(dissenting) :
This case is not ripe for judgment. There are missing from the record now before us several facts which I think we must know before we can tell whether or not plaintiff is entitled to an annuity. If plaintiff was a Communist and lied about it or otherwise concealed it, he is' not entitled to any annuity. Before we give him judgment I would like to know what the facts are. We should remand the case to a trial commissioner to ascertain these facts before we render judgment for or against plaintiff.
That the Civil Service Commission accorded plaintiff, no hearing before revoking his annuity may have been unlawful, but it does not of itself entitle him to a judgment, if we can remedy the defect. If he is entitled to a hearing, why cannot we give him the hearing the Civil Service Commission should have given him? Ordinarily, we give a plaintiff a judgment where the administrative agency has not followed the prescribed procedure, but in this case I do not think we should do this. There are several facts about which I would like to be informed before I give him a judgment. I would like it to be determined whether he actually was a Communist and whether he had lied about it when questioned by his superiors. If so, I would not give him a judgment. I would like to have our trial commissioner inquire into all the facts in this ease. Until that is done I do not think that we should render any judgment.
Public Law 87-299, the Act of September 26, 1961, 75 Stat. 640, 5 U.S.C. § 2283 (1958 ed., Supp. V), prohibits the payment of an annuity to an employee who was a member of the Communist Party or of any other organization which advocates the overthrow of this Government by force and violence and who had given a statement to the contrary or who had otherwise concealed such membership. It must be determined whether or not plaintiff was such an employee. The first question may have already been finally determined, but we cannot know whether or not it has been until we know the nature of the charges that were preferred against plaintiff when he was discharged in 1949.
The Loyalty Board found that there were reasonable grounds to believe that plaintiff was disloyal to the United States Government, but the record does not disclose whether or not this finding was based upon the fact that plaintiff was a member of the Communist Party or other organization advocating the overthrow of the Government of the United States by force or violence, "or whether it was' *623based upon one of the other matters which the Loyalty Board was authorized by Executive Order 9835, 12 Fed.Reg. 1935, 1937-39 (1947), 5 U.S.C.A. § 631, to take into consideration, in determining whether or not there were reasonable grounds to believe that an employee was disloyal to the United States. However, if the charges served upon this employee prior to his removal were that he was a member of the Communist Party and had attended meetings thereof and had been otherwise associated therewith — which seems likely — then the finding of the Board that there were reasonable grounds to believe that plaintiff was disloyal to the Government of the United States was tantamount to a finding that he was a member of the Communist Party as charged.
If it appears that the charges were those which I have supposed, then plaintiff’s membership in this party has been finally established, because these Loyalty Boards were expressly authorized by Executive Order 9835, supra, which Executive Order, in turn, was promulgated pursuant to the authority of Section 9A of the Hatch Act, 53 Stat. 1148 (1939), 18 U.S.C. § 61i (1940 ed.)* (the Act of August 2, 1939, ch. 410, sec. 9A). They were set up for the express purpose of making a finding on whether or not reasonable grounds existed to believe that an accused employee was disloyal to the United States.
Plaintiff did not appear before this Loyalty Board, although it was at his request that it had been convened to hear the charges against him, and plaintiff took no appeal from its findings. Its findings are therefore final.
If there has been a final determination of the question of whether or not plaintiff was a member of the Communist Party, etc., we avoid the dilemma of deciding whether an individual’s right to confront his accusers is paramount to the Nation’s right to withhold information it considers essential to its defense.
Our trial commissioner, however, should receive evidence on whether or not plaintiff ever gave a statement to the effect that he was not a member of the Communist Party nor associated or affiliated therewith, and whether or not plaintiff otherwise concealed such membership. It is also pertinent to know whether or not plaintiff continued to conceal such membership after the passage of Public Law 87-299, supra. If he did not continue to conceal it after the passage of this act, this raises another constitutional question which we can decide after we know what the facts are.
In the foregoing, I have proceeded on the assumption that plaintiff was entitled to some sort of a hearing. The court holds he was entitled to a hearing where he would be confronted with the witnesses against him. I do not agree with this, first, because plaintiff refused to affirm or deny the facts defendant said it had in its files, to wit, that he was a member of the Communist Party and had lied about it when questioned, and, second, because of the court’s definition of the ■nature of an annuity in Steinberg v. United States, 163 F.Supp. 590, 143 Ct. Cl. 1 (1958). In that case both Judge Laramore and Judge Littleton were of opinion that
“The right of a Federal employee to an annuity is not born of a contractual relationship between the Government and the. employee, but is more in the nature of a gratuity granted in appreciation for long and faithful service. Congress may in its wisdom modify the payments upward or downward without impairing the obligation of a contract. Dodge v. Board of Education, 302 U.S. 74, 58 S.Ct. 98, 82 L.Ed. 57; MacLeod v. Fernandez, 1 Cir., 101 F.2d 20, certiorari denied Taste v. MacLeod, 308 U.S. 561, 60 S.Ct. 72, 84 L.Ed. 471. * * *” [163 F.Supp. at p. 591, at p. 4.]
Both Judge Jones and.I were of opinion that “ * * * a Federal employee who has retired from the service has a Vested right in the' retired pay to which he was entitled at the time of his retire*624ment,” [163 F.Supp. at p. 594, at p. 9] but we concurred in the judgment of the court upholding the suspension of the employee’s annuity.
Judge Madden dissented. In his opinion he agreed with Judge Laramore and Judge Littleton that plaintiff had no contractual right to his retired pay and that “Congress could have, by a generally applicable statute, reduced the retired pay of all retired employees. Dodge v. Board of Education, 302 U.S. 74 [58 S.Ct. 98, 82 L.Ed. 57]. * * * ” [163 F.Supp. at p. 598, at p. 15.]
Thus the majority of the court thought that the retired pay of an employee could be reduced at the will of Congress.
If it be true that Congress at its will could have reduced the amount of the annuity to which plaintiff was entitled, upon reaching the age of '62, then it follows that it could have altogether abolished plaintiff’s right to any annuity. It could have done so with or without giving the employee a hearing.
However, it must be said that plaintiff was entitled to some sort of hearing before it was determined that he came within the class of persons to whom the act prohibited the payment of any annuity, and the Civil Service Commission should have given him one, had he denied the information it said it had in its files. But plaintiff did not deny any part of it. He declined to affirm it or deny it, but, instead, demanded an open hearing at which he would be confronted by his accusers. In the absence of a denial of the accusations against him, I think the Civil Service Commission was justified in concluding that the information it had was true and in revoking plaintiff’s right to the annuity.
Notwithstanding the foregoing, I think our trial commissioner should ascertain whether plaintiff was a member of the Communist Party, unless this has already been determined and whether he had lied about it when interrogated by his superiors or otherwise concealed it, and whether he continued to conceal it after the passage of Public Law 87-299, supra. In view of the nature of an annuity, as it has been defined, and the fact that plaintiff has entered no denial of the accusations against him, I do not think the Government should be compelled at this hearing to disclose information, the secrecy of which it considers essential to the national defense. I do not think Greene v. McElroy, 360 U.S. 474, 79 S. Ct. 1400, 3 L.Ed.2d 1377 (1959), requires this in a case like this.
I would overrule both motions for summary judgment and remand the ease to a trial commissioner.
COWEN, Chief Judge, joins in the foregoing dissenting opinion.
Now 5 U.S.C.A. § 118j.