UNITED STATES CIVIL SERVICE COMMISSION WASHINGTON 25, D. C. June 14, 1956 DEPARTMENTAL CIRCULAR NO. 859 TO HEADS OF DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS SUBJECT: Separations involving security or loyalty factors- Assistant Attorney General William F. Tompkins, by letter dated June 14, 1956, has requested that the following message be circulated among the departments and agencies of the Government: "In conformity with the opinion of the Supreme Court in the case of Cole v. Young, decided June 11, 1956, you are advised that any Government employee holding a nonsensitive position and presently under suspension pending proceedings in accordance with Executive Order 10450 should be immediately restored to duty. "Pending further study of the effect of John W. Macy. J. John W. Macy, VJř. Distribution: 3 copies to Headquarters of agencies only. OFFICE OF THE ATTORNEY Washington, D. C. August 1, 1956 MEMORANDUM TO THE HEADS OF ALL DEPARTMENTS AND AGENCIES Subject: Claims for reinstatement by former employees dismissed under Executive Order 10450 Some Government civilian employees dismissed under the procedures provided in Executive Order 10450 have asserted claims for reinstatement and it has been necessary to consider the desirable procedures to be fallowed with respect to such claims. The Supreme Court of the United States, in the case of Cole v. Young, has limited the scope of P. L. 733 (Act of August 26, 1950; 50.8.c. 22-1) to persons in positions of the Government concerned with the national security. The Court concluded that Executive Order 10450 may legally be deemed applicable only to employees holding such positions and, in the absence of a determination by the department or agency head that the position occupied by the employee affects the national security, dismissal of an employee might not be effected under Executive Order 10450. Executive Order 10450, section 3(b), provided, with respect to the scope of the investigation to be conducted of the employee, for the designation by the department or agency head of "any position within his department or agency the occupant of which could bring about, by virtue of the nature of the position, a material adverse effect on the national security as a sensitive position". In conformity with Executive Order 10450, each department or agency head has designated appropriate positions in his department or agency as "sensitive" for purposes of initial clearance investigation. The department or agency head should review each claim for reinstatement and/or for back pay of an employee dismissed from his department or agency under Executive Order 10450, for the purpose of determining whether dismissal was from a position which had been designated as "sensitive". If the department or agency head determines that the employee was dismissed under Executive Order 10450 from a position which he had designated as "sensitive" at, or prior to, the time of dismissal, the claim for reinstatement or back pay should be denied. There is no court decision requiring the reemployment of such person or the recognition by the Government of any claim by him for back pay. The letter notifying him of the denial of his claim should state that his case has been reviewed by the department or agency head, but, since he was dismissed from a position which had been designated by the department or agency head as "sensitive", his request for reinstatement has been denied. In the event the employee was dismissed under Executive Order 10450 from a position which had not been designated as "sensitive" at, or prior to, the time of dismissal, the employee is entitled under the decision in Cole v. Young, to be reinstated to his former position or a position of like grade and tenure and to have back pay allowed him unless he may be deemed by his long delay to have acquiesced in the adverse decision or is otherwise guilty of laches. I would suggest that such a reinstatement and back pay claim be granted under the circumstances unless there was a lapse of more than 18 months during which the former employee can be shown to have acquiesced in all respects in the action taken. This period should be calculated from the date of dismissal to (1) the filing of a court action or (2) a claim for reinstatement after the decision in Cole v. Young. I suggest that the notice of reinstatement to a former employee dismissed from a position which was not designated as "sensitive" state that, upon reinstatement, removal proceedings may be initiated under appropriate legislative authority other than the Act of August 26, 1950. The Supreme Court emphasized in its opinion in Cole v. Young that the Lloyd-LaFollette and Veterans Preference Acts, in authorizing dismissals "for such cause as will promote the efficiency of the service", recognized as a cause for dismissal under these Acts the basis for a discharge under Executive Order 10450. I believe that the claimant is entitled to be informed prior to his reinstatement that the department or agency head may initiate further removal proceedings in order that he may be afforded an opportunity at that time to determine whether he wishes reemployment or prefers to resign without prejudice to his claim for back pay. I understand that in a number of instances, after proceedings were initiated under Executive Order 10450, an employee submitted his written resignation. There would appear to be no legal requirement that you reinstate an employee who submitted such a resignation. A former employee entitled to be reinstated under the decision in Cole v. Young will be entitled to back pay to the following extent: He should receive the difference between the amount such person would normally have earned during the full period of his suspension and termination at the rate he was receiving on the date of suspension or termination, as appropriate, and his interim net earnings. If no investigation is made to ascertain the amount of his net earnings during the suspension or termination period, he should be required to furnish an affidavit as to his employment and earnings during this period. Any questions you may have as to the availability of appropriated funds to pay such claims should be submitted to the General Accounting Office. /s/ HERBERT BROWNELL, JR. Attorney General Assistant Attorney General Internal Security Division DEPARTMENT OF JUSTICE August 23, 1956 Honorable Philip Young Chairman Civil Service Commission Washington 25, D. C. Dear Mr. Young: This will acknowledge receipt of your letter of August 10, 1956, to me, requesting my opinion as to "whether the authority of the head of the agency which is set forth in Section 3(b) of E.O. 10450 can be delegated to the General Counsel of the National Labor Relations Board. I assume from your letter that you request my opinion only with respect to that provision of 3(b) which relates to the power delegated in the memorandum dated September 29, 1955, since Section 3 (b) of E.0. 10450 does authorize delegation of power to a subordinate with respect to designation of positions as sensitive. Specifically, you request my opinion as to whether the National Labor Relations Board has power to delegate to the General Counsel its responsibility for determining whether it is necessary in the national interest to fill a sensitive position for a limited time by a person with respect to whom a full field pre-appointment investigation has not been completed. As you know, requests by the heads of executive departments for opinions of the Attorney General are governed by Section 304 of Title 5 U.S.C. It is my understanding that you are not requesting such an opinion but an expression of my views. It is my opinion that powers given to the heads of departments and agencies under Public Law 733 and E.O. 10450 promulgated pursuant thereto cannot be delegated to a subordinate except where expressly authorized by those documents. Since no such specific authority is contained in Section 3 (b) of Executive Order 10450 with regard to the problem you pose I conclude that the delegation of that function is without authority. March 1, 1961 MEMORANDUM TO THE HEADS OF ALL DEPARTMENTS AND AGENCIES I have been requested by the Attorney General to notify interested persons that the Personnel Security Advisory Committee established by the Attorney General in January 1955 as a result of Cabinet discussion has been abolished. Section 13 of Executive Order 10450 requires the Attorney General to provide legal advice to the departments and agencies concerning operations under Executive Order 10450. Inasmuch as the Assistant Attorney General in charge of the Internal Security Division of the Department of Justice had been previously delegated the responsibility for performing that function, he was designated as the Chairman of the Personnel Security Advisory Committee and was charged with the responsibility for re-emphasizing and improving the work of the committee. La recent times the committee has been relatively inactive and met formally only once in 1960. Notwithstanding the relative inactivity of the committee, the Internal Security Division, through informal arrangements, has carried out a substantial amount of significant work designed to accomplish the objectives of the committee. Consequently, the Attorney General feels that the Personnel Security Advisory Committee is no longer needed. He has however instructed the Internal Security Division to continue its present coordination activities and to continue to engage in such informal arrangements with other departments and agencies as may be necessary to accomplish the objectives of the committee. |