Cole v. Young


DECIDED BY: Warren Court (1955-1956)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

ARGUED: Mar 06, 1956
DECIDED: Jun 11, 1956

Facts of the case

The Food and Drug Administration ("FDA") fired Kendrick Cole when it determined that his employment was not "clearly consistent with the interests of national security." Mr. Cole was a food and drug inspector and a "preference-eligible veteran," but was charged with having "a close association with individuals reliably reported to be Communists." Mr. Cole appealed his discharge to the Civil Service Commission, which denied his appeal, finding that the Veterans' Preference Act did not afford Mr. Cole a right of appeal under the circumstances. Mr. Cole brought an action seeking declaratory judgment in the District of Columbia federal district court alleging that his discharge was invalid and that the Civil Service Commission improperly denied his appeal. The district court dismissed the case and the U.S. Court of Appeals for the District of Columbia affirmed.


When may an employee be discharged under the Veterans' Preference Act for implicating national security?

Media for Cole v. Young

Audio Transcription for Oral Argument - March 06, 1956 (Part 2) in Cole v. Young

Audio Transcription for Oral Argument - March 06, 1956 (Part 1) in Cole v. Young

Earl Warren:

Number 442, Kendrick M. Cole versus Philip Young et al.

Mr. Shapiro.

David I. Shapiro:

May it please the Court.

Effective January 20, 1954, Kendrick M. Cole, a World War II veteran, was dismissed from his federal job on the ground that his continued employment was not clearly consistent with the interest of the national security.

This is an appeal from a two-to-one decision of the Court of Appeals below which upheld the dismissal of the petitioner's complaint and the granting of respondent's motion for cross judgment on the pleadings.

It is conceded by respondents that petitioner Cole, in his job, had no access to any government secrets or classified information, that he could not influence or make policy in his particular position, and that he was not charged with being a disloyal employee.

In this last connection, I think I should refer to the respondent's brief in the Court below where they said, and I'd like to quote, “The charges against appellant,” Mr. Cole in that case, “do not imply any knowing acts of disloyalty on his part.”

That's at page 6 of their brief.

And, on page 17, I quote again, “As appellant correctly said, in the charges made against me, I am not accused of doing or saying anything which would indicate that I am disloyal to the Government of this country.”

We contend that, on these conceded facts, former Secretary Hobby could not have discharged Mr. Cole under public law 733, the 1950 security risk Statute for sensitive agencies.

We contend that that statute is not applicable to a loyal employee holding a nonsensitive, non-policy making position in an agency whose functions are not directly related to this nation's military, foreign affairs, or preparedness programs.

You rest your positions entirely on the statute?

You don't --

David I. Shapiro:

No, sir, we do not.

Do you raise a constitutional question

David I. Shapiro:

No, sir, we do not do that either.

We raise the constitutional argument only in connection with the interpretation of the statute and we say that we think the Court would have to reach the constitutional question if it held that the statute could properly be applicable to Mr. Cole's dismissal.

Secondly, we contend that --

Felix Frankfurter:

In short, your confidence -- in short, your confidence, as the Court put it, so that you don't argue the constitutional question.

Is that it?

David I. Shapiro:

That's correct, sir.

Secondly, Section 3 of the statute which authorize the President to extend the provisions of Section 1 of the law, that's the substantive provisions of the law, to other agencies and departments of the Government when he deemed it necessary in the best interest of the national security to do so, we say, did not authorize him to establish a single rigid minimum standard for all federal employment, sensitive and non sensitive alike, in each and every agency and department of the Government.

And, that standard, that single rigid minimum standard, was the standard clearly consistent with the interest of the national security.

Even if we were to assume --

I am sorry but I missed the beginning of that sentence.

You say that the Government couldn't -- couldn't establish a single standard for security?

David I. Shapiro:

What we are saying, Your Honor, is that the President under Section 3 of this statute which authorized him to extend it to other agencies selectively, just merely to extend the statute, didn't authorize him to extend under the statute a single rigid standard for all kinds of employees within the particular departments.

We contend that the authority he had was to extend the statute to the entire Government, but he couldn't establish, for all kinds of employment within the particular agencies themselves, a single standard for determining the security status of employees.

Felix Frankfurter:

What you are saying here is that for this employee to ever invoke the standard based on, for instance, the President's order is different from the standard embodied in the Act of Congress.

David I. Shapiro:

That's correct, sir.