and of the members of the Loyalty Review Board are stripped of the Presidential authorization claimed for them by the respondents, they stand, on the face of these complaints, as unauthorized publications of admittedly unfounded designations of the complaining organizations as 'Communist.' Their effect is to cripple the functioning and damage the reputation of those organizations in their respective communities and in the nation. The complaints, on that basis, sufficiently charge that such acts violate each complaining organization's common-law right to be free from defamation.

We have assumed that the designations made by the Attorney General are arbitrary because we are compelled to make that assumption by his motions to dismiss the complaints. Whether the complaining organizations are in fact communistic or whether the Attorney General possesses information from which he could reasonably find them to be so must await determination by the District Court upon remand.

For these reasons, we find it necessary to reverse the judgments of the Court of Appeals in the respective cases and to remand each case to the District Court with instructions to deny the respondents' motion that the complaint be dismissed for failure to state a claim upon which relief can be granted."

Justice Vote: 5 Pro vs. 3 Con

  • Burton, H. Pro (Wrote majority opinion)
  • Frankfurter, F. Pro (Wrote concurring opinion)
  • Jackson, R. Pro (Wrote concurring opinion)
  • Douglas, W. Pro (Wrote concurring opinion)
  • Black, H. Pro (Wrote concurring opinion)
  • Reed, S. Con (Wrote dissenting opinion)
  • Vinson, F. Con (Joined dissenting opinion)
  • Minton, S. Con (Joined dissenting opinion)
  • Clark, T. Took no part in the decision

The ACLU, as amicus curiae, urged reversal of the judgment of the Court of Appeals for the District of Columbia; the Supreme Court reversed in a 5-3 vote, giving the ACLU an apparent win.