United States Supreme Court
ANTI-FASCIST COMMITTEE v. McGRATH, (1951)
No. 9835
Argued: October 11, 1950 Decided: April 30, 1951

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. Held: The judgments are reversed and the cases are remanded to the District Court with instructions to deny the motions that the complaints be dismissed for failure to state claims upon which relief could be granted. Pp. 124-125, 142.

85 U.S. App. D.C. 255, 177 F.2d 79; 86 U.S. App. D.C. 287, 182 F.2d 368, reversed. [341 U.S. 123, 124]

For the opinions of the Justices constituting the majority of the Court, see:

Opinion of MR. JUSTICE BURTON, joined by MR. JUSTICE DOUGLAS, pp. 124-142.

Opinion of MR. JUSTICE BLACK, pp. 142-149.

Opinion of MR. JUSTICE FRANKFURTER, pp. 149-174.

Opinion of MR. JUSTICE DOUGLAS, pp. 174-183.

Opinion of MR. JUSTICE JACKSON, pp. 183-187.

For the dissenting opinion of MR. JUSTICE REED, joined by THE CHIEF JUSTICE and MR. JUSTICE MINTON, see pp. 187-213.

MR. JUSTICE CLARK took no part in the consideration or decision of any of these cases.

[Footnote *] Together with No. 7, National Council of American-Soviet Friendship, Inc. et al. v. McGrath, Attorney General, et al.; and No. 71, International Workers Order, Inc. et al. v. McGrath, Attorney General, et al., also on certiorari to the same court.

The cases are stated in the opinion of MR. JUSTICE BURTON, pp. 130-135. Reversed and remanded, p. 142.

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.

MR. JUSTICE BURTON announced the judgment of the Court and delivered the following opinion, in which MR. JUSTICE DOUGLAS joins:

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. That issue is whether, in the face of the facts alleged in the complaint and therefore admitted by the motion to dismiss, the Attorney [341 U.S. 123, 125] General of the United States has authority to include the complaining organization 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. He claims to derive authority to do this

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