B-131393, JUN. 25, 1957

B-131393: Jun 25, 1957

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

WAS FIRST EMPLOYED BY THE VETERANS ADMINISTRATION ON AUGUST 13. HE WAS NOTIFIED THAT IT WAS PROPOSED TO SEPARATE HIM FROM HIS POSITION PURSUANT TO PROVISIONS OF EXECUTIVE ORDER 9835. KUTCHER WAS SUSPENDED FROM HIS EMPLOYMENT ON OCTOBER 12. KUTCHER WAS SUBJECT TO THE PROVISIONS OF SECTION 9A OF THE ACT OF AUGUST 2. SUIT WAS FILED IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BY THE CLAIMANT ON FEBRUARY 9. THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA RENDERED A DECISION WHICH IS REPORTED IN 199 F.2D 783. REVERSING THE DISTRICT COURT AND HOLDING THAT THERE WAS A FAILURE OF PROCEDURAL COMPLIANCE WITH EXECUTIVE ORDER 9835 IN THAT THE PLAINTIFF WAS DISCHARGED SOLELY BY REASON OF HIS ADMITTED MEMBERSHIP IN THE SOCIALISTS WORKERS PARTY AND NOT BY VIRTUE OF ANY FINDING BY THE ADMINISTRATOR THAT ON ALL THE EVIDENCE REASONABLE GROUNDS EXIST FOR BELIEF THAT MR.

B-131393, JUN. 25, 1957

TO HONORABLE H. V. HIGLEY, ADMINISTRATOR, VETERANS ADMINISTRATION:

ON MARCH 6, 1957, THE VETERANS ADMINISTRATION SUBMITTED TO US FOR DIRECT SETTLEMENT THE CLAIM OF JAMES KUTCHER, 135 SETH BOYDEN TERRACE, NEWARK 5, NEW JERSEY, FOR SALARY ALLEGED TO BE DUE FOR A PERIOD OF IMPROPER SEPARATION FROM OCTOBER 12, 1948, TO JUNE 26, 1956, AS AN EMPLOYEE OF THE VETERANS ADMINISTRATION.

MR. KUTCHER, A VETERAN OF WORLD WAR II, WAS FIRST EMPLOYED BY THE VETERANS ADMINISTRATION ON AUGUST 13, 1946, AS A FILE CLERK, GRADE CAF 2. BY LETTER DATED AUGUST 13, 1948, HE WAS NOTIFIED THAT IT WAS PROPOSED TO SEPARATE HIM FROM HIS POSITION PURSUANT TO PROVISIONS OF EXECUTIVE ORDER 9835. FOLLOWING HEARINGS ON THE CHARGES AND AFTER CONSIDERATION OF HIS CASE BY THE CENTRAL OFFICE LOYALTY BOARD OF APPEALS, MR. KUTCHER WAS SUSPENDED FROM HIS EMPLOYMENT ON OCTOBER 12, 1948. THE ADMINISTRATOR OF VETERANS AFFAIRS APPROVED THE RECOMMENDATIONS OF THE BOARD AND FOUND THAT BY REASON OF HIS ADMITTED MEMBERSHIP IN THE SOCIALISTS WORKERS PARTY MR. KUTCHER WAS SUBJECT TO THE PROVISIONS OF SECTION 9A OF THE ACT OF AUGUST 2, 1939, 53 STAT. 1148, THE "HATCH ACT," AND TERMINATED HIS EMPLOYMENT EFFECTIVE APRIL 29, 1949. UPON APPEAL BY MR. KUTCHER THE CIVIL SERVICE COMMISSION LOYALTY REVIEW BOARD AFFIRMED THE AGENCY'S ACTION.

SUIT WAS FILED IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BY THE CLAIMANT ON FEBRUARY 9, 1950, AGAINST THE ADMINISTRATOR OF VETERANS AFFAIRS AND MEMBERS OF THE CIVIL SERVICE COMMISSION SEEKING RESTORATION TO HIS EMPLOYMENT. THE DISTRICT COURT GRANTED THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND THE PLAINTIFF APPEALED. ON OCTOBER 16, 1952, THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA RENDERED A DECISION WHICH IS REPORTED IN 199 F.2D 783, REVERSING THE DISTRICT COURT AND HOLDING THAT THERE WAS A FAILURE OF PROCEDURAL COMPLIANCE WITH EXECUTIVE ORDER 9835 IN THAT THE PLAINTIFF WAS DISCHARGED SOLELY BY REASON OF HIS ADMITTED MEMBERSHIP IN THE SOCIALISTS WORKERS PARTY AND NOT BY VIRTUE OF ANY FINDING BY THE ADMINISTRATOR THAT ON ALL THE EVIDENCE REASONABLE GROUNDS EXIST FOR BELIEF THAT MR. KUTCHER WAS DISLOYAL TO THE GOVERNMENT OF THE UNITED STATES. THE CASE WAS REMANDED WITH INSTRUCTIONS TO ENTER JUDGMENT SETTING ASIDE THE ORDER REMOVING THE CLAIMANT FROM HIS EMPLOYMENT WITHOUT PREJUDICE TO THE ORDER SUSPENDING HIM PENDING CONSIDERATION AND DETERMINATION OF THE ULTIMATE ISSUE. THIS ORDER WAS ENTERED BY THE DISTRICT COURT ON JANUARY 30, 1953.

THE CASE WAS AGAIN CONSIDERED BY THE AGENCY LOYALTY BOARD OF APPEALS AND MR. KUTCHER ACCORDED A FULL HEARING. THE ADMINISTRATOR RENDERED AN OPINION ON JANUARY 23, 1953, WHICH WAS AFFIRMED BY THE CIVIL SERVICE COMMISSION LOYALTY REVIEW BOARD ON JUNE 6, 1953, HOLDING THAT ON ALL THE EVIDENCE PRESENTED REASONABLE GROUNDS EXIST FOR DOUBT AS TO THE LOYALTY OF MR. KUTCHER AND HE WAS AGAIN REMOVED FROM HIS EMPLOYMENT EFFECTIVE JUNE 18, 1953. SUBSEQUENTLY. ON OCTOBER 16, 1953, MR. KUTCHER INSTITUTED FURTHER LITIGATION IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, CIVIL ACTION NO. 4811-53, SEEKING RESTORATION TO HIS EMPLOYMENT AND ASSERTING THAT THE ACTION TAKEN BY THE AGENCY DID NOT CONSTITUTE GROUNDS FOR HIS DISCHARGE AS BEING DISLOYAL. THE DISTRICT COURT GRANTED THE DEFENDANT'S MOTION FOR A SUMMARY JUDGMENT AND THE PLAINTIFF APPEALED. THE COURT OF APPEALS REVERSED THE DISTRICT COURT AND RENDERED A DECISION ON APRIL 20, 1956, HOLDING THE SECOND REMOVAL ACTION TO BE IMPROPER PROCEDURALLY DUE TO THE INSUFFICIENCY OF THE CHARGES. SEE KUTCHER V. HIGLEY, 235 F.2D 505. THE DISTRICT COURT RENDERED JUDGMENT ON REMAND MAY 21, 1956, ORDERING THAT THE PLAINTIFF BE RESTORED TO THE POSITION FROM WHICH HE WAS SEPARATED. IN COMPLIANCE WITH THE JUDGMENT MR. KUTCHER WAS RETURNED TO DUTY IN HIS PRIOR POSITION EFFECTIVE JUNE 26, 1956, WHICH HE STILL OCCUPIES.

MR. KUTCHER ADMITS MEMBERSHIP IN THE SOCIALISTS WORKERS PARTY BUT DENIES THAT THE PARTY ADVOCATES THE OVERTHROW OF GOVERNMENT BY FORCE AND VIOLENCE AND HAS TESTIFIED, UNDER OATH, THAT HE KNOWS THE AIMS AND PURPOSES OF THAT PARTY. THE AIMS, PURPOSES AND OBJECTIVES OF THE SOCIALISTS WORKERS PARTY, AS FOUND BY THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT IN DUNNE V. UNITED STATES, 138 F.2D 137, IS THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE.

ALL THE APPROPRIATION ACTS, BOTH GENERAL AND SUPPLEMENTAL, FOR THE FISCAL YEARS 1947 THROUGH 1956, CONTAIN RIDERS PROHIBITING THE PAYMENT OF SALARY TO ANY PERSON WHO IS A MEMBER OF AN ORGANIZATION THAT ADVOCATES THE OVERTHROW OF OUR CONSTITUTIONAL FORM OF GOVERNMENT. THE VIOLENCE. ALSO, THE ACT OF AUGUST 9, 1955, 69 STAT. 624, 5 U.S.C. 118P, PROVIDES THAT NO PERSON SHALL HOLD EMPLOYMENT IN THE GOVERNMENT OF THE UNITED STATES WHO IS A MEMBER OF AN ORGANIZATION THAT ADVOCATES THE OVERTHROW OF OUR CONSTITUTIONAL FORM OF GOVERNMENT. THE LEGISLATIVE HISTORY OF SAID ACT OF AUGUST 9, 1955, SHOWS THAT CONGRESS INTENDED IT TO HAVE THE SAME EFFECT AS THE ANNUAL APPROPRIATION RIDERS.

IN VIEW OF THE FOREGOING WE HAVE THIS DAY ADVISED OUR CLAIMS DIVISION TO DISALLOW MR. KUTCHER'S CLAIM FOR THE BACK PAY IN QUESTION. FURTHERMORE, IT WOULD APPEAR THAT THE PAYMENT OF MR. KUTCHER'S CURRENT SALARY IS OF DOUBTFUL LEGALITY IN VIEW OF THE PROVISIONS OF THE ACT OF AUGUST 9, 1955, AND THAT SIMILAR DOUBT EXISTS AS TO THE LEGALITY OF PAST SALARY PAYMENTS MADE TO HIM FOR THE PERIOD AUGUST 13, 1946, THROUGH OCTOBER 12, 1948, IN VIEW OF THE APPROPRIATION RIDERS. ACCORDINGLY, WE REQUEST YOUR COMMENTS AS TO THE BASIS, AFTER THE FACTS WERE KNOWN AND IN VIEW OF THE PROVISIONS OF THE ACT OF AUGUST 9, 1955, ABOVE, FOR PAYING MR. KUTCHER'S CURRENT SALARY. ALSO, YOUR REPLY SHOULD INCLUDE INFORMATION AS TO WHAT STEPS YOUR AGENCY INTENDS TO TAKE TO COLLECT SALARY PAID FOR THE PERIOD PRIOR TO MR. KUTCHER'S SUSPENSION.