CAFETERIA WORKERS v. MCELROY
Legal provision: Due Process
Argument of Bernard Dunau
Chief Justice Earl Warren: Number 97, Cafeteria and Restaurant Workers Union, Local 473, AFL-CIO, et al., Petitioners, versus Neil H. McElroy et al.
Mr. Bernard Dunau: May it please the Court.
This case can be put in quick focus.
A civilian, non-governmental employee works as a short-order cook at a cafeteria located on the premises of the Gun Factory.
She works for a civilian, non-governmental employer who operates the cafeteria pursuant to a contract with the Gun Factory.
The Superintendent of the Gun Factory and his Security Officer calls the short-order cook to lose her job because she allegedly fails to meet security requirements.
There is no disclosure of what the security requirements constitute.
There is no statement of reasons particularizing the respects in which the employee allegedly fails to meet them.
And there is no hearing of any kind at which to know or meet the evidence supporting the bare conclusion.
Our question is whether such action by governmental officers is authorized and if authorized, whether it is constitutional.
What happened here?
On November 15th, 1956, the employer operated three main cafeterias on the premises of the Naval Gun Factory, government land.
He operated those cafeterias pursuant to an Agreement with the Board of Governors of the Naval Gun Factory cafeterias, a group of seven civilian governmental employees appointed by the Superintendent.
One of the provisions of that Agreement said this, "In no event shall the Concessionaire engage or continue to engage for operations under this Agreement, personnel who failed to meet the security requirements or other requirements under applicable regulations of the Activity, as determined by the Security Officer of the Activity."
The employees working at those cafeterias were represented by the petitioner Union in collective bargaining.
The Union had been certified as the exclusive representative in 1942 by the National Labor Relations Board and collective bargaining agreements have entered ever -- into ever since.
Each collective bargaining agreement contained the provision that no employee shall be suspended or discharged without good and sufficient cause.
On November 15th, 1956, one of the employees working there was a person named Rachel Brawner, who worked as a short-order cook.
She had worked at that shop -- at that cafeteria for six and one-half years.
She was a first-rate employee whose performance of work was never questioned as being altogether satisfactory.
Justice Felix Frankfurter: Does the length of service make a difference?
Mr. Bernard Dunau: I think it makes a difference, Your Honor, in terms of the suggestion that she has not been injured on the loss of his job.
I think that when a person has had a job for six and a half years, it goes a rather a long way to say that the loss of that job is not an injury.
Justice Felix Frankfurter: I should think if a person loses a job, even if she's been there six and a half weeks.
Mr. Bernard Dunau: I go along entirely with that and go further to say a person who's been denied an opportunity to get a job has also been injured as well as the person who has lost a job.
Justice Potter Stewart: She had acquired certain rights by virtue of her seniority haven't she had under the collective bargaining agreement.
Mr. Bernard Dunau: Under the collective bargaining agreement, by virtue of seniority, she would have priority over those below her in terms of layoff, at least.
Justice Potter Stewart: Right.
Justice Felix Frankfurter: And on constant, she would've lost if she had been transferred to another place?
Mr. Bernard Dunau: If she had been transferred to other cafeterias on the Naval Gun Factory, of course, she would still retain her seniority because the Agreement covered all operations.
If she would be transferred to any other establishment which this employer operated, she would lose her seniority.
There were no collective bargaining agreements protecting that seniority in other respects.
Justice Felix Frankfurter: Then we have to see all the collective bargaining agreements to her employer.
Mr. Bernard Dunau: It wouldn't make a bit of difference, Your Honor because --
Justice Felix Frankfurter: Did we take judicial notice of the fact that the contractor, who hires out for this kind of thing, has a special seniority Agreement as compared with other places here before?
Mr. Bernard Dunau: No, I -- and that's -- I think it wouldn't make any -- any difference because even if the place to which the employee went had a collective bargaining agreement, in that place, that employee would be a new employee.
She could not take her seniority under one unit and transfer it and get it under another unit in the absence of very special circumstances.
Justice Felix Frankfurter: All I'm suggesting is, I'm not sure that I would take judicial notice of all these -- of all these matters as a matter of common law of Trade Union Law.
I'm further suggesting if either irrelevancy, that's what I'm talking about.
Mr. Bernard Dunau: Very well, sir.
On November 15th, 1956, as I said, she was working as a short-order cook.
The day before, the secretary treasurer of the Board of Governors notified a Mr. Baker, who was the supervisor of the cafeteria employees and he told Mr. Baker that you have -- you're going to have to pick up the identification badge of Rachel Brawner, the Security Officer has told her she is a security risk and she -- and he requires that her badge be surrendered.
The next day, Rachel Brawner was relieved from her job at the cafeteria and she reported to the office of Mr. Baker and in her words, this is what happened at that office.
As I read from page 7 of our brief.
"Well, when I first went in, I sat down and Mr. Baker told me that he was sorry, that he hasn't told to pick up my badge and I asked Mr. Baker what for?"
And he said, "For security reasons."
I said, "What about security?
I haven't did anything.
I don't know anything that I did."
And he said, "That's all I know, to pick your badge."
I said, "What must I do or who do I see?"
He said, "Write a letter to the Superintendent of the yard."
If he were me, he would write a letter to the Superintendent.
I turned my badge over to Mr. Baker and he asked the clerk to write me a slip of paper to get out of the gate so that I could show it to the Marine on the gate."
And this is what Mr. Baker said, naturally, it upset her a great deal.
I could not tell her anything except I had been directed to take such an action.
I tried to explain to her the several steps which I thought might be possible for her to follow, including going to the Security Officer himself and to the Superintendent and of course, I told her to see Mr. Palmer, her business agent.
She surrendered her badge.
She left the premises.
She has not worked for the company since.
A badge is required in order to secure entrance to and exit from the Naval Gun Factory grounds.
This employee had no access to classified information.
We deal with an employee here who has no access to classified information.
She immediately went to her business agent and reported to him what had transpired.
In a personal meetings in correspondence, the Union protested to the employer that her discharge was -- was without good and sufficient cause.
Repeatedly, he asked for an explanation of the reason why her security status was thought to be in question and repeatedly, the company said, "We do not know.
We cannot find out why her security status is thought to be in question."
Justice Potter Stewart: Is her badge restricted to any particular area?
Mr. Bernard Dunau: I don't know, Your Honor.
I -- and I don't recall that the record shows one way or another.
In connection with the Union's request for an explanation, the employer attempted to arrange a meeting with the Superintendent to discuss this question, but the Superintendent refused to meet.
He said, we have made our determination, it is a proper determination and these are his exact words, "The meeting proposed would serve no useful purpose and is therefore unnecessary.
"And so we have a case in which governmental officers deprived a private employee of her private employment on the basis of an alleged failure to meet security requirements and nobody knows what the security requirements constitute, how she failed to meet them or whatever there -- there is to support that conclusion.
Justice John M. Harlan: But supposing they hadn't told her anything, but that that they didn't wish her employed any further, would your case be different?
Mr. Bernard Dunau: I do not think it would be different, Your Honor, because this is a private employee of a private employer.
The Government in that situation is an outsider.
If the Government wishes to interfere with the employment of a private employee, of a private employer, it must show justification.
And if it causes a discharge without any explanation at all, it has shown no justification.
Justice John M. Harlan: Could the -- could the naval establishment kicking off the naval post that it wished to?
Mr. Bernard Dunau: Yes, sir, it could.
We are not dealing here with a sightseer who wants to go into the grounds in order to satisfy his curiosity.
We are dealing here with a person who has an interest by virtue of employment on those grounds, by virtue of the fact that denial of employment on the basis of a reason given, impairs her opportunity for employment elsewhere and we are dealing with a person who when found to be a security risk, has a reputation (Inaudible)
And in deal with such a person who has these interests and has those interests invaded, we are dealing with very different kind of a person than one who is a sightseer or one who -- to satisfy his curiosity, simply wishes to get on the grounds.
Justice Felix Frankfurter: Does the record disclose the nature of the Agreement between the Government and the contractor?
Mr. Bernard Dunau: Yes, sir.
The record -- the original record which is before this Court has that Agreement in full.
The printed record contains that part of the Agreement which I believe is relevant to this case.
That part of it which I read said, "In no event shall the Concessionaire engage or continue to engage for operations under this Agreement, personnel who fail to meet the security requirements or other requirements under applicable regulations of the Activity."
Justice Felix Frankfurter: Well, I wasn't referring to that.
I was referring to the arrangement between the Government and the contractor as to his rights to continue to be a contractor.
Mr. Bernard Dunau: I believe the contract was terminable on 60 days notice by either party.
I believe under the contract, the concessionaire -- well, here -- I have it here, "This Agreement shall continue for a period of one year from the effective date herein.
Unless notice in writing of an intention not to renew this Agreement is given by the concessionaire to the Board or by the Board to -- on the -- to the concessionaire at least 30 days before the end of the term, this Agreement shall be extended automatically for another term of one year."
And then it goes on, "This Agreement may be terminated at any time by either party upon 30 days notice to the other in writing."
And then under disputes, it says this which maybe relevant, "Any dispute concerning a question of fact arising between the Board, that is the Board of Governors of the Naval Gun Factory Cafeterias, and the concessionaire under this Agreement, which is not disposed of by mutual Agreement, shall be decided by the commanding officer of the Activity who shall reduce his decision to writing and mail or otherwise furnish a copy thereof to the concessionaire.
The decision of a commanding officer -- officer shall be final and conclusive unless fraudulent, unless determined by a court of competent jurisdiction to have in fraudulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith or not supported by a substantial interest."
Justice Felix Frankfurter: I suppose the Commander in Chief this afternoon, jots down his cafeteria with the confession there that sue for frustration of the contract?
Mr. Bernard Dunau: If the commanding officer were to decide --
Justice Felix Frankfurter: The Commander in Chief not the commanding officer.
The President of the United States --
Mr. Bernard Dunau: The President of the United States were to decide that on the premises of the Gun Factory, there is no point in keeping cafeterias off (Voice Overlap) --
Justice Felix Frankfurter: No I mean he shuts to the factory.
Mr. Bernard Dunau: It -- it's a -- he may shut the factory, the claim under as -- the concessionaire under those terms as I read this Agreement, would be for loss profit for a period of 30 days because of the failure to give 30 days notice in writing.
We do not claim that the Government cannot shut this factory down.
But we do claim --
Justice Felix Frankfurter: You mean that -- you mean that provision would come into play?
Mr. Bernard Dunau: I beg your pardon sir.
Justice Felix Frankfurter: Do you think if the President as the Commander in Chief, who deems it appropriate to shut that factory, if it's sued for loss of profit?
Mr. Bernard Dunau: For the 30-day period --
Justice Felix Frankfurter: Yes.
Mr. Bernard Dunau: -- because under this Agreement, the 30 days notice is required before the Agreement can be terminated and I don't see that that provision can be gained, say, simply because of a decision to terminate them now.
You can terminate now and pay the damages for the 30 days.
Justice Felix Frankfurter: You don't have to decide that, but I might not so sure you're right.
Mr. Bernard Dunau: Well, that maybe sir.
I should not suppose that the President of the United States, although he is President, has the power to abrogate valid agreements without passing --
Justice Felix Frankfurter: Neither do I, but it all depends what the agreement is, what its implications are.
Mr. Bernard Dunau: We think that this case is controlled by Greene v. McElroy.
The navy personnel instructions which we quote on page 30 of our brief, in which the respondents quote at page 29 of their brief, say this, "The services operated by concessionaires are classed as private enterprises.
They acquire none of the status of a government instrumentality and their employees have the same legal status as do the employees of any private employer."
This Court, in Greene v. McElroy decided the status of a private employee of a private employer, whose employment was adversely affected on security grounds by the Secretary of Defense or his subordinates.
This Court held that in the absence of explicit authorization for either the President or Congress, the respondents were not empowered to deprive petitioner of his job in a proceeding in which he was not afforded the safeguards of confrontation and cross-examination.
We have a case therefore, in which an employee who has access to classified information and who has been given a limited hearing, may nevertheless not have his -- lose his employment on the basis of such a limited hearing.
In this case, we are told that though such an employee cannot lose his employment, an employee with no access to classified information and without any hearing at all, may nevertheless, lose her job on security grounds.
We think that turns things upside down.
There are three distinctions suggested, of course, the first in Greene, there was a -- no authority and here, there was.
The second, William Greene was an aeronautical engineer and Rachel Brawner is a cook.
William Greene couldn't work as an aeronautical engineer once the security clearance was taken from him, Rachel Brawner can work as a cook here and everywhere.
William Greene worked on private property.
Rachel Waner -- Brawner worked on government property.
Let's look at the distinctions, let's take authority first.
In Greene, there was at least explicit departmental authority for the action taken.
In this case, there is not even departmental authority shown.
Now, an oral argument is no place for the meticulous tracing of regulations, but I want to make only two points with respect to the lack of even departmental authority for the action taken.
Respondents agreed that if Rachel Brawner, working on the premises of the Gun Factory, had had access to classified information, she would at least, have gotten the limited hearing under the regulation which this Court invalidated in Greene v. McElroy.
Yet, they say she is not entitled to even this limited hearing because she has no access to classified information.
We think this turn -- turns things upside down.
A regulation which requires that an employee with access to classified information be given at least a limited hearing, cannot conceivably be read to authorize no hearing as to an employee with no access to classified information.
We think the inference from the departmental regulation itself is that such employees are to be let alone and they are to be let alone for the very good reason that they have no access to classified information.
And we are told, however, that throughout the history of this country, military commanders have done as they please with respect to civilian presence on governmental land and departmental usage is therefore, the basis for our departmental authority.
The most I get from the showing is that military personnel have told each other so often that they can do as they please with respect to civilian presence on governmental land that they have to come to believe it must be so.
But even what they show does not in the least relate to security clearance and as the denial of a job on that basis and it could not, because security clearance and the denial of a job on that basis is a relatively recent invention.
There is no history to appeal to with respect to that question.
But interestingly enough, respondents' own showing indicates that an insurance salesman who solicits business on a military post cannot be excluded from that post without being given an opportunity to be heard.
An insurance company cannot have its representatives excluded from the post on the basis of misconduct of the representatives without giving the insurance company an opportunity to explain.
Well, if insurance salesmen have an opportunity to be heard and insurance companies an opportunity to explain, I can hardly imagine the existence of departmental authority by which private employees may lose their jobs and be stigmatized their security risks without any hearing at all and with no chance to explain.
Justice Potter Stewart: What are these insurance companies, insurance salesmen examples?
Are those decided cases or --
Mr. Bernard Dunau: Those are under the regulations, Your Honor.
Justice Potter Stewart: Cited, you say, by the Government?
Mr. Bernard Dunau: I beg your pardon, sir.
Justice Potter Stewart: Relied upon by the Government (Voice Overlap) --
Mr. Bernard Dunau: Relied upon by the Government.
I did not know of their existence until I read the Government's brief and gather that --
Justice William J. Brennan: You mean these are formal regulations?
Mr. Bernard Dunau: These are formal Army regulations, Your Honor.
Justice Potter Stewart: Do you remember off-hand where they appear in the Government's brief?
Mr. Bernard Dunau: Yes, sir.
They -- they appear at page 53, note 32 of the Government's brief.
Justice William O. Douglas: Are these -- these enforced at the time of this discharge?
Mr. Bernard Dunau: I do not know whether these particular regulations were enforced at the time of the discharge.
Well, maybe I do know.
The -- no, sir, I do not know.
Actually, the existence of departmental authority --
Justice John M. Harlan: Very comparable regulations to this if there may to --
Mr. Bernard Dunau: Not that I know about, Your Honor.
There are maybe but -- I do not know.
Justice John M. Harlan: You said no application as such to enable installation.
Mr. Bernard Dunau: No, this would be applicable only to Army installations, but the case here obviously is not confined to what naval commanders can do but -- and something different from what Army commanders can do.
Actually, the existence of departmental authority in this case, is almost a side issue.
Because even if they were departmental authority, it would make no difference in the absence of explicit authorization for that action either from the President or from Congress, this is what this Court said in Greene v. McElroy."
No presidential authority is claimed or exists on the contrary."
Since this Court's decision in Greene v. McElroy in February of this year, an executive order was promulgated authorizing the establishment of a security program.
And under that executive order, a limited hearing is afforded to employees including a limited opportunity for cross-examination.
Now, we can hardly believe that when the President authorizes or requires a limited hearing and a limited opportunity for cross-examination on behalf of employees whose -- who do have access to classified information, then he could possibly be have -- have said to have authorized no hearing at all, with respect of an employee who has no access to classified information.
There's, of course, no congressional authority.
The most that respondent showed by way of statutory authority is that when military establishments have been authorized to run a military establishment and they have been authorized to promulgate regulations to run that establishment.
This much and much more that is present in Greene v. McElroy, it didn't suffice there and it cannot suffice here.
Let's go to the question that this case is different because Greene was an aeronautical engineer and Rachel Brawner is a cook.
Greene could not work as an aeronautical engineer.
Rachel Brawner can work as a cook here and everywhere.
45 years ago, in Truax v. Raich, this Court protected the job of a man called Mike Raich who worked as a cook in a restaurant in Arizona.
Of his employment as a cook in a restaurant in Arizona, this Court said, "It needs no argument that the work in the common occupations of the community is of the essence of personal freedom and opportunity."
And it also said that though Mike Raich's employment was at the will -- at will, it was at the will of his employer, not at the will of somebody else.
Rachel Brawner is in a fortiori position.
Her employment is not an employment at will.
Her employment was safeguarded by collective bargaining agreement which said, "She shall not be suspended or discharged without good and sufficient cause."
Justice Felix Frankfurter: It is correctly right really has something to do with this case?
Mr. Bernard Dunau: To the extent that the Government claims and it seems to me this is what it injures this whole case on that her job -- the protection of her job, was not an interest which would bring into play due process or the right to be free from unauthorized action, I think (Voice Overlap) --
Justice Felix Frankfurter: But it does so because of the special nature, the claimed nature of a -- of a service post to actually right to involve the constitutionality of the statute --
Mr. Bernard Dunau: Yes, sir.
Justice Felix Frankfurter: -- as against the federal overriding authority.
Mr. Bernard Dunau: Yes, sir.
Justice Felix Frankfurter: Well, I'm only surprised when people resort to --
Mr. Bernard Dunau: I do not seem --
Justice Felix Frankfurter: -- a case like that and the case like this.
Mr. Bernard Dunau: If we are talking about a protectable right and injury, the job is the protected right, the job has been injured.
If we talk about the question that this job was located on federal land, we are no longer talking about whether there is an interest you can protect, we are talking about whether the Government has justification for invading that interest, which seems to me to be a different question.
And on the question of the interest, it seems to me that Truax v. Raich is pertinent.
Justice Potter Stewart: You understand the Government's distinction with respect to the -- to the jobs, to the occupations followed by Mr. Greene on the one hand and the petitioner here to -- to be -- to be saying from the Government's point of view that here, there was no property and no liberty and the petitioner could've been deprived out under the --
Mr. Bernard Dunau: That seems to me, when they start talking about --
Justice Potter Stewart: Do you think that what they're saying?
Mr. Bernard Dunau: That's exactly what they're saying.
I cannot read it anymore plainly than that.
They say when they begin their constitutional argument on page 57, the interest of a private person in having access to a military base in order to be able to work there for a private employer is not liberty or property entitled to procedural due process protections.
So, I -- I take it that they have to agree that what William Greene had was liberty or property, otherwise, this Court would never had a grave constitutional question to avoid, but what was liberty or property to William Greene, is not liberty or property to Rachel Brawner.
And that has to come down to a distinction that Rachel Brawner was a cook and William Greene was an engineer and perhaps an additional distinction that Rachel Brawner worked on governmental property, William Greene worked on private property.
Justice Potter Stewart: Well, that is --
Mr. Bernard Dunau: (Voice Overlap) -- questions which I'd like to get to.
Justice Potter Stewart: The additional distinction goes to a different points that --
Mr. Bernard Dunau: Yes.
It seems to me to go to an entirely different point.
Justice Potter Stewart: Yes.
Mr. Bernard Dunau: -- Yes, Your Honor.
Justice Felix Frankfurter: That's what I think, most talk about due process argued deep an open door, namely, whether there're some human interests involved.
You've to go on and say, "Is it -- is it depravation of due process."
And that's why I -- myself, Truax in right, has nothing to do with this case.
But what else you can -- a man can come in and -- in from the street and say, "I think that Arizona statute," if it was Arizona, was it --
Mr. Bernard Dunau: Yes, sir.
Justice Felix Frankfurter: That Arizona statute offends the national interest of immigration, etcetera.
He can't do that, he's got to have some -- he's got to have a lawsuit and nobody questions that a fellow on can't -- isn't allowed to work -- isn't allowed to work.
The question is whether there are some justifications and all that Chief Justice Hughes, if it was Hughes, who wrote that opinion, said it's just to tell the facts.
But the real question was whether you can justify it.
And so here, if a person is deprived of any kind of a job, whether of the Justice of the Supreme Court or a lawyer or cook is deprived of something.
But the question is, is she deprived of it, without due process of the law?
Mr. Bernard Dunau: I quite agree with your analysis, Your -- Your Honor.
It's respondents who disagree with it.
Justice Felix Frankfurter: But you're talking --
Mr. Bernard Dunau: -- agree that there was light, that there was liberty or property taken.
Respondents cannot agree to that because they cannot for a minute, claim that it was taken with due process of law.
Justice Felix Frankfurter: But that's what they do say.
They -- they --
Mr. Bernard Dunau: No, sir.
They didn't --
Justice Felix Frankfurter: -- become a military reservation, it's a different thing.
Mr. Bernard Dunau: No, sir.
They do not say that.
Justice Felix Frankfurter: Alright, we'll let --
Mr. Bernard Dunau: They spend (Voice Overlap) 30 pages of their brief not saying that.
Justice Felix Frankfurter: Let me not take your time, Mr. Dunau --
Mr. Bernard Dunau: Very well.
Justice Felix Frankfurter: -- we'll listen to Mr. Davis and he'll tell us what it says.
Mr. Bernard Dunau: Well, I'll try to read that brief very clearly because I could hardly contain my amazement when I read it.
Justice Felix Frankfurter: That was a good thing for both lawyers and judges to contain that (Inaudible).
Mr. Bernard Dunau: Even if -- even if in this case, all that Rachel Brawner had lost towards this particular job at that cafeteria which she had held for six and one-half years, it would be injury enough.
This much at least, this Court decided in Peters against Hobby.
Dr. Peters worked for the Government for four to six day -- 4 to 10 days a year on a per diem basis.
He was a fulltime professor of medicine at the Yale University Medical School.
His four to six days was enough of an interest for him to protest his debarment from federal employment on loyalty grounds.
If his four to six days employment in an annual period is enough, we can hardly imagine why a cook's employment for one year, is not enough.
Actually, if Rachel Brawner has the next day gotten an entirely comparable job, she would still have suffered a permanent injury, economic injury.
Because however comparable that other job may be, she must start at it with zero seniority.
She must give up six and one-half years of seniority and not withstanding all the limitations on judicial notice.
I think in the year 1961, one can recognize that six and one-half years of seniority is a valuable economic benefit.
But she -- her loss even in economic terms was not confined to the loss of that shop or its purposes.
Her opportunity for employment was generally impaired.
This Union represents 2600 employees in the District of Columbia.
2000 of them worked in governmental cafeterias.
Those 2000 jobs are closed to Rachel Brawner.
She cannot work as a short-order cook in any cafeteria located in any governmental building.
Let me read what the business agent said about that.
An employee, I read from page 91 of our brief, who may be discharged as a security risk has not a ghost of a chance of getting a job in a government cafeteria and it is very difficult to obtain employment for any employee who has that tag on them in any cafeteria.
If the actual extent of the injury were material, a trial would show that Rachel Brawner in the last four years has been able to work only half of the full time available to her.
In the six and one-half years preceding that, she worked fulltime.
Now, an injury which results in depriving an employee of half of the income he would otherwise have gotten seems to me to be injury enough.
Justice John M. Harlan: Could I ask you a question?
Mr. Bernard Dunau: Yes, sir.
Justice John M. Harlan: Do the -- did the Government publicized the withdrawal of her badge or --
Mr. Bernard Dunau: No, sir.
It did not.
Justice John M. Harlan: No public statement issued?
Mr. Bernard Dunau: No, sir.
No public statement issued.
The -- they make an -- an argument based on it, but to say, if only she had kept her mouth shut, no one would've known that she was deprived of this -- that she has been discharged as a security risk.
And they say, "The only reason that was ever published or publicized is that she sought to protect her interests."
And so presumably, we should not have began a lawsuit in order to protect her interest because, by that means, the community would not have known that she had been discharged as a security risk.
We think it's fair to say that the jobs which circuit judges think are -- are available here and everywhere for short-order cooks, are somewhat more difficult for business agents of unions to find.
And the tag on the employee that she was a security risk is itself, an injury.
The community does not distinguish between loyalty and security.
If an employee has that talk -- tag on him, he has been hurt and that's annoying wrong.
We're told two things, however, on the question of injury.
We're told, "Well, the employer, after he discharged her, offered her employment at another place he operated in Virginia."
What difference does that make?
Would this case be different if the employer had no other place that he was running?
Would this case be different if though he had another place, he didn't choose to give her employment there?
And in any event, she didn't take that other job, the record shows, because it was an unsatisfactory location.
And if it were material, we could show conclusively that it has been satisfactory.
To the extent that public transportation is even available to that job, it takes three hours to get to and from work.
It takes a $1.60 in transportation fare to get to and from their job.
If she were earning the same rate of pay at that new place that she had at the old place, she was getting a $1.18 an hour.
We don't think a satisfactory job is one which it takes three hours to get to and from and which takes 17% of your income.
We have another curious distinction that is suggested.
The same employer no longer operates the cafeterias as to what operated them at the time of her discharge.
There is now a new concessionaire.
This new concessionaire has agreed, has promised to put Rachel Brawner back to work with full seniority rights, but this doesn't make any difference.
She is still now in the position of trying to get a new job.
She's not trying to protect her old job.
Well, there's nothing new about the job.
His job is still the same old job.
The only thing that's new is the corporate employing entity.
And even if it were true that even analytically, one could say she's trying to get a new job, not retaining her old job, we, like the Ninth Circuit, think that although employment of which plaintiffs were deprived, was prospective only if their rights to earn a livelihood like that in Truax v. Raich was entitled to protection at the hands of a court of equity.
We think that getting a job is as important as keeping a job.
So we get to the last distinction.
This was governmental land.
William Greene worked on private property.
On this premise, had William Greene worked as an aeronautical engineer of the premises of the Naval Gun Factory, he could've lost his job, his employment opportunities could've been destroyed, his reputation could've been besmirched not on the basis of a limited hearing, but with no hearing at all and why?
Because he worked on governmental premises.
I had not understood that just because the act takes place on governmental land, that a governmental officer may act without authority and I had not understood that the Constitution stops at the entrance to a naval installation.
If the issue of governmental land were indeed relevant, that would have been the short answer to a long line of cases which state and federal governments have lost when public employees sought to regain their jobs which they had lost because of failure to meet so-called security requirements.
The federal employees who lost their jobs because the governmental officers exceeded their authority could have been -- could have been told, "You work on government -- worked in governmental buildings, we can keep anybody out of a governmental building we choose.
It doesn't matter that the labor view has a security risk without any authority."
Justice Potter Stewart: You think there's a distinction between governmental buildings generally and military buildings in particular?
Mr. Bernard Dunau: No, sir.
Not in terms of the issue presented by this case, Your Honor.
I think there maybe a distinction in this sense only.
If it's a military installation and if there are secrets available in that installation, I think the Government is entitled to set up a security program which provides persons with an adequate opportunity to defend.
I think that may not be true where you have a governmental building in which there is no access to classified information.
But I can conceive it to be relevant only in terms of protection of classified information, but I cannot conceive that whether it is a governmental building like the National Labor Relations Board occupies or the Naval Gun Factory that the military occupies that on the issue of authority to act in the first place or constitutional authority to act if we get to that, that the mere existence of a military land as distinguished from other land can make a difference.
Justice Potter Stewart: How about a ship or an aircraft of the United States Navy?
Mr. Bernard Dunau: Again, the only -- well, you don't throw people overboard presumably if he's (Voice Overlap) --
Justice Potter Stewart: You don't throw overboard but you -- can you tell him to get off?
Mr. Bernard Dunau: Well, you can't --
Justice Potter Stewart: (Voice Overlap) off.
And the commanding officer, I'm talking about.
Mr. Bernard Dunau: Let me make this clear at the beginning.
The commanding officer can tell any civilian to get off a ship, to get off his property, to stay off.
What he cannot do and what was done here is to tell him that and not render the hearing on the question of the reason why he's kept off.
We do not deny the power of summary suspension so long as thereafter, the employee has an opportunity to have a hearing at which he can defend against the charges and if the charges are not substantiated to have a compensation for his lost time.
What the Government wants is to recognize all the interest on is -- on its side and no interest on the other, wants to subjugate the employees' interest.
I think that's not permissible.
Chief Justice Earl Warren: We'll recess now.
Argument of Bernard Dunau
Mr. Bernard Dunau: May it please the Court.
On the question of whether the government's ownership of the land makes a difference.
If secrets are added to government ownership of land, it still makes no difference, because there are as many secrets in private factories and laboratories as there are in governmental factories and laboratories.
The security dangers are no different if the Navy builds a submarine in the Brooklyn Navy Yard or has it built by the General Dynamics Corporation.
Secrecy cannot distinguish what happens off military bases and what happens on military bases.
And if secrecy cannot make the difference, government ownership of the land alone, cannot be the difference.
And when one invokes secrecy in this case, it's a terrifyingly ironic thing, because we are talking about secrecy in a case where the employee who has been discharged is a short-order cook who has no access to classified information.
It seems to us that the -- at best, there is no issue of secrecy in this case, because the Government's interest in protecting military secrets can be preserved consistently with preserving the individuals interest in a hearing before he is discharged and stigmatized as a security risk.
Nothing prevents summary exclusion of any employee from a military base or from any place else, pending a hearing on the charges against him with compensation for the lost time, if the charges are not shown to be substantiated.
That gives the Government all it needs to protect its interest in secrecy and it gives the employee, the individual, what he needs to protect his interests against unconstitutional or arbitrary action.
What this case then comes down to in terms of ownership of land, it seems to us, as the Government says, “it's the landlord”.
Well, being the landlord does not permit a governmental officer to act without authority or to act unconstitutionally.
Being the landlord does not privilege depriving an employee of his job and stigmatizing him on the basis of no hearing at all.
Being the landlord is just irrelevant to the invasion of the interests, which are here asserted.
I think we are right that on the basis of Greene v. McElroy, this case must be reversed without reaching any constitutional questions.
But if this action in this case be authorized, we then have to face the First Amendment and the Fifth Amendment.
Now, the Government's argument -- the respondent's argument, as I understand it under the Fifth Amendment, is that nothing was taken from Rachel Brawner which constitutes liberty or property.
But clearly she had a job, she had employment opportunities, she had a reputation.
These were protectable interests, these are liberty or property.
Clearly, these were invaded and so it seems to me, the only question that can exist is where they invaded without due process of law.
In this case, there can be no such question because no process cannot conceivably be due process.
If we even grant that there was no liberty or property in terms of the job employment opportunities or reputation.
We have to at least face also the denial of First Amendment rights.
On the issue of First Amendment rights, the Government has one footnote in its brief that tells us the contention is plainly without substance at page 59, note 35, and then it says, "Persons can without doubt, be excluded from military installations on the basis of speech or action, which maybe within the general area of the First Amendment, but which raises a suspicion that the person easily is or easily could become a security risk or even merely produces a lack of confidence in the person."
So confessedly, action adverse to the individual can be taken on the basis of the valid exercise of First Amendment rights.
Now, if that does not involve a First Amendment right, I do not know how it can be involved.
And more than that, the claim is that a First Amendment right, adverse action can be taken upon the basis of its exercise, with no hearing at all and altogether summary an ex parte determination.
You cannot even show that what was thought to be said was in fact, not said.
You cannot even show that what was said, does not reasonably give rise to a suspicion or to a lack of confidence.
Well, if this is the procedure and we are told that this is it, then it seems to us that nobody can be safe against condemnation as a security risk.
He's not even safe even then, unless he reads nothing except banalities, talks about nothing except anonymities, associates with nobody about who an eyebrow can be raised.
If this does not abridged First Amendment rights, we do not know what can and if this can be done without a hearing, we do not know how much more at least by contemporary methods, one can bring governmental action into collision with the First Amendment.
I close with the questions that Rachel Brawner asked, what about security?
I haven't did anything, I don't know anything I did.
What must I do or who do I see?
I do not think that in this country, Rachel Brawner can be turned away with the answer, "You don't have to be told about your security when we bring it in question.
There is nothing you can do.
There is nobody you can see."
Chief Justice Earl Warren: Mr. Davis.
Argument of John F. Davis
Mr. John F. Davis: Mr. Chief Justice, if the Court please.
In this case, more than in most, the formulation of the question affects the answer.
If we accept Mr. Dunau's phraseology that the issue here is whether Mrs. Brawner's employment could be terminated on security grounds without notice or hearing or a chance to explain, it's difficult to distinguish this case from Greene against McElroy.
If on the other hand, we accept the formulation which was adopted by the court below, that the case merely involves the authority of military commanders to determine the right of access of visitors to their installations, are the caused of transfer of persons out a sensitive area, most of the serious problems in the case disappear.
But actually, the facts in the case are not in dispute and so we don't really advance our argument too much by adopting one phraseology or the other.
What we need to do is to keep in mind precisely, what authority the authorities were tempting -- the officers were attempting to exercise and what rights of the petitioner were directly and indirectly acted upon by that exercise of authority.
Before I get to the facts of the particular case, it seems to me that it's appropriate to say a word about the nature of the Gun Factory itself.
It covers a large area or about 125 acres which are developed -- which are devoted to the development, in the testing and the actual manufacture of Naval Weapons.
Historically, all of the large Cauwenbergh cannons for war vessels were manufactured there.
This has given away in the present time to -- largely to the manufacture and development of guided missile launching mechanisms, which are incredibly complicated, mechanical and electronic installations.
But the variety of work done in the Gun Factory goes beyond cannons or -- or guided missile launching systems, with here for example that the -- the Norden bomb -- bombsight was developed and actually manufactured over the years.
At the time Mrs. Brawner was there and before and after, there's been a good deal of work with nuclear weapons and nuclear work done in the Gun Factory grounds.
It is on the warps of the -- at the gun -- within the confines of the -- of the weapons plant that the presidential yachts presently burr.
And in an area, immediately adjoining the area where Mrs. Brawner worked, she worked in what was called the Bellevue Annex, which is separated slightly geographically from the rest of the Gun Factory.
Right immediately adjacent to the -- to this annex, is what is called the Navy experimental laboratory I believe, separated only by a gate which is opened at the time when employees go back and forth.
And then the experimental laboratory, there is, for example at the present time nuclear reactor and experimental reactor, which is in operation.
I -- I'd say this because I think we should bear in mind that I don't think anyone can question that this is an installation where the public interest requires careful control of methods of access in order to protect the safety of the United States.
Now, since Mrs. Brawner was employed in a cafeteria on these premises, it was necessary for her to receive a badge, a -- a laminated -- its actually a laminated piece of -- piece of plastic which he hanged -- hung on by a chain around her neck, which enabled her to go on the premises and so that anyone could see that she had a right there.
In order to get this badge, the time she originally came to work, she was taken before the Security Officer and she filled out a form in which she told what her -- whether she had a police record and two or three other questions it's in -- it's in the record here.
And on the basis of this short examination, she was given this badge, which is the kind of badge which is carried by employees of sponsored activities, they have different colors of badges and this one shows that she is working for a -- for the cafeteria rather than being an employee of the Gun Factory directory -- directly.
Justice John M. Harlan: (Inaudible)
Mr. John F. Davis: I think I can.
It's on page -- on 101 of the record.
Justice William J. Brennan: Does that from the badge restrict to any particular areas?
Mr. John F. Davis: Pardon?
Justice William J. Brennan: Does that restrict --
Mr. John F. Davis: But, it enabled --
Justice William J. Brennan: -- that to say --
Mr. John F. Davis: -- it enables -- it enables the bearer of the badge to go generally, within the confines of the Weapons Plant, except that there are certain areas there have always been, I think they are now, but they were at the time she was there.
There were certain restricted areas where additional security measures were imposed and when she couldn't go in.
But, she could accept where they were affiliative restriction, she could go anywhere in the Gun -- Weapons Plant or in the annex with this badge.
Did -- there would be -- I'll point out the place you wanted Mr. Justice Harlan?
On November 14th, 1956, the Security Officer determined that Mrs. Brawner no longer met the requirements which enabled her to have access to this Plant.
And he called up the Board of -- directed of the Board which ran the cafeteria, wherein Board called up the M & M -- office of the M & M Cafeterias which was in the Gun Plant and told them that they should take away her badge because she was no longer entitled to -- to use it.
I don't want to makes too much of a point about the language on security clearance or security risk of those terms, but I want to say that it's very apparent from what went on here that what was being said was, not that she was not entitled to any general security clearance, but that she was no longer entitled to wear this badge.
They want to pick up the badge and she no longer -- they felt she was no longer a safe person to have access to the -- to the Plant.
It wasn't a -- it wasn't a question of security clearance generally, it was only a question of her right of access to the Plant as such.
Justice Potter Stewart: I don't quite understand the distinction of your which you are making.
Mr. John F. Davis: Well -- and I think the distinction can be -- can be drawn between I -- I draw it because of the Greene case, which I'll come to in a minute, but I might as well make it -- make it clear now.
In -- in the Greene case, the determination which was made there was that the scientist involved was not entitled generally to look at any security matters, classified matters which the Government was turning over to the industry for use and manufacture.
It was a statement that he was -- until this was removed, until he was cleared that he would not be permitted in the -- in any defense where to look at as classified materials.
This is a narrower determination.
This kind of regulation here is a physical security regulation rarely of people coming into a dangerous activity.
And here, we have the -- the commandant of the Security Officer of the Gun Factory, saying with respect to this particular facility, this activity -- with everything that's going on here, she shall not be permitted to come into this activity.
It's much narrower in other words, it's a -- it's a question -- it -- it doesn't say whether she's secure to go other places in the government buildings or the naval buildings only.
It's just a question of their right to come into the -- to the Gun Factory.
Justice William J. Brennan: You used the words, physical security, what's that mean?
Mr. John F. Davis: Well, I mean by that that this is a different matter than her right to look at -- I used it to distinguish really from classified matter.
This badge she had has nothing to do with her right to look at secret -- top secret or confidential matter.
I mean that's a separate type of clearance under separate regulations.
This -- this badge that she had as this -- quite clear, just gave her a right of access into a Gun Factory and it's determinations as to whether it should be given to anybody, is whether a person is a safe person to have in this particular sensitive area.
Justice William J. Brennan: Safe --
Mr. John F. Davis: Safe person.
Justice William J. Brennan: Safe, meaning what?
Mr. John F. Davis: Whether, she will endanger either the property of -- or well the -- the manual -- the physical security manual I think, I'll leave these manuals with the -- with the process (Inaudible) convenient to have.
The physical security manual talks about the nature of the hazards which are involved in -- for physical security.
And the hazards in the honor of -- that they give them, are hazards inherent in daily operations such as accidents, then second, espionage and third, sabotage.
In other words, we're not concerned here with whether Mrs. Brawner is a Communist only.
We're also concerned with whether or not, she will sneak around and -- and steal government property.
We're interested in whether or not she's a compulsive smoker who will smoke in the powder magazines.
And we are also interested of course in espionage and sabotage, but generally speaking, it's a physical security measure that you can see where people are going, you can control what they're doing rather than giving them any particular access to any particular secret materials.
Chief Justice Earl Warren: Is there anything in writing to indicate the distinction between the kinds of revocation that was given to this petitioner on the one hand and that given to Greene on the other?
Mr. John F. Davis: No, there is nothing in writing.
Chief Justice Earl Warren: Did she get anything in writing to show the nature of her disability, by reason of this revocation?
Mr. John F. Davis: No, she didn't.
Chief Justice Earl Warren: Is there any reason to believe that she would be admitted to any place in sensitive place, in the government establishment with this kind of revocation that Greene could not have gone into -- with that kind of revocation that he received?
Mr. John F. Davis: Well, yes.
I think -- I think it's pretty clear that she -- that this would not prevent her from going to other government installations, government property.
That this lifting her security badge, her access badge for the Navy Gun Factory, wouldn't for example, have any real relationship to a right of working at cafeteria that naval hospital, out in the fast drive wouldn't think.
So that security problems are entirely different and any Security Officer should -- would have this in mind.
Justice William J. Brennan: Well, didn't Mr. Dunau tell us there were some 2000 employees in many government establishments and she couldn't get it (Voice Overlap) --
Mr. John F. Davis: Well he -- he quoted from her Union representative who testified as to the difficulty of anyone who had security clearance removed and whether he was talking about this kind of thing or whether he was talking about the kind of security clearance in Greene, I don't know.
But anyway, his -- his statement was based upon the -- the union testimony that it would be hard to find these people jobs in any government property.
And -- and he said, he even have to find a new private property.
I -- I -- there's nothing in the system which makes this so, I mean, I -- I'm certain that if she was going to go into a sensitive area and she'd have this and -- in their record was the fact she'd been denied access to the Navy Gun Factory, the Security Officer would look into the reason for it and if he were -- and certainly, it would be examined into, I don't mean that it would be forgotten, but I -- it certainly not conclusive on any other activity at all.
Chief Justice Earl Warren: Is there -- is there any experience that you know of, of the Government to indicate how these revocations are treated, when one goes to get another job at the Government service?
In other words, isn't at all likely that the employment having had -- had that badge taken away from her, would be able to get employment in any branch of the service?
Mr. John F. Davis: I know of no, I -- I have no information, no factual information on it, as to what has happened in past cases, Mr. Chief Justice.
I don't --
Chief Justice Earl Warren: Yes.
Mr. John F. Davis: -- don't know of any -- of any evidence on that at all.
Justice Felix Frankfurter: If he applied for a government job, any questionnaire that she would have to fill out what rubric, what item of -- of a question, which she have to respond for another to disclosure this burden.
Mr. John F. Davis: Well, I -- I can't think of any ordinary question on the -- on a form which would call for this kind of an answer, because -- an answer to this, because this is no adjudication as to guilt or anything else.
It's just a question that the commanding officer of the Weapons Factory for some reason sufficient to him, thought she was not safe it that vested area.
Justice Felix Frankfurter: Under what you regard as in the regulations or provisions under which the commanding officer would -- would be authorized to act with a mere busy body of persons having a perfectly neutral job with being a busy body and sticking his -- his (Inaudible).
Would he be empowered to discharge those, so you can't stick -- stick around here anymore.
Mr. John F. Davis: I -- I think that that's -- that's very possible.
Of course, I do not know what happened in this case and -- and this always -- often happen to my interns to different reasons why was this woman discharged?
I have no idea.
But it seems to me that one possible reason and again, it's -- this is made up by whole both parties, is that she was seen in parts of the Weapon Plant, where she had no business to be and where they were perhaps, manufacturing missile launchers.
Now, maybe she was there to -- and again, don't misunderstand me when I say she was there, I have no idea that she was anywhere that she shouldn't be, but if that were the basis of it, the -- the Security Officer just felt he didn't want to have an employee working for the cafeteria who was -- who was going to face us that she -- he didn't -- she had no business and which were sensitive areas.
Justice Hugo L. Black: I don't quite understand your answer about the -- what you have to say.
I would assume that all applications would require you to tell where you have been employed.
Mr. John F. Davis: That's right.
Justice Hugo L. Black: Why you had left.
Mr. John F. Davis: Yes, sir.
Justice Hugo L. Black: And that is case with the one to which you referred to us on page 101.
So does she --
Mr. John F. Davis: That's right.
Justice Hugo L. Black: -- go somewhere else, she would have to comment wouldn't she?
Mr. John F. Davis: Well, she would have to say that she had been employed by the M & M Cafeteria --
Justice Hugo L. Black: Reasons -- and reasons for changing.
Mr. John F. Davis: Yes.
And I was going to come to that Mr. Justice Black because --
Justice Hugo L. Black: I don't know what (Voice Overlap)
Mr. John F. Davis: -- I don't think although Mr. Dunau spoke of her -- of the Government requiring her being discharged, I think that this again is a -- is a method of description of formulating what happened.
What happened was that they said that she would have to give up this badge which gave her a right to go in and out of the Plant.
Now, obviously she can no longer work for the M & M Cafeteria in that Plant at this time.
But what is actually the result of lifting it?
What was -- the result was that the M & M offered her employment in another cafeteria which she found inconvenient, but with -- the Government didn't say that she would have to be discharged by her employer and employer could -- could transfer her anywhere else that he -- where he had used for her -- he had no use for he why do --
Justice Hugo L. Black: You'd have to sign an application like this, with your statement like this when she went there.
Mr. John F. Davis: No, it -- well, if we were on government property --
Justice Hugo L. Black: Yes.
Mr. John F. Davis: -- if it were out of be -- suppose it were at the -- at the -- but there's a naval hospital for example, I presume that I don't -- that they have to get some sort of security clearance to go on the best -- and -- and I don't think M & M runs the cafeteria there, but if they did, then she would have to fill out some forms.
The Security Officer would have to determine whether they wanted this woman in -- in that cafeteria.
Chief Justice Earl Warren: What if she went to work or sought to go to work in another government agency and that question was asked, who'd you last work for and why did you leave?
What -- what would she -- could she honestly say?
What could be your advice to her as to what to say and not given a trouble for misstating facts to the -- to the Government?
Mr. John F. Davis: Well, I think she would -- she would have to say that, maybe -- maybe this comes down to the same question which was asked, maybe, in order to be coupled, she would have to say that her access to the Gun Factory had been lifted and she was no longer permitted to work there.
Chief Justice Earl Warren: Was it because she was a security risk?
Mr. John F. Davis: I think that -- I might advise her -- well no, I don't know --
Chief Justice Earl Warren: We're talking about -- that's the only knowledge she has, isn't it?
Mr. John F. Davis: No, I wouldn't use the term security risk, because I don't think she -- that is precisely, I mean that's her testimony in this language.
She was -- it was listened -- lifted for security reasons.
It was lifted because she no longer was entitled to have the badge.
And again, I don't want to cripple over words maybe, but the security risk term, carries certain connotations which should are necessarily involved in lifting this badge.
Justice Hugo L. Black: Well, if she failed to tell him and she has to slather, isn't not, it wouldn't be much trouble to show that she's in guilt of perjury?
Mr. John F. Davis: If she did what?
Justice Hugo L. Black: She would -- if she answered one of the three questions, that's 101 did not tell about this entry, I would assume that she had to swear to the statement that she could be part of subversion.
Mr. John F. Davis: Well, now -- in -- in this case, take this case, she was offered as I say, she was told, she no longer could act -- to have access to the Naval Gun Factory.
So, the -- her employer said, we -- we can't -- any longer an employee of them, we're going to transfer you to the Sky-Lit Motel which is at Springfield.
Springfield by the way, is about the same distance from Washington to -- to Splurge Church and when Mr. Dunau says it's three hours to and from, he means an hour and a half each way, not three hours each way and that's by bus.
She -- she decided that this was not the kind of a job she wanted.
Now, she wasn't (Voice Overlap) --
Justice Hugo L. Black: Is that a government work?
Mr. John F. Davis: No, this was a motel.
She decided that the transportation was too difficult or far, as she lives somewhere in Southeast and it would cost her money and take her time to go there.
Her husband worked at the Bureau of Engraving and probably, it wasn't convenient to move out there for this job and she didn't want to take this transfer.
So, you can answer that -- she could answer this question in a number of ways.
She certainly could not be prosecuted for perjury, if she put down on the application that she ceased to be employed by M & M, because she refused a transfer, refused to accept the transfer from the Naval Gun Factory to the -- to the Sky-Lit Motel, which is the fact.
Now, this isn't a full disclosure and if I were advising her on a security problem, I think, I would think she ought to make up a fuller disclosure, but I don't think she could be prosecuted for perjury for answering in that way.
Chief Justice Earl Warren: Well, I wonder it would make any -- I wonder --
Mr. John F. Davis: I wouldn't take a risk if I were advising her either.
Chief Justice Earl Warren: I wonder if that would make any difference in your argument to your position in the -- in the case if the employer only had one cafeteria, the one from which she -- she was ejected.
Mr. John F. Davis: Well --
Chief Justice Earl Warren: Now, would that -- would that change -- it changed your position because --
Mr. John F. Davis: No.
Chief Justice Earl Warren: -- if it doesn't, I -- I didn't want to -- to ask you, what kind of an answer she would make?
Mr. John F. Davis: No.
It wouldn't -- it wouldn't change it because I think that what happens here is that she -- at the -- what all the Government does is to lift her badge and so whenever she's talking about losing employment, she is losing employment, the Government doesn't order her to be -- ceased to be employed.
We have to look further and see what happens.
In this case, we know what happened.
She was offered to transfer to another place.
If there were no other place to go, she couldn't be employed here and the lifting of the badge would be directly responsible for her ceasing to be employed by the M & M.
That's -- that's perfectly clear, because she couldn't -- she could no longer -- she could no longer work there.
Chief Justice Earl Warren: The practical matter, wouldn't be a bar to any government employment?
Mr. John F. Davis: No, I think not Mr. Chief Justice.
I think that as far as the -- as the security system goes, that each one of these facilities, I don't think it's a good thing to have in a record.
I -- of course, it isn't, but each one of these activities has its own security problems.
This particular Naval Gun Factory was a particularly sensitive area.
And the fact that this woman was not in -- safe employee for -- for this kind of a manufacturing developmental weapons plant.
It's got nothing to do with whether she's a safe employee for some -- some other place.
Justice Hugo L. Black: Do you have in your brief or there -- is there available, any statistics on the number of employees in America today, who worked for companies that has -- who have contracts with the Government, where the Government can and does require security risk?
Mr. John F. Davis: Security clearances as of all kinds, you mean such as the green one as well as this one?
Justice Hugo L. Black: I'm talking about all the employees of the nation?
Mr. John F. Davis: Well, we've -- we are fortunate in having a brief amicus found by the American Federation of Labor and Congress of Industrial Organizations is amicus curiae and the burden of this brief has to point out the pervasiveness of the security program and it just --
Justice Hugo L. Black: Or I have not --
Mr. John F. Davis: -- figures which gives specific figures about federal employees and employees of industrial plants and so far as I know, these figures can be accepted as absolutely accurate.
I have no -- no question about that.
I will say though that I think that we must deal not with the security program as a whole.
I think we've got a very particular problem here in -- in connection with this type of security and I think that we must look not at -- what's done with respect to classified materials.
We must -- we must -- we don't have to look -- reconsider the Greene case.
I think that this is a different case from the Greene case.
I think that really, that's the first problem we have to face in this argument, is this case really governed by Greene against McElroy?
Now, in Greene against McElroy, this Court gave very -- considered very serious attention to the fact that Mr. Greene was an aeronomical engineer and that the refusal of giving him clearance to security materials, in fact, prevented him from carrying on his chosen profession that he's been trained for.
I'm not drawing a distinction now between cooks and aeronautical engineers.
It has -- they have the same effect of cooks, why there would be no difference.
But, this is a very different matter, Mrs. Brawner is -- can continue to carry on her activities generally.
She is required certainly, to transfer her activities from the Gun Factory to somewhere else.
She's possibly, she's -- has impairments as to employment in other naval operations, but she is not forced out of her chosen endeavor.
She is instead excluded from a particular area, excluded from carrying on her -- her activities in that particular area.
Chief Justice Earl Warren: The same argument -- same argument was made in Greene and he wasn't deprived of anything except that he wasn't to have admission to this particular Plant.
He could go any place in the world that he wanted and pursue his profession.
That was argued here and this (Voice Overlap) --
Mr. John F. Davis: And it was rejected him.
Chief Justice Earl Warren: You mean, it was rejected on the theory that -- that this business was such that he -- he couldn't get it with that back -- with that background.
Mr. John F. Davis: And that's right.
Chief Justice Earl Warren: And have we any reason to believe that -- that a cook is not in the same position?
Mr. John F. Davis: I think --
Chief Justice Earl Warren: Now, Mr. Greene -- Mr. Greene had employment.
Alright, the only thing he -- instead of having a $20,000 job, he had to take a -- a draftsman's job, which is this -- a subordinate job and made 4, 5 - $6000 a year.
But he got employment, he -- he kept from starving and I suppose this woman could keep from starving in some way or the other, but as I understood Mr. Dunau, she's been able work about half time.
Mr. John F. Davis: She has worked half time.
Chief Justice Earl Warren: Yes, has worked about half time.
But I -- I don't see the distinction.
Mr. John F. Davis: Well, the distinction is between an aeronautical engineer were almost all its business is with the Government and where he --
Chief Justice Earl Warren: Yes.
Mr. John F. Davis: -- has been barred from doing any government work, because the -- the withholding of his right, prevented him from -- from doing -- from having access to classified matter, that was across the board.
Mrs. Brawner required to give up the specific employment in the cafeteria on the Gun Factory.
She is permitted, she is not required to be discharged by her employer and in fact, her employer offered her a position in the Sky-Lit Motel.
If she doesn't want that, she is not by law or in fact, barred from other government installations.
Chief Justice Earl Warren: Well, wasn't that a --
Mr. John F. Davis: If she finds it difficult to get a job in other government applications, cooks generally don't work only for the Government.
Their cooks work for any number of cafeterias.
In fact of the -- the Union represents cafeteria workers that worked for all the large cafeterias in -- in Washington.
This -- this woman is not really disbarred from -- from going on with -- from her work.
She is, what she is -- what has happened to her, is she's barred from the Naval Gun Factory.
Now, we've made the same argument in Greene and you rejected it on the facts of the case.
Chief Justice Earl Warren: But isn't that a matter of degree and not a principle?
Mr. John F. Davis: It's very much a matter of degree and --
Chief Justice Earl Warren: Not principle?
Mr. John F. Davis: Well, insofar as degree and principles, I think that if when their things are different enough in degree, you come out at different results.
Justice Felix Frankfurter: Well, Mr. Davis, do you deny that in fact, they were some inroad upon her previous freedom of action and enjoyment?
Mr. John F. Davis: No.
Justice Felix Frankfurter: Very well then, then why do we fiddle around with these peripheral things?
Mr. John F. Davis: The -- the basic question that we have here, is whether this was taken away in a manner which deprives her of -- of what it was authorized and whether it deprives her of due process.
Justice Felix Frankfurter: Do you -- do you read that Judge Prettyman correctly stated the problem?
Mr. John F. Davis: Yes.
Justice Felix Frankfurter: Then why couldn't you address yourself to it?
Mr. John F. Davis: Well, I shall try to do so.
The first question then is a question of authority, whether the command -- the commandant and the Security Officer had authority to impose the security system, to require her to have a badge, to take away the badge, if they feel and felt that she was not a safe person on -- on the property.
We set forth in our appendix at page 91, the general statutes which in -- which give to the Secretary of the Navy, one custody of the property of the Navy, until to give him authority to make regulations with respect to its preservation.
This is a general authority.
It's in the most general terms that this -- that this general authority was intended to cover regulations dealing with access to naval property, is given weight by the provision in the Criminal Code which is cited on page 92 of our brief, which makes it a crime for anyone to go on any military, naval or cost guard reservation post, fort, arsenal yard and so forth, for any purpose prohibited by law or lawful regulation, which I take it as a recognition of the prior-given authority to make regulations.
So that, I think that as far as Congress is concerned, it would be almost inconceivable that they wouldn't give the Navy power to deny people access to the -- to their property, but in fact, they have specifically done so.
We go from the authority which is found in the statutes to the authority and the regulations and that is cited on page 92, 93, 94 of our brief and this is in the general Navy Regulations.
And again, this is in general terms, but it imposes the obligation to preserve the safety of activities upon the "commanding officer."
This is found in Article 0701.
And then in 0733, the commanding officer is given the responsibility for -- for the control of visitors to the activities of his activity.
And immediate below that, we find the specific regulation with respect to the admittance of dealers, tradesman or their agents, which I take it includes people like cafeterias, who are selling food to the people on the -- on the -- in the installation.
And as I say, this regulation is the regulation which gave the commanding officer of the Gun Factory the authority to give and take away the right of access.
Now, he could have done this I suppose, by going himself to the gate or sending an officer to the gate and as each person came in, he could've look at the man and said, "You can come in and you can go out," on whatever basis he thought was reasonable, but this wouldn't work.
I mean, people who are coming in regularly and going out regularly, you don't want to have to screen them each time and it's the -- under the regular manuals and I think the manuals are somewhat different from the regulations, because they're really instructions to the officers how they carry out these duties.
Their internal housekeeping devices that tell the -- tell the commanders what they should do, how they could carry out their duties.
They'd suggest in there that method of access to -- to a controlled area should be through badges of this kind and it was under the general authority and the instruction in the manuals that the commanding officer in this case made Mrs. Brawner sign the application when she came in, gave her the badge and took it away when he felt that she no longer -- that she no longer fulfill the requirements which entitled her to have a badge.
In connection with -- with the -- going on to Government -- to military property and going off, there's a long history of this being done at the discretion of the commanding officer.
I say this, because in the Greene case, when we were discussing authority, when the Court discussed the authority to impose the regulations which were there involved, they found that there should be a specific authorization to give or to take away security clearance without the right of confrontation of witnesses.
It was -- it was felt that if there was an intention to give that power to take away clearance without confrontation of witnesses that this should be specifically spelled out and that was the basis on which this Court said that there was no authority to issue the regulations.
Now, the entire history of the handling of people going on military reserve -- reservations from as far back as I can find, is been handled without a hearing or without a right to confront accusers.
It's been done on a -- on a basis of the discretion of the commanding officer to the persons to whom he gives that -- gives the -- the delegates the authority.
Justice Felix Frankfurter: The suggestion -- suggestion is that -- and I don't know anything about it, except what I'm told that I could even -- the suggestion is that the inference on which you rely on the practices -- the practice which you draw from them only -- only relates to casual visitors like myself going in there and the guard stops me and the commandant or the commanding officer-in-charge can say, "We let him in or not let him in."
But it doesn't apply to people who have a status, that it were on the -- on the premises of the illustration.
Mr. John F. Davis: Well the -- the instances we cite in our brief and the -- and the decisions of the Judge Advocate General, a full of cases were people do have status.
Now the first, the first instance that I cite is that an opinion not at the judge but of the Attorney General given to the Secretary of War in 1837.
And this dealt with the right of a man who had leased a house, who had -- who lived on -- on the reservation at --at West Point, so that this man had considerable status to go in and come out and actually what he was doing as I -- as I remember the facts and the -- and the opinion was that he and his -- and his family were out conducting a lumbering operation on some far corner of the reservation and this -- the commandant of the reservation didn't think that this was an appropriate thing to do and he actually barred him from coming onto the reservation under the -- under the West Point.
And somehow or other, the question got to the -- to the Attorney General and the Attorney General gave an opinion to the Secretary of War that in the exercise of a sound discretion, the command -- commandant of the post, may therefore, order from that any person not attached to it by law, whose presence is and his judgment in jury as to the interest of the academy.
Justice Felix Frankfurter: Somebody might pick you up on not attached to it by law --
Mr. John F. Davis: Well --
Justice Felix Frankfurter: -- say Mr. Brawner was attached to (Voice Overlap) --
Mr. John F. Davis: Yes.
Justice Felix Frankfurter: -- by law.
Mr. John F. Davis: Well, this question of attached -- attaching to is a --
Justice Felix Frankfurter: It's a practical term.
Mr. John F. Davis: It generally used with respect to the military and in this case, it was also the Postmaster General -- there was a Postmaster who was attached by line.
Justice John M. Harlan: (Inaudible)
Mr. John F. Davis: This suits up -- this makes under this manual --
Justice John M. Harlan: (Inaudible)
Mr. John F. Davis: That is -- that is right.
This is a manual in connection with security matters and that this binds visitors for the purposes of that manual and under that manual, she is a visitor.
There's no question about it.
And there is a separate manual for physical security and under that I think she also would be considered to be a visitor.
I -- but I -- I really think I'm -- our authority here goes beyond whether or not, she's a visitor.
I think that the -- I think the general authority of a -- of a commander of a -- commanding officer of one of these installations, goes also to -- to civilian employees as far as that goes to -- within certain limits I suppose the military employees too, the military people, too.
Justice Felix Frankfurter: Now in McElroy, Mr. Davis, the decision of the Court, I'm saying the decision, I'm not -- I'm mindful of things that were in the decision or some of the concerns that led to a construction that he made, but the decision of the Court.
I think I'm going to speak with accuracy when I say that there wasn't a procedure authorizing the discharge or dismiss or whatever you call it.
Now, in this case, if you -- if you -- if the Government makes out of case that there was an authorized procedure, can you reach the question which -- which envelops that to McElroy case namely, whether that's constitutionally permissible.
Mr. John F. Davis: That's right.
We haven't --
Justice Felix Frankfurter: And I think suggest that considering we have the limited time we have and those large issues do not rest the last --
Mr. John F. Davis: I -- I think the constitutionality of -- of the -- the authority, I think that we --
Justice Felix Frankfurter: Well -- well --
Mr. John F. Davis: -- totally get to it --
Justice Felix Frankfurter: -- you got to satisfy --
Mr. John F. Davis: We have to get by Greene and I don't know what we (Voice Overlap) --
Justice Felix Frankfurter: You got to get by Greene, yes.
Mr. John F. Davis: Have got by Greene or not, but this is what we have to do before we get to the question.
Justice Felix Frankfurter: But you started to say that in addition to -- to the exhibit to which Justice Harlan called attention, Exhibit F that you go beyond that in -- in getting by Greene in your phrase.
Mr. John F. Davis: Well, that's right I think --
Justice Felix Frankfurter: (Voice Overlap) establishing procedure.
Mr. John F. Davis: That's right.
I think that when you get the general authority to control access and the history of what's been done under it, that you have plenty of authority in here and I don't wish to limit the authority of the commanding generals to visitors either -- as their expressed in these manuals.
Although I think, it's clear that there is a visitor and there is power over visitors.
I think that the power is much -- much wider than that.
I think that the most useful thing I can do on these manuals which is I say, I think our instructions to the officers, is how do they carry out their duties, rather than regulations in the sense of being general rules for -- for the public.
I think, the best thing to do is to leave copies with the clerk and --
Justice Felix Frankfurter: Historically, how far facts have they ran?
Mr. John F. Davis: These regulations?
Justice Felix Frankfurter: These manuals.
Mr. John F. Davis: These manuals -- the manuals that I'm going to present will be the manuals I think that were in effect at the time Mrs. Brawner was involved, although one of them is brought up to date because we referred to it --
Justice Felix Frankfurter: But I mean, what's the originating point, the date of origin, how far back to they ran?
Mr. John F. Davis: Well, these are just the current one.
I haven't attempted to get the old ones that -- that paper -- that paper --
Justice Felix Frankfurter: Are they -- are they printed in to register, the Federal Register?
Mr. John F. Davis: No, these are not printed in the Federal Register.
Justice Felix Frankfurter: What are they public documents?
Mr. John F. Davis: They are -- they are -- they're not public documents either.
The Navy instructions given them the -- in order to obtain them, well, there are in many libraries because there's nothing confidential about --
Justice Felix Frankfurter: You mean they are in libraries?
Mr. John F. Davis: Well they're in -- they're in our library in the department and I -- whether they're in your library, I don't know, but they've -- they're not -- they're not restricted in any way or just be that they are internal housekeeping documents and no one --
Justice Felix Frankfurter: And you say that the -- that they derived from, at least in principally, they derived from the fact that which you've given us one opinion of the Attorney General, going back 1837.
They derived from the assumption that there is this power of the commandant or the commanding officer to control who --
Mr. John F. Davis: That is right.
Justice Felix Frankfurter: -- goes about the installation.
Mr. John F. Davis: That is right.
Now, there's -- I think there's one regulation I should mention because it is discussed this morning and that's the Army Regulation with respect to insurance.
It's a -- particular regulation with respect to selling insurance on Army post.
The copy which was referred to this morning is one that came into effect in 1958 which was after the date Mrs. Brawner was transferred, but they were prior regulations in 1953 and whether they have the same conditions, I don't know.
But these are regulations which the Army puts out in connection with protecting its personnel from insurance salesmen.
Sounds as though, they were the enemy, but apparently there are some -- some necessity to -- to protect young men coming into the -- into the army from buying insurance that they don't need.
And so, this regulation AR 600-101, which I'll leave with the clerk, provides certain limitations on when insurance, where they can go and who they can sell.
And it says for example, if they shunt sell individuals engaged in basic training and they shunt sell them when they sell it, while they're being processed for overseas shipment and they mustn't solicit in the barracks.
And these are regulations, general regulations which are supplement -- which is circulated.
And if an agent --
Justice William O. Douglas: What is it -- what do they say about the Jehovah's Witnesses?
Mr. John F. Davis: These particular regulations don't deal with Jehovah's Witnesses.
I don't -- I haven't looked up Jehovah's Witness.
There - there is a case of course, dealing with the way the Jehovah's Witness -- and one of the -- of the judge's opinions, one of the judge's asked to get general's opinions upholds the authority of a commanding officer to exclude Jehovah.
I think it was Jehovah's Witness.
It was one of the sets from soliciting personnel on -- on his military post.
Chief Justice Earl Warren: Well, Mr. Davis, I was wondering if -- if the commanding officer has unlimited discretion to -- to keep off of the -- of the installation, anybody that he wants to.
Why is it necessary to have a -- the regulation of this kind giving insurance agents the hearing?
Mr. John F. Davis: Well, it didn't -- didn't really want to keep -- he wanted the -- to tell them what to do.And as in all these cases, what --
Chief Justice Earl Warren: Who is he -- who is he?
Mr. John F. Davis: Did well -- this is -- this was issued in Army Regulation, this was issued by the Maxwell Taylor, General of the united States Army.
It's his regular -- regulation it's the -- it's the Army Regulation fined in the entire army.
Chief Justice Earl Warren: Yes.
Mr. John F. Davis: -- Headquarters of the Department of the Army.
The -- the Army felt that in order to control this, it was reasonable to tell the agents what they could and couldn't do.
Chief Justice Earl Warren: Yes.
Mr. John F. Davis: And then they would went further and said, if we're going to take away their rights on the basis of regulations like this, we are to give them a hearing because if we're accused -- if we're throwing them off because they failed to do some -- follow a regulation, then we are to -- we are to give them a right to be heard on whether they have complied with the regulation.
Chief Justice Earl Warren: But don't these people like -- like the petitioner in this case, have certain regulations that they must live under, when they're on -- on the government installation?
Mr. John F. Davis: Do they have -- they are -- there are places they were excluded from there --
Chief Justice Earl Warren: No, no, not they're excluded from but --
Mr. John F. Davis: Yes.
Chief Justice Earl Warren: -- but while they're there, don't they have to live under certain regulations?
Mr. John F. Davis: I -- I suppose they do.
I mean these times --
Chief Justice Earl Warren: (Voice Overlap)
Mr. John F. Davis: -- they have to come to work and times that they have to leave and then --
Chief Justice Earl Warren: Then where they can go --
Mr. John F. Davis: Wear there badge and --
Chief Justice Earl Warren: Where they can go?
Where -- where they can't go and so forth?
Mr. John F. Davis: There are areas where they're restricted, where they can't go.
Chief Justice Earl Warren: Why isn't that -- why isn't that the same as the insurance cases?
Mr. John F. Davis: Well, they're not -- those are not general regulations for the conduct of the business.
Those are security regulations, security orders with respect to the -- the physical security of the Plant.
And the authority is so much broader with respect to -- the -- an officer, a common -- a commanding officer just preserving safety that it's entirely possible the -- the -- his power goes beyond this particular regulation.
He's got -- if for any reason he believes the person isn't safe, he -- he can exclude them.
Chief Justice Earl Warren: He can't with an insurance agent.
Mr. John F. Davis: I think he -- I think he can with an individual insurance agent.
Chief Justice Earl Warren: I beg your pardon?
Mr. John F. Davis: I think he can with an individual insurance agent, if it --
Chief Justice Earl Warren: Wasn't that a regulation?
Mr. John F. Davis: Suppose an insurance agent comes on intoxicated, there's nothing in this about intoxicated agents, he can -- he can throw the agent off and -- and keep him off because that doesn't come within this particular type of regulation.
It's like so many other fields in -- in Government, that if you're going to set up rules and regulations, if you're going to take up the procedural sword, so to speak and tell people give them a -- a procedure, then you'd have to follow your own procedure.
And if he sets up a procedure for conducting insurance business, then he has to follow it.
But if he is going to say, in my discretion, I'm going to preserve the safety of this post, that's a different matter.
He doesn't have to take up the procedural sword and so, he doesn't ever have to follow through with -- with any regulations which she hasn't adopted.
Chief Justice Earl Warren: But would -- wouldn't a necessity for protecting this safety of the post, replied to insurance, you mean, does it much of cooks?
Mr. John F. Davis: Well, Mr. -- Mr. Chief Justice, I'm perfectly certain it would.
And I'm perfectly certain that these regulations and there none in the Navy, by the way, this is an Army one.
Mr. John F. Davis: But I'm -- I'm perfectly sure that if the situation -- the commanding officer that has the same power, that with respect not to caring on the insurance business, not violating these regulations, but with the respect to coming on the post at the wrong time, going into certain wrong areas, misbehaving in other ways, that he has exactly the same powers with respect to insurance agents that he has with respect to anybody else.
Chief Justice Earl Warren: Well, could he throw him off and not -- and not give him any hearing?
Mr. John F. Davis: Yes, Your Honor.
I think he could.
Chief Justice Earl Warren: Well, suppose he -- he insists of a hearing under this?
Mr. John F. Davis: I think he'd have no right to a hearing under this --
Chief Justice Earl Warren: You mean he could just throw him off and give him no reason at all?
Mr. John F. Davis: I think that is right.
Chief Justice Earl Warren: Give him no reason --
Mr. John F. Davis: I think that is right.
Chief Justice Earl Warren: Well, and this is no protection to him at all?
Mr. John F. Davis: Well, this is a protection because if it's carried out in (Inaudible) which it's done, because they are not in concern with security.
They're concerned with selling insurance and they don't want this people to -- to be harassing or -- or acting improperly in a -- in a particular area.
That's -- that's very different from the security area.
This is a matter of personnel protection.
I don't want to get --
Justice Tom C. Clark: I understand you say that this insurance regulation will not apply with (Inaudible).
Mr. John F. Davis: No, this is just an Army Regulation.
Justice Tom C. Clark: Oh.
Mr. John F. Davis: There is no, I filed it and I say this with -- with some humility.
I can't -- l don't think there is any Navy Regulation.
The regulate -- the manuals and regulations in the armed services, that they're very -- very many of them, but I think there is none which deals specifically with insurance on Navy installations.
Now, I want to -- I want to spend some -- excuse me -- I want to spend some time with the -- with the constitutional issue.
I think it is perfectly clear from the decisions of this Court in the last few years that a person's right to a job and a person's right not to be fired from a job for improper reasons will be protected under the Due Process Clause or under the -- or under the Equal Protection Clause as the case may be.
But I think that this Court has in no case that I have found preceded from the position that people can be discharged from their positions and I thought from this although, I think that this lady was not discharging that position.
But people can be discharged from their positions without hearings and without a chance to meet their accusers.
Justice Felix Frankfurter: I didn't suppose of our Civil Service Act is constitutionally required.
Mr. John F. Davis: Well, our Civil Service Act, the -- the law in Lloyd-La Follette Act, itself.
Justice Felix Frankfurter: I mean the original one.
Mr. John F. Davis: Yes.
Justice Felix Frankfurter: When -- when they got -- didn't get busy on this, didn't begin until the 1980s.
I mean suppose that they suddenly discovered in the 1980s that we must have a Civil Service Act because the Constitution required that you can't fire anybody for no reason at all, in the government service.
Am I wrong about that?
Mr. John F. Davis: Well, I'm -- I'm sorry.
The first time that I know of and I haven't checked it back, is 1912, when there was -- when they were required to give the hearings to the --
Justice Felix Frankfurter: The first --
Mr. John F. Davis: -- when the first Civil Service Act was -- was before that.
Justice Felix Frankfurter: -- (Voice Overlap) something --
Mr. John F. Davis: That's right, but the first time that the employer was required to give reasons and give the employee a chance to reply, I think was in 1912.
I may be wrong on this, but that's the -- because of the Lloyd-La Follette Act.
And in that case, it is specifically stated and -- and it's on the law books today that the employee is not entitled to a hearing.
Now, there are many -- there are many situations where -- under special circumstances hearings are required and where this is so, how our regulations give a right to a hearing, they must be -- they must be -- the procedure must be followed.
But in the absence of -- of such a -- of such a special situation, I think the law today is as it has been throughout history of this country that a government employee can be discharged without a hearing.
Justice Hugo L. Black: You are referring that to a government employee?
Mr. John F. Davis: A government employee, that is right.
Justice Hugo L. Black: You're going to discuss the difference as there is any must show why there is no difference, may the Government's right to interfere with employment somebody who does not work for the Government and one could work for the government?
Mr. John F. Davis: I -- that wasn't exactly the -- the line I was going to follow.
I was going to point out that here, we do not have a serious a -- an interference as a discharge.
Here, what we have -- all we have is a refusal of the let a person come on the property, so that the person is not told that he can -- he's not in effect directly or indirectly, told that he can no longer work for the employer.
All he is told is that he cannot work for that employer on this particular property.
Justice Hugo L. Black: You discuss that I assume, from the --
Mr. John F. Davis: And when --
Justice Hugo L. Black: -- standpoint that he's the employer of somebody else, not the Government.
Mr. John F. Davis: Well, there is the Government or anybody else.
I mean, I think this is a rather lesser right.
Justice Hugo L. Black: Do you think the constitutional power is precisely the same?
Mr. John F. Davis: I do not think he has anymore right to come under the government property after an order has been given that he must stay off, because he has some private employment.
I don't think that gives him any right to --
Justice Hugo L. Black: I asked you the question because originally, the idea of the Due Process Clause of the law of the land, related to what was done by Government to these people, not what was done by Government so far as the employees of other people.
What do they do to the people?
Mr. John F. Davis: That's right.
And here --
Justice Hugo L. Black: And the Government as -- I assume, might have more power even conceivably constitutional, to determine relationship of employees to it would have to determine what relationship must be used between United Stated Steel Corporation --
Mr. John F. Davis: I --
Justice Hugo L. Black: -- and its employees.
Mr. John F. Davis: I -- I think under the Greene case that you have held that this is so.
I think that under the Greene case -- what you haven't held it's so, because you don't deal with constitutionality there, but you have expressed grave doubts whether the Government could affect the -- directly the -- the employment by Mr. Greene with his -- with his private employer.
But here, here we have a different situation and I -- I come back to this that what we're dealing with is not a direct impingement upon the employment at all, that's the effect of what happens.
But all that this man -- all that the Government is doing in this case, is denying these people access -- access to government property.
That's what's actually --
Justice Hugo L. Black: (Voice Overlap) -- deny of access to where they're working, denied on the right to work.
I'm talking about --
Mr. John F. Davis: Well, it might --
Justice Hugo L. Black: -- the different --
Mr. John F. Davis: -- it might in some cases --
Justice Hugo L. Black: (Voice Overlap)
Mr. John F. Davis: -- be practical, the same thing.
But in Mr. Greene's case -- Dr. Greene's case for example, if he had been denied access to the Naval Gun Factory as such, this wouldn't prevented him from carrying on to work other places.
I mean, he still -- it would be a very different case than -- than the -- than the situation which happened where there was in across the Board denial of his right to -- to this employment, anywhere.
Chief Justice Earl Warren: But even Mr. Davis, if she goes to another place to work, her minimum loss is six years of seniority.
Mr. John F. Davis: Mr. Chief Justice --
Chief Justice Earl Warren: So --
Mr. John F. Davis: -- I do not question at all that Mrs. Greene is -- had suffered harm, from the fact that she was denied access to the -- to the Naval Gun Factory.
I'm -- I'm sure she suffered harm, financial harm and -- and possibly to her -- to her morale.
Chief Justice Earl Warren: Yes.
Well that's why (Voice Overlap) --
Mr. John F. Davis: The only question is, whether this is the kind of a right that one must give at hearing for.
There are many cases where people have suffered harm, right to -- the right to employment.
Mrs.-- Mrs. Brawner appears and asked for a job and they deny her a job, although she's really qualified for it.
Mrs. Brawner wants a raise, they -- they refused to give her a raise.
They don't tell her why.
They just don't give it to her.
And -- there -- there were hundreds and hundreds of employee-employer relationships where the discretion is left with the employer and we haven't ever held that there is a right to a hearing in the case.
And I think -- I think this is one of them and it -- it did -- it doesn't mean the person isn't -- isn't hurt by it.
It maybe hurt and if it's unfair, then -- the -- the remedy is through labor relations work, representatives, the Union are in the case of the armed services, her remedy would be to go up the chain of command to try to get this -- this injury right on it.
There was an injury, but the right isn't to get a hearing and -- and to apply to this kind of thing, the Due Process Clause.
You can't -- it's hard to go halfway on giving a due process of life.
They're going to give a hearing and a right to -- to face accuses.
It gets soon into a fact that it these personnel matters, they have to have a trial.
Once they've started in giving procedures, it's hard to stop halfway.
Now, I think that when I say that they can do this, I don't necessarily say that's a desirable thing to do.
I would think that the only fair thing to do in normal circumstances is to tell somebody why their security badge is being lifted.
It seems to me that anyone will do that, but there -- there are circumstances where this cannot be done.
I mean the -- this very disclosure of the reason why they are lifting it, may -- may lead to security problems in itself.
In that case, it's appropriate to -- to just exercise the discretion arbitrarily.
This, of course, is not also it -- the badge of infamy -- the badge of infamy characterization of this -- of this kind of action is -- is really not appropriate, because in all likelihood, in this -- in this case of access to gun plant and the question isn't whether she's a Communist or has Communist leanings, he's loyal or -- or disloyal.
The chances are and we can't tell what the real reason is, but the chances are -- are that she was in some way, thought to be endangering the property of the -- of the Gun Factory.
Well, therefore when -- when the badge is lifted, she's not branded as a traitor, she's not branded in anyway.
All you do is to lift the badge.
But if anyone knows about it, all they know is that there is a particular, sensitive area where people felt that it was not appropriate that she should work.
And this is a very different thing from an attack on her loyalty.
Chief Justice Earl Warren: Do you think the public makes that distinction?
Mr. John F. Davis: Well, they don't --
Chief Justice Earl Warren: All -- all the numbers --
Mr. John F. Davis: They don't Mr. Chief --
Chief Justice Earl Warren: -- (Voice Overlap) had played --
Mr. John F. Davis: -- the --
Chief Justice Earl Warren: -- do you think that --
Mr. John F. Davis: They --
Chief Justice Earl Warren: -- the public makes a difference between security risk and --
Mr. John F. Davis: They -- they --
Chief Justice Earl Warren: -- and loyalty?
Mr. John F. Davis: They don't if -- if this is talked about in terms of security risk as such or security clearance or that kind of thing.
I mean that, because it's been used so much in this Communist control cases that more or less carries that thought.
But there was -- there's nothing that the Navy did in this case, which in -- puts this badge upon Mrs. Brawner.
All they did was asked her for a badge, they said, "You are not a safe person on the Naval Gun Factory."
Rebuttal of Bernard Dunau
Mr. Bernard Dunau: May it please the Court.
Chief Justice Earl Warren: Mr. Dunau.
Mr. Bernard Dunau: I confess to some bewilderment at the notion that the Government in this case did not directly affect the job.
Under the concessionaire agreement, the agreement provided that the concessionaire will not engage or continue to engage an employee who is found by the Security Officer not to meet security requirements.
How much more directly can a job be affected, than by ordering the employee not to continue to engage for that employee.
On the notion that this employee has the slightest chance of getting a job in any government cafeteria, every application for employment must disclose your previous employer and why you changed employment.
Now, if this woman went to the Nat Catering Corporation, which runs the cafeterias at the Pentagon and said, "One of my former employers was M & M at the Gun Factory and I have to leave there, because I did not meet security requirements."
It would be a very lengthy to suppose that that employee would be employed by the Nat Catering Corporation and the same is true of the General Services Incorporated, which operates restaurants in all governmental facilities.
There has been an expression here that these manuals confer authority.
We, in our brief at length, show why these manuals even departmentally do not confer any authority.
For example, the statement in those manuals that a visitor constitutes an employee who is a contractor personnel or a contractor's employee, that does not refer to a contractor employee who works on the governmental premises, that refers to a contractor employee who works on his own employers premises and has occasion to visit a governmental installation.
That is made perfectly clear it seems to us, by the 1958 Manual, which says with respect to contractor employees, under the visitor classification.
I read from page 50 of our brief, "Department of Defense contractors desiring to have an employee, visit an activity of the naval establishment involving access to classified information, have been instructed to address a request in writing, directly to the commanding officer of the activity to be visited."
Certainly, employees of contractors are contractor employees and they may have occasion to visit a naval establishment.
They are then visitors which you cannot say that contractor employees who worked throughout their working ties on governmental premises are therefore visitors within a meaning of this regulation.
Now, assuming you could even get by this regulation, I want to add one other thought to which we've devoted our time in our brief, these were not published in the Federal Register.
They are therefore void for that very reason, if only makes use a locative for the failure to publish any of these materials is that we are told, they relate solely to the internal management of the agency.
Well, how can something relate solely to the internal management of an agency when the consequence of applying the procedure supposed to be authorized by this, is the cause a private employee to loose her private employment.
That thus, certainly, does not relate solely to the internal management of the agency.
The Administrative Procedure Act, the legislative history of it, with respect to that exception says, "We are talking about matters of housekeeping detail.
We do not think it's a matter of a housekeeping detail when an employee of a private employer is or is looses her job because she allegedly fails to meet security requirements."
It's suggested here that no one is saying that Mrs. Brawner was a Communist and for that reason she was found not to meet security requirements.
How does anybody know that that wasn't the reason?
We are all tolerably intelligent people when Mrs. Brawner first came to my office, both she and I and the business agent, what we explore was what conceivably could you have done which would have made you suspicious in terms of being subversive?
It never occurred to us that there was anything else at issue.
And why not?
Let's see what this employer says with respect to Mrs. Brawner.
We're told that, "She's an unsafe employee, she might do something physically wrong there.
She might break dishes presumably."
Well, this is what her employer says with respect to Mrs. Brawner as an employee and the safety in terms of physical safety.
He says, I'll read from page 62 of the record, "Mrs. Brawner and I discussed it and I have never had any question about her ability or qualifications and I pointed out to her at that time and there was no question about her work and she was satisfactory so far as the company was concerned.
And I told her that I regretted to having to do such a thing.
After all, like many of our employees, she had problems at different times, that she would come to me at will.
And actually we had come in contact with her throughout the day at different times in connection with her work.
And I can say, we had no question of her ability or qualifications to do the job."
Justice Hugo L. Black: May I ask you Mr. Dunau --
Mr. Bernard Dunau: Yes.
Justice Hugo L. Black: -- suppose the employer instead of saying that, had without any action on the part of the Government, called her in and says, "I'm discharging you.
I thought, I'm afraid of you for security reasons I don't want you around me."
Mr. Bernard Dunau: And that has not been preceded by action by the Government --
Justice Hugo L. Black: By the Government had nothing to do with it.
Mr. Bernard Dunau: I should hope that we would have then been able to persuade an arbitrator that that was a discharge without good and sufficient cause, that an employer --
Justice Hugo L. Black: Have you -- have you considered that phrase as a different constitutional question?
Mr. Bernard Dunau: Well, it would raise no constitutional question with respect to the Government, if the Government had been acting about the employer.
Justice Hugo L. Black: I'm talking about the employer.
Would you think it raised any constitutional question at all with reference to the employer?
Mr. Bernard Dunau: The employer doesn't operate under the proscriptions of either the Fifth Amendment or the First Amendment.
There can't be no constitutional question with respect to a private employer unless he is acting as an agent of the Government and there's no question of that in this case.
Justice Hugo L. Black: If you're going on the basis here and when the Government -- the Government moves against somebody --
Mr. Bernard Dunau: Yes, sir.
Justice Hugo L. Black: -- to do something to them, working for a private employer or not working for them, but the Due Process Clause requires us to go through certain procedure.
Mr. Bernard Dunau: That is correct, Your Honor.
For example, suppose this employee was discharged or for security clearance was questioned because she was a Jew or because she was a Negro, no one would doubt that this was a denial of substantive due process but no one could know that there was a denial of substantive due process on -- until procedural due process refers the court in.
And so, if and that decisions of this Court in (Inaudible) and in Wieman and the dictum in -- in the Mitchell case, clearly indicate that even as to governmental employees, there are certain things you cannot do to such employees.
You cannot discharge her for invoking the privilege against self-incrimination.
You cannot discharge them for innocent membership or knowing membership in the Communist Party.
Well, if you cannot do that to them, you cannot protect them, unless they first get procedural due process.
You must first know what is being done before you can know whether there's something that could be done about it.
Now, in the Government's brief there is a suggestion, that's voters are not life or liberty and property here for the purpose of substantive due process.
There is somehow not enough for procedural due process.
Whether there's any primacy between the two, it's procedural due process.
You cannot know what is happening until you are told what is happening.
Perhaps, this should not belabor the distinction between Mrs. Brawner as a cook and Mr. Greene as an aeronautical engineer.
But there was another case here when Greene was here, Taylor v. McElroy was here, that was dismissed as moot.
Taylor was a lathe operator and a tool and die maker.
Well, this Court mootness of aside, have decided Taylor -- decided Taylor differently than it decided Greene, because Taylor was a tool and a die maker and Greene was an aeronautical engineer.
And at those two cases mootness aside had gone the same way, are we now to draw distinctions between cooks and lathe operators?
It seems to us that this sort of thing just is a -- a kind of a fairyland detour.
We have employees here who are injured.
Mrs. Greene was injured certainly enough to make it almost an insulting relevance -- irrelevancy to ask whether she was injured more than William Greene.