Cases by Issue - Security Risks

Carlucci v. Doe - Oral Argument

Sun, 06 Feb 2011 03:46:26 +0000

Case:

Carlucci v. Doe

Media File:

87-751_19881011-argument.mp3

Related Transcript:

87-751_19881011-argument.xml

Transcript:

ORAL ARGUMENT OF MICHAEL K. KELLOGG ON BEHALF OF THE PETITIONER

Chief Justice William H. Rehnquist: We'll hear argument next in No. 87-751, Frank C. Carlucci v. John Doe.

Mr. Kellogg, you may proceed whenever you're ready.

Mr. Kellogg: Thank you, Mr. Chief Justice, and may it please the Court.

Every employee of the National Security Agency has to have a high level security clearance.

That is a statutory requirement for employment at NSA.

The question at issue in this case is not what happens to an employee who loses his clearance, for it is clear that he has to be removed.

Nor is the question whether the clearance decision itself is subject to judicial review.

The application of this Court's decisions in Egan and Webster v. Doe will remain open on remand.

The question at issue today is simply what procedures are to be followed by the agency in removing an employee who loses his clearance.

After briefly stating the background of this case, I will argue that there are three different ways to remove the employee, and the agency is charged with choosing the appropriate procedure in light of the individual circumstances.

First, the employee can be removed for cause for failure to maintain a required clearance after following all the ordinary procedures afforded to Federal employees dismissed for cause, including MSPB review if the employee is a preference eligible veteran.

Second, the employee can be suspended and then removed under the summary procedures of 5 U.S.C. 7532 following notice in a hearing if the Secretary of Defense determines that the suspension and the removal are in the interests of national security.

Finally, the employee can be removed without any procedures whatsoever under 50 U.S.C. 833 if the Secretary of Defense determines that that action is in the interest of the United States and that none of the other procedures can be invoked consistently with national security.

Well, Respondent was employed at the National Security Agency from 1968 until 1984.

In 1982 he disclosed to NSA security officials that while on vacation in foreign countries, he had engaged in homosexual relations with foreign nationals.

He subsequently received a notice of proposed removal on the grounds that his continued access to classified information was no longer clearly consistent with the national security.

Pursuant to NSA regulations governing for-cause removals, he was advised that he had a right to respond, to obtain counsel.

He was kept on paid status pending the outcome of his case, but was denied access to classified information.

Respondent requested and received a psychiatric evaluation in an effort to demonstrate that he did not pose a security risk.

A board of appraisal was convened to consider his case.

Based on the psychiatric report and Respondent's own statements, the board concluded that Respondent had shown poor judgment, that he was emotionally unstable and that he was living beyond his means.

Accordingly, the board concluded that he was a poor security risk and recommended that his clearance be revoked.

Unidentified Justice: What authority was the Secretary... or the agency acting under at this stage?

Mr. Kellogg: They were acting under dual authority.

The board of appraisal is provided for by statute.

Unidentified Justice: Yes, but when the... when the agency first took action against him and started this procedure, what did it purport to act under?

Mr. Kellogg: It was acting under its statutory authority to hire employees without regard to the Civil Service laws.

That authority puts NSA employees in the excepted service for purposes of the Civil Service Reform Act.

Now--

Unidentified Justice: And you say that that gave the agency the power to fire too.

Mr. Kellogg: --That's correct.

And because Respondent was not--

Unidentified Justice: And the agency had issued regulations?

Mr. Kellogg: --Yes.

The agency has issued regulations instituting that authority and, in fact, circumscribing its otherwise uncircumscribed authority--

Unidentified Justice: And that is what they were acting under?

Their own regulations?

Mr. Kellogg: --That's correct.

NSA has provided by regulation that NSA employees can only be removed for cause, and it has provided procedural protections to be used for for-cause removals including notice and opportunity to respond and be represented by counsel.

It is those procedures that were invoked in this case.

Unidentified Justice: Mr. Kellogg, would you tell me what is the NSA regulation that required that the removal be for cause?

Mr. Kellogg: Chapter 370--

Unidentified Justice: It's 370.

Mr. Kellogg: --of the NSA regulations says that removals are to be for such cause as will promote the efficiency of the service.

Unidentified Justice: And is that... is 370 in the appendix of the cert petition?

Mr. Kellogg: Yes, it is.

Unidentified Justice: Mr. Kellogg, doesn't Chapter 371 of the regulations say that it applies to actions to limit access to classified information and to suspend or terminate personnel for reasons of national security?

Mr. Kellogg: That's correct, Justice O'Connor.

Unidentified Justice: It looked to me reading through it, frankly, like this was a 371 proceeding or should have been.

Maybe they proceeded under 370, but were they violating their own regulations in doing that?

Mr. Kellogg: No, they were not, Justice O'Connor.

Chapter 371 implements procedures for clearing access of employees to classified information.

And it's correct that the clearance portion of what happened to Respondent took place pursuant to Chapter 371.

But once the clearance is revoked, the question is how is the employee to be removed.

Unidentified Justice: Then it becomes cause.

Mr. Kellogg: And then it becomes cause because possession of a clearance is a statutory requirement of employment at NSA.

Chapter 371 provides an alternative mechanism for removing the employee.

It implements 5 U.S.C. 7532, which permits the employee to be summarily suspended without pay and then subsequently removed if the director or if the head of the agency determines that it's in the interest of national security.

Unidentified Justice: I was a little troubled because reading the regulations, it did seem to me that they just didn't follow their own regulations.

Mr. Kellogg: Well, I think that's not correct.

They were, in fact, very careful to state precisely which portion of the regulations they were following.

There are different paths here and which path you take depends upon the language you use in notifying the employee.

If they had said we propose to suspend and remove you in the interest of national security pursuant to 5 U.S.C. 7532, then they would have had to follow 371.

Unidentified Justice: So, you say this is not a national security case as defined in the preamble to the regulations.

Mr. Kellogg: That's correct.

It's certainly true that national security is implicated.

The reason he lost his clearance is that it was no longer clearly consistent with the national security for him to have a clearance.

But the reason he was removed was for cause for failure to satisfy his statutory condition of his employment.

Now, the Court of Appeals held that the authority of the Director of NSA to remove employees for cause is circumscribed by 5 U.S.C. 7532 which the court says expressly controls terminations in the interest of national security.

And we think the Court of Appeals reversed the proper relation between 7532 and ordinary for-cause procedures.

Seventy-five thirty-two by its own terms is an optional, not a mandatory, procedure.

It states that the Secretary may suspend and remove an employee pursuant to its procedures, but it does purport to lay down a mandatory procedure for every case.

It also says that 7532 can be used notwithstanding other statutes, but nothing precludes actions taken pursuant to other statutes.

And this reference to other statutes only makes sense... is referring to provisions like the CSRA that provide protections in ordinary for-cause removals that are not available under the summary procedures of 7532.

Unidentified Justice: Mr. Kellogg, may I ask you another question?

Seventy-five thirty-two says you may suspend without pay.

Mr. Kellogg: That's correct.

Unidentified Justice: Does it... is every 7532 suspension one without pay?

Mr. Kellogg: Well, I don't think it would have to be.

Unidentified Justice: Because this one was not.

Mr. Kellogg: The statute seems to contemplate that.

For example, in part B, it says you remove... you can only suspended an employee.

And that would seem to indicate that the suspension is what starts the whole process going.

But if the agency were to choose to suspend him with pay or merely to suspend access to classified information, I don't think anybody would object.

Unidentified Justice: They might not object, but they wouldn't be following the statute if they did that.

It seems to me that this is something... and doesn't the agency head himself have to do the... invoke this procedure?

Mr. Kellogg: That's correct.

The head of the agency has to make the decision himself.

Unidentified Justice: Well, okay.

Mr. Kellogg: The point is that Section 7532 is not an employee protection statute.

It sets minimum standards to be used in suspending and removing employees.

Whether the agency could go beyond those in using 7532 is an open question, but not particularly germane to the question at issue.

Unidentified Justice: Under 7532, isn't the ultimate decision the Secretary rather than the agency?

Mr. Kellogg: Yes.

The head of the agency has to make the ultimate decision.

Now, subsequent to the Court of Appeals' decision in this case--

Unidentified Justice: But the Secretary doesn't get into the act under the for-cause--

Mr. Kellogg: --No, that's correct.

The Secretary does not.

Subsequent to the Court of Appeals' decision in this case, the Director of NSA was designated by executive order as the head of an agency for purposes of 7532.

So, in any subsequent cases, the Director himself would be making the decision, not the Secretary of Defense.

Unidentified Justice: --In any subsequent cases brought under 7532.

Mr. Kellogg: That's correct.

Unidentified Justice: Of course, he did that because under the Court of Appeals' holding, that's all he could do--

Mr. Kellogg: That's correct.

Unidentified Justice: --because they eliminated the avenue of discharge that you rely on.

Mr. Kellogg: That's correct.

Unidentified Justice: Yes.

Mr. Kellogg: And so, it would have to go back and he would have to do it again under 7532 or under 833.

That's an option as well.

Unidentified Justice: But 833 has got that condition on its use that none of the other procedures would be adequate.

Mr. Kellogg: That's correct.

It states... it's sort of the most extreme, the most restrictive provision.

Unidentified Justice: But what has happened here already would seem to indicate you never could satisfy that condition.

Mr. Kellogg: Not that you could never satisfy it.

Unidentified Justice: Yes.

Mr. Kellogg: There could certainly be cases in which 833 would be appropriate.

For example--

Unidentified Justice: Well, I agree with that, but in this case, I don't see how you could ever use 833.

Mr. Kellogg: --Oh, I don't think 833 would be appropriate in this case.

I don't really think 7532 would be appropriate either unless--

Unidentified Justice: Well, 833 is really an emergency dismissal provision.

Mr. Kellogg: --That's correct, as is--

Unidentified Justice: And we don't... that's why it's not applicable here.

Mr. Kellogg: --No, we do not have an emergency.

Section 7532 is an emergency provision as well.

The legislative history of 7532 focused on the Lloyd-La Follette Act and the Veteran's Preference Act and the procedures provided to Federal employees dismissed for cause under that statute.

It said this procedure is necessary in certain extreme and emergency circumstances to cut through--

Unidentified Justice: You are speaking now of 7532.

Mr. Kellogg: --That's correct.

Unidentified Justice: And your position is that it also is only an emergency provision that's not applicable here.

Mr. Kellogg: Well, I'm not saying that it couldn't have been used here.

Certainly NSA's mission is so sensitive that any employee for whom it is not clearly consistent with the national security for him to have a clearance, it is probably also in the interest of national security to remove that employee.

But I think the three provisions--

Unidentified Justice: What were you suggesting when you answered Justice White earlier?

That there might have to be a remand for reconsideration under 7532?

Mr. Kellogg: --If the Court of Appeals were upheld.

That's what they said.

You have to go back and do it again under 7532.

Unidentified Justice: But really there's a different standard under 7532 than there is under the National Security Agency.

In order to invoke that emergency... not the super emergency, 833, but the regular emergency... it has to be necessary in the interest of national security.

Mr. Kellogg: That's correct.

Unidentified Justice: But you can deny a security clearance without meeting that standard.

All you have to find is it's not clearly consistent with national security that this man have access to NSA materials.

Mr. Kellogg: That's correct.

Unidentified Justice: But they're different standards.

Mr. Kellogg: And once that you find that it's not clearly consistent, the statute--

Unidentified Justice: Then you have cause.

Mr. Kellogg: --requires the employee be removed.

But that doesn't necessarily mean that you have to invoke Section--

Unidentified Justice: Mr. Kellogg, you know you're going to be arguing in another case that it's not consistent with national security to give access to classified information to someone as to whom it is not clearly consistent that he can have that information.

I mean, the two really boil down to the same.

Mr. Kellogg: --Well, no, I don't think they do.

For example, in a number of agencies, you don't even have to have a clearance necessarily to work in that agency.

Every employee at NSA has to have a security clearance.

Unidentified Justice: Yes, but where you have a security clearance, I'm sure you would say that unless someone clearly can be trusted with access to the classified information, it's not... it's necessary in the interest of national security not to let him have that classified information.

Mr. Kellogg: Well, I think that might well follow, Justice Scalia.

The three statutory procedures for removing employees in these circumstances form sort of a pyramid where the for-cause procedures are the base and cover the broadest ground.

Then comes Section 7532, and finally the smallest compass and the most extreme case, Section 833.

The lines of demarcation between those procedures are not clear-cut, and much is left to the discretion of the agency to choose which one is appropriate in an individual case, but as a general principle, the for-cause procedures are to be used unless there's some reason why they shouldn't be used such as, for example, the employee can't be told the precise reasons why he's being removed.

Perhaps it would reveal a source of information that must remain secret.

In those circumstances, Section 7532 would be appropriate because it provides for a statement of reasons only to the extent that national security permits; whereas, under the for-cause procedures you have to give him a complete statement of reasons.

The premise of the Court of Appeals' decision and of Respondent's argument appears to be that he would have received more procedures under 7532 than he received under the for-cause procedures.

Unidentified Justice: xxx Secretary's decision.

Mr. Kellogg: That's correct.

The Secretary of Defense, under the prior procedures would have been involved if 7532 had been invoked, but he would also have been suspended without pay for 16 months.

He would have received notice only to the extent consistent with the national security.

He would have had no right to counsel.

He would have had a single hearing of unspecified scope.

And if a decision were made to remove him, he would have been ineligible for any other position in the Department of Defense and for any other job elsewhere in government without OPM specifically saying that he's eligible.

Now, that contrasts sharply with what he actually received, which was 16 months of pay, notice and opportunity to respond, counsel, several layers of intra-agency review, including a personal meeting with the Director of NSA and a recommendation that the agency try to find his employment elsewhere where a clearance was not required.

Unidentified Justice: When did his pay stop?

Mr. Kellogg: His pay stopped on the date of his removal when the final decision was made by the Director of NSA.

The only person who would be better off if Section 7532 became the standard means for removing people who lose their security clearance is Respondent because he got all the other procedures.

Everybody else would be worse off.

There are any number of reasons why the agency might determine that someone's access to classified information is no longer clearly consistent with the national security.

It could depend on a number of mundane factors such as financial problems, alcohol abuse, mental health concerns, carelessness in the handling of classified material, or simply that a family member has close ties with a hostile country.

Now, in all of those circumstances, the employee may lose his clearance and his job at NSA because NSA cannot tolerate any unnecessary risk.

Its mission is too sensitive.

But we're still dealing in those cases with a fairly run-of-the-mine clearance determination, not an emergency such that the procedures of 7532 have to be invoked.

There will, unfortunately, be more dangerous cases from time to time in which an employee has to be excluded from access to classified information and removed immediately and in which perhaps he can't be given a full statement of the reasons.

In those cases, Section 7532 or even Section 833 would be appropriate.

But it's important to note that it's in the agency's own interest to provide its employees with as much protection as possible to avoid any arbitrary or unnecessary removals and to give the employee himself a sense that he's being treated fairly because a disgruntled ex-employee with classified information poses a grave security risk.

The ultimate irony of the Court of Appeals' decision is that it seems to mandate a more severe procedure than the agency itself would want to use.

Unless there are any further questions, I'll reserve the remainder of my time.

Unidentified Justice: Thank you, Mr. Kellogg.

We'll hear now from you, Mr. Gill.

ORAL ARGUMENT OF JOHN G. GILL, JR. ON BEHALF OF THE RESPONDENT

Mr. Gill: Mr. Chief Justice, may it please the Court.

We respectfully submit that the decision by the District of Columbia Circuit be affirmed because of the plain language of the statute, its legislative history, a pertinent executive order, the pertinent Department of Defense directive, NSA's own regulations, and the clear mandate of this Court's trilogy of security cases in the 1950's, Cole v. Young, Vitarelli v. Seaton, and Service v. Dulles, which we submit mandate calling a security case a security case.

First of all, I need to emphasize that the mandatory procedures that are at issue in this case are keyed to removal or termination.

Much is made in the government's papers about suspension, and that, indeed, is discretionary when you're dealing with security risks, tactical decisions as to whether to suspend now or perhaps watch a person and see what's happening are proper.

But... and I think this is the answer to Justice Stevens' question about was he suspended without pay and is that a mandatory procedure to trigger these rights.

The suspension is discretionary, but once you get to removal, these procedures are mandatory.

And the mere fact that the government paid him for some more months should not, we submit, obviate his congressionally mandated head-of-agency review rights.

And as is conceded, this was a termination case from the very beginning.

And in the words of 7532(3), an employee is entitled to the following procedures before removal.

And as the D.C. Circuit held, we were entitled, we complain, about not receiving a hearing at the agency authority duly constituted for this purpose, a review of the case by the head of the agency or his designee, and a written statement of the decision by the agency head.

Unidentified Justice: But before that carries the day for you, you've got to show that 7532 is the exclusive provision for removal.

Mr. Gill: Yes, Your Honor.

We contend that when you terminate in the interest of national security, which I'll get to the record and why this case is such a case, these rights are mandated.

We disagree with the mere option argument of the government.

When you have a security case, as this is, a termination in the interest of national security, these rights are mandated by Congress.

Unidentified Justice: And you'll tell us why I suppose.

Mr. Gill: Yes, Your Honor.

Unidentified Justice: Certainly the plain language of 7532 doesn't say that.

It says:

"Notwithstanding any other statutes, the following procedures may be employed. "

But you say--

Mr. Gill: Then it starts with suspension, Your Honor.

Unidentified Justice: --Suspension without pay.

Mr. Gill: And suspension is discretionary.

Unidentified Justice: Right.

Mr. Gill: But then it gets to but when there's removal, the employee is entitled.

Unidentified Justice: But that's an employee suspended under Subsection (a) of this section, so forth and so on, is entitled.

Mr. Gill: Well--

Unidentified Justice: That's the only mandatory language I see.

Mr. Gill: --Well, we respectfully say that this... if it is in the interest of national security, this is the only option if it's truly an interest of national security case.

Unidentified Justice: I understand that's your position.

All I'm saying is the plain language of the statute doesn't say that.

That's all.

Mr. Gill: Well, we point out in the... most of our record references are to the Court of Appeals' appendix, which we understand has been filed with the Clerk and circulated to the Justices.

The initial notice at Court of Appeals 82 started out:

"This is a notice to remove you from your critical, sensitive position. "

Our point is that it was a removal on national security grounds from the very beginning.

The government's entire for-cause argument depends on Chapter 370, which is their inherent authority for-cause procedures.

And, of course, the simplest answer to this, as Justice O'Connor has already pointed out, is it... they didn't use the 370 standards.

Three seventy point three, which is found at Court of Appeals' Appendix 67, Subsection 3-2 reads:

"This section does not apply to a suspension or removal taken in the interest of national security. "

The government's position is anomalous in the light of Chapter 371.1.

That's at Court of Appeals' Appendix 228.

"This chapter prescribes policies and procedures governing actions to limit access to-- "

Unidentified Justice: Excuse me.

You wouldn't have the references to the... to the petition rather than the Court of Appeals--

Mr. Gill: --This is not in the petition.

I think this may be found in our brief in opposition to certiorari.

We set out 371... and I think that's at 12(b).

No, I'm sorry.

That's at 10(b) of our opposition to certiorari.

And the very first, 1.1 says:

"This chapter prescribes policies and procedures governing actions to limit access to classified information, suspend or terminate civilian personnel of NSA for reasons of national security. "

Now, this is very important language because the government's argument seems to intertwine cause with the taking away of a security clearance, the taking away of access to classified information.

This preamble to 371 says 371 applies when you either terminate or circumscribe someone's access to classified information.

So, by NSA's own regulation, this is the procedure that's to be used, and this procedure later on mandates the 7532 procedures: appeal to the agency head, hearing by a duly constituted board, and a decision by the Secretary of Defense.

So, by its own regulation, 370 which they rely on is not applicable.

Three seventy-one, whether you consider it a mere taking away of a security clearance... they have to use 371 before they get to cause.

Unidentified Justice: --But is there any contest about the revocation of his security clearance?

That has been revoked, hasn't it?

Mr. Gill: Yes, Your Honor.

We--

Unidentified Justice: So, this isn't... this isn't a proceeding in which it was sought to take away his security clearance.

Mr. Gill: --Well, it's unclear.

It was always sought to remove him, out he was being removed because you can't work there with a... without a security clearance.

And the government says this is cause.

We say you take away his security clearance in the interest of national security, which I think Justice Scalia said is the same standard as the 7532--

Unidentified Justice: Well, did he argue in these proceedings that his security clearance shouldn't have been revoked?

Mr. Gill: --Yes, Your Honor.

Yes.

Unidentified Justice: And was this the proper forum in which he should argue that?

Mr. Gill: Well, we contend that there should have been 371 rights that gave us these rights plus appeal to the Secretary of Defense.

Unidentified Justice: That's under--

Mr. Gill: He was cut off.

Basically I think the proceedings would have been the same up through the Director of NSA, but then we would have had another hearing, a review by the designee of the Secretary of Defense and then a written--

Unidentified Justice: --You would have had on top of this... if the agency said your security clearance is revoked, then you're going to have a 7532 hearing.

Mr. Gill: --Yes, Your Honor.

Unidentified Justice: And in which that decision to revoke will be relitigated, wouldn't it?

Mr. Gill: "Reviewed and readjudicated" in the words of the executive order.

Now, there are certain standards set up in these regulations.

Three seventy sets up the familiar standard for such cause as will promote the efficiency of the service.

And that's in Section 3-4.

That was never utilized.

We never heard that term until we got to this Court.

Unidentified Justice: What?

The for-cause?

Mr. Gill: For-cause as it would promote the efficiency of the service.

There was a talismanic incantation of 370 a few times at the administrative level, but it was always whether his continued access to SCI's, classified information--

Unidentified Justice: But there was no doubt that the proceeding before the agency was under 370.

Mr. Gill: --They said that.

There is a doubt.

This is my point, Your Honor.

Unidentified Justice: Well, anyway--

--Talismanic incantation for the good of the service instead of a talismanic incantation of 370.

Mr. Gill: No.

I asked this Court to follow the mandate of Cole v. Young, Vitarelli v. Seaton.

Is it really a security case?

What test was used?

The test was the 371 test.

Is his access clearly consistent with the interest of national security, which we respectfully submit, is the test in 7532.

Never did they use the 370 test even though they said that term, that number.

They never said for such cause as would promote the efficiency of the service.

Unidentified Justice: But 371 covers not only policies and procedures to terminate civilian personnel for reasons of national security, it also prescribes policies and procedures governing access... governing actions to limit access to classified information.

And what the government says it was using 371 for, as I understand it, is to say that this person is not entitled to classified information.

Since he is not entitled to classified information, it is in the good of the service that he not hold his job.

Why isn't that an adequate explanation of the use of 371?

Mr. Gill: Because, Your Honor, I heard that for the first time in this Court.

And I'm very familiar with the record.

You will not find in the record any mention of 371.

That was never utilized.

I mean, the standard was utilized, but they never acknowledged they were utilizing it.

If you use 371--

Unidentified Justice: So, for that, they did the wrong talisman.

That one they did use the standard and didn't use the number.

The other one you were complaining about, they did use the number, but didn't use the standard.

Mr. Gill: --Well, Your Honor, yes, they used the 371 standard.

My point is that when you use 371, you get your 7532 procedures.

That's in that regulation, and it mandates review at the Secretary of Defense level, which is why we're here.

So, the fact that they used the 371 standard is very important.

That gives us these rights that we think Congress gave us.

If I could refer to the initial letter.

It had the standard of... it's not your... your continued employment is not clearly consistent with the national security.

They then convened a board of appraisal.

Under the 1964 legislation, a purely security procedure, which deals with or impanels people who are... have expertise in the area of security and advises on national security matters.

And that body found that his access to classified information was clearly... clearly not consistent with national security.

Most significant is the Director of NSA's own decision.

It's at 192 of the Court of Appeals' record, and I quote paragraph C.

"Doe's record on the job evidences proper security awareness, but his lifestyle away from work is not similarly acceptable. "

We feel that under the for-cause standard promoting the efficiency of the service, this is almost a finding that it does not impair the efficiency of the service because his on-the-job performance is acceptable.

He then goes on.

"I find much attractive about Doe and his work record and performance. "

"I also find him significantly flawed in his off-duty behavior and a potential security risk. "

This was a security case.

This was not a for-cause case.

And when you... when it is a case in the interest of national security, the government has to contend with Executive Order 10450.

President Eisenhower, 1953.

We have cited in our papers and the government in its reply brief has quoted Section 6.

Now, this is at 250 of the Court of Appeals' appendix.

Section 6 deals with the discretionary nature of suspensions.

And Executive Order 10450 is by its terms more broad than 7532.

Section 5, which is unrebutted in the reply brief, is mandatory in nature and mandates the 7532 procedures for any and all terminations in the interest of national security.

"Whenever there is developed information indicating the retention of employment may not be clearly consistent with the interest of national security, such information shall be forwarded to the head of the employing department or agency who shall review or cause to be reviewed and, where necessary, readjudicate in accordance with the Act of August 26, 1950. "

That is 5 U.S.C. 7532, which the Court of Appeals held we were entitled to.

Why does the NSA regulations and the executive order seem to indicate that 7532 rights were mandated?

We feel that back in the early 1950's, when the executive order came into being, when this legislation was passed, there was great concern... the Korean War, the cold war... about security risks.

There was also a great concern about witch hunts in government employment.

People wrongfully, frivolously being ferreted out as national security risks without basis.

We've set out at length the legislative history at pages 23 to 34 of our brief, both of the 1950 Act and the 1964 Act.

We have done that in footnote fashion.

On the whole, it clearly shows that the District of Columbia Circuit was right in this case.

There was a legislative compromise.

A part, a significant portion of Congress, wanted civil service review for the protection of employees.

Another part of Congress wanted additional power, not emergency power.

This is not an emergency act, although I can see it does away with outside the agency review, but greater power to the Secretary to terminate in the interests of national security.

A compromise was reached.

The politically responsible, often Cabinet-level officer, accountable to the President, accountable to Congress who could be called down to legislative hearings to say, what's happening in your agency, why are there so many employees being terminated, why do you have security leaks there.

a high level that would show an impartial tribunal, not the people who were trying to get rid of the employee anyway, but someone removed but, again, consistent with the values preserved in this Court's decision in Egan where there will not be outside the agency substantive review for a security clearance.

Unidentified Justice: And you think Congress intended as a regular matter, whenever there's a security problem, including a clearance problem like this for security information, that the head of the agency is going to be spending his time case by case determining these matters?

I think that--

Mr. Gill: Your Honor--

Unidentified Justice: --As a routine matter, not an emergency provision.

Mr. Gill: --Your Honor, the statute clearly gives the authority to the head of the agency to delegate it to a duly constituted authority for a hearing and a designee for review.

He does have to sign off on the eventual order.

Unidentified Justice: Don't you think that means he has to personally understand the order?

Mr. Gill: Oh, yes.

Unidentified Justice: He has to give his personal attention to it.

Mr. Gill: And he can take the advice of his subordinates, his designees.

I think the intent of Congress was that the office, insulated from direct connection with the people making the initial employment decision--

Unidentified Justice: Right.

Mr. Gill: --would have a review like an appellate court.

Unidentified Justice: Like an appellate court.

And you think that that was the routine way in which Congress intended security problems to be handled in these agencies, personal attention of the head of the agency.

Mr. Gill: If you read the legislative history--

Unidentified Justice: Not an emergency.

That's the routine way.

Mr. Gill: --Yes, Your Honor.

Unidentified Justice: Well, that would be extraordinary if that were the case.

Mr. Gill: If you look at 2330, which was quoted by the Court of Appeals, the... it said right now there is no appeal to the head of an agency when you're terminated in the interest of national security.

And it said this new legislation extends that right to employees.

Unidentified Justice: The agency here is the Defense Department, and you're talking about the Secretary of Defense who has a few other things to do--

Mr. Gill: Yes, Your Honor.

Unidentified Justice: --overseeing all security problems and clearances in the entire Defense Department.

Mr. Gill: Yes, Your Honor.

Unidentified Justice: Personally.

Mr. Gill: However, I'd point out, as the government has in their reply brief, the President has now designated the head of NSA as the head of an agency for this purpose.

Unidentified Justice: Good thing, but even that person I assume has other responsibilities that might better occupy his time.

Mr. Gill: Well--

Unidentified Justice: As a routine matter, I mean, I could understand as an emergency.

If you want to get rid of somebody quickly, which is how I understand this provision, you might make him, if you want to do it quickly... make him do it personally, but not as a routine matter.

Isn't it... it's such an implausible intent on the part of Congress.

Mr. Gill: --I think if you read the legislative history, Your Honor, you'll... so it was intended, specific reference, and we have set it our in our brief.

Unidentified Justice: Counsel, Section 832 and 833 both say that notwithstanding the section, Section 7512 and 7532, there may be terminations.

Mr. Gill: Or any other legislation--

Unidentified Justice: Doesn't... doesn't that envisage that Section 7512 could on some occasions be used for national security cases?

Mr. Gill: --No, Your Honor.

I--

Unidentified Justice: I mean, why else would Congress have mentioned 7512?

Mr. Gill: --For the same reason they said nor any other legislation, which they--

Unidentified Justice: Well, they specifically said 7512.

Mr. Gill: --And they specifically said 7532.

I think that at best is a mandate of Congress or an intent of Congress to say we want to make it clear.

There is no review of the extraordinary emergency power in 833.

No other statutes will get in the way of it.

I don't think you can read what the government read in that there exists an option.

In fact, the D.C. Court of Appeals took just... I mean, the D.C. Circuit took just the converse.

They said the mere mention of 7532 shows that they had to remove that to demonstrate that 833... that 7532 was not mandated.

Unidentified Justice: Well, and as I recall, the D.C. Circuit didn't even cite 7512.

It did an ellipse of the statute.

Mr. Gill: But my point is I don't think it means an option.

And if you look at the legislative history of that Act, the 1964 Act, you see Congressmen saying as long as this new legislation doesn't get in the way of the ordinary appeal rights.

And we've set that out by way of footnote in our brief.

To analyze the competing contentions in this case, the government argues that you have a general power to terminate which is inherent from the power to hire.

And they can use it if they rely on it.

We argue that Congress has given a specific focus to national security cases of termination in the interests of national security, and in those cases there shall be these procedural reviews.

Unidentified Justice: Seventy-five thirty-two starts out not by talking about removal at all.

It talks about suspension.

Mr. Gill: Yes, Your Honor.

Unidentified Justice: And it only gets to removal in the second subsection.

That sounds to me like it is more designed to deal with an emergency where your first reaction is to suspend the guy and separate him, and then maybe later you'll think about removal, rather than the comprehensive statute governing all removals.

Mr. Gill: These are only removals in the interests of national security.

We have kind of an unusual situation here, Your Honor, because everyone has to be cleared at NSA to work there.

This is the 1964 legislation.

I don't think we necessarily had this situation in 1950 when Congress acted.

But--

Unidentified Justice: What about the period between 1959 and 1964?

They hired people... began hiring people in 1959.

Mr. Gill: --Yes, Your Honor.

Unidentified Justice: And your interpretation means that during that period, the '59 Act, in effect, said you can appoint these people, but you cannot fire them without following the 7532 procedures.

Mr. Gill: You can suspend, but you can't--

Unidentified Justice: It's kind of a strange way to read the '59 statute.

It surely doesn't say that.

They're not necessarily in the Civil Service or anything else.

Mr. Gill: --The '59 statute says nothing about termination.

Unidentified Justice: It just gives them the power to appoint, and presumably they could appoint and say you're hired at will or you're hired on a one-year contract.

I don't see how you read into the '59 statute the limitations that you find in the earlier 1950 statute.

Mr. Gill: Respectfully, Your Honor, I don't do it; the Department of Defense does it.

And I'd like to quote 5100.23.

That's the Department of Defense directive which gave--

Unidentified Justice: Where do we find that?

Mr. Gill: --It's at the Court of Appeals' record 62.

Unidentified Justice: Well, we don't have... is it--

--I think we have--

--the Court of Appeals' record up here.

Mr. Gill: Well, I was assured.

It was the Solicitor General's idea, and I was assured it was distributed.

I'm sorry.

But in most brief... both briefs, most of the references are to that.

But that is the delegation of authority under the '59 Act from the Secretary of Defense to the Director of NSA.

And if I can quote paragraph 10 where these are the different...

"authorize the suspension, but not to terminate the services of an employee in the interest of national security in positions within the NSA, in accordance with the provisions of. "

and it goes on and it cites statutory authority, including 7532.

Now, the government argues that--

Unidentified Justice: Before you leave that, would you tell me again what the citation is to that, what you just read?

Mr. Gill: --This is the Department of Defense directive 5100.23, and it's at page 62 of the Court of Appeals' appendix.

Unidentified Justice: Thank you.

Mr. Gill: And this is the delegation of authority in this regard from the Secretary of Defense to the Director of NSA pursuant to this Act.

And clearly, if we use principles of the English grammar, when something set off by commas, he withheld to himself the power to terminate the services of an employee in the interests of national security for positions at NSA.

And this defeats totally the government's argument on inherent authority because of In re Hennen and all of those cases say the power is inherent unless circumscribed by regulatory... we think it's also a recognition of the congressional mandate.

The principle we espouse here is not a startling one, we respectfully submit.

And that is when there's a specific focus on legislation that overcomes and overrules general inherent powers, then you have to follow those procedures.

Unidentified Justice: Was this the ground the Court of Appeals used?

Mr. Gill: They did not focus on the Department of Defense directive.

They did say what I just quoted: the specific focus of legislation would control--

Unidentified Justice: They said 7532 was the exclusive.

Mr. Gill: --It's mandated when there's a termination in the interest of national security.

Unidentified Justice: But they didn't specifically rely on the argument you've just been making?

Mr. Gill: The Department of Defense directive?

No, they didn't mention it.

We argued it.

They did not mention it.

Unidentified Justice: And the presidential... did you say a presidential proclamation?

Mr. Gill: Yes, Your Honor.

Unidentified Justice: Did they rely on that?

Mr. Gill: No, I don't think they did.

However, that's repeatedly mentioned.

Vitarelli v. Seaton... this Court relied on it to mandate compliance with States' regulations for security cases.

Unidentified Justice: So, you would think you... even if the 7532 argument wasn't good, you would win under the President's proclamation?

Mr. Gill: Your Honor, we win under the statute, the presidential order, the Department of Defense directive, and NSA's own regulations.

Unidentified Justice: Well, but you're defending the ground that the Court of Appeals used.

Mr. Gill: Absolutely, in addition to the others, yes.

Unidentified Justice: Well, in addition, you usually start with that, and then you say even if the Court of Appeals was wrong, you win on these other grounds.

Mr. Gill: Yes, Your Honor.

Unidentified Justice: But we don't have to deal with those other grounds if we don't want to.

We could leave that to... for the Court of Appeals, couldn't we?

We don't have to entertain these respondents' claims to defend the judgment on some other ground.

Mr. Gill: I suppose not, but I think it would be wise to do so if there's clear regulatory authority.

Unidentified Justice: Well, it isn't... it might help if the Court of Appeals gave us some aid on this other regulatory authority.

Mr. Gill: Well, I also submit, Your Honor, this regulatory authority and the presidential orders are manifestations of what Congress intended and what the government itself thought Congress intended.

To get through the logical steps that the government makes in its for-cause argument, you have to say a security clearance is required at NSA.

We're taking away a person's security clearance.

So, he's terminated for cause because he doesn't fulfill a qualification of employment.

They come right up against the procedural wall that we've been discussing here when they take away the security clearance in the interest of national security, and it triggers these procedural rights.

I see I don't have time to--

Unidentified Justice: Why is that?

When they take away the security clearance in the interest of national security, what is triggered?

Mr. Gill: --Termination in the interest of national security, 7532--

Unidentified Justice: No.

We weren't talking termination; we're talking about taking away a security clearance.

Mr. Gill: --That's the equivalent of termination in this case.

That's the equivalent of termination at NSA.

And they said that.

Unidentified Justice: Now, what says that?

Mr. Gill: The 1964 Act, 831.

You have to have a security clearance to work at NSA.

Unidentified Justice: Well, I know, but--

Mr. Gill: And this was recognized administratively, Your Honor, when they gave them the notice.

Unidentified Justice: --What is crucial to your case is that taking away a security clearance is ipso facto treated by these statutes as the equivalent of termination.

Mr. Gill: In these circumstances.

There might be other agencies where it wouldn't amount to termination.

So, it wouldn't... it wouldn't amount to removal if they could put them somewhere else, but they can't at NSA.

Unidentified Justice: I don't see that that's self-evident to me that the two under the statutory scheme are to be treated the same.

Security clearance is one thing; termination is another.

Mr. Gill: Except that the notice says we are terminating... we're removing you because we're revoking your security clearance.

That's the facts of this case.

Unidentified Justice: Well, I understand, but what we're doing is revoking your security clearance, and since you don't have a security clearance, you can't hold this job.

Mr. Gill: And that is, I think, to subvert the intent of Congress and the intent of these other regulations.

Unidentified Justice: You have a regulation that says that, that revoking a security clearance is the same as termination?

Mr. Gill: No.

We have the statutory requirement and we have 371 which triggers the 7532 procedures, NSA's own regulation.

Unidentified Justice: Mr. Gill, section 7531 that precedes 7532 in the Code says what agency shall include when 7532 says the head of an agency.

And it lists State, Commerce, et cetera.

And then at the very end, it says:

"such other agency of the Government of the United States as the President designates in the best interest of national security. "

Now, that doesn't sound like an employee's bill of rights really if the President can bring other agencies into it or not as he chooses depending on national security considerations.

Mr. Gill: Well, two responses.

This Court did limit the President's authority in Cole v. Young where they said that they could not... kind of the converse of this situation... they could not obviate a person's veteran's preference rights by making HEW one of these agencies.

And also the Court in Vitarelli, I believe, said that an employee is entitled to these procedures.

The Secretary of State in that case could not change the reasons for his removal by saying I now act in my absolute discretion.

You're not going to get your rights under regulations 7532 type rights.

In further answer, Your Honor--

Unidentified Justice: But I'm curious.

If it was thought to be something where an employee's right are to be protected, it was left to the President for national security consideration to expand it beyond the reach of the agencies that Congress had designated.

Mr. Gill: --Absolutely true.

Unidentified Justice: I know it's true, but it doesn't seem--

Mr. Gill: And I think... I think--

Unidentified Justice: --it's consistent with your argument.

Mr. Gill: --I think the initial motive for the legislation was to expand terminations of security risks, but Congress mandated a compromise: appeal in the agency for substantive review at the Secretary of Defense level.

Unidentified Justice: May I ask one question to be sure I have your position?

Is it your position that in order to revoke a security clearance in the National Security Agency, they must follow the 7532 procedures?

Mr. Gill: When it equates with termination.

Unidentified Justice: Well, no.

Mr. Gill: Yes, yes.

Unidentified Justice: They must do it every time, okay.

Mr. Gill: And that's their own regulations, Your Honor.

Three seventy-one says that.

Unidentified Justice: Well, I understand that's your position.

Thank you.

Thank you, Mr. Gill.

Mr. Kellogg, you have 11 minutes remaining.

REBUTTAL ARGUMENT OF MICHAEL K. KELLOGG

Mr. Kellogg: In the Court's decision in Cole v. Young, the Court compared 7532... situations in which use of that statute was appropriate with ordinary removal procedures.

And the Court stated quite clearly:

"In the absence of an immediate threat of harm to the national security, the normal dismissal procedures seem fully adequate and the justification for summary powers disappears. "

Now, the MSPB and the Federal Circuit, which have wide responsibility for Federal personnel matters, also stated in the Egan case that the existence of Section 7532 does not affect the availability of for-cause removal procedures whenever the cause might implicate national security.

In lieu--

Unidentified Justice: Part of Mr. Gill's argument, Mr. Kellogg, is that even if you could have proceeded under one of these other provisions, you didn't.

And I must say he does seem to make a point that you were proceeding under 371 which is not the for-cause removal procedure.

Is that correct?

Mr. Kellogg: --I think actually the agency was very careful in choosing the procedures that it followed here.

The notice of proposed removal to Respondent stated: your...

"it appears that your continued access to classified information is no longer consistent with the national security. "

"Therefore, you no longer meet a requirement of employment at NSA. "

"Therefore, you will be removed under Chapter 370. "

Now, it's true that the notice didn't say under the for-cause standard of Chapter 370, but Chapter 370 only allows removals for a cause.

The agency was quite careful to follow the 370 procedures.

Now, there are separate procedures under 371 for implementing Section 7532, but the agency did not follow the 7532 procedures for removals and dismissals in the interests of national security.

Unidentified Justice: But it's also true that Section 371 in its introductory sentence says:

"It purports to prescribe policies and procedures governing actions to limit access to classified information. "

That seems to support your opponent's view that that section governs the procedure for taking away a security clearance.

Mr. Kellogg: It would only support the proponent's... the opponent's view if it followed that once you revoke a clearance, you have to continue and can only use Section 7532.

Now, it's true that Chapter 371 implements the statutory authorization for using boards of appraisals to assess whether a person should have access to classified information.

And a board of appraisal was used in this case and determined that Respondent's access was no longer clearly consistent with the national security.

Therefore, his clearance was revoked.

Unidentified Justice: So, are you saying that insofar as they went through the revocation of access procedure, they did follow 371?

They didn't violate it.

But then when they removed him, they were following 370?

Mr. Kellogg: That's correct.

And there's nothing in the regulations that precludes that.

In fact, it would be quite extraordinary if NSA in its own regulations were to bind its hands and give itself only the option of using the emergency procedure whenever a clearance is revoked.

Unidentified Justice: You maintain that you carefully tailored it for 371, but you never mention 371.

Mr. Kellogg: We carefully tailored it for 370.

Unidentified Justice: Well, did you carefully not mention 371?

Mr. Kellogg: I don't recall if 371 is specifically mentioned.

A board of appraisal was convened.

Unidentified Justice: He said it wasn't mentioned.

Mr. Kellogg: That's true.

Respondent said that.

I'm frankly not sure if anywhere in the record there is or is not a mention of Chapter 371.

A board of appraisal was convened, and a board of appraisal is permitted under the procedures of Chapter 371, but the removal took place under Chapter 370.

And the fact that a procedure exists under 371 for removing an employee summarily, when it's necessary in the interest of national security, does not affect whether loss of a clearance is cause for removal.

Unidentified Justice: Yes, but unfortunately this combination of 370 and 371 is contradicted by the very first section of 371 which reads:

"Scope. "

"This chapter prescribes policies and procedures governing actions to limit access to classified information, suspend and/or terminate civilian personnel of the NSA, Central Security Service, for reasons of national security. "

"Such actions for reasons other than national. "

--other than national...

"security are processed in accordance with Chapter 370. "

And yet, you purport to be going under 371 and 370.

I mean--

Mr. Kellogg: That's correct.

Unidentified Justice: --this thing says it's a dichotomy.

If it's for national security, it's under 371; if it's other than national security, it's under 370.

Mr. Kellogg: No.

If it's implementing Chapter 75... or Section 7532, then you have to follow the procedures in Chapter 371.

Counsel is quite correct that the delegation of authority to the Director of NSA specifically withheld the power to suspend and terminate employees in the interest of national security pursuant to 7532.

As a consequence, NSA had to develop separate procedures for suspensions and removals in the interest of national security.

But a removal for cause is something quite different, and nothing in Chapter 371 says that loss of a clearance cannot be cause for removal.

But also a note to follow up on Justice White's point.

The District Court was faced with the question of whether NSA followed its procedures in this case.

It found that it did, that the removal comported with NSA regulations.

The Court of Appeals, in light of its statutory holding, did not reach that question.

If the Court is troubled by the regulatory question but wishes to reverse on the statutory question, the Court could remand to the Court of Appeals for... to address the question of whether NSA followed its own regulations.

But the NSA regulations have been in place since the inception of NSA, and removals time and again take place for cause after revocation of a clearance.

The agency's own interpretation of its regulations is surely entitled to some deference.

Unless there are any further questions--

Chief Justice William H. Rehnquist: Thank you, Mr. Kellogg.

The case is submitted.

Unidentified Justice: The honorable court is now adjourned until tomorrow at ten o'clock.

Attribution:

The OYEZ Project

Featured:

Webster v. Doe - Oral Argument

Wed, 13 Apr 2011 20:09:46 +0000

Case:

Webster v. Doe

Media File:

86-1294_19880112-argument.mp3

Related Transcript:

86-1294_19880112-argument.xml

Transcript:

ORAL ARGUMENT OF CHARLES FRIED, ESQUIRE ON BEHALF OF PETITIONER

Chief Justice William H. Rehnquist: We will hear argument now in Number 86-1294, William H. Webster v. John Doe.

General Fried, you may proceed whenever you are ready.

Mr. Fried: Thank you, Mr. Chief Justice, and may it please the Court:

In this case, the Director of the Central Intelligence Agency dismissed from his employment Doe, who had been employed in the Agency for some nine years.

At the time he was dismissed, he held a covert position as an electronics technician.

In January of the year in which he was dismissed, he voluntarily informed security officials that he was a homosexual; and after considerable inquiry, negotiation and discussion, in May of that year he was informed that the Director of Central Intelligence had decided to terminate his employment pursuant to Section 102(C) of the Act, which speaks of termination with the Director deems that such action is necessary or advisable in the interests of the United States.

Doe brought suit, seeking reinstatement or reconsideration of the decision.

The Court of Appeals held that there were no procedural defects in the procedures below, but did state that there was unclarity about the basis for the Director's action.

It was possible, in the Court of Appeals' view, that Doe had been dismissed pursuant to a general policy of dismissing all homosexual employees.

Again, they found further unclarity there.

To the extent that such a policy dealt with employees who had engaged in homosexual activities, which Doe had stated he had since the year 1976, the Court of Appeals felt that the matter was foreclosed by Circuit precedent in the case of Dronenburg v. Zech.

However, the Court of Appeals thought it possible that Doe had been dismissed on the basis of a general policy for dismissing all employees with a homosexual orientation.

And in that event, it became incumbent upon the Agency to explain, in the Court's words, "at the very least", why such a policy was necessary and advisable in the interest of the United States.

The Court of Appeals concluded, of course, that, to the extent that these questions must be pursued in the District Court, that review was not precluded under the Administrative Procedure Act by Section 102(C).

It has been our position in all courts and it is our position today that Section 102(C) of the National Security Act of 1947, which sets up the Central Intelligence Agency, precludes judicial review, under the APA, of this question.

It is important at the outset I think to have a sense of the structure of the 1947 Act as a whole.

It is quite a short statute.

It is a statute which establishes the Agency.

The first provision says there shall be a Central Intelligence Agency and a director and a deputy director, and then goes on to say what will happen if the director is a member of the military.

The next section, which is Subsection (C), the one in question here, which is the very first substantive section of the Act, states that, notwithstanding the provisions of Section 751, or the provisions of any other law, the Director of Central Intelligence may, in his discretion, terminate the employment of any officer or employee of the Agency whenever he shall deem such termination necessary or advisable in the interests of the United States.

That is the first substantive section of the Act setting up the Agency.

The next section, the very next section, sets out the powers and duties of the director and the Agency, and that section contains the provision which was the subject of this Court's recent decision in CIA v. Sims.

It is that section which states that the Director of Central Intelligence shall be responsible for protecting intelligent sources and methods from unauthorized disclosure.

In our view, these two sections are really flip sides of each other, that the general injunction upon the Director to protect the intelligence sources and methods of the United States implies, and then that it has set out the specific duty to protect the integrity and security of the CIA work force.

It seems to us, further, that the decision of this Court in CIA v. Sims, which dealt with the latter provision, sets the tone and sets the context for the consideration of the case here.

In the Sims case, the Court of Appeals, the same Court of Appeals as decided this case, while recognizing the very special and delicate position of the Agency, went on to give that provision what this Court described as a "crabbed interpretation", an interpretation which would allow a considerable amount of what I would call rummaging around in the business of the Agency in litigation, through deposition, through discovery, through testimony, document production, and the like.

Unidentified Justice: Mr. Fried, I am not sure that I know exactly how to interpret the majority opinion of the Court of Appeals in this case.

Do you think that Court opened it up for courts to determine in each instance under 102 whether the decision was in the interest of the United States?

Mr. Fried: I think it certainly did.

What the Court said was that there was a possibility that the firing was on the basis of a general policy relating to employees with a homosexual orientation.

Therefore, it was open for District Court to inquire what the policy is.

And, Justice O'Connor, it is not sufficient, I suppose, once you get into litigation, for the Agency simply to say well, we have no such policy.

Because the litigant can say, yes, you do, and let's have a lawsuit about that.

Unidentified Justice: Is it open to the Director to protect himself from judicial inquiry by saying in effect that he intends to give no reason?

Mr. Fried: The Court of Appeals, in one of the more mysterious aspects of its decision, said that if the Director intended to terminate the employment without giving a reason, that that would be all right.

But if, however, he was terminating the employment on the basis of this policy, that would trigger the responsibility of the Director to explain at the very least why his decision and that policy was necessary and advisable.

Therefore, it would seem to me that it is open to a persistent litigant in every case to say you, Director, did not intend to give reasons, but it seems to us that nonetheless, you acted under a general policy and now we think that policy is unconstitutional and you must at the very least explain why it is advisable.

Unidentified Justice: If it is correct that the Director intended to give no reason, do you support that aspect of the Court's opinion?

Mr. Fried: I would be very happy to rest content with that, except I don't know what it gives me.

I am afraid that I am buying an empty bag there, because the Court of Appeals, while it acknowledge that possibility, I don't think would have been content with a simple statement that that is what we intend.

Indeed, it is a little hard to know how the Director could have more clearly indicated that he was not putting forward reasons, and inviting inquiry into the basis of his action, because what he stated was that he is terminating the employment because he deems it necessary and advisable.

Now, that seems to me to be about as good a way as any to say I don't want to give any further reasons.

And yet, the Court of appeals said well, let's rummage around a little bit more to see what we come up with.

And that is what I think is intolerable.

Unidentified Justice: Do you think that the Congress intended to preclude litigation of even Constitutional claims with 102?

Mr. Fried: Yes, I do.

that has been our position right along and that is certainly our position here today.

Unidentified Justice: Even if were for example a policy not to hire a black or a woman or something of that kind?

Justice O'Connor, if the policy related to hiring or promotion, Congress has subjected the CIA, in 72, to Title VII, so that we would not that.

I think what we are talking about is termination of employment.

And termination of employment is a very special matter, because if you are an employee of the Central Intelligence Agency, you have access to the most sensitive intelligence information which this country possesses.

And the only way to remove that access is to terminate the employment.

I think that is why such a special emphasis is given to the issue of termination of employment and why it, in the Congressional scheme, this is a Congressional scheme, it stands on a different footing from the initial employment decision or even promotion decisions.

The Central Intelligence Agency is subject to Title VII and in fact welcomes the procedures that are involved because it considers that those procedures in their invocation which involve a considerable amount of internal review, maintains the kind of morale inside the Agency which they are very anxious to have.

But there does come a point where the Agency simply must be able, without giving reasons and without triggering the kind of inquiry, narrow as the Court said it was, but wide as we think it is, without triggering the kind of inquiry in open court.

Why would a Title VII promotion suit involve any less rummaging around?

I mean, one agent says I've done a better job on my covert assignments, and I can prove it.

Mr. Fried: There are a number of very important reasons.

There is confession and there is avoidance, Justice Scalia.

Certainly what is involved in Title VII is a requirement to go to the Agency and to pursue internal remedies there.

And the fact that there have been a handful, literally a handful... well, seven; I suppose that's a hand and part of a second hand... of those cases filed, since 1972, indicates that the internal procedures take care of the matter.

Now, you can have the lawsuit.

The important thing is that that lawsuit itself might be trumped by 102(C).

And it is important to keep that possibility open.

Unidentified Justice: I thought you were rejecting that possibility.

I thought you were saying 102(C) does not prevent the Title VII lawsuits for promotion but it does prevent this.

Mr. Fried: Well, there would be the promotion and perhaps there might be damages paid, but if it was determined that this person no longer is somebody with whom the Agency is comfortable as somebody with access, then they could terminate that employee.

Unidentified Justice: No, they have not terminated him.

They just have not promoted him.

He says he is entitled to a promotion.

And you say that a lawsuit will lie.

Mr. Fried: It will lie.

There is no question that it will lie.

Unidentified Justice: And I say I do not see why that doesn't open up the CIA to the same kind of probing that you are objecting to here.

Mr. Fried: Well, it does, but that is Congress' decision.

We are saying that Congress made quite a different decision as to the termination of employment.

And I think that is a rational line to draw.

Unidentified Justice: It seems to me irrational.

I would think that you would want to give the individual more protection for dismissal than you would for promotion.

Mr. Fried: The person who is interested in pursuing a promotion claim is a person who is interested in working within the Agency and who the Agency it interested in keeping on in some capacity or another.

That person, on both sides of the transaction, is still as it were, part of the family.

When you have a termination matter, you have a person who at least one side of the relationship wishes to sever entirely.

That is just a balance which was struck by the Congress.

It is also worth noting that Title VII lawsuits involve particularly serious and traditionally particularly important Constitutional rights.

If Congress decided, which it has, that discrimination on the basis of age, sex, race, are forms of discrimination which are simply intolerable, then that is a conclusion which we must bow to.

This is not a Constitutional argument we are making.

Unidentified Justice: All of that goes, it seems to me, though, not to... you have been objecting to rummaging around.

It seems to me the rummaging around is going to be the same in both cases.

Now, I can see a distinction between the two, based not on the rummaging, but on the fact that the Courts absolutely have no power to require the Director to hire somebody he does not want in his office.

That is a different point from rummaging.

I could see drawing the distinction between Title VII non-firing cases and other Title VII case on that basis.

That is, the Court has the power to prevent him from promoting someone, or from not promoting someone, but he has absolutely no power to prevent him from telling somebody to be gone.

But that is not what you seem to be arguing.

Mr. Fried: If the Courts have the power, as the Circuit Court here asserted, to tell the Director, you may not tell someone to be gone, then what follows is the mischievous rummaging which concerns us.

Now, there is no doubt, the Agency is going to be subject to lawsuits in a variety of areas.

Congress did not say everything the Agency does, whatever it might be, and to whomever it may do it, is absolutely precluded from review.

And my argument should not be taken as asserting that.

What I am asserting is that Congress drew a line.

Perhaps the line should have been drawn somewhere else, as a matter of policy.

But Congress drew the line where it drew it.

And we are saying that where it has drawn that line, it should be respected.

And the Court of Appeals, while it gave a tip of the that to the important policies there, in effect authorized the most extensive kind of inquiries.

And that, we think, is what Congress intended to preclude in 102(C), though, to be sure, they did not intend to preclude it in respect to Title VII actions.

So be it.

That is Congress' decision.

But here we have the Executive and the Congress lined up together, rather firmly, for the proposition--

Unidentified Justice: Mr. Fried, I am a little puzzled.

They did not intend to preclude it in Title VII actions, but then you say only Title VII actions involving promotions, but not Title VII actions involving discharge?

Mr. Fried: --That is correct.

That is correct.

Unidentified Justice: But is that question presented in your certiorari petition?

You just asked about review pursuant to the APA, I thought.

Mr. Fried: Yes, that is correct.

Unidentified Justice: So we don't have a question presented as to whether there can be a Title VII action or a Federal Question action.

Mr. Fried: No.

We do not, in this case.

I was endeavoring to answer Justice Scalia's question.

Unidentified Justice: What you are saying though is your broad position is that even if the Agency had a policy of just hiring born again Christians and for religious reasons they thought they were the only appropriate agents to hire, that could not be reviewed?

Mr. Fried: No, that is not my position.

102(C) refers to termination.

Unidentified Justice: Well, they terminated everybody who wasn't a born again Christian.

Mr. Fried: They would have to hire them first.

Unidentified Justice: Sure, they hired them.

Mr. Fried: That would strike me as very peculiar.

Unidentified Justice: Suppose they did it?

Mr. Fried: If they did it, I think they would be in very hot water of all sorts.

Unidentified Justice: But would it be judicially reviewable?

That is what I am asking.

Mr. Fried: It is my position that it would not.

Unidentified Justice: It would not.

Mr. Fried: But there is no doubt that this Court would be pressed, and I think might very well be tempted, to reach a different conclusion in that case, because we have here not one, but two questions.

We have, first of all, the statutory question: does 102(C) preclude judicial review?

And I am quite clear that 102(C) would preclude judicial review even if the claim were made that they first hire and then terminate all employees who are not born again Christians.

This Court might nonetheless conclude that 102(C), as applied to that circumstance, is unconstitutional, as applied.

They might so conclude.

But I do not think that that extreme, but perhaps useful, ability to keep the door unlocked though closed applies in this case with these claims.

Unidentified Justice: Assuming, and I am not suggesting that it is, but assuming a policy of denying employment to homosexuals was unconstitutional, why would the review issue be different than denying employment to anyone who is not a born again Christian?

Mr. Fried: Once again, it is not a question of denying.

It is a question of terminating.

Unidentified Justice: Terminating.

Sure.

You have a change of administration.

The prior administration hired all these people.

The new administration comes in and says we just don't think we want anybody except born again Christians and no homosexuals.

If it is unconstitutional to do that, you seem to concede it would be reviewable on the religious issue but not on the other issue.

Mr. Fried: I do not say--

Unidentified Justice: We might be pressed to find it was.

Mr. Fried: --I am quite clear that 102(C) expresses a Congressional intention to preclude review.

I cannot predict what this Court would say if that claim... religious discrimination... were brought to it and the question was whether 102(C) was Constitutional as applied to that claim.

Unidentified Justice: I am puzzled by the footnote that your opponents have on Page 16 of their brief about the quotes from the District Court where the Government lawyers seem to say that they were not asserting that the Director protected them, insulated them from the Constitution.

But you seem to say they are.

Mr. Fried: Absolutely we are saying that.

And in our reply brief we thought it important to deal with that point by reprinting portions of the colloquy.

Our position is that we have been asserting, from the outset, that review is precluded, and, of course, that such review is Constitutional.

Now, at different times, pressed with different questions, Government lawyers have struggled with different aspects of that very difficult point.

But our position right along has been 102(C) precludes APA review of this question and, as applied in this case, it is perfectly Constitutional.

We have never receded from that point and we certainly press it here.

Unidentified Justice: I thought Justice Stevens asked whether you asserted that you were insulated from the Constitution.

Was that how you put the question?

And to that question, as I understood you brief, you are not saying you are insulated from the Constitution.

Mr. Fried: One is not insulated from the Constitution, in the sense that this Court is going to have to decide whether the review preclusion as applied to a particular claim is Constitutional.

We say that it is.

And if we are correct, then to that extent, the matter is insulated from the Constitution if that is how one wishes to put it.

But you are never insulated--

Unidentified Justice: One can be insulated from our review without being insulated from the Constitution, I take it.

The President, in deciding whether this policy should be adopted, about homosexual firing in the CIA certainly has to sit down and think, does the Constitution permit this, doesn't he?

He could not do it if the Constitution in his view prohibited it, could he?

I thought your brief said you are bound by the Constitution, but your judgment in this narrow area of the CIA is final, as opposed to our judgment being final, where it normally is.

Mr. Fried: --There is no doubt that the Director of the Central Intelligence Agency takes an oath to support the Constitution and that 102(C) is a review preclusion statute, not something which says that the Director of the Central Intelligence Agency is somehow not subject to the Constitution he takes an oath to uphold.

Unidentified Justice: General Fried, you say that 102(C) prevents review by the Courts of a claim that the termination was accomplished unconstitutionally.

Mr. Fried: That is correct.

Unidentified Justice: That is discriminated, or no hearing, something like that.

Mr. Fried: that is correct.

That is correct.

Unidentified Justice: I have trouble with this "insulate" word.

Who else in the United States is insulated from the Constitution, other than the Director of the CIA?

f--

Mr. Fried: I think many persons are insulated from judicial review of their actions.

No one is insulated from the Constitution.

Unidentified Justice: --You said he was.

Mr. Fried: If I did, I misspoke, Justice Marshall.

Unidentified Justice: I am quibbling with your language.

That is what I am quibbling with.

Mr. Fried: I beg your pardon?

Unidentified Justice: I am quibbling with your language, that he is insulated from the Constitution.

Mr. Fried: I welcome the correction, because I would not want to make that assertion.

He is not insulated from the Constitution.

He is insulated in a very narrow area from judicial review of his decisions, but he is not insulated from the Constitution.

Unidentified Justice: Who else has that insulation?

Mr. Fried: I suppose the President.

If the President should terminate my appointment--

Unidentified Justice: We have had some opinions here that said that the President was not insulated from the Constitution.

Mr. Fried: --In some of his decisions he is and in some of his decisions... not insulated from the Constitution, insulated from Court review of his decisions.

Unidentified Justice: You are back on the same thing.

Why do you keep saying insulated from the Constitution?

Mr. Fried: It is a bad habit, and I should be broken of it, Justice Marshall.

Thank you.

Unidentified Justice: Mr. Solicitor General, in all fairness, I do not believe you first used that phrase here.

Mr. Fried: Well, I hope I don't.

Unidentified Justice: I think it was used first from the Bench.

Mr. Fried: I would like to say a little bit about the statutory interpretation point, whether indeed 102(C) intends the very categorical insulation from judicial review, though not from the Constitution, which we assert.

Our point is really quite a simple one, that at different times, different language is used to accomplish this.

In 1978, the Congress said that the President may detain or remove hostile aliens.

And in the first case under the APA the Ludecke case, this Court said that was sufficient to preclude APA review.

In 1947, the language was "in his discretion".

In 1964, in the Act setting up the National Security Agency, the language is

"in his discretion, and it is final. "

In 1984, in the statute setting up the Defense Intelligence Agency, the language was

"final and shall not be appealed outside the Department of Defense. "

To our minds, the language changes.

The thought is the same.

The boilerplate gets thicker, but it seems quite clear that in 1798, in 1947, in 1964, in 1984, Congress was seeking to accomplish the same result.

If that is not so, then we have the anomaly, an anomaly which Congress clearly stated in various reports, it did not imagine it was facing, that the Secretary of Defense, in respect to the Defense Intelligence Agency, or the National Security Agency, has this unreviewable power, but the Director of the Central Intelligence Agency does not.

It seems to us that that is not a sensible scheme, and it is not the scheme which Congress imagined it was enacting.

If I may save the remainder of my time for rebuttal.

Chief Justice William H. Rehnquist: Thank you, General Fried.

We will hear now from you, Mr. Lynch.

ORAL ARGUMENT OF MARK H. LYNCH, ESQUIRE ON BEHALF OF RESPONDENT

Mr. Lynch: Mr. Chief Justice, and may it please the Court:

The only claim that Mr. Doe has that survives the Court of Appeals Opinion is the decisions of the Court of Appeals that he has an arguable Constitutional claim, if in fact the Agency has a policy of discharging people on the basis of homosexual orientation.

So the question then is whether Section 102(C) of the National Security Act of 1947 precludes judicial review of that Constitutional claim.

Now, whether or not the Government conceded that there could be review of Constitutional claims, I think they did in the District Court.

It is less clear in the Court of Appeals.

But whether they conceded it or not, it is absolutely clear that that issue was not litigated, because as the case progressed to the District Court, and in the Court of Appeals, the question was whether the Agency had followed its regulations, not whether it had violated a substantive Constitutional prohibition.

So consequently, the question of whether the statute precludes judicial review of a Constitutional claim was not litigated below.

At the least, we think the Court ought to remand the case.

If it thinks that the statute does preclude review, at the least it ought to remand the case for ventilation of the question of whether Congress can constitutionally preclude review.

However, we also submit that the statute does not preclude review of Constitutional claims.

The statute on its face says nothing about judicial review.

The legislative history says nothing about judicial review.

What the statute does say is that notwithstanding the provisions of the Lloyd-LaFollette Act or any other statute, the Director, in his discretion, may terminate Agency employees when he deems it necessary and advisable for the United States to do so.

Now given the fact that there was not judicial review of termination decisions in 1947, the most plausible explanation of that language was that Congress was intending to keep CIA employees who had been terminated out of the Civil Service Commission, where they were entitled to go under the Veterans Preference Act which had been passed in 1944.

That seems to be a very plausible, rational Congressional expectation.

The CIA, after all, in the beginning, in 1947, was going to be heavily populated with Veterans in the Office of Strategic Services.

They were Veterans.

Without this statute they would be able to go to the Civil Service Commission to contest the Director's termination decisions.

And it is quite plausible that Congress would have wanted to prevent that.

But, since there was not judicial review of any termination decisions at that point, it seems to me impossible to say that Congress intended to preclude review in 1947.

Unidentified Justice: Was there not some review under the Back Pay Act, over a period of years?

Mr. Lynch: I do not believe so Your Honor.

Not that early.

I think the Back Pay Act came along a little later.

I do not know the precise year but my understanding is that there was no review at all in 1947.

Unidentified Justice: But that theory, that they just used it to keep it out of the Civil Service Commission review, that would not just apply to Constitutional claims.

Why does that lead to a conclusion at least that only Constitutional claims can be--

Mr. Lynch: There is also the question whether the statute precludes review of Agency regulations.

Unidentified Justice: --Non-Constitutional claims.

Mr. Lynch: Non-Constitutional claims.

Unidentified Justice: What is your position on that?

Mr. Lynch: Our position is that it does not.

In fact, the Government's position, stated at Page 18 of their reply brief in the Court of Appeals, is that the statute does not preclude review of actions alleging that the Agency has failed to follow its regulations.

They accept the rule of Service v. Dulles and Vitarelli v. Seaton, that they have to follow their own regulations.

They also accept the fact that you get review of personnel decisions under Title VII, short of termination.

Mr. Fried does not really concede it but he suspects that if there were certain kinds of Constitutional claims, this Court would also grant review.

I might also say that another provision of the National Security Act of 1947 which Mr. Fried neglected to discus is the CIA Information Act of 1984, which is an amendment to the National Security Act of 1947.

That statute, which was passed after the Sims decision, makes it very clear that the Agency is subject to judicial review under the Freedom of Information Act.

So in many respects, the Agency is subject to judicial review.

Now, in view of the lack of any textual support for preclusion, any legislative history support, what the Government is really arguing is that the Congress must have insulated this very sensitive Agency from judicial review.

But as I have just pointed out, in a number of other significant respects, the Agency clearly is subject to judicial review.

So this "rummaging around" argument does not, with respect, hold water.

Unidentified Justice: Mr. Lynch, as I understand the Government's argument, it is not so much that 102(C) in so many words insulates from judicial review but when you apply it through the APA, by reading the APA in the context of 102(C), you find that there is no judicial review.

Mr. Lynch: That is why it is so important to focus on the solitary Constitutional issue that is at stake here.

Even if Section 102(C) met the standards of either Section 701(A)(1) or (A)(2), for preclusion, even if it did, and I do not think it did, but even if it did, that would not preclude, that would not resolve the question of whether a Constitutional claim is precluded.

Because quite apart from the Administrative Procedure Act and the exemptions to the Administrative Procedure Act, people who are directly injured by the unconstitutional action of an Executive Agency officer can get review of that claim in the Courts.

You need a statute that very clearly, and very, very clearly sets forth an intent to preclude review of a Constitutional claim.

Unidentified Justice: I thought the question presented here, and maybe it is a broader question, but I thought the question presented was whether judicial review is available under the Administrative Procedure Act, 5 U.S.C. Section 701?

Mr. Lynch: I understand that is the question they have written.

But given the posture of the case--

Unidentified Justice: I thought that is the question we accepted certiorari on?

Mr. Lynch: --Yes, but you cannot change the posture of the case, Judge.

The only issue that is left in this case is a Constitutional claim.

Now, whether Section 702 meets the standards of Section 701, you still have that Constitutional claim.

I think the way the Government justifies its phrasing of the--

Unidentified Justice: I thought one of the nice things about being on this Court was we only had to answer the questions we decided to answer.

Mr. Lynch: --That is true, but you still have to deal with the cases as they come up here.

I think the way the Government justifies the way it has phrased the petition is that they seem to argue that the APA can withdraw jurisdiction to review Constitutional claims.

That again is another issue that was never litigated below.

And it seems to me that proposition is plainly incorrect.

Congress cannot in the APA, or it did not in the APA, affect the jurisdiction of the Courts to hear claims by individuals that their Constitutional rights were violated.

Unidentified Justice: Mr. Lynch, let me just read you two sentences from Page 32A of the Government's Appendix to the petition, which is the first two sentences of the conclusion of the Court of Appeals Majority Opinion.

Section 102(C) terminations are subject to judicial review.

Because the statute leaves the decision of whether an individual's employment should be terminated as necessary or advisable in the interest of the United States largely to the discretion of the Director of the Central Intelligence Agency, judicial review must be deferential.

Now, they are not saying there that it is just Constitutional claims, it seems to me.

They are saying that terminations under 102(C) are subject to judicial review.

They say it in one sentence.

Mr. Lynch: Yes, but you have to go back.

If you go back to Page 47A, which is Section C-2 of the opinion, there the Court sets out the only claim that Doe has left.

And that is whether a policy to discharge people on the basis of homosexual orientation would violate the Constitution.

Then, at the bottom of that section, the Court says at the very least, CIA would have to justify why such a ban on employment of all homosexuals was necessary or advisable in the interest of the United States.

Unidentified Justice: What page?

Mr. Lynch: 27A.

Unidentified Justice: 27A.

Mr. Lynch: So what Judge Edwards did, in writing the Opinion, was say that to satisfy... if there is this policy, based on homosexual orientation, in order for the Director to justify the burden on an arguably protected Constitutional interest, the CIA would have to demonstrate that it was necessary or advisable in the interest of the United States to have that policy.

But his invocation of those words from the statute is directly in the context of setting out the Constitutional claim.

Unidentified Justice: Mr. Lynch, can I ask you a question.

I don't find in your papers any square allegation that there is such a policy or that you ever challenged it.

Basically, you seem to be challenging the procedures that were applied in your client's case.

Mr. Lynch: We do have such an allegation in our complaint, Justice Stevens.

But what happened was--

Unidentified Justice: Where is it?

Mr. Lynch: --In the section called 12 and 13.

Unidentified Justice: Yes.

Mr. Lynch: There we say that termination on the basis of homosexuality violates the Constitution.

You are going directly to the question of whether there is a policy.

Unidentified Justice: Whether the issue that Judge Edwards says is the only thing you can litigate was ever raised by you in the District Court.

I don't think it was.

Mr. Lynch: We don't know.

Unidentified Justice: In fact, a lot of your allegations, your stipulation of uncontested facts, bring out the fact that your client was never advised that there was any requirement about homosexuality.

They did not ask him, they did not have any regulations prohibiting it, all sorts of things that seemed to indicate there was no such policy.

Mr. Lynch: The record is in conflict and that is why Judge Edwards sent it back for further development of the facts.

When Doe told the security officer the very first day that he was homosexual--

Unidentified Justice: The Deputy General Counsel said we don't have any such per se rule.

Mr. Lynch: --First the security officer said there apparently was a per se rule and then the Deputy General Counsel said no.

The question is simply in dispute and that is the reason for Judge Edwards reading.

Unidentified Justice: You say it is in dispute, but I don't really understand how you raise that particular dispute.

That is what I haven't been able to find.

I may be missing something.

It seems to me that Judge Edwards raised that dispute.

Mr. Lynch: There is a lot of merit in what you say, Judge.

We were going on substantially different grounds.

Unidentified Justice: It would seem to me that on the grounds you were going on, you lost.

Mr. Lynch: We did.

But the Court of Appeals did pull out of the fire this one Constitutional claim that we can go back and litigate.

We did not do very well in the Court of Appeals.

That is for sure.

We pulled our chestnuts out of the fire, so to speak.

Unidentified Justice: In fact, if I remember some of the facts you have, you think that about 9 percent of the people employed in the Agency are probably homosexuals.

Mr. Lynch: That is a reasonable extrapolation of the statistics on the population at large.

Unidentified Justice: And you are going to contend that there is a total policy of banning them all.

I don't understand this case.

I would have thought the Government would have been happy with its victory, would have gone back to the District Court and filed an affidavit saying we do not have any such policy and that would have been the end of the lawsuit.

I just don't understand this case.

Mr. Lynch: I would have thought that the Court would have declined certiorari on that ground as well.

Unidentified Justice: I did, too.

Mr. Lynch: It still could.

And I wish you would.

Let me address the question of whether despite the lack of statutory or textual preclusion, you can draw from the structure and purposes of the statute an intent to preclude review.

First of all, the cases of this Court that apply that doctrine, that you can look at the details of a legislative scheme to infer an intent to preclude review are as in Block v. Community Nutrition Institute, something like the Milk Marketing Order Program, or in the Commercial Food Workers Union Case decided last month, the very scheme of the National Labor Relations Board providing for when review of certain orders can be taken, and it also provides that certain orders cannot be reviewed.

Unidentified Justice: I am sorry to interrupt.

May I ask you one other question?

A claim that they had such a policy and so forth and it was unconstitutional, would you say that was a claim for review under the APA?

Mr. Lynch: That there was an unconstitutional policy?

Unidentified Justice: Yes?

Mr. Lynch: No.

Unidentified Justice: So the issue that is left in the case is not one embraced within the question presented by the certiorari petition?

Mr. Lynch: That is my position.

Let me be more subtle about it.

The APA provides for review of Agency actions that are unconstitutional, but, if for any reason review of that question under the APA is not available, you still can get review because the APA does not preclude, and in this case no other statute does as well, preclude review of the Constitutional claim.

Unidentified Justice: What was the claim here?

Was it brought under the APA only or under other statutes as well?

Mr. Lynch: We have three kinds of claims.

First we said that the Agency failed to follow its own regulations.

The District Judge agreed with us, the Court of Appeals disagreed.

Unidentified Justice: That is an APA claim, right?

Mr. Lynch: I would think so.

But the Government concedes that we get review of that question.

Page 18 of their reply brief in the Court of Appeals, they say we concede this Court has jurisdiction.

Unidentified Justice: That is right.

Because they concede that you are entitled to review of the procedures of the decision on national interest in dismissing the issue.

Mr. Lynch: But if that is an APA claim, Justice Scalia, I do not see how that concession squares with their position that review is precluded through Section 701.

It is another one of the inconsistencies in the Government's position.

Unidentified Justice: I understood their position to be review of the substance of it, not review of whether the procedures to which the individual is entitled have been complied with.

That is what I thought their brief was saying.

But I guess the Solicitor General can tell us.

Mr. Lynch: But the point is, if review is precluded under the APA, review is precluded.

I don't think you can split up your claim sunder the APA.

Unidentified Justice: Review of what is precluded?

Review of one thing may be precluded and review of something else not.

What I am trying to find out is, what in this Court of Appeals Opinion... I thought that this whole Court of Appeals Opinion was an APA opinion.

It discusses the committed to Agency discretion by law the other sections of the APA.

I thought we were just dealing with an APA case and that whether there is a right to review under some other provision of the United States Code for a Constitutional violation or any other violation, we can leave for another day.

Mr. Lynch: I am the first one to agree that this Opinion is written rather strangely.

I think Mr. Fried and I are at least in agreement on that.

You see, my point is, if the Court of Appeals had come out the other way on the question of the APA preclusion, we would still have review of the regulations, although that was decided adversely to us by the Court of Appeals.

And we would still have review of the Constitutional claim.

So I agree a lot of that--

Unidentified Justice: You get review of the Constitutional claim under the APA.

What else do you get it under?

What had you asserted as the bases for jurisdiction in the case?

Mr. Lynch: --Our position is subject matter jurisdiction is provided by Section 1331; and under Davis v. Passman, when you have a violation of Constitutional rights, you can proceed directly under Section 1331 even if there is no other statute specifically providing for a cause of action.

Unidentified Justice: So you do not need the APA to get review of your Constitutional question.

Mr. Lynch: Precisely.

Precisely.

Unidentified Justice: Unless you have a specific provision.

Mr. Lynch: Unless you have the kind of statute that this Court has not yet propounded, which is so clear in its intent to preclude review of a Constitutional claim that--

Unidentified Justice: We have had some cases where that kind of an action is barred by the structure of some other remedies like that.

Mr. Lynch: --I do not believe a Constitutional claim by an individual directly injured by the unconstitutional action, allegedly unconstitutional action of an Executive officer.

Unidentified Justice: Well, at least we have held that the procedures that are provided by a statute preclude the kind of an action you have brought.

Mr. Lynch: I do not think so.

Unidentified Justice: Against the United States, it seems to me we are getting into the question of sovereign immunity.

You doubtless have an action against the individual officer.

Mr. Lynch: Yes.

Unidentified Justice: So long as the sovereign immunity of the United States is not invoked.

But there are many who think that the sovereign immunity of the United States is invoked when you require the United States to hire somebody.

Especially, I would think, in the CIA.

But that is not like a suit against an individual officer.

And if that is the case, that sovereign immunity is involved, then you have to invoke the Administrative Procedure Act in order to get the waiver of sovereign immunity.

So you are back in the APA.

Yes.

After the amendment to Section 702, there clearly is a waiver of sovereign immunity.

This is an action, we proceeded in the traditional manner with an action against the Agency official.

But even if we had named the United States as a defendant, under the 9176 amendment to Section 702, sovereign immunity would be waived.

In a suit under the APA, though.

That is an APA suit, where sovereign immunity is waived.

That is what I am trying to find out, is this an APA case or not?

It smells to me like it is.

Mr. Lynch: It is both an APA case and it is a non-APA case.

Because even if review is precluded under the APA, we can still bring the Constitutional claim.

Unidentified Justice: Even if there is sovereign immunity.

Mr. Lynch: Even if there is sovereign immunity.

Sovereign immunity does not bar claims against an individual agency official that he violated the Constitution.

Unidentified Justice: But Mr. Gates, the Acting Director, or the current Director, can't hire this person on behalf of the United States.

The relief you are requesting is not relief that this individual can provide, unless you invoke the United States.

Mr. Lynch: Basically, Justice Scalia, I think the position that you are putting forward is in amending Section 702, Congress resurrected obstacles of sovereign immunity that this Court had removed in cases against individual officers.

You were deeply involved in that statute.

I can't believe that that was what Congress was intending.

I was talking about the difference between this statute and the kinds of statutes that have been found in their structure to infer, where an intent can be inferred from the structure of the statute, that review is precluded.

And I was making the point that Milk Marketing Orders, the complex scheme for which decisions of the NLRB can be reviewed, are entirely different from this generic statute.

The National Security Act of 1947 did a lot more than what Mr. Fried pointed out.

It not only created the CIA, it created the Department of Defense.

It combined the War Department and the Navy Department.

It took the Air Force out of the Army and set up the Department of the Air Force.

It set up the National Security Council.

It is generic legislation of the broadest kind, dealing with organization of Government agencies.

It is not a detailed regulatory scheme providing for review of some kinds of actions but not other kinds of actions.

And for that reason, that whole line of cases, the Community Nutrition Institute and the Commercial Food Workers Union case last week, is inapplicable in this context.

Again, the Government's argument, it seems to me, in the end, is a policy argument, that the CIA ought to be immune from judicial review.

There may be merit in that policy.

It may even be that in an up and down vote in the Congress they could prevail on that policy.

But there is no support, through any conventional means of interpretation, that Congress made that decision in 1947.

Therefore, this Court should find this is a statute which does not preclude review, and certainly not review of Constitutional claims.

Unless there are any other questions, I think the Court has my points.

Unidentified Justice: Mr. Lynch, if this had been a case against the National Security Agency or the CIA by an employee there, I take it you concede that judicial review would be precluded?

Mr. Lynch: Of non-Constitutional claims.

I certainly do not concede that those statutes have a strong enough indication of an intent to preclude review of Constitutional claims.

But I do concede that they seem to preclude non-Constitutional claims.

The Government makes a lot of the fact that there is a glaring inconsistency between the Secretary of Defense and the Director of Central Intelligence.

Well, that is another one of their "Congress must have meant", but "must have meant" is not enough in this context.

There has to be clear intention that Congress intended in 1947 to preclude review.

And while there may be an anomaly between the extent to which the Secretary of Defense is immune from judicial review and the extent to which the Director of Central Intelligence is immune from judicial review, that is an anomaly to be resolved by Congress and not by this Court, with all respect.

Thank you.

Unidentified Justice: Thank you, Mr. Lynch.

General Fried, you have one minute remaining.

ORAL ARGUMENT OF CHARLES FRIED, ESQUIRE ON BEHALF OF PETITIONER -- REBUTTAL

Mr. Fried: Just very briefly, it is quite clear the Court of Appeals did make this decision under the APA.

It is quite clear that they made a decision which was both statutory as well as Constitutional, because they said it was arbitrary and capricious and required the Director to explain why his action was advisable.

That is a statutory claim.

And of course, the difference between statutory and Constitutional claims is thereby pointed out because the Constitutional claim is simply the statutory claim with the addition of a citation.

There really is no difference.

And I think we are not arguing about anything very much if we pretend that ends up making a large point.

The reason we did not simply accept the remand is because we would have been required to do more than file a letter.

That letter would have been the beginning of the litigation, and not its end.

We would say there is no such policy.

Unidentified Justice: General Fried, is anything in the record suggesting there is such a policy?

Mr. Fried: There is the allegation that a security officer so stated.

The Deputy General Counsel stated the contrary.

And I would have thought that is more authoritative.

Chief Justice William H. Rehnquist: Thank you, General Fried.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Department Of Navy v. Egan - Oral Argument

Wed, 13 Apr 2011 20:10:01 +0000

Case:

Department Of Navy v. Egan

Media File:

86-1552_19871202-argument.mp3

Related Transcript:

86-1552_19871202-argument.xml

Transcript:

ORAL ARGUMENT OF LOUIS R. COHEN ON BEHALF OF PETITIONER

Chief Justice William H. Rehnquist: We'll hear argument now on Number 86-1552, Department of the Navy versus Egan.

Mr. Cohen, you may proceed whenever you're ready.

Mr. Cohen: Thank you, Mr. Chief Justice, and may it please the Court.

After stating the background of this case, I will argue that the Navy's decision not to grant someone with respondent's history a security clearance to work on repairing nuclear submarines is not and should not be subject to substantive review by the Merit Systems Protection Board.

The Board has in certain cases including this one power to review the procedures followed by the employing agency in denying a clearance but there has been no challenge to the procedures followed by the Navy in this case.

The Board does not have authority to review the merits of a procedurally proper agency decision to deny a clearance.

Respondent had a job at the Trident Refit Facility in Bremerton, Washington, that entailed access to the interiors of nuclear submarines and knowledge of their arrivals and departures.

The job was conditioned on his obtaining a security clearance.

The security investigation disclosed a history of incidents involving firearms, alcohol and violent behavior.

After giving respondent notice and an opportunity to respond, the Naval Systems Personnel Command in Washington, D.C. denied the clearance, and the Trident facility in the State of Washington removed respondent from the job for cause for failure to meet one of the job's requirements.

Respondent petitioned the Merit Systems Protection Board for a review.

The Board presiding official issued an initial decision reversing the removal on the ground that the Navy failed to show, I'm quoting,

"it reached a reasonable and warranted decision concerning the propriety of the revocation of appellant's security clearance. "

The Board reversed its presiding official and sustained the removal.

It ruled that in an appeal from a removal for lack of a required security clearance, the agency must satisfy the Board that the position in question required a clearance, that the clearance was denied or revoked, and that the agency afforded the employee procedural due process in connection with the clearance determination, which it specifically found the agency had done here.

But the Board said... and I'm quoting again...

"it has no authority to review the agency's stated reasons for the clearance determination. "

We think the Board got it right.

Let me begin by disposing I hope of the argument that due process requires a hearing on the merits before the MSPB on the security clearance determination.

I want to make two points.

The first is that there simply is no due process question in this case.

Respondent was given notice of the Navy's intent to deny his clearance, and a full statement of reasons and an opportunity to respond.

His response, with the assistance of his union, did not challenge any fact in the Navy's statement, he did not ask to confront or cross examine anyone or to be heard further by the Navy.

When he sought review by the MSPB, he did not challenge the adequacy of the Navy's processes, and although the presiding official was willing to hear him on the merits of the clearance determination, he twice failed to respond to the Board's notice that a hearing would be convened at his request.

The only thing he has placed in issue in this case is the Navy's judgment, based on the results of the investigation, that a clearance should be denied.

Second and more generally, it is the employing agency that must given an employee whatever process is due in connection with the denial of a clearance.

Where the employee does contend that the employing agency has not given him an adequate opportunity to be heard, the MSPB's job, is it itself said, to rule on the adequacy of the agency's process.

The MSPB's decision is of course subject to review by the Federal Circuit.

But the Constitution does not require or authorize the MSPB to take upon itself the process of hearing and deciding the merits of the clearance question.

Nor, we think, does the statute.

And I want to turn to the question whether 5 U.S.C. 7513 gives the MSPB power to review denial of Mr. Egan's clearance on its merits.

The first thing I want to say is that the Board's answer that it can review procedures but not substance, seems to us the most plausible reading of the statutory text.

Everyone agrees that Mr. Egan had a right to be removed only for cause under section 7513, and the right to appeal his removal to the MSPB.

Everyone also agrees that the MSPB has no general jurisdiction to review the denial of a security clearance as such.

For example, an employee who loses a promotion or an employee who is simply transferred to a different job, or who doesn't get access to a particular part of the facility because he isn't given a security clearance has no MSPB review because there's nothing for the Board's jurisdiction to attach to.

The Board said in essence that if an agency fails to follow the proper procedures so that there has been no valid security clearance determination, then there is no cause for the removal.

But if the agency has followed proper procedures, and has reached a determination denying a clearance, then nothing in the statute gives the Board the right to reverse the clearance determination, or disregard it, just because the agency has not persuaded the Board.

In addition to thinking that this is the most plausible reading of the statute, we have two--

Unidentified Justice: Do you suggest that that reading of the statute should go right across the board to any kind of a removal or just to any adverse action?

Mr. Cohen: --I think it should go to any adverse action.

Unidentified Justice: Well, does this construction apply to anything but security clearances?

Mr. Cohen: I think that the question of the Board's power to review the merits of collateral determinations that lead to adverse actions is a question that the Board is in the process of working out.

But in general, if someone is denied a job because, for example, he is found to be medically unfit, found to have a medical condition, I take it that the Board would review whether the existence of that medical condition is cause for removal from that job, but wouldn't review the medical determination itself on the merits.

I do think that the question of the extent to which the Board should probe underlying collateral decisions is one that may vary from case to case, depending on what the underlying decision is.

Unidentified Justice: Didn't the Board mention its deference to disbarment proceedings and criminal convictions in its opinion?

Mr. Cohen: Yes, it did.

Those are, as our opponents have pointed out, decisions that will have been rendered by someone other than the employing agency.

That's only partially true here.

Here, two different parts of the Navy made these two different determinations.

But, yes, the Board did mention that.

Unidentified Justice: How about removal for some kind of wrongdoing or failure to adequately perform in the employing agency?

Mr. Cohen: Well, in the event of wrongdoing, the agency is required to persuade the Board by a preponderance of the evidence that the wrongdoing occurred because that is the cause for the removal.

Here, the cause for the removal is the lack of a security clearance which is a separate determination, and the question is whether that separate determination by a different part of the agency is subject to review by the preponderance standard.

Unidentified Justice: What if an agency establishes as a qualification for a particular job, high skill level.

And then it makes a separate determination that this individual who has been in the job does not have a high skill level, and another part of the agency makes that determination.

Do you have any doubt that the MSPB would determine whether that judgment was true or not?

Mr. Cohen: No.

I think that it probably would.

Unidentified Justice: So what is the law?

You can't just be relying upon the language of the statute and say you cannot go behind the fact that there was a cause for removal, and that the cause had been determined to exist by the agency, and not look into whether it was properly determined.

Mr. Cohen: I'm not just relying on the language of the statute.

I think that the language of the statute creates problem that exists in a number of cases of how far you look behind the final action of the agency that is subject to MSPB review and look into the merits of collateral decisions.

I think the agency drew the right line in this case because of the nature of the decision and because of the history of these kinds of decisions.

Unidentified Justice: Well, that's not compelled by statute.

You're really just arguing that this language of the statute allows you to draw this line.

It certainly doesn't compel it.

Mr. Cohen: Well, my words were, it is the most plausible application of the statute to this case.

Unidentified Justice: Because of the distinctive characteristics of what the determination was in this case.

Mr. Cohen: All right, yes.

It's certainly not compelled by the words of the statute.

There are two other closely related reasons for thinking that Congress did not intend to confer the power to review these decisions on the MSPB.

One of them is historical.

The Civil Service Commission did not review security clearance determinations by employing agencies.

The MSPB generally inherited the CSC's review powers, and there's simply no evidence that Congress intended to give the MSPB larger powers in this respect.

The other, which I think explains why the Civil Service Commission did not review clearance determinations is that outside review of the merits of clearance determinations by a defense agency is functionally inappropriate.

The Navy should, after affording an employee an adequate chance to be heard, have the final say about whether it trusts him on board one of its submarines.

And I want to make three points about the nature of that decision.

Unidentified Justice: Before you get into that, as to the first point which you just went off of, you said prior to the new legislation, the Civil Service Commission hadn't reviewed it.

But there are a lot of things that the Civil Service Commission didn't review, aren't there, that used to be reviewed by Court that have been given to the MSPB.

You certainly can't say that everything that the MSPB now has was matter that the Civil Service Commission used to have.

Some of it would never go through the Civil Service Commission, but would go directly to the Courts.

Isn't that right?

Mr. Cohen: I think that's right.

But I also think that where that is the case, it is explicit or at least affirmatively indicated in the legislative history and that there is legislative history suggesting a presumption of continuation of the Civil Service Commission's jurisdiction without expansion except where there's other evidence.

Unidentified Justice: There were court decisions that had made this kind of an inquiry before the Civil Service Reform Act was passed, weren't there?

Hadn't the D.C. Circuit looked into denial of security clearances?

Mr. Cohen: Actually, the D.C. Circuit case, the Hoska case came up after the Civil Service Reform Act was passed, and in that case, after an MSPB presiding official affirmed the agency's determination and there was no petition to the full Board, the D.C. Circuit in the Hoska case reviewed that determination and reversed it on the merits.

We think that decision is wrong.

And the MSPB concluded in this case that that decision is wrong.

We've said that right along.

Unidentified Justice: You're aware of no pre-CSRA court decisions that did effectively what the MSPB was doing here?

Mr. Cohen: That's right, not in the context of a government employee.

The overriding objective of a security clearance determination is to protect information and not individuals.

The President's instructions to the Navy and to other defense agencies that no one is to have a job entailing access to classified information unless there has been a determination that it is clearly consistent with the interests of the national security are controlling.

The final substantive judgment should be made by the agency whose mission is the defense of the nation, and not the agency whose mission is protecting civil servants.

Because in the final analysis, we would rather exclude from our nuclear submarines some individuals who will never compromise sensitive information than admit one individual who does.

In particular, denial of a security clearance may well be warranted when predicate facts are less than probable.

If an investigation leaves the Navy with an irreducible suspicion that an employee has committed acts whose repetition would endanger security, common sense as well as Presidential command may require denying him a clearance.

The MSPB presiding officer's statement in this case that if the underlying facts are in doubt, the Navy will be required to prove them by a preponderance of the evidence is quite wrong and very illuminating.

The statutory preponderance standard is the right standard for testing a removal based on an employee's alleged misconduct.

But it is not the right standard for judging whether there is enough confidence in an individual to allow him on board a nuclear submarine.

Congress did not give the MSPB any other standard, because it did not think reviewing security clearance determinations on their merits is what the MSPB would be doing.

Unidentified Justice: Mr. Cohen, can I just ask one kind of general question.

Does your argument apply equally to a removal from a position to a person who previously obtained a security clearance but had his security clearance revoked?

Is there any difference, do you think?

Mr. Cohen: I don't think so.

Unidentified Justice: Okay.

Mr. Cohen: The security clearance process is not an attempt to judge an individual's past conduct, but to predict his future behavior.

The question in this case is not whether Mr. Egan has done something to deserve being barred from working at Bremerton, but whether there is an unacceptable risk that he would compromise sensitive information either deliberately or inadvertently or under compulsion for some reason.

That is a judgment that can only be made by people who are expert in the aspects of human behavior that render individuals vulnerable to espionage.

Finally, the security clearance determination can only be made by people who themselves have thorough going access at least in some cases can only be made by people who themselves have thorough going access to classified information.

To decide whether a particular individual should be cleared for access to work at a particular place, he may have to know something about the information to which that job would give him access.

The degree of sensitivity of particular information, the nature of its usefulness to hostile entities, the identities of the hostile entities to which it may be useful may have a bearing on a particular clearance determination.

Unidentified Justice: Of course, construing 1712 and 1713 as the Court of Appeals said wouldn't really keep the agency from insulating security cancellations from judicial review.

They could proceed another way, couldn't they?

Mr. Cohen: They could proceed under 5 U.S.C. 7532.

Unidentified Justice: Right.

Mr. Cohen: And the Court of Appeals based its decision here in part on the existence of that section.

Unidentified Justice: But my question is, you'll admit the agency's interests could be protected if they proceeded under that section?

Mr. Cohen: If they did proceed under that section.

That section, which I do want to talk about, gives the Secretary of the Navy and other agency heads the power to summarily suspend without pay any employee when necessary in the interests of national security.

And then after giving the employee the reasons,

"as specifically as security considerations permit. "

giving him some kind of an intra agency hearing after which he may be removed and the removal is expressly excluded from any MSPB review even of process.

I think we want to say two things about that.

We think it has little or no bearing on the present issue first because it's clear that an employee who does not obtain a security clearance that is a valid requirement of his job can be removed for cause, like an employee who fails to meet any other requirement without invoking 7532.

Essentially, everyone involved in this case agrees on that, although our papers note that the District of Columbia Circuit later disagreed in a different case.

But the existence of 7532 has nothing to do, we think, with whether Congress has authorized MSBP review of the merits of security clearance determinations in cases where that emergency section is not invoked.

7532 does expressly provide for some kind of a hearing by the employing agency, and in non-7532 cases where the adequacy of the agency process is put at issue, I suppose 7532 might have some bearing by way of analogy on that question of employing agency process.

But it does not, it seems to me, suggest that the MSPB should in such a case take it on itself to review the merits of the agency's clearance organization.

Unidentified Justice: Why did the agency proceed under 1712 and 13 rather than 1732 in this case, or why would it in other cases like this?

Mr. Cohen: Well, they could have been invoked.

This was a new hire, an employee who was put through the agency's routine security clearance process for somebody who is going to have a laborer's job on board a submarine.

And when the result of that clearance process was negative, there was a removal, and the agency notified Mr. Egan that he was entitled to MSPB review.

Which we think is an important right on his part.

It would have been possible, I think, but not the use for which 7532 was intended, for Mr. Egan to have been suspended without pay at the first sign that there might be a security question here, and then--

Unidentified Justice: Or later, when there was.

Mr. Cohen: --Yes.

And that the head of the agency, the Secretary of the Navy, would then have had to rule personally on this case.

And if he had done so, there would have been no MSPB review whatever.

This is not a case in which the Navy had anything in particular that it wished to conceal, or it could have invoked 7532 and escaped MSPB review entirely.

But it had no reason to invoke that procedure here.

Unidentified Justice: What does the employee lose if the government chooses to move under 7532 rather than 7513 or whatever?

Mr. Cohen: He loses his job effectively.

He loses his pay immediately.

And he loses the right to MSPB review of his ultimate removal, and he may lose the right to the full statement of the reasons for the denial of his security clearance that Mr. Egan got here, and the full statement of the reasons for his removal that Mr. Egan got here, and the opportunity to make a written response in two stages.

He loses that whole process.

He is given after suspension and before removal in what is really quite a different process under 7532, a statement of reasons which as I said the statute says is to be as detailed as security considerations permit.

And then a hearing before an agency board and then a final determination by the head of the agency.

Unidentified Justice: But apart from that, apart from its affect on the employee, it would preserve the government's concerns, entirely?

The government could protect itself as well under 7532 as it could under 7513.

Mr. Cohen: It would.

7532 would certainly protect the government's concerns for secrecy in a case where it doesn't want to tell the employee or the MSPB all of the reasons for its concerns.

It would not protect the government's concern to give the employee the kind of opportunity to respond and the kind of opportunity for an MSPB check on its procedures that respondent had here.

It also would involve the Secretary of the Navy in making personnel decisions about whether a laborer who is going to work in a facility where the only reason for not letting him work was because of the information with which he would come into contact--

Unidentified Justice: Isn't there another difference, too.

Isn't under 7513 at the end of the line, there's judicial review, is there not, whereas under 7532, there's not?

Or am I wrong on that?

Mr. Cohen: --I think the Court assumed in Coal v. Young that there is no judicial review and I think that would be our position.

I suspect we would get some debate.

Unidentified Justice: On 7532.

Mr. Cohen: On 7532.

But that is our position.

Unidentified Justice: So your position is there's no judicial review of the merits of the security removal under 1713?

Mr. Cohen: That's right.

But the Navy's judgment that particular evidence warrants denial of a clearance is and ought to be final.

Thank you, Mr. Chief Justice.

I'd like to reserve the balance of my time.

Chief Justice William H. Rehnquist: Very well, Mr. Cohen.

We'll hear now from you, Mr. Nold.

ORAL ARGUMENT OF WILLIAM J. NOLD ON BEHALF OF RESPONDENT

Mr. Nold: Mr. Chief Justice, may it please the Court.

In listening to the arguments presented by the Navy in this case, I've tried to come up with a way that I could possibly describe them.

And I think that we start out with the same premise.

We start out with the premise that this is a case that involves statutory interpretation.

It's at that point that the government seems to walk away from that question.

What they seem to do in my view is to start building a cloud around the statute.

They start building this cloud and they call it national security, and as their argument progresses down through their argument in their brief, the cloud gets darker and darker and darker, so that by the time we get to the end, we can't see the statute anymore.

What we see is this cloud called national security.

I am not here to argue that national security is not important.

I am not here to take a position in this case that would limit agencies' ability to maintain and protect national security.

That's obviously something that they've been told to do by the President, and we want them to do it.

But what I want to do is to look at this statute aside and apart from this cloud for just a moment, and see what it says.

Not only what the particular statute says that talks about removal for cause... 7513... but also the statute that says you can remove somebody on the basis of national security.

I may even take a look at the statute that says that you can remove someone because of poor performance.

Because the Civil Service Reform Act created a lot of new things that the Civil Service Commission under the old system didn't have.

It created an independent board, the Merit Systems Protection Board, that was to hear these cases separate and apart from agencies.

Now, when they did that, I believe that Congress was the proper body to take a look at this cloud that's there or take a look at this problem of national security, take a look at this situation where the President has told agencies to make sure you don't compromise security, and come up with a statutory scheme that would not only protect the interest of the employee, but also protect the interest of agencies in a situation such as we have here.

And I believe that they did that.

And I would like to talk about these particular statutes for just a moment.

7513 is the statute that contains the language that we've heard for years: you can't remove an employee unless it's for cause that would promote the efficiency of the service.

There is another statute, Chapter 43 of the Act... 4303, I believe, that says now under the new law that you can remove an employee for performance reasons.

You don't have to show cause.

You just have to show that he hasn't performed up to the level that he's expected to perform.

Now, taking those two statutes for a minute, the courts have held that an agency can terminate an employee on performance-based reasons under Chapter 7513, that is, for cause, because there might be situations where performance and cause kind of go together.

But the cases have said that if you do that, you are bound by the procedures, you are bound by the burdens of proof, you are bound by all of the other rights that the employee has under 7513.

You're not bound under the precise procedural problems that are presented under performance based types of claims.

Now, let me throw into the statutory scheme, 7532.

It wasn't created by the Civil Service Reform Act.

It's been around for years.

And what that says is, and what that recognizes is is that under some circumstances, there may be situations when agencies ought to be able to terminate somebody and not have somebody else essentially looking over their shoulder and second guessing that move.

Unidentified Justice: It isn't just that.

If the only difference between 7532 and 7513 were the absence of MSBP review, then you'd have a very strong case.

But 7532 does much more than that.

It allows that person to be taken out of the job and off of the payroll immediately without any prior procedures, and that can be the explanation of it, rather than what you suggest.

Mr. Nold: Justice Scalia, another explanation of it could mean that the Congress in the legislative history under 7532 recognized that there might be situations where an employee would have to be removed and taken out of the government, not because of any fault of his own whatsoever.

Maybe a Russian agent moved in next door to him.

Certainly, that's not his fault.

But it may be in the interests of national security that he not live next door to a Russian agent.

So they have the ability to remove him, even though there's no cause whatsoever from the standpoint of misconduct on his part.

Unidentified Justice: Denial of a security clearance is no more misconduct than what you just described.

What you just described would be adequate grounds for denial of a security clearance too, wouldn't it?

Mr. Nold: That's right.

And in some cases, security clearances like you say are revoked or denied because of misconduct types of reasons, and sometimes not.

You asked earlier a question about what the employee loses when 7532 is invoked.

There is something of a very real importance that the employee gains.

Because what he gains is the right to a hearing.

Under the procedures that the MSBP felt that were appropriate to review these kinds of cases, the situation could be that the person never gets the opportunity to sit down and cross examine and confront the people that say that he's done x, y and z.

He's totally denied that right.

At least under 7532, he would have the opportunity' to have some form of hearing, even though that hearing would be in front of the agency.

Unidentified Justice: Well, he is given it by the agency as the agency's regulations now exist.

It's not in the CSRA, but the agency does give him a hearing.

So in point of fact, there's no difference right now between what happens under 7513 and 7532.

Mr. Nold: Well, the wording's the same.

Unidentified Justice: You're saying the agency isn't compelled to give him a hearing, it's a matter of agency grace?

Mr. Nold: No.

What I'm saying is that under 7532, the statute says that he has the right to a hearing.

Under 7513, the statute also says that he has a right to be heard before the Merit Systems Protection Board.

And this Board is directed by the statutes to hear and adjudicate the matters that come before it.

Now, under the scheme that has been adopted by the Merit Systems Protection Board and found offensive by the Federal Circuit, there would be no hearing at all, in my view, in front of the Merit Systems Protection Board.

And the reason is because there wouldn't be anything to hear.

Unidentified Justice: Yes, but there is a hearing before the Department of the Navy.

Mr. Nold: Not under 7513.

Unidentified Justice: It doesn't require it, but didn't they offer your client a hearing?

Mr. Nold: They did.

Unidentified Justice: Well, and it was before the Agency which is exactly what 7532 would have given you a right to have.

Mr. Nold: No, they didn't offer him a hearing in the revocation or the denial process of the security clearance.

Unidentified Justice: Didn't they give him a statement of reasons?

Mr. Nold: Statement of reasons.

Unidentified Justice: An opportunity to question any of the facts that they set forth?

Mr. Nold: You get a written statement of reasons.

You get an opportunity to provide a written response, and you get a decision.

And you get the right to appeal one higher level within the agency.

That's it.

You don't get the right to be heard.

Unidentified Justice: Even if you question the facts?

Mr. Nold: Even... there is no provision that I'm aware of that he could command a hearing.

Whether the Agency would give him one, I guess there would be some discretion of their part.

Unidentified Justice: And here he didn't ask for one.

Is that right?

Mr. Nold: He did not ask for one.

Unidentified Justice: Under 7532 after suspension, he can get a hearing?

Mr. Nold: After suspension and prior to removal.

Unidentified Justice: Right, he can get a hearing.

Mr. Nold: A pre-termination hearing.

The Merit Systems Protection Board again, as I've mentioned, has the mandate to hear and adjudicate the matters that come before it.

And there's no question that this matter was properly before it.

Now, in addition to having the Merit Systems Protection Board hear the matter, he's entitled to judicial review to the Federal Circuit upon a decision by the Merit Systems Protection Board.

And the scope of review was defined specifically in the Civil Service Reform Act.

And it's very similar, I believe, to the kind of review that you would get under the Administrative Procedures Act.

It's an arbitrary and capricious standard and the courts look to see whether or not the law was followed and whether or not there was substantial evidence to support the decision.

Now, I'm trying to imagine what the court would be looking at in a case where the only questions were: does he or does he not have a clearance, was the clearance required as a part of his job, and were minimal due process standards granted.

That could all be put on one page.

Unidentified Justice: How about a case where the only requirement is that he be admitted to the bar, and they show that he's been disbarred.

Do you think the Board has a right to inquire into the propriety of his disbarment?

Mr. Nold: Absolutely not.

And the reason that they don't is that the Supreme Courts of our States have very elaborate rules that have considerable due process rights built into them, and there would be no way that the Merit Systems Protection Board would have any control whatsoever over that.

Unidentified Justice: Well, when why should you treat the Navy Department's security clearance system as so totally different from the State requirements for admission and remaining in the Bar?

I mean, it's a separate organization, and you don't have any claim here that your client was denied due process in the security denial, do you?

Mr. Nold: Well, I think--

Unidentified Justice: He didn't ask for a hearing.

Mr. Nold: --Let me answer the first question, first.

I think the distinction that has to be drawn between a disbarment proceeding or in the military context, the questions come up when a person doesn't get a promotion in the military.

The distinction there is it's a collateral source.

The person that is taking away the right to practice law is totally different from the Navy in this case who's firing somebody.

Unidentified Justice: But supposing that a particular job in the Navy calls for someone of field grade say of Lieutenant Commander, and this fellow was a Lieutenant Commander but he's reduced in rank to a lieutenant, and therefore the civilian side of the Navy says, well, you no longer have the qualification to fill this job.

Now, do you think the Merit System Protection Board can review whether or not he was properly demoted?

Mr. Nold: No, I absolutely do not.

Unidentified Justice: Well, there are some kinds of decisions, then... collateral, as you call them... that the Merit System Protection Board shouldn't review?

Mr. Nold: That's true.

Unidentified Justice: And why should the denial of a security clearance be one of them?

Mr. Nold: Because it's one and the same person that's doing the removal.

It's the civilian side of the Navy that's taking away the security clearance.

It's the civilian side of the Navy that's terminating him.

Unidentified Justice: Why is that different from the fellow who's demoted from Lieutenant Commander to Lieutenant?

It's the Navy doing it.

Mr. Nold: Well, because the Navy does have military on one side and civilian on the other.

This security clearance--

Unidentified Justice: The Secretary of the Navy is head of them both.

Mr. Nold: --the security clearance is revoked by the naval civilian personnel command.

There are certainly important things to be said for the military not having restraint on it.

Unidentified Justice: All they have to do is put this security clearance call in another division of the Navy and everything would be fine.

You'd have no complaints, right?

Mr. Nold: Well, it is in another division at this time.

But the agency--

Unidentified Justice: Well, why isn't that enough.

It has to be in the military half of the Navy?

Is there a military half and a civilian half?

Mr. Nold: --Well, the interest that's being protected when you're talking about a military decision is the same interest that you want to protect to make sure that everybody in the platoon is marching in the same direction.

And that's not what we have in this national security question matter.

You've got to have absolute control in the military.

Unidentified Justice: Let me ask you something about the statutory structure here.

The test for security clearance under the executive order is whether the employment of the individual in the job would be clearly consistent... clearly consistent with the interests of the national security.

Now, that's a fairly strict test.

There are two basic sections of the CSRA 43, which you mentioned earlier, which permits removal for poor job performance.

And the MSPB reviews those determinations on the basis of substantial evidence?

Mr. Nold: Substantial evidence, right.

Unidentified Justice: Right.

And Congress did it that way because Congress, as I recall the legislative history, knew that it's hard to prove.

Mr. Nold: Well, the Congress wanted to give the ability to fire people.

Unidentified Justice: That's right, and it's hard to prove inadequate performance, so they said substantial evidence will do there.

Then it has Section 75 which has a different review standard for the MSPB.

There, it's preponderance of the evidence, more likely than not.

Now, if Congress did want to have these things reviewed, I find it incredible that it would want them reviewed under 75, under a preponderance standard.

It is more likely than not that this was clearly consistent, clearly consistent with the interests of the national security.

That's a very strange test.

If I were going to have that reviewed, I would have had it reviewed under Title 43, Chapter 43 which would be there is substantial evidence that this would not be clearly consistent with the interests of the national security.

Mr. Nold: I think it should be removed even a step further, and under Chapter 7532, because that's the same test.

That talks about things where continued employment is clearly consistent with the interest of national security.

It's the same test as you have with the revocation of the clearance itself.

That is my point.

What the Navy has done in this case is that they've really changed the standard under 7513.

They've changed the standard from one of being clearly consistent with the interest of national security to replace the standard that says you can't fire somebody unless it's for such cause as would promote the efficiency of the Service.

So by a two-step process, they have changed the standard under 7513.

Because that is precisely the same standard as you have in the revocation of the security clearance.

Unidentified Justice: Yes, but that assumes the security decision is subject to review.

Mr. Nold: Well, Justice Scalia, when he was a Judge, I believe, wrote an opinion about that in the D.C. Circuit.

Unidentified Justice: He's still a Judge.

We think he still is a Judge.

Thanks, fellas.

Mr. Nold: They tell us we're supposed to call you justices.

And you examined that whether or not a due process interest attached to a security clearance, and I believe... or a liberty interest attached to a security clearance... and the holding was that it did not attach when you didn't get the clearance because of some unspecified reason.

But in this case, Mr. Egan is having his clearance taken away for very specified reasons that have been set out and that appear to me to constitute misconduct, which then is bootstrapped, if you will, over into a removal action which this Court has consistently held an employee of his status has a property right in his job, under Arnett v. Kennedy and those other cases that talk about that.

So I believe that what the decision does in the MSPB is to convert that standard from 7532 and cause it to be enforced under 7513.

Clearly, Congress did not intend to do that.

I think what they intended when they talked about as such cause as would promote the efficiency of the service, was to give the employee who was told that he was going to be fired and specific reasons for his termination, to give the employee the opportunity to cross examine the person or the witnesses that would testify against him, and possibly correct a situation that might be wrong.

He can't do that under the system that is advanced by the Navy in this case.

And I believe that that was what was found objectionable by the Federal Circuit.

Unidentified Justice: Mr. Nold, I'm trying to think if what Congress would have done to be sure that the MSPB would handle this thing the way that you're saying they expected it to.

And the analogy that comes to my mind is that when this Court was in the same position that the MSPB is in, that is to say, before the 1976 Amendments to the Freedom of Information Act were adopted, we were asked to review, among other things, one of the exemptions to the Act is whether the information was classified in the interests of national security.

And we decided that that was not an invitation for us to go into whether the classification was correct or not.

We just looked into whether it was classified or not.

Now, Congress didn't like that and they therefore provided that we would look into whether it was properly classified.

But without saying that, we just didn't go behind the determination that it was classified.

It seems to me that this is exactly the same kind of thing that the MSPB is confronted with.

Mr. Nold: Well, certainly under the FOIA, the courts even now give a great deal of due deference to--

Unidentified Justice: That's because the statute was changed.

But what I'm saying is that under the old statute, which reads for purposes of classification the way this legislation reads for purposes of security clearance, we thought it appropriate as a Court to say, well, it means we look to see whether it's classified, not whether the classification is proper.

You want the MSPB to look into not merely whether the fellow doesn't have a security clearance, but whether it was proper to deny him a security clearance.

It's certainly not what we would have done.

Mr. Nold: --I want the MSPB to look into the reasons that were advanced for the revocation of that clearance.

If misconduct was involved.

That's what I want.

And I want him to have the ability to create a record about that.

And I want him to have the ability to have judicial review of that record so that some court can later look back and say whether or not he was denied something arbitrarily or capriciously.

Unidentified Justice: I suppose then you would rather have the Navy proceed under 1713, if it's construed as you would have it, than under 1732, because you would have no judicial review under 1732 but you would have an agency hearing.

Mr. Nold: The Navy takes the position that no judicial review would be available.

I don't know that that's ever been really tested or not one way or the other.

Certainly, the statute does not preclude judicial review.

Unidentified Justice: In your mind, why do you think the Navy proceeded under 1713 rather than 1732, to avoid an agency hearing of the kind that he would get in 1732?

Mr. Nold: Well, I think the agency was thinking, well, the guy doesn't have a clearance.

That's one of the qualifications for his position, and therefore that constitutes cause for removal.

I don't think they did it to avoid the process.

Unidentified Justice: You don't think they made a mistake about what 1713 means?

Mr. Nold: Well, maybe they did.

But they do have the option, certainly, and they chose which way to go.

Egan had no ability to make that choice.

They chose to go the route 7532, which entitles him to all those procedures and the hearing that he gets.

I believe that with the questions we've covered, it pretty much covers what I wanted to say.

Thank you.

Chief Justice William H. Rehnquist: Thank you, Mr. Nold.

Mr. Cohen, you have four minutes remaining.

Mr. Cohen: Unless the Court has further questions, I have nothing further.

Chief Justice William H. Rehnquist: Thank you, Mr. Cohen.

The case is submitted.

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Greene v. United States - Oral Argument, Part 2

Wed, 16 Jan 2013 22:49:11 +0000

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Greene v. United States

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84_19631121-argument-2

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84_19631121-argument-2

Transcript:

Argument of J. William Doolittle

Chief Justice Earl Warren: Mr. Doolittle, you may continue your argument.

Mr. J. William Doolittle: Thank you Mr. Chief Justice.

Petitioner alternatively argues that the effect of Judge Keech's order on remand expunging the final revocation of its clearance from the records, leaves a prior favorable administrative determination in effect, namely that of January 29, 1952.

This ingenious argument which does have the virtue of recognizing that a final -- that the final paper for determination must be in administrative one, is we think entirely without substance.

For one thing, if what petitioner says is true, there would be outstanding, the subsequent unresolved charges or the statement of reasons which is set forth at pages 484 to 486 of this Court's opinion.

More importantly, however, in no sense may Judge Keech's order be read as reinstating the clearance of petitioner that was revoked from such -- such an argument, it would follow that the petitioners is now entitled to access the classified information which he obviously is not, and Judge Keech plainly never intended such a result.

I might note one other incongruity that would result from this argument.

It is clear from paragraph 26 that it is the final favorable determination that closes the interim period for which an individual is entitle to restitution.

Thus, if the 1952 determination marks the end of this interim, petitioner would be entitled to compensation at most for the two months that he was suspended and which suspension was terminated by the favorable determination in 1952.

In some, the remedy of paragraph 26 in which the petitioner suit is in part at least based, is in administrative remedy and it must be pursued in the Department of Defense before petitioner has any right to recover under it.

Now, I shall, as petitioner does, leave to the brief the discussion of the constitutional questions unless this Court has any question that wishes to ask.

Chief Justice Earl Warren: Very well Mr. Doolittle.

Mr. Gress -- Gressman.

Argument of Eugene Gressman

Mr. Eugene Gressman: Mr. Chief Justice, I only have a few statements to make in concerning this case as to the reasons which we feel compellingly require the interpretation of paragraph 26 in accordance with the way we view that language in there.

First of all, we are concerned here with solely with a past period of time.

If we are right as to our reading of the final favorable determination of a judicial nature, that determination was made in -- at least in 1959.

And we are not concerned with the continuing claim for damages as of today or tomorrow or next week.

We are concerned with a period of time which has elapsed, and during which accrued damages have occurred where there was a cause and infringement of constitutional rights.

And I suggest that we must view the -- the damaged claim in light of that -- of those past events which cannot now be undone or re-written nor can there'd be authority invested to do what this Court held, there was no authority for that period of time.

Now, it seems to me that the -- both orally and in the brief, the Government has made a most significant concession in interpreting and applying paragraph 26.

Mr. Doolittle correctly states the position that is reflected in his brief on page 14 when he says that the critical determination that they suggest to be made as of today, 1963, relates not to whether he would have been entitled to a security clearance between 1953 and at least 1959, but whether he is eligible as of this very moment which has no relationship to whether or not he should have been entitled to a security clearance during the years in question.

Now, if the justification for the Government's conditioning of monetary restitution under being a final favorable determination is that the Government should not be paying off money to a man who was a security risk.

This interpretation that they suggest does not need that consideration at all.

Because as Your Honors have already noted, there is no necessary relationship between a man who is today a security risk but who may not have been a security risk during the years in question.

Indeed, it -- the -- then the only reference that there is in the 1960 regulation to re-examining this past period of time relates to what Mr. Justice Brennan was referring to in the requiring of a finding that the former administrative determination was unjustified.

Now, whatever that word unjustified may mean it completely has dropped out of this case because they state that the Department of Defense has notified it -- the Department of Justice that this kind of a showing will not be required in petitioner's case.

They have amended the 1960 regulation to fit Mr. Greene's case and they are not going to read that and try to determine whether former determinations which incidentally were expunged, were unjustified or not.

They are concentrating entirely upon whether or not he is as of this moment or as of the time when we make a demand for a hearing.

He is then and in the future eligible for access authorization.

Now, we feel this is completely inequitable and completely unrelated to any concerned or interest of the Government with relation to paying out compensation or past injuries as to which there apparently is never going to be a determination now made as to his then security status.

Unknown Speaker: (Inaudible)

Mr. Eugene Gressman: That seems to be the Government's position, yes.

If we are currently --

Unknown Speaker: (Inaudible)

Mr. Eugene Gressman: Well, I -- I frankly don't know what the standard is.

It's not been spelled out.

We have not been told anything more than --

Unknown Speaker: (Inaudible)

Mr. Eugene Gressman: It could be well be.

It could well be more difficult to try to determine whether we are currently eligible in light of what happened to all 15, 20 years ago or it may be easier.

It would depend upon the particular circumstances and the -- the standards which the Board might have in mind.

Unknown Speaker: How was the cut off date (Inaudible)

Mr. Eugene Gressman: The cut off date if under our theory of the case would probably be.

And again and as I say, I have not made affirm position on this because the case had not proceeded far enough for the Court of Claims to do so.

But if we're right that there was any determination of a judicial nature, which was favorable to the petitioner, that certainly was made either in June of 1959 by this Court or by the expunging order of the District Court in the December of 1959.

Now, whether there was be a judicially found to be any extension of that period, I'm not certain but that is a litigable.

But I -- I presently think that that is probably the cut off date when there was a final determination made.

Unknown Speaker: (Inaudible)

Mr. Eugene Gressman: I left it open Your Honor.

I frankly didn't --

Unknown Speaker: What would (Inaudible)--

Mr. Eugene Gressman: I think that was the claim -- the amount that we estimated or calculate up the time of filing the petition in the Court of Claims.

We had submitted an earlier figure as we were asked to do to the Department of Defense up to the point of that request.

But we were never been ask to fixed -- or to the precise cut off date and of course that has not been resolved or even argued yet.

Unknown Speaker: (Inaudible)

Mr. Eugene Gressman: No, that is true.

I think I left it open to the date of judgment, but I'm not committed.

Justice Byron R. White: Did -- did the Department of Defense had any authority to primary to revoke the clearance by any procedures other than those specified in the 1955 regulation?

Mr. Eugene Gressman: By any procedures you say?

Justice Byron R. White: Yes.

Mr. Eugene Gressman: At the present time?

Justice Byron R. White: No.

And let's assume in 1956, it did want revoke the clearance, would it have had to use procedures which ultimately were held to be unconstitutional?

Mr. Eugene Gressman: Well, those were the only procedures then in effect in 1955 procedures which this Court held were unauthorized --

Justice Byron R. White: And there was no way then to Department of Defense could have revoked the clearance except by any -- except in an illegal way, in this -- interim years from which you're claiming?

Mr. Eugene Gressman: Well, it would depend on the -- the degree of confrontation or cross-examination that they might have supplied during those years the (Voice Overlap) --

Justice Byron R. White: But they could -- could they have supplied it without -- without -- within the regulations?

Mr. Eugene Gressman: Presumably so if -- if they had given -- under the circumstances of a given case, they would have been produced the adverse witness and allowed him to be cross examined, I suppose no claim could have been made as it was made by Mr. Greene in the prior proceeding in this Court.

Justice Byron R. White: But there's nothing in the regulations that would have prevented them for -- that's specified a -- that actually required a procedure that would violate the constitution?

Mr. Eugene Gressman: I don't know is it -- as it was specified precisely in -- in the regulations at that time which lead to this Court's ruling as to the unauthorized nature of that -- of these particular proceedings.

But there is certainly nothing that would be preclude them if -- even if there were something in the regulations, since going beyond them and producing the witnesses, and allowing them to cross examine thereby cutting off any conceivable claim that there was a denial of confrontation or cross examination.

Now, I would like you to refer very briefly to -- well, Mr. Justice Goldberg asked about the opinion in the Silver case and to say that in my judgment, it -- it fully supports the interpretation, the result which we are seeking in this case.

Because the footnote in that case, footnote 18, specifically refers to the general principle of interpretation of statute to regulations or what have you, not a constitutional principle but a general principle that the -- according of their procedures is a fundamental significance and that series an irreversible economic injury may result from their denial, and that a substantive inquiry after the fact cannot possibly succeed inaccurately ascertaining retrospective what the outcome, one of them had procedural safeguards been afforded in the first instance.

It seems to me that is, is this case in a nutshell and that we earnestly urge this Court to read, to resolve paragraph 26 once and for all so that this litigation which had been going on now and one form or another or nearly 12, 13 years and finally come to an end so that this petitioner can be made whole for the economic injury which had admittedly been inflicted upon Mr. Greene.

Thank you.

Featured:

Greene v. United States - Oral Argument, Part 1

Wed, 16 Jan 2013 22:49:11 +0000

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Greene v. United States

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84_19631121-argument-1

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Transcript:

Argument of Eugene Gressman

Chief Justice Earl Warren: Number 84, William L. Greene, Petitioner versus United States.

Mr. Gressman.

Mr. Eugene Gressman: Mr. Chief Justice, may it please the Court.

This is a suit for monetary restitution and just compensation, which comes here on a writ of certiorari to the United States Court of Claims.

The case is essentially an aftermath and indeed is the result of the decision of this Court in 1959 in the case known as Greene versus McElroy, involving the same petitioner as is now before this Court.

The opinion of the majority of this Court in Greene versus McElroy sets forth in great detail, the facts and the background which have led to this litigation.

Your Honors are therefore quite familiar and most of you having participated in that decision with the basic facts in this case, thereby making it unnecessary to relate at this time in detail the facts which have led to the present controversy.

I think it will be necessary only to highlight the more significant facts as they're now pertinent to the present litigation and to relate to you briefly, the events that have occurred subsequent to Your Honors' decision in Greene versus McElroy.

Now, you will recall that the petitioner, William L. Greene, was an eminent aeronautical engineer, who was employed between the years of 1937 to 1953 at a defense plant known, shorthandedly, as ERCO.

And in that employment, he produced notable achievements in the field in which the Government was interested in and actually rose to become vice president and general manager of the corporation.

The security problem which has given rise to this prolonged litigation really had its beginning in 1951, 12 years ago.

Previous to that, he had had three security clearances from the Government, up to Top Secret clearances.

Now, as stated in more detail in the opinion of this Court in the prior decision, in 1951, it was determined by one of the then security boards that were serious questions concerning Mr. Greene's security status.

As a result of which, he asked for a hearing and a resolution of these charges before a board called the Industrial Employment Review Board, the IERB.

As a result of that hearing, despite the lack of confrontation or cross-examination of witnesses, the original determination or charges were wiped-out.

Mr. Greene was found to be a good security risk and that his continued employment was found to be consistent with the National Security, and both he and ERCO were informed that he was authorized to work on secret contract work in connection with Government classified information at the plant.

Now, this --

Chief Justice Earl Warren: What year was that, Mr. Gressman?

Mr. Eugene Gressman: January of 1952.

Chief Justice Earl Warren: 1952.

Mr. Eugene Gressman: And this becomes important in this present litigation, because as I shall show briefly, in a few moments.

This, at the present time, is the last piece of paper in petitioner's security file.

This clearance -- this determination in 1952 by the IERB, by judicial action is now at the last piece of paper, which appears in petitioner's file.

Now, another year elapses in 1953, whereas Your Honors will recall, the -- without any notice, warning or hearing, the Secretary of the Navy, based upon his own examination of the case file, summarily reversed this determination of the IERB and notified ERCO to exclude Mr. Greene from its plant facilities because his employment, he said, was not consistent with the National Security -- continued access to classified information was inconsistent to the National Security.

ERCO had no alternative but to discharge the petitioner.

And he was discharged shortly thereafter, precisely April 23, 1953.

Now, that date is now important because that is the date upon which the monetary damages began to accrue, which is the subject matter of the present litigation.

But from April 23, 1953, his loss of income began.

Now, you will also recall that the petitioner made strenuous efforts to overcome the determination of the Secretary of Navy and he was given at least two hearings before the various security boards.

In 1954, he had a so-called hearing before one of the review boards which resulted in a reaffirmation of the Secretary's determination.

He followed that with another hearing both then -- with the same result in 1956.

So that there were -- in that -- in fact, three adverse determinations made as to petitioner's security status.

Now, the -- in the -- before the end of this round of security hearings between 1953 and 1956, the petitioner had filed in the District Court for the District of Columbia an equitable action seeking both equitable and declaratory relief against these proceedings, challenging the constitutionality of the hearings and the procedures on the basis that they violated his constitutional rights to confrontation and cross-examination.

And that suit was expressly grounded upon the fact, among others, that petitioner was then suffering substantial and irreparable economic interim.

He set forth -- now I think, the precise dollar amount which he was then suffering computed from that date of April 23, 1953.

Now, this action, as you know, came up through the court system and to this Court and resulted in the decision in 1959, which very narrowly but very significantly held, that, "in the absence of explicit authorization from either the President or Congress, the respondents," that is the Government officials, "were not empowered to deprive petitioner of his job."

And I repeat, "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."

Now, this decision and its implications, I believe, are evident and I believe they are controlling of the present for litigation because that holding, while it did not pretend or did not extend to a determination of the petitioner's right to access to classified information or did it -- or the merits of his security status, nevertheless, it did recognize certain fundamental elements which are significant in his present back pay suit.

It reflected in -- in its holding that petitioner's right to a job and his right to pursue his chosen profession, free from unwarranted government interference, was a right or was a property or liberty protected by the Fifth Amendment so that it is and under -- it is -- the decision reflects a recognition that the Government, by depriving this petitioner of his job, had in effect infringed upon constitutionally protected rights.

More than that, there was expressed recognition given in the majority and the dissenting opinions of this Court that this petitioner was in fact suffering substantial economic monetary loss as a result of this governmental action.

I call Your Honors' attention to Footnote 21, in the majority opinion of this Court, where the Court quoted the opinion of the Court of Appeals for the District of Columbia which said, "That we have no doubt that Greene has in fact been injured."

He was forced out of a job that paid him $18,000 per year.

He has since been reduced, so far as this record shows, to working as an architectural draftsman at a salary of some $4400 per year.

Even more expressly was the statement of Mr. Justice Clark, in his dissenting opinion on page 513, where, in referring to the action of the Court, he said that Greene will now claim as -- as literally, reimbursement for his loss of wages, and a reference is there made to the companion case decided that day of Taylor versus McElroy.

This claim, Mr. Justice Clark said, will date back to 1953.

His salary at that time was $18,000 a year.

Now, the facts that he states are entirely accurate and his prediction has come true.

This is exactly the nature and the -- the basis of the present monetary claim filed by this petitioner.

So that there was a general recognition and an understanding by this Court that, as a result of this unauthorized action of the Government, this petitioner was suffering substantial and serious economic injury.

Now, the reference which Mr. Justice Clark had made to the Taylor case is also interesting because here, you will recall that, in that companion case of Taylor, the -- or the -- shortly before the case came on for argument, the Secretary of Defense had granted Mr. Taylor a security clearance.

And the Government then moved and this Court eventually held that the case was thereby mooted.

And Mr. Taylor, up until that point, had been in the same situation with Mr. Greene.

Upon the representation of the Solicitor General that Mr. Taylor, as a result of this action of the Secretary, would be eligible under the then applicable regulations for rest -- compensation or reinstitution for his lost wages.

This Court dismissed the case as mooted.

Now, the only applicable regulation, then in effect, which -- under which Mr. Taylor could have been and was in fact paid, is monetary compensation, was Paragraph 26 of the 1955 Department of Defense regulations or direct duty, then in effect.

That is precisely the same regulation, the same paragraph under which this petitioner, Mr. Greene, has filed his claim for monetary damages.

And the Government concedes, there is no dispute, but that our claim was in fact filed under Paragraph 26 and must ultimately and exclusively be judged by the provisions of that paragraph of the 1955 regulation.

The sum total, in other words, of the opinion and the judgment of this Court in Greene versus McElroy, I submit, contains all the essential ingredients necessary to examine, to understand and to pass upon the right of this petitioner to his monetary relief under Paragraph 26 of the 1955 directive.

Now, following the decision of this Court in the Greene case, the matter was remanded to the District Court for the injury of an appropriate order and that order becomes very significant at this point.

It was drafted by the Government attorney, consented to by both parties, signed by the District Judge.

And the order says that in light of this Court's opinion in Greene versus McElroy, it is ordered that the action of the Secretary of Defense and his subordinates, in finally revoking plaintiff's security clearance, was and is hereby declared to be not validly authorized.

And now comes a significant sense, further ordered that any and all rulings, orders or determinations, wherein or whereby plaintiff's security clearance was revoked are hereby annulled and expunged from all records of the Government of the United States.

Now, let us see what this does to -- to the prior determinations.

This means, in effect, that there has been judicial expungement from the -- all the records of the Government, the order of the Secretary of the Navy in 1953 and the two subsequent reaffirmations of that determination by the various review or appeals of the boards.

Leaving in effect, as I said previously, the 1952 favorable administrative determination of the IERB, which is the last and the only determination which can now be said to be in existence and which I submit is the only determination that has any relevance or meaning as to the years in question covering -- covered by this monetary claim.

Justice Byron R. White: Mr. Gressman, what happens when or did it happen in this case that this man was suspended first?

Mr. Eugene Gressman: As I recall, there was originally in 1951, a statement by the -- the original board which said that there were serious questions about his security status as a result of which he was voluntarily put on favorable by the ERCO and --

Justice Byron R. White: Then won't pay -- he was paid or not?

Mr. Eugene Gressman: I'm not certain about that but in any event, he was fully restored by the action of the -- the EISB -- EIRB in 19 -- in January of 1952.

Now, there is nothing more that happens --

Justice Byron R. White: Assume that -- let's assume for the moment that -- that preparatory to suspending clearance or having a hearing to revoke a clearance, the employee is suspended, pending this determination.

And the determination is made but it's reversed by a court for a procedural error per se.

Mr. Eugene Gressman: Well --

Justice Byron R. White: Then automatically, is the -- is the employee entitled to pay until and unless the clearance is properly revoked in a proper proceeding?

Mr. Eugene Gressman: Well, this will depend upon whether there has of course been a -- a final determination favorable to that employee.

In -- in response to your -- to the precise question here, I am not aware that there is any outstanding unresolved charge or suspension against this petitioner by the sequence of the events which appeared quite fully in -- in the prior opinion.

But you will note there that there was this far so-called "final clearance" in 1952.

The next thing that occurs, a year later, is the summary action of the Secretary of -- of Navy without any additional or new charge or suspension ever having been established.

Justice Byron R. White: But you're -- you don't suggest that the Government couldn't proceed to revoke the clearance.

Would you say it -- it was left in existence by -- by the Court's action?

Mr. Eugene Gressman: No, I -- as far as the proceeding --

Justice Byron R. White: Well, under that -- based on the same facts as -- as the attempted revocation would appeal --

Mr. Eugene Gressman: You mean as of 1953 or now?

Justice Byron R. White: Well, I suppose that the clearance had said that -- let's assume the man didn't have another job or that he wanted his -- he wanted his clearance and wanted to work for the -- for the Government.

Mr. Eugene Gressman: No.

Justice Byron R. White: Following this decision, I suppose the Government could, nevertheless, have proceeded to revoke his clearance and -- and take it, through the facts of which -- proceed to revoke it in a proper proceeding.

Mr. Eugene Gressman: Of course, Your Honor.

There is no question but that the -- there is full power, admitted power in the Government and the Defense Department to institute a -- a new proceeding to determine his present security eligibility if he is in the position where he now wants to work on -- in defense work or for the Government or for any other purpose in which requires a security clearance.

What we are concerned with in this case is looking backwards to a period, when judicial action has resulted in revoking, annulling and expunging certain determinations, reinstating in effect for past period only, not for the present but for a past period of time for which we claim damages and claim that these damages are irreparable have accrued.

We now look back to see what the impact is of these judicial determinations and actions.

Now, what a -- we -- we cannot now rewrite the history between 1953 and 1959 or 1960, which is the only period of which we're now concerned with, but there's no question about what they could at 1963.

If you are eligible and -- and or needed as security access eligibility, the Government could make a -- a full scale hearing and determination of this point.

But my point is that there -- on the historic record, as amended by judicial action between 1953 and 1960 at least, there is no outstanding suspension or charge by which anything can now be resolved for that period.

The -- there was a letter, I think I pointed this out in one of the footnotes in my reply brief, there was a letter which was contained in the -- which reiterated the same little charges which had been the subject to the original proceeding which lead to this hearing and determination by the -- one of these Appeal Boards following the Secretary of Navy's determination.

Now, that was precisely the type of hearing, the type of determination which this Court ruled, could not, was not authorized and the -- it seems to me the -- the entire action including the or the letter setting up the hearing, setting forth the charges, had been wiped off the records of the Government.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Eugene Gressman: I will, Your Honor.

Now, we filed, as a result of the situation, as it existed then following the expungement order, a claim for restitution, under Paragraph 26 with the Department of Defense.

And we were asked and did supply to them the appropriate financial data under oath and this was filed in December of 1959, seven months prior to the promulgation of the 1960 regulation.

This matter was kept under consideration by the Department of Defense for a period of a year and a half intersperse with various respondents between counsel and the Department.

And finally, in June of 1961, the Department of Defense finally rejected petitioner's claim under Paragraph 26 of the 1955 regulation, stating that, "It has been determined by the Department of Defense that Mr. Greene does not qualify for a monetary restitution under the provisions of Paragraph 26."

Now, I submit that that is the true, the only exhaustion of administrative remedy principle that is applicable in this case.

We pursued, we exhausted, we obtained a final administrative denial of our claim under Paragraph 26, after a year and a half of consideration by the Department.

Now, that denial of the claim was coupled immediately with an offer to, if we would request it, an offer to hold a new security clearance hearing under the provisions of the 1960 regulation which, as I said, was adopted subsequent, seven months after we had originally filed the Paragraph 26 claim.

We took the position then, we took -- take the position now that we were not compelled to follow such an administrative possibility, a new hearing, reopening it up again, the same charges, the same matters that had been going in to over the past 12 years.

We said that we have complied with Paragraph 26 at this point.

And the 1960 regulation has no pertinence, no bearing upon a claim which has matured under Paragraph 26.

And as a result of the Defense Department's denial, we are forced to file this suit in the Court of Claims, alleging that we had complied with the regulation and adding to it a claim under the Just Compensation Clause.

Justice John M. Harlan: Your -- your position would mean that -- that you would be entitled to a monetary restitution without there ever having been a determination on the administrative determination on the merits under correct procedures.

Mr. Eugene Gressman: That is true, Your Honor, within the precise language of Paragraph 26 as I shall show it.

Justice Arthur J. Goldberg: That's in fact what we held in the Silver case.

That's why I thought it would --

Mr. Eugene Gressman: Yes.

It seems to me, Your Honor, that the -- there's been a -- a misunderstanding in the Court of Claims as to what is a real meaning and impact of the exhaustion doctrine here.

Because if we are right in our interpretation of Paragraph 26, and I submit there can be no question about it, but if -- if we are right, there is an -- we have complied with Paragraph 26, there is nothing more to exhaust under the 1960 regulation or any other -- any other regulation.

If we have not complied with Paragraph 26, it seems to me we're -- we simply have not stated the cause of action in the Court of Claims.

We can come in there and sue under an administrative or executive regulation, only if we can show that we have complied with it.

And we have complied with it, I submit so clearly that there is nothing more to exhaust.

This seems to me a circular reasoning which seeks to impose upon us an entirely different kind of a hearing under another regulation which has no relation, particularly if we are right in our contention that we have fully complied with Paragraph 26.

Justice John M. Harlan: The element question I suppose for us is whether the Court of Claims had jurisdiction.

Mr. Eugene Gressman: I suppose that's one way of saying it, Your Honor, whether or not we stated a claim or cause of action or in the reverse side whether there was jurisdiction or should have been exercised there.

But it seems to me that you can understand whether or not we should go back to the night for another hearing only after you interpret Paragraph 26.

You can't determine whether we have to go back for a new security hearing without first reading Paragraph 26 and deciding whether or not we have complied with it.

But I say that making that kind of a decision as to whether we have complied or not is an end of the matter, and you'll really never get to a real exhaustion of administrative remedy doctrine here.

Now, as I say, it is conceded here and properly so that the only basis of our claim which -- or the proper basis of our administrative claim here is Paragraph 26 and that we are judged and must be -- the issue must be resolved under Paragraph 26.

Now, that it seemed as I have said, I think, is clearly established in terms of our compliance.

Paragraph 26 is very simple in its critical language.

It says that we are entitled to monetary restitution in cases where a final determination is favorable to a contractor employee.

Justice Byron R. White: (Inaudible)

Mr. Eugene Gressman: Yes, that's --

Justice Byron R. White: (Inaudible) of -- of whether he's entitled to clearance or not?

Mr. Eugene Gressman: Well, this -- this is precisely what I want to address myself to because I think this is the critical issue in the case as to -- on compliance.

I submit, Your Honor, that we have satisfied that requirement of final determination in one or two sentences.

In the first place, this decision in Greene versus McElroy is in and of itself a final determination favorable to the employee.

Now, I -- of course, it was not a determination in terms of the merits of his security status, it was a final --

Justice Byron R. White: It was a final judgment.

Mr. Eugene Gressman: -- a final determination --

Justice Byron R. White: Final judgment but then --

Mr. Eugene Gressman: -- favorable to him in terms of the lack of authority of the Government to do what it did to this petitioner.

Justice Byron R. White: In that particular kind of a proceeding.

Mr. Eugene Gressman: In that particular kind of a proceeding.

Justice Byron R. White: But it didn't -- it didn't indicate that the Government was not entitled to revoke his clearance.

Mr. Eugene Gressman: That's right, Your Honor.

But that isn't -- but I submit, that a determination in terms of lack of authority is just as meaningful, just as final, just as favorable as a -- a determination in terms of the merits.

Certainly, procedure is not to be distinguished from merits in terms of the nature or the -- the ultimate impact, the conclusiveness of a determination.

If a court is -- if this Supreme Court holds that a lower court lacks jurisdiction to convict the defendant of a crime, that is certainly a final determination even though a favorable determination, even though it does not decide that question in terms of his innocence or guilt.

Now, a second thing comes into play here in terms of a final favorable determination and this goes exactly to the administrative determination.

Again, I emphasize that we're dealing with a past period of time upon which judicial action has -- has made an impact.

As a result of the expungement order of the District Court on remand, as I have pointed out, there has been -- wiped off the Government records, the three adverse determinations on the merits of this petitioner's security status.

Reinstating, I say, for the period involved, the last, the only determination on his -- on the merits, the determination of January 1952 of the IERB which authorized him to work on secret contract work.

Now, I submit that by the judicial action, working backwards on this period of time, there has been a final -- a reinstatement of a final favorable administrative determination.

Now, I suggest further that Paragraph 26, as it was explained to Congress by the Department of Defense officials, was said to be designed to achieve equity and justice for those employees who were relieved of their jobs at the suggestion of Government officials.

Well, I suggest that the reading that I have suggested at Paragraph 26 is compelled by any standards of equity and justice which were said to be the underlying concepts of Paragraph 26.

To refuse to acknowledge the loss and sufferings, to refuse to acknowledge that there was not -- that there was a final determination by this Supreme Court and by the District Court favorable to this contractor employee, I think would be the height of inequity and injustice which Paragraph 26 was designed to avoid, because as I repeat, the decision of this Court demonstrates that the Government here was infringing upon constitutionally protected property rights.

And there was irreparable injury caused to this petitioner which can never be wiped out, can never be -- can never be made whole unless Paragraph 26 is read in the matter in which I suggest.

And I think it is also inequitable and unjust to condition his right to relieve that this junction, upon any new proceeding, any new security determination which is unrelated, I suggest, to the satisfaction of Paragraph 26.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Eugene Gressman: I -- exactly right, Your Honor.

I don't see all -- there can be any equity or justice in -- in reopening the same old charges, the same questions which have been plaguing this petitioner, which have been in effect expunge in a note or because of the complete lack of authority to do what the Government did to this petitioner during the years in question.

Again, I reiterate, repeating what I said to Mr. Justice White that there's no question but if what -- the Government is wholly protected at this point if the petitioner were in a position to seek or need security clearance, they could reopen this point.

They can make a new determination.

But we're --

Justice Byron R. White: Well, in effect, I suppose in -- under -- when they denied your -- your request for compensation under -- under 26, I suppose, in effect, they redetermined it, didn't they?

Mr. Eugene Gressman: No, there -- there was --

Justice Byron R. White: Whether -- whether you were or had been entitled to a security clearance?

Mr. Eugene Gressman: No, there was no indication that that point was ever raised.

It was strictly, as I understand it, a legal position, a legal interpretation of Paragraph 26 in terms of did we have a final determination favorable to the employee.

The only thing we were ever asked during the course of -- of this negotiation or discussion with the Department was "Please present your legal position, your legal interpretation of Paragraph 26."

There was never any question raised about his security status or the merits of -- of the original charges.

Justice Byron R. White: But I -- but they must have determined within Section 26 that there was no final determination favorable to the context.

Mr. Eugene Gressman: Well, that's on a legal basis, yes, they must have done that.

Now, the position of the Government, it seems to me on this question of interpreting Paragraph 26, is, in my judgment, somewhat confused.

I've tried to point that out in some detail in the reply brief and I will not go into it in any detail here.

Except to say that basically, it ignores the settled rule that an executive agency is rigorously bound by the regulation which it has promulgated.

And that having promulgated Paragraph 26, it seems to me, it is bound by the language of Paragraph 26 as it is, as it was written.

The Chenery and the Vitarelli line of cases fully established that general principle.

But instead, the Government here, in its brief and throughout this case, has completely intermixed the 1955 regulation and the 1960 regulation taking from the 1960 regulation, what it does not find in the 1955 and amending or changing the 1960 regulation right before our eyes here, exciting out.

Justice Byron R. White: (Inaudible)Section 26 said expressly when there has been a final determination of the contractor's eligibility for clearance.

Mr. Eugene Gressman: That is --

Justice Byron R. White: I presume that -- they said that expressly and there wasn't any argument about what it meant.

Mr. Eugene Gressman: I think that would be controlling, Your Honor, yes.

Now, this is what they tried to say but it -- then this is, in effect, is what the 1960 regulation says.

Justice Byron R. White: Let's assume that Section 26 did say that and you were -- wanted to get compensation so you had to go through another argument about whether you were entitled to clearance or not, would you prefer to go through it under the 1955 or the 1961 regulations?

Mr. Eugene Gressman: Well, I don't know -- in -- in -- on your premise, I don't believe there'd be any distinction there and if we -- in either cases, I understand your question.

We would be going through a new security hearing as a condition through us -- to getting back pay.

Now, I don't know if there'd be any -- any real difference between the kinds of hearing then involved.

But the -- in -- in addition of course, the 1960 regulation has established new procedures which in and of themselves may have constitutional questions attached to them.

They tried, they say, to -- to comply with certain of the comments and -- and reservations of this Court regarding confrontation and cross-examination but there still would be a possibility of questions being raised as to whether there has been complete, adequate compliance even there.

But in any event, as I read the Government's position now, they apparently say that Paragraph 26 incorporates at the very least, the expressed requirement of the 1960 regulation that there'd be a final administrative determination on the merits subsequent to the original suspension or revocation.

Now, I submit that the language of Paragraph 26 simply does not say that and that it is completely impermissible to read it into it by implication and certainly impermissible by reading into it from Paragraph 5 (c) of the 1960 directive.

Justice John M. Harlan: It's five years later.

Mr. Eugene Gressman: It's five years later, exactly.

19 -- in 1955 they say, in cases where a final determination is favorable to -- to a contractor employee, but in 1965, years later, they become very precise and expand upon this and say, "If an applicant suffers a loss of earnings, resulting directly from a suspension or revocation, and at a later date, a final administrative determination was made in his favor, then you may get monetary restitution."

Now, I submit there's a significant and a meaningful difference between those two standards that it is a recognition here by the drafters that they omitted the term "administrative" in the 1955 regulation.

They pull a gap (Inaudible) hole and they require also that it -- that there'd be a determination at a later date after the revocation -- the revocation has occurred.

Now, I submit that there must be a presumption here that they meant to make a change and did make a change in the nature of the regulation.

But we come back to the admitted fact, the concession that our claim was filed under the 1955 regulation and that we are bound by that interpretation -- that language.

And our claim is to be resolved in light of the -- the rule as it was originally written.

And we get back again back of that to the rule that I stated a little earlier that an administrative agency, an executive agency must be rigorously bound by the language that it has itself promulgated.

Now, on that basis, it seems to me completely impermissible and unwarrantable to read in to the 1955 regulation what did not appear until the 1960 regulation was adapted, after this claim was -- was filed.

And as an addendum even to that, I submit, that we do have, by judicial action, a reinstatement of a prior administrative determination on the merits.

If you want to say that -- that that regulation -- that determination of the IERB is the only thing that covers petitioner's security status for the years in question.

Now, I submit that there is nothing in the purpose of the regulation.

There's certainly no overwriting public interest or governmental interest which would justify this truncated resolution or determination or reading of the Paragraph 26.

As I've said, the Government is fully protected that this petitioner ever wants to work in an -- a defense contract and need to security clearance.

But all they're offering him now is an access eligibility determination which he does not need, he does not want, he is not working now in a defense industry.

And under the Government's own regulation, the defense manual, he would not be entitled to seek such an access clearance until and -- and unless he is employed by a defense contractor.

This is, in a sense, nothing but an advisory opinion that they are asking us to go through to achieve monetary restitution.

And if they were to find that he presently is not eligible to access eligi -- access to classified information, then they would presumably deny his monetary claim despite the fact that that is a finding only in terms of his present eligibility, ignoring completely the fact that we're dealing with a period long since passed between 1953 and 1960.

And there is no inconsistency between, if you will, present ineligibility and eligibility under Paragraph 26 for a period of time that is long gone by.

Justice Potter Stewart: Mr. Gressman, you said you're dealing with a period from 1953 to 1960, the -- your damages began April 23, 1953 and when is the -- when do they stop from this (Voice Overlap) --

Mr. Eugene Gressman: Well, that, of course, has not been determined.

It had not -- not had the chance yet to take -- make a position or -- or determination of that in the Court of Claims.

I would think that that would -- the earliest possible date would either be this Court's decision in June of 1959 or the expungement order of the District Court in December of 1959.

Now, we made the claim, I think, in the district -- in the Court of Claims riding on -- into the entry of its judgment or determination by the Court of Claims.

But I think that is -- would be subject to argument as to when the precise cutoff date would be but I -- it certainly could not be before either this Court's judgment or -- or the District Court's order.

Justice Potter Stewart: You've told us that Mr. Greene doesn't need and doesn't want to get his job back, the one that he had, what's the -- what's the measure -- what's he doing now and what's the measure of his job?

Mr. Eugene Gressman: Well, he was forced to change entirely his profession.

I mean, as aeronautical engineer, he could not pursue that profession because any position in that profession would require a -- a security clearance which he could not -- could not get.

Justice Potter Stewart: Well, he could get it after 1959 presumably if he tried to get it.

Mr. Eugene Gressman: Well, and he tried if he want to go back and tried it again --

Justice Potter Stewart: And then he is not --

Mr. Eugene Gressman: -- even though it's free but as a result of this, he was forced into an entirely different line of construction engineering and he built himself up to -- in -- in that area which is entirely unnecessary in which position or profession, in which to obtain security clearance because most of the entire -- all of the construction work on which he is engaged now is non-contractual or at least, as far as the Government is concerned, requires no security clearance.

So he's built up an entirely new life and entirely new profession.

But during the period which we are speaking of, when he was struggling and suffered great economic loss during that period, losses which are acknowledged, that it -- that is the period which is -- is critical here and which Paragraph 26 was designed and does provide a means for making him whole.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Eugene Gressman: Yes.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Eugene Gressman: Yes.

Well, I think that would be subject to recapitulation and determination in the Court of Claims on the --

Justice John M. Harlan: Do you -- do your (Inaudible) Court of Claims could that stand before on your position that you've been arguing if you have other basis of your issue?

Mr. Eugene Gressman: Well, we do have the -- the just compensation --

Justice John M. Harlan: (Voice Overlap)

Mr. Eugene Gressman: -- claim under the Constitution, I --

Justice John M. Harlan: I am --

Mr. Eugene Gressman: -- think --

Justice John M. Harlan: -- pressing that very (Inaudible).

Mr. Eugene Gressman: We -- well, we're not -- I don't want to be in the position of abandonment --

Justice John M. Harlan: (Voice Overlap)

Mr. Eugene Gressman: -- I don't have the means.

I think it -- at the very least, as I have pointed out, it -- it bolsters the reason for interpreting Paragraph 26 to make him whole.

Now, it's rather interesting, Your Honor, that in the last paragraph of the 1960 regulation which provides for monetary restitution on this different basis, it says that any recovery under that regulation shall be completely -- on the entire means of recovery against the United States.

It says here, "Payments under this provision shall be in full satisfaction of any or all claims of whatever nature they maybe which the applicant has or may assert against the United States as well as against the Department of Defense and other agencies."

Well, I think if that is true, if that is proper to make that limitation, I don't -- I'm not sure at the moment whether that is also on the 1955 regulation but assuming that it is, I still think that if you have another basis on the Constitution that is -- is forbidden to you by a virtue of such a provision, I think that at very least it indicates a strong reason why these paragraphs should be interpreted to give you the restitution to which you might otherwise be entitled.

Chief Justice Earl Warren: Mr. Doolittle.

Argument of J. William Doolittle

Mr. J. William Doolittle: Mr. Chief Justice.

We believe that the central position -- central question in this case is, whether it was within the Court of Claims' discretion to order the suspension of this proceeding in order for petitioner to pursue his administrative remedy before the Department of Defense.

Now, our -- our basic position as it's quite clear in our brief is that not only was it proper for the Court to do so but that this is a classic case in which it should undertake that procedure where there is an adequate administrative remedy available to the petitioner.

It is capable of providing complete relief to him and the constitutional questions can thereby be avoided.

Now, in -- with respect to Mr. Justice Harlan's question on whether or not this is a jurisdictional problem or one of exhaustion, it seems to me that what we can, in essence, regard the Court of Claims as having done is that they determine the question that petitioner now, which is to litigate favorably to the Government, that is, that it read the regulation as we read the regulation and that it -- then send it to the Pentagon for action accordingly.

And of course, if -- if that is wrong that that question can always be litigated although it may not have to be litigated if complete restitution is given by the Pentagon which -- which is still a possibility.

Now, I think it's important for us first to take a very careful look at the administrative remedy that we believe is applicable and that is, as petitioner points out Paragraph 26 of the 1955 regulation, the essence of that paragraph is contained in its first sense.

In cases where a final determination is favorable to a contractor employee, the Department whose activity originally forwarded the case to the Director, and that's the Director of the Office of Personnel Security, will reimburse the contractor employee in an equitable amount for any loss of earnings during the interim resulting directly from a suspension of clearance.

Now, of course, the 1955 regulation has been superseded by the 1960 regulation, which was promulgated as the result of this Court's 1959 decision in Greene against McElroy.

However, because petitioner did apply for restitution before the 1960 regulation went into effect and because the 1955 procedure regulation does provide an easier standard for peti -- for petitioner to meet, the Department of Defense has agreed to process petitioner's claim under Paragraph 26 of the 1955 regulation.

Justice Potter Stewart: I don't --

Mr. J. William Doolittle: I might --

I'm sorry.

Justice Potter Stewart: You -- you've find this case right down at Paragraph 26, it seems to me the very sentence at which you read that disposes of the case say -- Greene didn't lose the case here in the -- in this Court.

Mr. J. William Doolittle: That's certainly true.

Justice Potter Stewart: And there was a final determination favorable to him --

Mr. J. William Doolittle: I'll --

Justice Potter Stewart: -- there have been --

Mr. J. William Doolittle: I'll go into that in quite a bit of detail --

Justice Potter Stewart: I hope you will.

Mr. J. William Doolittle: -- Your Honor, just a moment.

I might advert just for a moment to a question asked by Mr. Justice White and that is the effects of the Department's letter concerning Paragraph 26.

Now, I agree with Mr. Gressman that that did not constitute a determination on the merits.

Either on the merits of he's entitled to a clearance or his -- his ultimate entitlement --

Justice Byron R. White: (Inaudible)

Mr. J. William Doolittle: Well, my -- my only point as far as -- as his -- his claim under paragraph --

Justice Byron R. White: (Inaudible)

Mr. J. William Doolittle: The reason that -- the reason that he was told that he did not qualify under Paragraph 26 is that --

Justice Byron R. White: (Inaudible)

Mr. J. William Doolittle: -- is that he had not submitted to the procedure required by section -- by Paragraph 26 and I will explain why -- why we believe that there is something that he has to do in essence what he was told that -- that your claim is premature, that there's something that you have to do before you're entitled to -- to -- and before you're eligible to restitution under Paragraph 26.

Justice Byron R. White: (Inaudible)

Mr. J. William Doolittle: That's right.

Justice Byron R. White: (Inaudible)

Mr. J. William Doolittle: That's right.

Now, as I shall spell out in more detail, we think it is clear that the final favorable determination referred to in Paragraph 26 is a determination that the individual is eligible for access to classified defense information and that such a determination can be arrive at only by the Department of Defense.

Justice Arthur J. Goldberg: (Inaudible)

Mr. J. William Doolittle: If the Court determined that it was wrong on the merits, that is to say if the Court took it upon itself to rule that petitioner was entitled to a clearance, I -- I couldn't argue that that wasn't exactly what the regulation called for.

But I don't believe the Court would do that and it's clear that the Court never has done that.

Justice Arthur J. Goldberg: (Inaudible)

Mr. J. William Doolittle: Well, he -- the Court did hold that the revocation of his clearance was unauthorized, that' right.

Justice Arthur J. Goldberg: (Inaudible)

Mr. J. William Doolittle: Well, we -- I'll -- I'll go into this again a little more detail.

But we -- we do not believe that that was a holding that he was entitled to a clearance.

In fact, Mr. Justice Harlan at least specifically pointed out that it was not.

If I may -- I may go on for just a moment as to what remedy we have in mind, I -- this is decidedly preliminary but I do want to point out that the procedure that the Department would employ in arriving at this final favorable determination or final unfavorable determination as the case maybe, in the procedure that we believe that Mr. Greene must go through, would apply the more liberal procedures of the 1960 regulation which was issued under the authority of the President.

Now, provision is made in that regulation, the 1960 regulation, for a proceeding in which the individual has rights of confrontation and cross-examination and in which the use of information that cannot be disclosed to him for national security reasons is very sharply and very closely restricted.

Thus, petitioner is being offered the best of both regulations, the easier standard for restitution of the 1955 regulation and the more liberal procedures of the 1960 regulation.

However, petitioner refuses to proceed in the Department of Defense under either regulation or any combination of the two.

And the central contention is that he has already satisfied the requirements of Paragraph 26 and that it is therefore unnecessary to remit his case to the Department.

He argues first that this Court's decision in Greene against McElroy, coupled with the order of Judge Keech on remand constituted a final favorable determination for purposes of Paragraph 26.

Now, the fundamental defect in this argument, as we see it, is that the final favorable determination contemplated by Paragraph 26 is a determination that the individual is eligible to access to classified defense information.

Now, a fair-minded examination of the context of the regulation, we believe conclusively, conclusively demonstrates that that it so.

Justice Arthur J. Goldberg: Could you -- would you tell us what the (Inaudible) the Department will necessary would have to make a determination (Inaudible) whether he's eligible now?

Mr. J. William Doolittle: Yes sir, that's exactly what they would do.

Justice Arthur J. Goldberg: And what does make (Inaudible) there's nothing more many times the National Security upon 1953 to 1959 and does something more in 1959 (Inaudible).

Mr. J. William Doolittle: If he is -- if he is not eligible as of the time that the determination is made, we would say that he is not -- he -- he cannot recover under -- under the restitution provision.

Now, let -- let me point out one thing, and I -- I say this without wanting to bind Department of -- of Defense or the Department of Justice in its future action.

It's not altogether clear that 1959 would be the cutoff date because we are -- we, in the Department of Justice, are talking about a determination yet to be made and Paragraph 26 indicates that that determination is the end of the right to restitution.

Now, of course, it maybe that other circumstances would come into play such as the fact that he -- maybe he's now earning more than he was back in 1953 or maybe it could be said that he unreasonably delayed in -- in seeking relief.

But other -- those factors apart, it's not obvious to me at any rate that that -- that the cutoff date has yet arrived such that it wouldn't necessarily be a determination in 1964, let us say, of his situation back in 1959.

It would -- it would be currently relevant.

Now, I will -- Mr. Justice touch on your point with respect to Silver in -- in a few moments.

As I say, we believe that the context of the regulation at the very least requires the reading that we have indicated.

The opening sentence of the entire regulation of which section -- of which Paragraph 26 is a part, makes it clear what kind of determination the regulation is talking about.

That sentence is this, "This part describes the uniform standard in criteria for determining the eligibility of contractors, contractor employees and certain other individuals, as set forth in this part, to have access to classify defense information."

And thereon -- from thereon, it sets forth detailed procedures by which determinations are to be reached and that each level, the screening board level, hearing board level and finally the review board level, the regulation clearly sets forth the kind of determination of access eligibility that is to be involved.

Significantly, the regulation makes the review board's determination final subject only to reconsideration by the review board itself, by the Secretary of Defense or by the three service secretaries jointly.

Thus, it was not contemplated that there would be any judicial review of this finding of access eligibility such that the only final favorable determination that the drafters of the regulation could possibly have had in mind was an administrative determination of access eligibility.

Now, further confirmation --

Justice Potter Stewart: Wouldn't that -- wasn't it the fact that the determination in Greene case was made by the Secretary of the Navy, individually?

Mr. J. William Doolittle: Well, the Secretary of the Navy in a sense preferred charges and then it preceded through these various boards or the -- the equivalence of them under a prior regulation.

But the final determination that was set aside eventually by this Court or actually by Judge Keech's order was a review board determination.

Justice Potter Stewart: Review board.

Mr. J. William Doolittle: Yes, Your Honor.

Chief Justice Earl Warren: Are there any charges pending against him now?

Mr. J. William Doolittle: We believe that there are, Your Honor.

Chief Justice Earl Warren: What are they?

Mr. J. William Doolittle: Now, I'll touch upon that in just a moment.

But -- well, if -- if -- what they are?

They -- they are the charges that are set forth in this Court's opinion in -- in considerable detail, one lengthy footnote.

Chief Justice Earl Warren: But what do you do with the -- what do you do with the 1952 order of the board which holds that they were -- those charges were unjustified and that he is entitled to clearance and --

Mr. J. William Doolittle: Well, these charges --

Chief Justice Earl Warren: -- everything subsequent to that has been wiped out but what --

Mr. J. William Doolittle: These charges, Your Honor, we -- we certainly don't believe that these charges have been wiped out.

The -- the final revocation of his clearance was wiped out.

But so far as we are concerned with the charges and no order has ever said anything about those charges.

In short, we don't feel that Mr. Greene is now entitled to a clearance just because he had that 1952 ruling that he was subsequently charged for a cause.

Chief Justice Earl Warren: Or because of the order of the District Court subsequent to our decision?

Mr. J. William Doolittle: That's right.

Now, that wiped out a final revocation and I have no doubt at all that Mr. Greene, if he wish to contest these charges, could have them process through the authorized procedures and perhaps they would come out with a -- with a final favorable determination.

But the fact is that on the books now are those charges which no court decision has ever touched.

Chief Justice Earl Warren: Well, in -- do you consider in -- in the Government service as if or in Government action if -- if an employee is cleared by one of your -- your boards that -- that in -- and the -- and no further action that is legal under those charges that he's still under charges?

Mr. J. William Doolittle: Yes, I would say so Your Honor --

Chief Justice Earl Warren: (Voice Overlap) --

Mr. J. William Doolittle: -- because they -- they just haven't been pressed to a conclusion which it is his and has been his privilege to do it anytime but because the -- because the subsequent determinations have been wiped out, as they clearly have been by this Court's decision in -- in Judge Keech's order on remand, in a --

Chief Justice Earl Warren: But may I ask you this question.

Suppose -- suppose that he did find now under your 1960 regulation and the matter was decided against him and he was obliged to go to court and it took him another 10 years and this Court finally found that you would short circuit with your circuit, your -- your procedure on that occasion too and wrote to the effect that we did in Greene, would you then contend that he's still did not have a final judgment that he'd have to go back again and go through the procedure in order to get his relief?

Mr. J. William Doolittle: If the regulation is still read the way it does now under either 1955 or 1960 regulations, he has to be with you.

Now, we believe that further on very strong confirmation that restitution under the -- under Paragraph 26 is to be based on a clearance determination that comes from this Court's decision in Greene against McElroy.

There, this Court, as counsel has pointed out in its brief, discussed Paragraph 26 and it described Paragraph 26 in the following terms.

A program under which reimbursement for lost wages would be made to employees of government contractors who were temporarily denied but later granted security clearance.

And in Taylor against McElroy which petitioner makes so much as demonstrating that this Court was aware of Paragraph 26, the Court's -- the Court's opinion makes it very clear that Taylor had received a final favorable determination of his clearance eligibility by the administrative authorities which of course was the reason why Paragraph 26 was applicable.

Chief Justice Earl Warren: And what was that authority?

Mr. J. William Doolittle: Pardon?

Chief Justice Earl Warren: What was that authority, administrative authority in the --

Mr. J. William Doolittle: The Department of Defense --

Chief Justice Earl Warren: I beg your pardon.

Mr. J. William Doolittle: The Department of Defense had -- had a rule that he was entitled to access authorization.

That's at page 710 of 360 U.S., the Court sets forth those facts.

Finally, it has been the consistent position of the Department of Defense in implementing the 1955 regulation that the final favorable determination of Paragraph 26 is a determination of clearance eligibility in this consistent and long-standing interpretation of a regulation by the agency responsible for its drafting as we submit entitled to great way.

Now, petitioner contends however, that he should not be -- that he should be accepted from the necessity of a determination of clearance eligibility because he does not need a clearance in his present work.

One cannot help wondering whether that circumstance should justify according petitioner preferential treatment over other whose cases have been processed under Paragraph 26.

More than that however, we feel that there is a perfectly valid reason for the Department's insisting on a determination of clearance eligibility as a condition precedent to a restitution for the suspension or revocation of a clearance.

Suppose that because of activities or associations, the individual would under no circumstance, have been judged under any kind of procedure, reasonable or otherwise, would have been deemed and titled to a security clearance.

Suppose, for example, that he was an admitted espionage agent for a foreign power, how has he been hurt by the unauthorized suspension or revocation of his clearance?

He was never entitled to a clearance.

He never could have gotten one under any kind of procedure.

He has not been hurt.

The purpose of this requirement is simply to -- to determine whether the individual was actually injured by the act complained of, whether he was --

Justice Arthur J. Goldberg: Suppose --

Mr. J. William Doolittle: -- actually entitled to a clearance.

Justice Arthur J. Goldberg: (Inaudible)

Mr. J. William Doolittle: Well, I may say that that -- that is certainly one of the factors that would have to be taken into account in arriving at the determination.

And I should suppose that if he contended import that that was the facts and it was clear that the Department of Defense had not taken adequate account of that fact, that would certainly be a ground for reversal of the administrative determination.

I don't doubt that for a moment.

Now, you've asked, Mr. Justice Goldberg, about what you've said in the Silver case.

There really are two important distinctions between the situation there and the situation here.

First, of course, we're talking about a determination of present eligibility at least under the 1955 regulation or the 1960 regulation, does require not only a finding of present eligibility but a finding that the revocation was unjustified, which we take to be a finding of past eligibility in effect.

But not so under the 1955 regulation and that is the one we're applying here.

Therefore, some of the considerations that you adverted to there, do not seem to us to be present and we do feel that -- that a -- a determination now is really very different from a determination then.

If for -- it -- there -- it may have been that -- that there were circumstances that would've substantively justified the denial of a clearance back, say in 1952 or 1953, but if it appears that the individual involved has -- has done nothing of this general character in -- in the meantime, thus, adding some -- some kind of color to the -- to the prior activities, this is certainly a fact that would have to be taken into account in a -- in a present adjudication.

The same standards just -- just don't apply when there's a significant difference in time of course.

Now, secondly, and really I think critically as far as what you've said in Silver is concerned, I assume from reading what you said that that was a -- a construction of the legislation that was before the Court at that time.

And what we have here is a regulation that in or judgment as clearly as a regulation could set forth the fact that this kind of determination is to be made and unless if it said that what you've said in Silver is a constitutional requirement, we believe that the plain language of the regulation must control.

Justice Arthur J. Goldberg: (Inaudible)

Mr. J. William Doolittle: I realize that.

Justice Arthur J. Goldberg: (Inaudible)

Mr. J. William Doolittle: Right.

Given the fact that the final favorable determination referred -- referred to in Paragraph 26 is a determination of eligibility for clearance and that seems indisputable to us.

It follows that that determination is one that only the Department of Defense can make.

Certainly, this Court in Greene against McElroy did not purport to determine that petitioner was entitled to a clearance as I pointed out, Mr. Justice Harlan in his concurring opinion was it taints to emphasize that and I quote, "There is nothing in the Court's opinion which suggest the petitioner must be given access to classify the material.

Nor is there any intimation in Judge Keech's order on remand that he intended to declare petitioner's entitlement to a clearance."

And as I have said, the regulation itself clearly contemplates that the determination will be made by an administrative board or official.

The short of our argument is that it is clear beyond doubt that the final favorable determination of Paragraph 26 is a determination of clearance eligibility that can be passed on only by the Department of Defense.

By ceasing final favorable determination and taking it entirely out of context, petitioner has been able to make this argument which is in essence that any final favorable determination that he lay his hands on will do.

As far as we are concerned, in relation to this regulation, the final favorable determination of this Court and of Judge Keech on remand is -- is no more relevant than any other determination that petitioner might be able to find.

Justice John M. Harlan: I should think the Government will have the standard law under (Inaudible) -- regulation (Inaudible)

Mr. J. William Doolittle: We do.

We do, Your Honor.

Justice John M. Harlan: But why is it (Inaudible)

Mr. J. William Doolittle: Well, the -- the relevance of the 1960 regulation is, as I say, it means, if the regulation is now in effect, 1955 regulation strictly speaking is no longer in effect.

And we believe that petitioner is entitled with more liberal procedures under the 1960 regulation.

We would or we couldn't -- we couldn't process his claim under the 1955 regulation or we'd be right back in this Court because the 1955 regulation --

Justice John M. Harlan: (Inaudible)

Mr. J. William Doolittle: -- has procedures that were held to be unauthorized but --

Justice John M. Harlan: You can't -- you can't if you don't find what the -- the argument (Inaudible) regulation, 1955 regulation, you certainly can't supply that 1960 regulation.

Mr. J. William Doolittle: I agree, Your Honor.

Now I --

Justice John M. Harlan: Can't you seem to (Inaudible)?

Mr. J. William Doolittle: Well, Mr. -- Mr. Gressman has argued that, the way he put it the first time was that, some of the language used in the 1960 regulation was to plug a loophole and they said that there must have been an intention to change.

But we don't think that's all true.

The 1960 regulation much more clearly expresses what was in -- in the minds of the drafters of the 1955 regulation.

But beyond that, I -- I can't disagree with you, the 1960 regulation --

Justice John M. Harlan: Could you -- you do, I -- I don't misunderstand what you were saying in the Court or I correctly misunderstand you, did you stand squarely on the 1955 regulation supplemented only by the procedural requirements of the 1960 regulation designed to produce (Inaudible).

Mr. J. William Doolittle: That's completely right, Your Honor.

Justice Byron R. White: Since -- you do rely on the 1955 regulation and insist that a final determination is necessary, that final determination has to take place under some -- under the 1960 regulation or the 1955 regulation is no longer an existing fact.

Mr. J. William Doolittle: Well, the 1955 regulation is --

Justice Byron R. White: Well, there --

Mr. J. William Doolittle: -- it has --

Justice Byron R. White: -- furthermore it is invalid.

Mr. J. William Doolittle: -- it has sort of existence and it has enough existence that --

Justice Byron R. White: But they're invalid anyway.

Mr. J. William Doolittle: Well --

Justice Byron R. White: They did that to proceed --

Mr. J. William Doolittle: Yes, we -- we don't assume the nine -- that -- that Paragraph 26 is invalid as result of this Court's decision.

Justice Byron R. White: Yes.

Which are -- but -- but the procedures by which you would draw about to make the final determination and it had to take place under a different set of regulation.

Mr. J. William Doolittle: Exactly, Your Honor.

And as I say, it's -- it's beyond question, a more liberal procedure.

Justice William J. Brennan: Mr. Doolittle, what -- (Inaudible) as of the context today under 1961 or the context of time dispersed (Inaudible)

Mr. J. William Doolittle: I'm sorry; I don't understand your question.

Justice William J. Brennan: Well, I -- what I'm trying to get is, what is this final determination?

Mr. J. William Doolittle: The final --

Justice William J. Brennan: Favorable to and when, as of when.

Mr. J. William Doolittle: The final determination that we think is critical under Paragraph 26 would be a determination made if and when petitioner submits himself to --

Justice William J. Brennan: I appreciate that.

But as of --

Mr. J. William Doolittle: As of the date on which it's made.

Justice William J. Brennan: So that this -- in other words, this would be a -- a determination whether he's entitled of clearance today.

Mr. J. William Doolittle: That is right, Your Honor.

Justice William J. Brennan: (Voice Overlap) --

Mr. J. William Doolittle: Not today.

Not today.

The day on which it was made, that's right.

Some time in --

Justice William J. Brennan: Alright, the day it was made.

And it's not -- whether or not, he's been entitled to a clearance back in 1952.

Mr. J. William Doolittle: That's right, Your Honor.

Justice William J. Brennan: Well, is that -- is that what the 1961 --

Mr. J. William Doolittle: 1960 regulation.

The 1960 regulation would require both a finding of present eligibility present as of the time it's made and a finding which we consider to be the rough equivalent of that, as of the time the clearance was revoked.

In other words --

Justice William J. Brennan: Now, the language of the 1960 is something about unjustified.

Mr. J. William Doolittle: That's right.

That's right.

Justice William J. Brennan: What's the -- what's that mean?

Mr. J. William Doolittle: Well --

Justice William J. Brennan: That --

Mr. J. William Doolittle: -- as i say --

Justice William J. Brennan: So, that they might reasonably have thought whether they were right or wrong that whether --

Mr. J. William Doolittle: No.

Justice William J. Brennan: -- he is entitled?

Mr. J. William Doolittle: No.

Our -- our construction of that is, whether or not he would have been entitled to --

Justice William J. Brennan: A fact.

Mr. J. William Doolittle: a clearance -- judged under a reasonable procedure, under an authorized fully legal procedure.

Justice Byron R. White: The same standards as I -- in short of that 1955 regulation would have established.

Mr. J. William Doolittle: No, 1955 regulation is concerned.

We submit, only with present eligibility, eligibility as of the time the proceeding for restitution takes place.

That's the only finding that is required.

Justice William J. Brennan: Well, I'm -- I'm just a little uncertain still.

He was stripped of a clearance back in 1952 and there was a reason for it.

There was -- now, do I understand that unjustified under the 1960 procedure would mean that had he been given back in 1952 procedure that (Voice Overlap) --

Mr. J. William Doolittle: The right of confrontation and cross-examination, that's right.

Justice William J. Brennan: But (Inaudible) given that back in 1952, would he have had a determination that's favorable to him, is that --

Mr. J. William Doolittle: That's right, Your Honor.

Justice William J. Brennan: -- what you mean?

Now we're -- we're what 12 years, 10 years, seven years later.

Mr. J. William Doolittle: That's right.

Justice William J. Brennan: (Inaudible)

Mr. J. William Doolittle: Well --

Justice William J. Brennan: (Inaudible)

Mr. J. William Doolittle: It is.

I -- I would point out that this is rather the exceptional case and I think I would also point out that to the extent that it is difficult or impossible to make an accurate determination under the 1960 regulation certainly, the individual ought to be given some benefit of the doubt.

Finally, I would point out that that isn't what is before the case here the Court hears.

Justice William J. Brennan: Well, the thing that bothers me Mr. Doolittle, seems to me all you're doing is telling us (Inaudible) the same case back there four to five years more, we still have to avoid --

Mr. J. William Doolittle: Well, you're -- you are assuming, Mr. Justice that if he goes back to the Department of Defense --

Justice William J. Brennan: I'm assuming that they --

Mr. J. William Doolittle: -- assuming that he found --

Justice William J. Brennan: Yes.

Mr. J. William Doolittle: -- presently ineligible for a clearance --

Justice William J. Brennan: Yes.

Mr. J. William Doolittle: -- which I don't assume nor -- nor do the officials of the Department of Defense.

Justice Hugo L. Black: I don't quite understand.

I -- I think I must misunderstand you.

Do I understand that this man was discharged in 1950 and now declared in 1952?

Mr. J. William Doolittle: Once in 1952 and once in 1953, I think.

Justice Hugo L. Black: Once in 1952 and once in 1953.

And he wanted -- he wants to get money because it was wrong for him -- for him to be discharged, loose his job because of that lack of clearance.

Do I understand that?

I think I must not.

You're saying that if they now have a hearing in 1963 and determined that as of today, he could not be given a clearance.

Nevertheless, that would somehow purify the -- one in 1952 and 1953 so that he could not recover any -- get into restitution even though 1952 or 1953, he could've -- that he was wrong, is that right?

Mr. J. William Doolittle: Well, if I may say, we -- we don't really look upon it as -- as a matter of purification.

Justice Hugo L. Black: Or I'll forget the purification.

Do I understand that you are saying that whether it was right or wrong to do this in 1952 and 1953, do you think you have it here in 1963 or find out in some way that in the intervening years, he has become somehow wrong, so evil that he shouldn't have a clearance.

If that would be enough to answer so that he could not recover for the wrongful clearance that was damaging or -- or --

Mr. J. William Doolittle: That's right, Your Honor, although I would point out --

Justice Hugo L. Black: That is correct?

Mr. J. William Doolittle: That is correct.

Justice Hugo L. Black: That's the -- that the Government is taking the position that if it will -- wants to decline the pay him in back wages restitution because if -- it wants a chance to find out 13 years after something happened that at this time, he -- he couldn't get a clearance from the Government.

Mr. J. William Doolittle: Well, Mr. Justice Black, if I may point out, the claim is for restitution starting then and continuing until now.

Justice Hugo L. Black: I've done --

Mr. J. William Doolittle: He is --

Justice Hugo L. Black: -- all the restitution in that time.

Mr. J. William Doolittle: -- he still say -- he's still saying, "I'm still being hurt", right up until the day that he asked for restitution.

So his clearability as of that date is highly relevant because he's saying, "I'm still being hurt.

I'm still earning less than I did before."

Justice Hugo L. Black: Well alright, let's forget of today and next week and next month.

You might say that he's still -- that he can't get any damages from that?

Are you saying that he can't get restitution for damages he has actually suffered within 10 years because you can show that he couldn't get any damages now if they discharge him -- examine the clearance since he couldn't get the clearance?

Mr. J. William Doolittle: The regulation so provided.

Justice Hugo L. Black: That's what -- and that's what you're defending.

Mr. J. William Doolittle: Yes, sir.

Unknown Speaker: And I think it's here.

Mr. J. William Doolittle: No, Your Honor, it isn't.

Chief Justice Earl Warren: We'll recess now.

Featured:

Cafeteria Workers v. Mcelroy - Oral Argument, Part 1

Tue, 25 Sep 2012 22:38:24 +0000

Case:

Cafeteria Workers v. Mcelroy

Media File:

97_19610112-argument-1

Related Transcript:

97_19610112-argument-1

Transcript:

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. Dunau.

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.

Yes, sir.

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.

Actually --

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.

It was.

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.

I --

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.

Featured:

Cafeteria Workers v. Mcelroy - Oral Argument, Part 2

Tue, 25 Sep 2012 22:38:24 +0000

Case:

Cafeteria Workers v. Mcelroy

Media File:

97_19610112-argument-2

Related Transcript:

97_19610112-argument-2

Transcript:

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.

Even --

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.

I --

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.

Featured:

Flemming v. Nestor - Oral Argument

Thu, 29 Nov 2012 22:24:02 +0000

Case:

Flemming v. Nestor

Media File:

54_19600224-argument

Related Transcript:

54_19600224-argument

Transcript:

Argument of John F. Davis

Mr. John F. Davis: This case involves no issue of fact -- fraction but only a naked question of constitutional law.

The issue is simply whether Congress has power to cut off aliens' Social Security benefits when they are deported on the basis of membership in the Communist Party.

The case comes here on direct appeal from the District Court for the District of Columbia which held that Mr. Nestor's Social Security rights had become vested and could not be terminated.

Although this Court postponed the question of jurisdiction until argument, the appeal appears to fall squarely within the word and the spirit of the jurisdictional statute which authorizes direct appeals from a District Court decision holding an Act of Congress unconstitutional in a case in which the United States is a party.

The only apparent question on jurisdiction is whether or not the suit below should have been before a three-judge court rather than below -- before a single judge.

But this suit was instituted by Mr. Nestor pursuant to the specific provisions of the Social Security Act which provides a remedy for review of administrative decisions by a District Court and makes no provision for a three-judge court in that case.

The three-judge court provision of course comes into effect when someone attempts to enjoin the operation or execution of an Act of Congress.

It does not control where the action is under a specific review provision such as this and where there is no injunction against the operation of the Security Act -- Social Security Act involved.

Therefore, it seems clear to us that the District Court is a single judge, did have jurisdiction.

And since his action was specifically based upon unconstitutionality of an Act of Congress, this Court in turn appears to have jurisdiction.

Ephram Nestor came to this country from Bulgaria as a young man in 1913.For some reason, he never was naturalized.

But in 1933, he joined the Communist Party and he remained a member of that party at least until 1939.

On the basis of this Communist Party membership -- preceding this were commenced against him in 1953 to deport him to Bulgaria which was the country from which he had come.

And he was, in fact, deported in July of 1956.

Meanwhile, he had qualified for Social Security benefits and in fact, for several months had received Social Security benefits amounting to $55.60 a month.

Justice Potter Stewart: That was between 1953 and 1956 that he qualified for the benefits?

Mr. John F. Davis: Well, he actually qualified as of November of 1955 and the first -- it was the -- the order came in 1956 just before he was deported.

So he received the payments for November of 1955, December and end of 1956 until he was deported.

As a specific --

Chief Justice Earl Warren: How long had he been a member of the system, Mr. Smith?

Mr. John F. Davis: He -- he has started an employment which was subject to social security in about 1936, I believe, it was early.

He was -- he was a painter by profession and some of his earlier employment came soon after the Act was enacted.

As was specifically provided by a 1954 amendment to the immigration law, the Attorney General notified the Social Security Administration when Nestor was deported.

And this is also specifically required by the law.

The payments for Social Security payments were then terminated.

Neither of these actions is subject to discretion.

It's automatically under the statutes that when a man is deported for this reason that his payment should -- shall be terminated.

Mr. Nestor appealed the termination of his -- of his -- of these benefits.

He was granted a hearing before a referee in the Social Security Administration.

The -- the decision was upheld by the referee and after having exhausted his administrative remedies, he then went to the District Court and asked for review of this decision.

And as I mentioned, the District Court held that the statutory provision cutting off the benefits was unconstitutional and it is from that out -- the Government has appealed directly to this Court.

Justice Felix Frankfurter: Where was the statute dealing with cutting off?

Mr. John F. Davis: That is Section 10 to -- Section (n), it's -- appears at page 9 -- 91 of our brief.

Justice Felix Frankfurter: Thank you very much.

Mr. John F. Davis: 202 in -- of the Act.

Chief Justice Earl Warren: Was it illegal for him to be a member of the party during the years he was a member?

Mr. John F. Davis: Well, I don't -- we don't know the number -- the years that he actually was a member but presumably not.

At least no -- there's no basis of illegality, no allegation of illegality back in 1936.

We don't have any termination date on -- on his membership.

He was a member at least until 1939 and as of that date, there would be no change in the laws.

The basic questions are, first, whether Congress has the power to reduce or eliminate benefits once stranded.

And the second question, if so, were the cutting off benefits to deported aliens under these circumstances is a proper exercise of that power.

Justice Felix Frankfurter: May -- may I trouble with one more thing.

This Section 202 (n), is that it?

Mr. John F. Davis: That is right.

Justice Felix Frankfurter: Was that in the original enactment?

Mr. John F. Davis: No, this was enacted in 1954.

It was an amendment to the Act in 1954.

Justice Felix Frankfurter: Amendment to the Act.

And up to that -- up to that time, there was no -- no provision, implication or anything else?

Mr. John F. Davis: That is right.

Justice Felix Frankfurter: Well, this is subsequent to the beginning of his earned social security.

Mr. John F. Davis: That is right.

He was -- he was -- presumably paid taxes from about 1936 until his -- until his employment ceased.

And that was before his taxes were -- before this was found in the Act.

Justice William J. Brennan: And -- and this, I think (Inaudible)

Mr. John F. Davis: Yes, that is right.

Justice William J. Brennan: And came into the law after (Inaudible)

Mr. John F. Davis: After the proceedings were instituted but before there was any finality to any order of deportation.

That's right.

Justice Hugo L. Black: Does the statute provide for any refunds to him of what he's paid in?

Mr. John F. Davis: No, there is no refund given and -- in -- in this connection.

I address myself first to the question of whether -- generally, without regard to the specific grounds for termination whether generally, Congress has the power to reduce or eliminate payments once they've been included in an act and once taxes have been paid under the Act.

Now, Congress in so many words has provided that it retains the power to amend or appeal any provision of the Act.

And in fact, the provisions of the Act have been repeatedly amended since it was first passed in 1935.

Justice Felix Frankfurter: Where is that in the brief?

Mr. John F. Davis: That's at page 92 and 93 of my brief that begins with the paragraph numbered 4 at the very bottom of page 92.

It's a short section, the right to alter, amend or appeal any provision of this Act of Congress.

Most of the amendments to be sure have been amendments to increase payments, increase benefits under the Social Security Act.

But in -- as an incident of this, there have been many cases where -- as to individuals, their benefits have been reduced or eliminated because of readjustments in the Act.

And in the lower courts wherever this has been litigated, the power to change the Act has been -- has been upheld.

And indeed it seems essential that Congress should have this power since otherwise the -- the Act would be frozen in its original form from the way it was passed.

And Congress certainly never had had intended any such result.

The only reason that there's any -- any question about it is that this is a contributory system and the individual pays -- has made contributions before the changes.

And it's in -- it's important in this respect to know that these contributions are specifically in the nature of taxes.

The -- they have made as a part of the tax law and the payments which a man receives are not in any manner conditioned upon his having paid taxes and his having paid taxes in no way gives him a right to -- by itself, to qualify for payments under the system.

In other words, the system is financed through a -- through taxing the -- the labor force for the idea that they will support the Social Security System as a whole.

But there is no direct relationship in the law between the taxes which any individual pay -- pays and the benefits which he receives.

Congress purposely tied the -- the financing of the program onto taxes of the labor force because they wanted it felt that Social Security benefits were not charity, that they were not in the nature of -- of relief that labor was paying for its own -- its -- its own way in this thing.

Justice Felix Frankfurter: When you say taxing the labor force, individuals are taxed.

Mr. John F. Davis: That's right.

Justice Felix Frankfurter: And I suppose for each individual, there's a separate fiscal account.

I don't know where in Social -- is there?

Mr. John F. Davis: There --

Justice Felix Frankfurter: To their general -- to their general fund that these -- the amounts collected both from an employer and employee go into a general fund, do they?

Mr. John F. Davis: Well, not -- not -- there -- there is a trust fund that covers the whole Social Security System but there is no fund for an individual.

They --

Justice Felix Frankfurter: No, no, no.

But there is a -- that's what I meant by general fund.

Mr. John F. Davis: But there's no record even of the taxes as far as the individual is concerned.

What they do is to keep an employment record in order to determine what his rights will be, but his rights are not dependent upon taxes having been paid on his employment.

Justice Felix Frankfurter: No.

But if he -- if he -- suppose he doesn't pay his taxes, what -- what are the consequences?

Mr. John F. Davis: They'll attempt to collect them from him.

Justice Felix Frankfurter: Pardon?

Mr. John F. Davis: They -- they will attempt to collect them.

Justice Felix Frankfurter: He --

Mr. John F. Davis: Actually, his employer withholds them as -- as you know in the employer.

Justice Felix Frankfurter: It isn't that his insurance that is the Social Security benefit fees, do they?

The Government doesn't go at it that way.

Mr. John F. Davis: No, they -- no, but on the other hand, if they do not collect them for some reason, if he resist the payment of them --

Justice Felix Frankfurter: Yes.

Mr. John F. Davis: -- and -- and for some reason, they are never --

Justice Felix Frankfurter: Or overlooked.

Mr. John F. Davis: -- collected.

He still is entitled to his Social Security benefits as long as he has under covered employment during this time.

Justice Hugo L. Black: Does he lose his job?

Mr. John F. Davis: No.

Justice Hugo L. Black: If he doesn't pay in.

Mr. John F. Davis: It has no relationship to his -- to his job.

Justice Hugo L. Black: This particular payment has nothing to do with his job security.

Mr. John F. Davis: No.

Well -- well, of course, we're dealing now with non-government employment.

Of course, this is private -- this is Social Security in private employment.

Justice Hugo L. Black: Yes.

Mr. John F. Davis: And so the -- there's no reason -- there's no federal impact on his job whether he pays or doesn't pay.

It's not --

Justice Felix Frankfurter: As a matter of fact, a good many of the employees' taxes are paid by the employer, as we know very widely.

Certainly, it's true --

Mr. John F. Davis: Certainly in the --

Justice Felix Frankfurter: -- in certain classes of -- of --

Mr. John F. Davis: -- in the domestic field, it must be -- be --

Justice Felix Frankfurter: -- the domestic belongs entirely.

Mr. John F. Davis: It belongs entirely.

But what --

Justice Hugo L. Black: Does the Government make any contributions there?

Mr. John F. Davis: No, the entire system is financed through the taxes on the employer and the employees.

It's supposed to be divided half and half, except in the case of self-employment where of course -- which is now under the system too where the entire contribution comes from the person who is self-employed.

Justice Hugo L. Black: Do you think it makes a constitutional distinction that they call these payments taxes instead of something else?

Mr. John F. Davis: No, I don't think that they -- the fact they call them taxes or put them in the tax law is the determinative factor.

But the fact that these are not like insurance premiums or annuity premiums which give a contractual right and the right isn't -- isn't tied in to the payment, does seem to me to make a material difference.

Chief Justice Earl Warren: Well, doesn't the Act call it insurance?

Mr. John F. Davis: The Act does call it insurance.

Chief Justice Earl Warren: Well, why -- why then do we have to take the -- the tax definition of it rather than insurance?

Mr. John F. Davis: Well, because this does not have the features which you generally have within insurance -- insurance policy.

I mean there's no right of return, no building up of a -- of a surrender fund, the -- the ordinary features which you find in private insurance are not present here.

This is Social Security insurance in -- in a -- in a sense rather than a commercial type of insurance.

Chief Justice Earl Warren: They pay every month, don't they?

Mr. John F. Davis: They -- they --

Chief Justice Earl Warren: Like we do in insurance?

Mr. John F. Davis: They pay every month -- they every week if --

Chief Justice Earl Warren: Yes, to whom?

Mr. John F. Davis: -- they were told -- they were told whatever pay -- whatever pay there is.

Chief Justice Earl Warren: And they get a benefit --

Mr. John F. Davis: They --

Chief Justice Earl Warren: -- for having paid it, whatever it might be.

Mr. John F. Davis: That's right.

But in the same way that they pay income taxes and get benefits from income taxes.

These things have to be financed in some way and these are -- are financed through this particular kind of a tax.

Chief Justice Earl Warren: You mean they get benefits in the same sense here that they do from paying their income tax?

Mr. John F. Davis: In -- in -- basically yes, they -- I don't mean that the income tax finances the Social Security System, but citizens of the United States get certain benefits and -- and rights from the Federal Government.

And these are financed through their paying taxes.

Their rights are not dependent upon their paying of taxes.

They -- they -- that they -- the taxes were enforced against them regardless of whether they get the rights and they get the rights regardless of whether they pay the taxes.

And the same is true in this situation.

Justice Charles E. Whittaker: Mr. Davis, what is the statutory characterization of these benefits?

I had thought that it was, number one, unemployment compensation, and second, old-age benefits.

Was that not the --

Mr. John F. Davis: That is right.

Justice Charles E. Whittaker: -- statutory characterization?

Mr. John F. Davis: That is right.

Justice Charles E. Whittaker: Then it's not called insurance, is it or isn't it?

Mr. John F. Davis: Well, it is -- it is.

It was the original Act --

Justice Charles E. Whittaker: (Voice Overlap) want compensation insurance?

Mr. John F. Davis: No.

It was in the -- in the original Act but when they amended it in 1939, the word insurance -- for example, you get the -- the -- well, the term insurance financing old-age and survivors disability insurance, the term insurance works into the Act in the 1939 amendment.

It wasn't then in 1935 and there wasn't any real change in the nature of it, but there was a desire -- there was a desire at that time to tell these people that they were paying their own way that this wasn't charity.

And I think that's where they put the term -- use this term.

Justice Charles E. Whittaker: Is this a -- a truly contributory system in the sense that what you get depends on dollars paid?

Mr. John F. Davis: No.

Indeed, it doesn't.

The -- the -- actually, the -- in the early days particularly, what you get -- what people got was not dependent upon what they paid but from what was being paid currently and that by and large is the way the system works that -- that financial itself as you go along and the present labor force is really paying for the Social Security benefits which the older and retired people are getting at the present time.

Justice William J. Brennan: Well, what's the $22 billions in the trust fund for?

Mr. John F. Davis: What's it for?

It's -- it's used -- the funds are used from that to -- to finance the payments and -- and that --

Justice William J. Brennan: Well, I thought you just said that the current take takes care of the current outlets.

Mr. John F. Davis: Well, I -- this is -- this has been built up through the years and it is used.

For a long time, it was increasing.

This fund was increasing year by year.

In the last several years, it's been somewhat --

Justice William J. Brennan: Well, then --

Mr. John F. Davis: -- dropped down.

But you get --

Justice William J. Brennan: -- then the income falls (Voice Overlap) --

Mr. John F. Davis: -- you get the income from that and you get an appropriation by Congress and the two were used for the payment of the -- of the current --

Justice William J. Brennan: But the current payments that is collected with the taxes or what they are from employees and current collection rather and employers do not aggregate enough to pay the benefits currently --

Mr. John F. Davis: That's right.

I -- I should correct myself a little.

These payments do not actually go into the -- into the trust fund.

What happens is the payments which are collected from the employee and the employer go into the general treasury.

But there is a general appropriation whereby the same amount is appropriated from funds not otherwise used and goes into the trust fund so that the amount that goes into the trust fund is actually measured by the amounts which are collected.

Justice William J. Brennan: And the demands for benefit, as I -- I gather, it's calculated in time, will exceed the tax payments by such --

Mr. John F. Davis: Well, it --

Justice William J. Brennan: -- amount that there have to be drawings on the so-called trust fund, is that it?

Mr. John F. Davis: That's right.

Except the -- they are also based -- they -- they use the interest from that to supplement it.

The -- the tax payments are going up.

The tax payments are now 5% or maybe 6%.

They're going up -- they figured it to 9% before they get the -- before they have the system really have enough tax system to cover it with the insurance.

Justice Felix Frankfurter: Well, now, further word about the financing of it.

It is -- that the funds supposedly are expected to derive from the tax on the employer in the labor force.

Suppose to some unimaginable reasons, each unimaginable by means, that those funds are not sufficient for what under the law required to be the Social Security benefit.

Is there an obligation under the statute to pay out the fixed schedules --

Mr. John F. Davis: Yes, they --

Justice Felix Frankfurter: -- to direct appropriations by commerce?

Mr. John F. Davis: Well, they dig into this fund, the -- the interest from the fund --

Justice Felix Frankfurter: But -- but that fund --

Mr. John F. Davis: -- and then in to the fund.

Justice Felix Frankfurter: But that --

Mr. John F. Davis: They used up the fund --

Justice Felix Frankfurter: But the fund came from the --

Mr. John F. Davis: That's right.

Justice Felix Frankfurter: -- practical resources.

Suppose for some reason, there's a miscalculation by the Secretary of Treasury, that's imaginable and there is a deficit, is that -- is that automatic as Congress appropriates so as to keep the benefits going?

Mr. John F. Davis: I imagine they would.

We haven't faced that.

Justice Felix Frankfurter: No, no, no.

Mr. John F. Davis: There would be no money that --

Justice Felix Frankfurter: I know but the scheme, the scheme required appropriations by Congress?

Mr. John F. Davis: The annual appropriations by Congress is -- that is right.

And if there weren't enough, well, Congress would either have to abandon Social Security or appropriate more money funds.

The --

Chief Justice Earl Warren: Mr. Davis, don't you have some pretty strong language to get over it?

Take your Appendix A on page 89 where you quote the Act.

The title of it is “Old-age and Survivors Insurance Benefit Payments.”

Old-age Insurance Benefits.

Every individual who is a fully insured individual in Section 214 (a) and has attained retirement age and has filed an application for old-age insurance benefits shall be entitled to an old-age insurance benefit for each month beginning.

That's a pretty strong language, isn't it?

Mr. John F. Davis: That is this insurance --

Chief Justice Earl Warren: I beg your pardon?

Mr. John F. Davis: That is as the term “insurance” repeatedly and insured repeatedly.

Chief Justice Earl Warren: Yes.

Mr. John F. Davis: That's (Voice Overlap) --

Chief Justice Earl Warren: Now, you -- you wipe that all out.

Mr. John F. Davis: Well, the -- the actual legal incidence of this are not the same as we think of as insurance.

Maybe -- maybe we'd do better not to argue -- maybe I would do better not to argue about whether this is insurance but rather to raise the question of whether there was any contractual right, whether a man has -- by making his payments, any contractual right with the Government to a return of -- of benefits.

And I think that if we put it on that basis, it's perfectly clear under the Act that there is no contract right.

Chief Justice Earl Warren: You mean by that (Inaudible) you mean by that -- that we can forget about whether it's insurance or a tax.

Mr. John F. Davis: Well -- well, what I -- I -- that -- I had originally stated it in terms of tax against insurance but I think that the only reason that that is important is because insurance is generally thought of as a contractual right.

And if we attack the basis whether or not it is a contractual right, we no longer have to worry about whether it's insurance.

Justice Hugo L. Black: I just want to ask you this just -- I don't want to interrupt you but are you -- is your defense based wholly on the idea that the Government has a right to cancel for the reasons that exist in this case or that the Government's right to amend gives it the right to repeal the whole law and abolish the point if it so desire?

Mr. John F. Davis: Well, up -- up to the present time, I was attacking -- I was approaching the general proposition they have a right to abandon the whole -- the whole scheme.

They have abandoned a right to change the entire scheme.

Justice Hugo L. Black: Or to do a way with it.

Mr. John F. Davis: Or to do a way with it.

And --

Justice Hugo L. Black: That's what I thought.

Mr. John F. Davis: -- and now, when -- eventually, I shall come to the problem that this particular cutting off is an appropriate exercise of that power to -- to change and that's a different question.

That's a -- that's a question of whether this is appropriate legislation.

Chief Justice Earl Warren: Have they ever cut off any particular group before this?

Mr. John F. Davis: Not before this.

Since this Act -- since this section has been passed, there have been two other sections which deal with -- generally, with cutting off groups.

One of them is with respect to aliens who voluntarily go abroad and stay for more than six months.

And if they haven't been in this country for 10 years, then their rights are cut off.

And the second section provides for cutting off the Social Security benefits of individuals who are convicted of espionage, sabotage in -- in the Smith Act cases.

Those are the specific --

Chief Justice Earl Warren: Three.

There are three --

Mr. John F. Davis: Those are the --

Chief Justice Earl Warren: -- sections.

Mr. John F. Davis: -- present provisions in the Act.

The -- these last two haven't been passed upon by -- by the support applied.

There have, however, been -- as I say, been incidence where other adjustments in the Act have resulted in individuals losing their rights.

Let me give you an example.

For a long time, self-insure -- self-employed people were not subject to the tax and their self-employment wasn't counted in, in determining whether they were retired.

It's the so-called “work test”.

And in order to qualify for payments, why, you have to be retired.

But when -- when self-employment wasn't covered, you could be retired and -- and practice law, for example, on your own.

Then the law was changed to bring self-employed people within the scope of the Act.

And as a result, some people who had had benefits and at -- from employment and had retired and then supplementing that with their own income, were now -- were now cut off from their benefits because they were self-employed and these earnings were now considered as -- as part of the -- the work test.

This was -- this was litigated and the Court -- and never got beyond the District Court but the District Court held that this was an appropriate amendment by -- by Congress and that rights could be cut off in this nature, in this manner.

I may say there's been some experience too with the state retirement systems and there is a case, Pennie against Reis, an -- an old case, 132 United States in which it was held that -- I think that was the California retirement systems holding that they could cut off benefits even though they had once been received within general statutory power to amend.

Chief Justice Earl Warren: Was there employee contribution then?

Mr. John F. Davis: Yes, sir, I think there was.

Chief Justice Earl Warren: When was that?

Mr. John F. Davis: I -- on -- I think there was a contribution.

Chief Justice Earl Warren: When was that, I say?

Mr. John F. Davis: When was it?

Chief Justice Earl Warren: Yes.

Justice Felix Frankfurter: Did you say 132 U.S.?

Mr. John F. Davis: 132 U.S.464.

Justice Felix Frankfurter: Well, that's great I assume.

Mr. John F. Davis: Yes, it's a long time ago.

Chief Justice Earl Warren: I didn't know of any --

Mr. John F. Davis: We have -- we --

Chief Justice Earl Warren: I didn't know of any retirement system that far back in California.

There had been.

Mr. John F. Davis: I don't think I have the data but -- but it is (Voice Overlap) --

Chief Justice Earl Warren: (Voice Overlap) that's was a turn of the century, isn't it?

Mr. John F. Davis: Then this -- we have collected these cases dealing with the state system on page -- systems on page 56, 57 and 58 of our brief.

Pennie against Reis was a -- was a -- I think he was a policeman.

Chief Justice Earl Warren: Oh, could been, yes.

Mr. John F. Davis: I think he was a policeman --

Chief Justice Earl Warren: Could've been before back.

Mr. John F. Davis: -- and I think he was in California.

Chief Justice Earl Warren: Yes.

Yes.

Justice Felix Frankfurter: I -- I don't want to interfere --

Mr. John F. Davis: Yes.

Justice Felix Frankfurter: -- with the orderly development of your argument and -- and if my question does postpone it until you find it fitting.

Do you rely heavily on the explicit reservation of the power to amend, to repeal, etcetera?

Mr. John F. Davis: I certainly rely on it, Your Honor.

Justice Felix Frankfurter: Yes.

Mr. John F. Davis: But I think it would be the same even if it weren't there.

Justice Felix Frankfurter: Well, that doesn't --

Mr. John F. Davis: I mean this is making specific what is --

Justice Felix Frankfurter: Yes.

Mr. John F. Davis: -- essential to make the system work anyway.

Justice Felix Frankfurter: Well, except we are told sometimes it is important to spell things out.

Mr. John F. Davis: Well, in that -- to that -- in that respect, that's --

Justice William J. Brennan: Well, Mr. Davis, do I correctly read your adversary's brief that they're not defending the basis of the holding below, namely, that this was a vested interest before it.

Mr. John F. Davis: Yes.

That -- that's quite true.

In several places in that brief, I don't think they would quarrel with what -- with what I have said this day.

Justice William J. Brennan: That's what I wanted to --

Mr. John F. Davis: They might in some details but basically, they don't claim that you cannot change that this is the contract right.

Justice Felix Frankfurter: That's -- it's 1878.

Justice William J. Brennan: And they don't claim that this was a vested interest, aren't they?

Mr. John F. Davis: They do not claim it's a vested interest.

They say that this particular cutting off is a punishment and it's unconstitutional.

That's -- that's --

Justice William J. Brennan: (Inaudible) on the holding that it was vested.

Mr. John F. Davis: He said it was a vested interest.

That's right.

Justice Felix Frankfurter: Yes.

Justice Hugo L. Black: Did you allow --

Justice Felix Frankfurter: This fund is public fund subject to the legislative control.

Justice Hugo L. Black: Did you allow mentioning it (Voice Overlap) --

Justice Felix Frankfurter: And that they'll be -- had no vested interest in that (Voice Overlap) --

Mr. John F. Davis: There's language in Lynch against the United States.

That however is not -- that's a more --

Justice Hugo L. Black: I think that -- I understood you to say they're not raising that question.

Justice Felix Frankfurter: And we have (Inaudible)

Justice Hugo L. Black: It was raised in Lynch against the United States.

Justice Felix Frankfurter: -- but which could not know.

Mr. John F. Davis: They -- they're not claiming it's a contract in this case.

That is right.

I -- I believe they're not and Mr. Rein would -- would be in a position [Laughs] -- he have the last word on that but his brief -- in his brief, there are several cases where they admit that there can be changes in these rights as long as they're appropriate changes and comes with the Social Security System.

And that brings us to what, I think, is -- is the most -- more difficult question in the case and that is whether to cut off an alien's rights for Social Security business -- benefits on the basis of his being deported as a member of the Communist Party, whether this is an appropriate -- appropriate exercise of the -- of the Government's right to change the Social Security law.

Justice William O. Douglas: Would you go so far as to say the Government could -- say the State Government could confiscate his house and property and his real estate?

Mr. John F. Davis: No, Your Honor.

I would certainly say it couldn't.

I mean, I think that Wong Wing proved -- establishes the fact that the alien has a right to due process, liberty and property and that they cannot be taken away on deportation.

Justice William O. Douglas: Even though he has been lawfully deported.

Mr. John F. Davis: That is right.

It is --

Justice Felix Frankfurter: (Inaudible) question is raised that a special class of deportee (Inaudible)

Mr. John F. Davis: Yes, there is.

There -- the -- the -- it is -- it is argued basically.

The -- the argument is that this is a punishment because of the classes of deportees that are involved.

This is a punishment which is being imposed upon this particular class.

And for that reason, it is unconstitutional as lacking in due process.

Justice William J. Brennan: Well, there is -- actually, Mr. Davis, not all classes of deportees were -- are cut off.

Mr. John F. Davis: That is right.

Justice William J. Brennan: And what -- at least four omitted in the original law?

Mr. John F. Davis: That's right.

There were -- there are 18 classes of deportees and of those 14 are cut off and four are not cut off.

Justice William J. Brennan: Still not cut off.

Mr. John F. Davis: That is right.

Justice Felix Frankfurter: What are those or what --

Mr. John F. Davis: If you'll turn to --

Justice Felix Frankfurter: (Inaudible) equal protection.

Mr. John F. Davis: That's right.

The -- the deportation statute appears on page 96 through 101 of our brief and I had marked the sections which are the reasons for deportation which are not -- not cut off.

And the first one is number three on page 96, which is that the person has become a -- institutionalized as a public charge at public expense.

That's number three on page 96.

Justice William J. Brennan: Is it cut off or not cut off?

Mr. John F. Davis: Pardon?

Justice William J. Brennan: Is number three cut off or not cut off?

Mr. John F. Davis: It is not a -- he retained -- he still gets his Social Security.

Justice William J. Brennan: He still gets.

Mr. John F. Davis: There are 14 where they cut off and four where they're not and I'm mentioning the four which are not cut off.

The next one is number eight on page 100, eight on page 100 which also deals with becoming a public charge.

And the next one is nine on page 101 which is failing to maintain a nonimmigrant status, it would be a situation where someone came in here and -- a student or --

Unknown Speaker: (Inaudible)

Mr. John F. Davis: -- something like that and went to work.

And the last one is 13 which is at the bottom of page 101 running all to 102 and that deals with anyone who -- within five years, aids or assists another alien to enter the United States in violation of law.

Justice Felix Frankfurter: Can you generalize those four? You said that the four (Inaudible)

Mr. John F. Davis: I -- I really find it --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. John F. Davis: -- difficult to make a great --

Justice Felix Frankfurter: It all seems to me on the (Inaudible)

Mr. John F. Davis: I -- I find it -- well, the -- the last one, 13 and probably nine deal with --

Justice Felix Frankfurter: (Inaudible)

Mr. John F. Davis: No, nine and 13 probably deal with violations of law.

I mean, I think it's probably a violation for anyone who's admitted as a student, for example, to go to work.

At least, he can -- he's -- he's doing something he has promised not to do.

13 is definitely a -- a --

Justice Felix Frankfurter: Nine and 13, if I may correct you, nine and 13 (Inaudible)

Mr. John F. Davis: They're not -- they're not as -- they're not in the same class with some of the others.

But on the other hand, some of these other --

Justice Felix Frankfurter: (Voice Overlap) one as the first one.

It is (Inaudible) both three and there's another one (Inaudible) with the public charge.

Mr. John F. Davis: Yes.

Justice Felix Frankfurter: Those cases seem (Inaudible) in -- in others.

Mr. John F. Davis: That's right.

Justice William J. Brennan: But can't you say some of the things they -- some of things (Voice Overlap) --

Mr. John F. Davis: Some of the others are also not very serious.

I -- I am not able to find any -- the Congress hasn't helped us in this.

They haven't told us why they dropped these four out and why they didn't.

The -- the appellant says that this shows that these are -- that the ones where this cutoff are punishments.

I don't think it shows that.

I think some of these things where it's not cut off, if it were you could say it was a punishment.

Justice William J. Brennan: Well, you would say some attentive distinctions in your brief.

Are you abandoning those?

Mr. John F. Davis: No, I won't.

Those are the best we can do and --

Justice Felix Frankfurter: (Inaudible)

Justice William J. Brennan: It's not a very good thing, probably.

[Laughter]

Justice Felix Frankfurter: (Inaudible)

Justice William J. Brennan: Well, he hasn't thought of any of those.

Justice Felix Frankfurter: Yes.

Justice Felix Frankfurter: Certainly, there's a great deal of --

Justice William J. Brennan: [Laughs]

Justice Felix Frankfurter: (Inaudible) one, two, four, five and others -- and the other ones.

I think there are different force that are narrow -- has narrow significance (Inaudible) I offer you those facts.

Mr. John F. Davis: Yes.

Well, that -- that maybe -- that maybe it, except that hurts my case more than it helps it, if I may say.

Justice Hugo L. Black: (Voice Overlap) give you less reasons.

[Laughter]

Justice William J. Brennan: Penalize them (Inaudible)

Mr. John F. Davis: Well, this --

Justice Hugo L. Black: -- from this argument.

Mr. John F. Davis: That -- from that argument, that's right.

So, that is one of the reasons I --

Unknown Speaker: (Inaudible)

Mr. John F. Davis: I don't see that reason in the -- in the statute.

It's the Government's position that Congress can cut off this kind of benefits for good reasons or for bad reasons, but since these are privileges, you cannot cut them off for reasons which are forbidden by the Constitution.

One could not make -- receive the benefits under the Social Security Act depend, for example, upon race or religion or upon politics because these are bases of classification which the -- which the Constitution denies to Congress.

But on the other hand, it seems as though they -- no reason why they cannot make a differentiation on the basis of alienage, particularly alienage when it's tied up with an alien who is no longer living in this country.

It's long been recognized that if an alien comes here and does not undertake the duties of citizenship that he remains a guest here and that he doesn't have the full rights, privileges of -- of citizens.

He can be deported, he can be denied privileges which are given to the people who -- who are full citizens.

Justice Hugo L. Black: Is that the bill of attainder put on him?

Mr. John F. Davis: Pardon?

Justice Hugo L. Black: Could that be a bill of attainder put on him --

Mr. John F. Davis: No.

There could not --

Justice Hugo L. Black: -- prior to the grant?

Mr. John F. Davis: There could not be a bill of attainder put on him because the Constitution forbids a bill of attainder and the constitutional rights cannot be taken away from him, but privileges which are granted to citizens as citizens can be withheld from him.

Justice Hugo L. Black: As far as this is the right to practice law?

Mr. John F. Davis: Probably not.

There are -- there are statutes, state statutes with respect to employment and it's held that -- I don't know about the statute of -- they're just practice of law and probably could be withheld from an alien as a reasonable thing that --

Justice Hugo L. Black: I mean as a bill of attainder?

Mr. John F. Davis: Oh, no, not a -- not the --

Justice Hugo L. Black: By legislative acts?

Mr. John F. Davis: No, no.

The -- this Court itself is -- is cast upon the question of -- of taking away a right to practice as a -- for a (Voice Overlap) --

Justice Hugo L. Black: And do you think that the bill of attainder, an alien has a right to protect himself against bills of attainder?

Mr. John F. Davis: That is right.

If this is a bill of attainder, if this is --

Justice Hugo L. Black: That's right.

Mr. John F. Davis: -- a bill of attainder, this is -- this, we think, is unconstitutional.

Justice Felix Frankfurter: An ex post facto law.

(Inaudible)

Mr. John F. Davis: Again, if this is properly an ex post facto law, again, it is unconstitutional and it cannot be done.

Justice William J. Brennan: Well, that's really the argument.

Your adversary -- there is two of the --

Mr. John F. Davis: Those are the arguments that they are making and this in turn comes down to whether or not this is a reasonable exercise of congressional power in connection with federal purposes and -- and the system and the -- and the Social Security System or whether this is a method of punishing.

All of these questions right to jury trial, ex post facto or bills of attainder, all depend upon this being a punishment.

Justice Felix Frankfurter: Well, that -- that is more the good things on.

This -- it can't be ex post facto unless you overruled all the -- the whole picture of (Inaudible) ex post facto merely involved in criminal statutes pursuable as a crime substitute of the Sixth Amendment.

Mr. John F. Davis: That -- that is -- that's right.

It has -- this has to be a penal statute in order for --

Justice Felix Frankfurter: It's not in the loose sense a penal statute.

Mr. John F. Davis: But --

Justice Felix Frankfurter: And I don't think that makes you smart or heard.

It has to be --

Mr. John F. Davis: A punishment.

Justice Felix Frankfurter: -- a punishment through this criminal proper.

Mr. John F. Davis: That is right.

Justice Hugo L. Black: I thought the bills of attainder had to be a punishment, whatever that is, through the legislative process.

Mr. John F. Davis: And that -- that is right to it, but in any case, it has to be a punishment.

It has to be --

Justice Hugo L. Black: Depending on what you mean by punishment.

Mr. John F. Davis: That is right.

Justice Hugo L. Black: The Government moving against you, forfeiting his rights.

Mr. John F. Davis: The Government --

Justice Felix Frankfurter: That's why ex post facto is different.

I didn't say --

Mr. John F. Davis: No.

Justice Felix Frankfurter: -- bill of attainder.

I'm talking about ex post facto.

Mr. John F. Davis: That -- that has to be a criminal --

Justice Felix Frankfurter: I'm not referring (Inaudible) and not loose talk about punishment.

Mr. John F. Davis: That -- that is right.

But I don't -- in this particular case, I think the Government cannot support this Act if this is punishment.

I mean may -- it won't be ex post facto but you still have bills of attainder.

You still have the question of whether or not this due process of law to do it without -- without a -- a judicial trial --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. John F. Davis: -- so -- so that --

Justice Hugo L. Black: Do you remember -- do you remember whether they referred to both ex post facto and bills of attainder in some of this case?

Mr. John F. Davis: They -- they've referred to the -- to the bills of attainder, whether it's ex post facto, I don't remember.

Justice Hugo L. Black: I have read it (Inaudible)

Mr. John F. Davis: I have read it but I'm sorry, I don't remember whether they referred to ex post facto in the coming states.

I think they're talking -- they're almost entirely talking about bills of attainder.

Now, the position that the Government takes really with respect to this particular Act is that Congress isn't attempting to deter aliens from becoming members of the Communist Party.

It's not attempting to exact retributive justice against these people for some wrong that they've done because --

Justice Hugo L. Black: What is -- what it's going to do then?

Mr. John F. Davis: What it's trying to do is to do a reasonable -- make a reasonable apportionment of Social Security benefits.

It seems -- it seems merely absurd to say that people should be sent out of this country because they're not fit citizens -- fit persons to reside here and told to live abroad.

And then the taxes which are imposed upon workers, part of these taxes is going to be used to support these people abroad.

Justice Hugo L. Black: But what --

Mr. John F. Davis: This doesn't seem to be an appropriate --

Justice Hugo L. Black: They've already -- they've already paid tax.

Mr. John F. Davis: They've paid taxes, yes.

But -- as I -- as I attempted to -- to point out a minute ago, there is no direct connection between what amend -- taxes amend -- pays now and the Social Security benefits he's going to receive when he retires.

Justice William J. Brennan: Well, if that's the reason though, Mr. Davis, namely, that Americans, resident home earning -- they're living here and paying these taxes if that's what they are, whatnot have to pay them to contribute to support someone abroad.

Why doesn't -- why would they exclude the four classes they have to exclude as deportees?

Mr. John F. Davis: Well, there's -- there are many people abroad who are entitled to -- to receive Social Security benefits and it's -- that is a much broader statement than -- than Congress is -- it's gone much -- your -- your statement of -- it is much -- gone much further in Congress so far has gone.

They -- I think it's a matter of congressional policy of how far they go.

In 1939, there were some part of Social Security benefits, shouldn't be paid to aliens at all.

Social Security should be only for -- for the citizens.

And in fact, they -- it passed one of the Houses but then it was abandoned.

Justice Hugo L. Black: Were -- were they required to pay taxes?

Mr. John F. Davis: They wouldn't if they're not --

Justice Hugo L. Black: (Voice Overlap) --

Mr. John F. Davis: -- if that -- if they'd been excluded from the System.

Justice Hugo L. Black: That requires an election.

Mr. John F. Davis: But that was abandoned and aliens have until 1946 been treated as anybody else whether they -- and residents abroad has had nothing to do with the -- with the payments until this amendment in 1954.

And it seems to me that Congress cannot be said to have -- enacting unreasonably or -- or punitively when they determined that when a man is actually found to be an unfit person to live in this country and he's told that he must go back home, that nevertheless, he's going to be sort of a remittance man and he's going to receive his -- his check from the United States Government for himself so that he can live abroad in -- in the style of which he has become accustomed here.

It just -- it just doesn't -- Congress to Congress, this did not seem to make sense.

Justice William J. Brennan: But in the second -- in -- they were the four excluding classes because --

Mr. John F. Davis: And they excluded four classes.

Now --

Justice William J. Brennan: And although they are unfit persons by that same testimony.

Mr. John F. Davis: Now, I -- this -- this gives some trouble but I do not think it does -- this particular appellant much good to say that these people should have their rights cut off too.

Their -- the -- these four cases were excluded and why they were excluded, I don't know.

Justice William J. Brennan: I was trying to get -- I'm suggesting that the exclusion of the four cases rather undermined your -- the argument you're now giving.

Mr. John F. Davis: Well, if -- if this shows that it's punishment, if you can get from these four cases that it is punishment, it does work against -- against my argument.

But I suggest to you that two of the cases which are excluded are -- are violations of law so that it's not a -- they're not -- it's not just a question of their becoming public charges and it would be consistent to cut it off in that tax.

Justice William J. Brennan: Actually, the one we have here, unlike the excluded -- last excluded class which does, as you suggest, involve a violation of law.

From what you're asking the Chief Justice before, the fact that this individual is a member of the Communist Party from 1933 to 1939, at that time, he was not guilty of any violation of the law.

Mr. John F. Davis: That is -- that is right.

Not as far as the membership and which is all that was either before this.

Justice Hugo L. Black: Are you arguing about reasonableness in connection with the interpretation of the statute on the basis of some constitutional provision which permits reasonable violation of the Constitution?

Mr. John F. Davis: No.

I'm not suggesting unreasonable violation of the Constitution.

I'm suggesting that even though this is a privilege and can be given or withheld that the Government may not do this for a non sensible, for a -- arbitrary reasons.

Maybe, I can draw a comparison between this privilege and the privilege of employment.

I mean, Government has a right --

Justice Hugo L. Black: But which constitutional provision are you relying on (Inaudible) are you answering?

Mr. John F. Davis: Well, due -- it's -- it'd be lack of due process if you are arbitrary, if you are arbitrary and unreasonable.

It might be lack of due process if you're arbitrary and unreasonable in giving Social Security benefits to -- well, suppose that you should give them to -- to everybody except red-headed, take them away from all red-headed men of all people have gone on odd days of the months -- month.

This is arbitrary and unreasonable and unreasonable and -- and might be considered, therefore, to be lack of due process because if you're going to give citizens -- if you're going to give people rights, you should do it on a -- on a basis of equality and not pick and choose on an arbitrary basis.

I think an argument could be made that there's no constitutional reason why you shouldn't give the privileges to whom you want to and take them away from whomever you want to.

But I think that the sound of -- a sound of you is that you've got to do it on some reasonable basis.

Chief Justice Earl Warren: As I understand you to concede that this is a penalty (Inaudible) it would be unconstitutional.

Mr. John F. Davis: Yes.

I think that if this is a penalty that it is -- that -- that the man is entitled to -- to a trial before he's taken away, he's -- and it would be considered to be a -- a bill of attainder.

Justice William O. Douglas: Did you say they had offered him his money back?

Mr. John F. Davis: Oh, no.

They don't offer him his money back.

Here -- there's no money that -- that he has paid in which is in anyway that he has any equity in.

Justice William O. Douglas: Well, that's a question, I suppose.

Mr. John F. Davis: Well, at least specifically under the statute, there isn't any money that he has gotten.

This is to be distinguished, for example, from the several service retirement system where there is also a provision for forfeitures in certain cases.

And in that case, it isn't a tax or -- or at least a man builds up a credit to his account while he's working for the Government.

And on that case, if they take it away, the -- his money is -- is given back to him, if it's forfeited for the reasons that the statute provides for profit.

But that is to be distinguished from this situation where he isn't building up specifically or under the statute anyway.

He's not building up any credit to his own account.

Chief Justice Earl Warren: He's paying into?

Mr. John F. Davis: He's paying into -- taxes to support the -- the Social Security System.

Chief Justice Earl Warren: Were they talking (Inaudible)

Mr. John F. Davis: Well, it -- he hopes that someone will pay him -- in for him when his time comes and when he retires, but that's a legislative matter, not a contractual matter.

And he has no choice about it just as any other tax.

The system is financed by a tax and this tax is placed on particular people.

Justice William J. Brennan: Well, as a matter of fact, Mr. Davis, you haven't mentioned his wife if she's still receiving (Voice Overlap) --

Mr. John F. Davis: She -- she is a citizen --

Justice William J. Brennan: -- consummates of his payments.

Mr. John F. Davis: That's right.

She is a citizen and she is still here and she is receiving the wife's -- wife's benefit at the present time.

Justice William J. Brennan: And that's by reason of his payment.

Mr. John F. Davis: Of his payments.

That's what -- actually, as far as payments go if -- if -- I call your attention to Footnote 10 which appears --

Justice William J. Brennan: That's why I should have said by reason of his employment.

Your position is that his payments have nothing to do with it.

Mr. John F. Davis: Well, as -- if we were going to look at it as a trust fund, I call your attention to Footnote 10 on page 33.

On his employment record, he apparently would have paid in if all the taxes were paid, he would've paid in $116 in all.

And they have been paid back to him $611.60 and his wife has received -- up to 1959 had received $1262.

So that, as far as -- actually, if you're going to consider his payments in what was going -- got back, he's -- he and his wife would receive back what he himself has received back, five times what she paid in and his wife has received back another 10 times of what he paid.

Justice Potter Stewart: So in practical facts you would be -- you -- your answer to Mr. Justice Douglas could have been yes.

He has been paid back everything --

Mr. John F. Davis: Well --

Justice Potter Stewart: -- that he paid and more.

Is that right?

Mr. John F. Davis: My answer could be that he has received in benefits more than he paid in taxes.

I wouldn't say that he's been paid back, because I think it's a different matter.

Justice William J. Brennan: Well, I think you told us a little earlier anyway that those who are covered under this program do not -- individually have accounts -- accounts with -- with --

Mr. John F. Davis: They -- they have no --

Justice William J. Brennan: (Inaudible)

Mr. John F. Davis: -- they have no financial account.

They --

Justice William J. Brennan: (Voice Overlap) --

Mr. John F. Davis: -- have an employment account --

Justice William J. Brennan: That's all.

Mr. John F. Davis: -- because their payments, in order to qualify, they have to show employment in covered industries.

And --

Justice Felix Frankfurter: They have a beneficiary (Inaudible)

Mr. John F. Davis: They have hours of -- they have --

Justice Felix Frankfurter: (Inaudible)

Mr. John F. Davis: Oh, yes.

Justice William J. Brennan: (Voice Overlap) the case --

Mr. John F. Davis: Well, that -- when they qualify, I don't know what kind of accounts they keep when they begin to pay them the money.

Justice Felix Frankfurter: (Inaudible)

Mr. John F. Davis: What -- what happens in bookkeeping is that the Social Security Administration, I think in Baltimore, maintains a record of quarters of covered employment for an individual.

When a man reaches 65, which is the age when he is entitled to qualify, he files an application for Social Security benefits and he gives his Social Security number and tells that he's no longer employed of his age and so forth to show that he's qualified.

They give him a certificate of qualification or something at that time showing how much he is entitled to on the basis of his -- of their records of his employment, the number of quarters and the -- and the amount he's been paid as wages.

None of this tied in, mind you, to the amount of tax he's paid because it doesn't make any difference whether the tax has been paid or not.

This is done on hours of -- of quarters of employment.

Justice Felix Frankfurter: Is it a question that Congress continued the whole enactment?

Mr. John F. Davis: I don't -- I don't think there's any question of it at all.

Justice Felix Frankfurter: Now, what would -- is it then clear that if Congress repeals the whole legislation, it would have to distribute the requirements that have accumulated among those -- up to the basis for to repeal or beneficiaries to be added?

Mr. John F. Davis: I do not think those -- those funds would go to the -- to the -- I don't know what would happen to them.

I think Congress would have to dispose of them.

Justice Felix Frankfurter: (Voice Overlap) --

Mr. John F. Davis: Pardon.

Justice Felix Frankfurter: I should think Congress would do the finding of its (Voice Overlap) --

Mr. John F. Davis: That's right, but I don't think it would be under any obligation to pay it all.

Justice Hugo L. Black: Suppose this case of the law -- of that statute would have any question of the bill of attainder or doing something that would furnish all of it.

Mr. John F. Davis: That's right.

You have no question of punishment.

That's the distinction I draw between the general power to amend or abolish and whether or not this particular action is an appropriate exercise of that power.

And I think they're two different questions --

Justice Felix Frankfurter: My -- my question is directed to trying to ascertain what the nature of this whole scheme is.

Mr. John F. Davis: Yes.

Justice Felix Frankfurter: And whether (Inaudible) mandamus of Congress to pass an appropriation act whether if he wanted moral obligations could be the basis of (Inaudible) or -- or if it's a forfeiture, whether you pursue it under implied constructions that is -- is a deprivation process without confiscations.

Mr. John F. Davis: And I'm --

Justice Felix Frankfurter: I can't imagine it would.

Mr. John F. Davis: I can't believe it would in -- with either of those.

Chief Justice Earl Warren: It seems to me there's some difference between Congress' stand in the whole scheme on the one hand and on the other hand (Inaudible) to prove as -- as it seems as to whether it could, well, take away their purpose.

Now, let's just assume for the moment that this man is not an alien.

Let's suppose, this man is a citizen and the Congress said, “Well, you don't want me to (Inaudible)

And if they do, we would deprive them of their Social Security benefits.”

Can we do that?

Mr. John F. Davis: I would think not.

I would think that would be a punishment.

But I would think they could say, “We have decided that farmers are no longer appropriately covered by Social Security.

We'll take care of them in some other way and we'll cut off all the Social Security benefits for farmers,” all lawyers.

Chief Justice Earl Warren: Yes, but that (Inaudible)

Mr. John F. Davis: Well, even if they didn't take care.

Suppose they said, it's worked out badly to have lawyers under Social Security.

We haven't been able to honor their books properly [Laughs] or something.

So --

Justice William J. Brennan: Use -- use some other professions.

[Laughter]

Mr. John F. Davis: Dentist.

[Laughs]

Chief Justice Earl Warren: Lawyers will [Laughter].

Let's take with -- the situation where -- where the Congress is taking away the benefits because of -- of (Inaudible) considering this consequence.

Mr. John F. Davis: Well, if it were --

Chief Justice Earl Warren: Now, Congress has undoubtedly considered along the Communist Party as this (Inaudible) at some time because it -- it made the basis for -- for deportation and then the (Inaudible) working out of the deportation as before Congress (Inaudible) provided that they should take away from all system (Inaudible) the man was a citizen.

Mr. John F. Davis: Well, if they did it on the grounds that the man was a Communist or that he had violated the Smith Act or something like that I would -- I would feel that this was a punishment.

But here, what they have done is to say, “Aliens who are deported, who are sent out of the country, who are no longer part of our society.”

Chief Justice Earl Warren: Yes.

Mr. John F. Davis: And they took almost all of them, the -- the four classes that Justice Brennan and I have difficulty with that they didn't take out of it.

But they took 14 out of the 18 classes and said, “As to those, it's no longer appropriate that they should receive it.”

And it seems to me that this is a -- a matter of judgment as to whether these are generally the kind of people that -- the kind of class that falls within the Social Security System.

It seems to me not difficult more -- not different from this situation.

If the Social Security System should say, “Self-employed people who are gamblers keep very bad records and we are having a great deal of difficulty finding out what the Social Security benefits of gamblers shall be.”

And therefore, we're going to change our law and we're going to say that gamblers get no Social Security benefits.

Anyone who's -- who's self-employed income comes from gambling.

Now, this isn't to punish gambling.

This is because they feel it's inappropriate part of -- it doesn't work well in the Social -- in the Social Security sense.

Chief Justice Earl Warren: Well, I can see that what the district is to (Inaudible)

Now, let's suppose that there -- there is and to say it (Inaudible) forfeiture under exactly the same condition (Inaudible) and they go back to the same (Inaudible) wouldn't the same person be cut off?

Mr. John F. Davis: Not if he were public charge.

Not if he was institutionalized as a public charge.

Chief Justice Earl Warren: Well, let's say he -- you say, if he was a public charge (Inaudible)

Mr. John F. Davis: No.

Here, if he was deported, the -- the ground for deportation in Section 3 is if he becomes institutionalized as a public charge.

Chief Justice Earl Warren: (Inaudible) does he lose his (Voice Overlap) --

Mr. John F. Davis: No, that man retains it.

Chief Justice Earl Warren: He lives along -- he lives alongside to this man --

Mr. John F. Davis: That's right.

Chief Justice Earl Warren: (Inaudible)

Mr. John F. Davis: Well, that's -- that's the -- one possible basis.

The other possible basis is that these people have been here only less than five years.

It's a good --

Chief Justice Earl Warren: (Voice Overlap) --

Mr. John F. Davis: Well, the -- but in order to keep his benefits, he has to have been -- he can't be deported unless it's within the first five years that forbids.

That's right.

This is one of these things that happened earlier.

And Congress said, “As to these people, it's -- it's not important enough or we don't want to impose the duty on foreign countries to take care of them.

If we were going to deport them, that's enough.

And so, we don't want to impose the duty on foreign country to have,” maybe they thought it would be difficult to find some place to send them that he was going to be charge abroad and they felt they'd have to support him in order to find some place for him to go.

There are a number of explanations.

Chief Justice Earl Warren: (Inaudible)

Mr. John F. Davis: And he may have paid very large income taxes too.

And he is deprived to those rights too.

Chief Justice Earl Warren: What rights?

Mr. John F. Davis: Whatever rights he has as a resident of the United States, rights for his children to go to school and for -- all the rights which people have that the Government finances.

I'll reserve the rest of my time, if I may, for rebuttal.

Justice Felix Frankfurter: Could you tell me the ground which (Inaudible) in the Second Circuit denaturalized as (Inaudible)

Do you happen to know?

I don't suppose you (Inaudible)

Mr. John F. Davis: No, I -- I can't --

Justice Tom C. Clark: Part of the basis, wasn't it?

Mr. John F. Davis: Pardon?

Justice Tom C. Clark: Part of the basis, wasn't it, that he claim that he is doing a certain -- in a certain (Inaudible).

Justice Felix Frankfurter: (Voice Overlap) --

Mr. John F. Davis: I don't think that's the basis --

Justice Felix Frankfurter: (Inaudible) of having Social Security at all.

Mr. John F. Davis: I'll thinking about it during the --

Justice Felix Frankfurter: All right.

Mr. John F. Davis: -- before I stand on.

Justice Tom C. Clark: I thought it (Inaudible)4

Mr. John F. Davis: By the time, he was naturalized, I believe.

Justice William J. Brennan: Yes.

For fraud.

Mr. John F. Davis: And -- and it's a basis for fraud in the naturalization.

Chief Justice Earl Warren: Mr. Rein.

Argument of David Rein

Mr. David Rein: I think it's clear on the basis of the argument made as far by Mr. Davis that there's really no disagreement between the Government and myself as to the legal principles controlled here.

The disagreement, if any, is what is the nature of the particular statute that is before this Court.

The Government agrees, and it's basically our position that if this statute is anyway a penalty and if it doesn't constitute a reasonable regulation of Social Security rights within the ambit of the Social Security program, then the statute is unconstitutional.

Justice Felix Frankfurter: Is there -- does the word “penalty” occur in the United States Constitution?

Mr. David Rein: I don't know of any place.

Justice Felix Frankfurter: (Inaudible) provisions relating to penalty in the sense (Inaudible)

Mr. David Rein: In the sense which I used it --

Justice Felix Frankfurter: (Voice Overlap) but I don't know about penalties.

Is there anything in the Constitution of the United States that deals with procedural requirements of obtaining what as you call as penalty?

Mr. David Rein: Yes.

Justice Felix Frankfurter: Just tell me about it, which one?

Well, I -- I want the word “penalty”.

I want the provision that uses the word “penalty”.

Mr. David Rein: I don't know of any that uses the word “penalty” but the Court has used that word in Wong Wing against the United States.

It says that anything that inflicts a penalty without a judicial trial is unconstitutional --

Justice Felix Frankfurter: I know.

Mr. David Rein: -- a violation of Article III, Section 2 in the Sixth Amendment.

Justice Felix Frankfurter: (Inaudible) would rather go back to the Constitution, when you're talking about constitutional problems.

Mr. David Rein: Well, I'm sorry, I'm not prepared to say what provision where the Article III, Section 2 and where the Sixth Amendment actually uses the word “penalty”.

And what it is that provide, you must have a judicial trial before it could be done to you.

But I think it says “punishment”, I'm not sure.

Justice Felix Frankfurter: (Inaudible)

Mr. David Rein: Well, I made no distinction here, and I'd be gratefully --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. David Rein: -- willing to use the words “punishment” rather than “penalty”.

Justice Felix Frankfurter: (Voice Overlap) the Constitution of United States might.

Chief Justice Earl Warren: (Inaudible)

Mr. David Rein: No.

They equate penalty with punishment.

I don't think they make any distinction.

Justice Felix Frankfurter: I suppose -- I suppose (Inaudible) I must take the Government's statement of what the law is (Inaudible)

Mr. David Rein: However, presuming, and as I say, we are in agreement here.

At least the Government and I are in agreement here that if this statute imposes punishment and it inflicts a penalty, it is not a reasonable regulation of Social Security benefits, it would be unconstitutional.

The Government, however, is not here given any further explanation for the passage of the statute by Congress at all.

As a matter of fact, the only explanation it has given is only consistent with punishment.

It is said, and Mr. Davis said that the only thing he could believe the statute would have is the view of Congress that certain people being deported were unfit and therefore should not receive benefits.

Now, to my view, that would clearly indicate that Congress thought that these people should be punished because they were unfit.

But we need not rely simply on Mr. Davis' statement.

I think it would be helpful to see exactly what it was that Congress did here.

And what it was that Congress said about this particular statute.

Justice John M. Harlan: Could I ask you one question?

Is the Government correct in saying that you don't attempt to defend the decision below on the grounds on which he was put to with vesting right?

Mr. David Rein: I do not.

I think that there are too many cases in this Court indicating that Congress has power to amend and that the States have power to amend Social Security System, and I could not say that Congress did not have power to amend it at all on that theory.

Justice Felix Frankfurter: (Inaudible) by that remark (Inaudible) that's my side of the equation.

(Inaudible) have more trouble with (Inaudible)

Mr. David Rein: Well, I --

Justice Felix Frankfurter: (Voice Overlap) I'm not --

Mr. David Rein: I have examined --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. David Rein: -- the cases and I don't think Lynch applies.

But Section 202 (n) was enacted in 1954.

It grew out of the bill which was H.R. 9366 which was reported to the 83rd Congress by the House Ways and Means Committee.

That particular bill had three provisions which I think are relevant here.

One provision attempted to do something along the lines, which Mr. Davis has indicated here, might be reasonable.

That is -- or keep benefits away from aliens who are not within the United States.

That was a bill which would deny benefits, not to the primary beneficiaries themselves, not to the workers themselves, but to certain dependents or survivors of beneficiaries who reside outside the United States if they do not meet certain residence requirements.

Now, in proposing that bill, Congress said, and this was not Congress but the House which proposed that bill.

Under a heading in its report, and we set forth and quoted at page 19 to 20, “Under present law, old-age insurance benefits had been paid to an insured worker regardless of his country of residence.

Benefits are also payable to otherwise eligible dependents and survivors of insured individuals regardless of country of residence even though such dependents and survivors may never have lived in the United States and may have had no personal contact with the insured worker over a long period of years other than receiving contributions to their support.”

And then the Committee went on to say, “Your Committee believes that the insured person himself, who has earned his right to benefits on the basis of his work in American Industry and his contribution to the national economy should be able to have those benefits regardless of his place of residence.”

In other words, the only suggestion made here that I have heard, and Mr. Davis didn't make it as strong as the Government did in his brief, was that 202 (n) was part of a policy of Congress to deprive aliens, nonresident in this country, of benefits.

And yet here, we find the same Congress, House which proposed 202 (n) saying that it never had such intention.

And as a matter of fact, any such provision would be unwise and unjust.

Justice Hugo L. Black: Where are you reading from now?

Mr. David Rein: I was reading from my brief 19 to 20, quoting from House Report Number 1698, which accompany or the bill, H.R. 9366, which became -- later became the 202 (n).

The same bill, however, contain a provision which later became 202 (n).

And in discussing that provision, Congress did not put it under a heading, “Payment of benefits to persons residing abroad.”

On the contrary, they discussed it in its report under a heading “Termination of benefits on deportation.”

And, and I'm reading now from page 21 as to what the House said with regard to that, the House said that the bill provides that all benefits payable on the earnings record of an individual who was deported from the United States because of illegal entry, conviction of a crime or subversive activity shall be terminated.

Termination of the benefit would be effective upon receipt of a notice from the Attorney General that the individual is under notice of deportation.

Now, when this bill got to the Senate, the Senate rejected this provision and also another provision which contained a penalty provision by denying benefits for earnings for aliens who might have been in the country unlawfully.

The Senate rejected all three of those provisions but it, like the House, considered only the first provision, the one that will take away benefits from dependents and survivors abroad to have anything to do with the policy of making payments to people who are out of the country.

And it said with regard to that in the Senate Report and it's quoted at page 22, “That the House approved bill would have prohibited the payment of dependents and survivors' benefits to individuals residing outside the United States unless such individuals met certain requirements as to prior residence in the United States or a less special insured status requirements were met by the worker on whose records the benefits are payable.

Your Committee does not believe the place of residence of the dependents or survivors of an insured worker should result in their losing protection to which they are otherwise entitled as a result of contributions paid by the insured worker.”

That was the Senate's view with regard to the question of paying benefits to people abroad and outside the country.

Turning to this provision, which later became 202 (n), the Senate said, “The House approved bill would have required that no monthly benefits be paid on the basis of wages and self-employment income of an individual who has been deported for specified causes.

Your Committee has not had an opportunity to give sufficient study to all the possible implications of this provision which involves termination of benefit rights under the contributory program of Old-age & Survivors Insurance and has therefore deleted this provision from the bill.

Now, I think these conclusions appear from this short sketch of the legislative history, and I'll -- our finding, I should say, that in conference, the House receded with regard to the provision depriving dependents and survivors abroad of benefits.

The Senate receded in their objection to the provision which later became 202 (n).

Though with certain modifications, the provision in the house bill was then passed.

Now, I think that these conclusions appear from this short sketch.

In the first place, Section 202 (n) was not considered by either House of Congress to be -- have any bearing with regard to a congressional policy of withholding the payment of benefits to aliens residing abroad.

On the contrary, the House Committee that first suggested 202 (n) explicitly stated that it rejected such a policy.

The Senate rejected even a partial application of such a policy.

The House agreed and we have no such policy at all adopted in this provision.

Both Houses, however, considered that Section 202 (n) were penal in character, and they said so in so many words because -- and Mr. Davis has had a great deal of difficultly distinguishing perhaps between the four provisions of the deportation statute which were omitted from those who were deprived benefits and those provisions which were included.

But the House made its distinction.

We don't have to go any further.

It said that -- the House of the Senate said that, “Benefits are terminated of -- for those individuals who have been deported for unlawful entry, conviction of a crime or subversive activities.”

They thought that that group included all those and clearly, these have moral connotations and the distinction was made on the basis of congressional view of moral guilt.

Now, as a matter of fact, the original defendant in this case, Secretary Folsom, the predecessor of the -- for the present defendant, also considered this provision to be a penalty in so many words.

He was asked to testify with respect to a subsequent provision, which, I think, Mr. Davis has mentioned which was being considered by Congress in 1955 which would make a penalty of deprivation of Social Security benefits, an additional penalty to be added on to criminal penalties to those who are punished under the Smith Act and other crimes which Congress considered in that category.

Testifying on that provision, Secretary Folsom opposing the provision, and he opposed it on this ground.

He says, “Because the deprivation of benefits, as provided in the amendment, is in the nature of a penalty and based on the considerations foreign to the objectives and provisions of the old-age and survivors insurance program, the amendment may well serve as a precedent for extension of similar provisions to other public programs and to other crimes.”

And then he went on to say, “The present law recognizes only three narrowly limited exceptions to the basic principle, the benefits are paid without regard to the attitudes, opinions, behavior or personal characteristics of the individual.”

And he included in those three narrowly limited exceptions this provision 202 (n) which Congress had passed.

The other two he mentioned which he said considered to be of a light category, were not a statute of Congress but a regulation of the Social Security Administration itself which denied dependents benefit payments to any individual who have been found guilty of the felonious homicide of the insured worker.

And also said other provisions are not of the Social Security Act but of Title 5, that is the provision giving government employee pensions, the so-called Act which was passed -- the Act so-called Hiss Act which was passed by Congress relating to government employees, denying pensions to government employees who, among other things, have pleaded their privilege against self-incrimination.

A portion of the statute which was held unconstitutional in the Court of Claims was not taken to this Court.

Justice Felix Frankfurter: (Inaudible)

Mr. David Rein: In other words --

Justice Felix Frankfurter: Suppose the security (Inaudible) they make the -- the divisions in 14 -- the present 14 (s) (4).

Mr. David Rein: Which proposal?

I'm sorry.

Justice Felix Frankfurter: (Inaudible)

Mr. David Rein: The proposal --

Justice Felix Frankfurter: The discussion appeal which Secretary (Inaudible) opposed.

Mr. David Rein: Secretary Folsom, that was a different bill.

Justice Felix Frankfurter: Yes, I know.

But that may --

Mr. David Rein: It has nothing to do with deportations.

It had to do with penalizing.

This bill came up after the present 202 (n) had been passed.

And the proposal in this bill was to commit -- this will apply not to aliens but to citizens who were convicted of certain crimes, who might be convicted of certain crimes such as the Smith Act and other crimes.

Justice Felix Frankfurter: I thought that Secretary Folsom spoke against that it became a precedence.

Mr. David Rein: No.

Justice Felix Frankfurter: I suppose --

Mr. David Rein: I'm saying that --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. David Rein: -- in speaking against this bill, this particular bill –-

Justice William J. Brennan: That subdivision used.

Mr. David Rein: -- which he called a penalty.

Yes.

He analogized it to 202 (n) and he said, “The only provision in the law which we have now analogous to this bill --

Justice Felix Frankfurter: Is the one that begins --

Mr. David Rein: -- which -- which is the one which is before us at the present time.

In other words, he, although two years later, described specifically this particular bill as being a penalty.

Justice Felix Frankfurter: Well, that's the course of your argument.

Mr. David Rein: That's the course.

Yes.

Justice Felix Frankfurter: I thought that he opposed --

Mr. David Rein: Yes.

And that he said --

Justice Felix Frankfurter: -- to you -- when the measurement was up and whenever it was in the (Inaudible)

Mr. David Rein: He did not appear and testified at that time with respect to it, no.

But he described it as a penalty in his testimony a few years later.

Now, the Government in arguing that the statute here is not a penalty, in arguing in its brief, makes the point that it's not the question and some emphasis has been made here by Mr. Davis that the point is that the alien is no longer in the United States.

He's abroad, and why should we make payments to him while he's abroad?

However, the important thing is that if this same alien had left the country, had gone abroad on his own volition, exactly where he was, he would receive Social Security benefits under the present law.

So the factor here is not that he's abroad but the factor is that he has been deported.

That is the significant difference.

Justice Charles E. Whittaker: Would there be, Mr. Rein, a limitation on the period of his receipt of such social security if he had voluntarily departed?

Mr. David Rein: None at all.

Justice Charles E. Whittaker: No period of limitation.

Mr. David Rein: No period, he would retain it forever.

There is -- was a subsequent statute which was passed in 1956 which has never been construed by any court, which did take away benefits from certain aliens who departed -- left the country and been away for more than six months.

But only to those aliens who had not been in the United States with an aggregate of 10 years in the first place, or who did not have full coverage under the Social Security Act.

In other words, there is a present provision which is 202 (t) which does take away benefits from certain aliens.

The particular petitioner here would not fall on that category because he had been in the United States for more than 10 years and he had the necessary coverage under the Social Security Act.

So -- and for this category of people, such as the aliens, the significant factor is deportation.

And the law -- and under the laws that presently stands, if he were abroad, under -- on his own volition without deportation, he would continue to draw Social Security benefits until his death.

So, we argue, therefore, from this that there isn't any policy here of keeping the money in the country and not sending it abroad because Congress has enacted such a policy.

And in fact, the money would be sent abroad to aliens in the same category as the petitioner here except for the fact of deportation.

I think too, and the Government concedes that -- that the statute would be invalid if the deprivation of benefits were based upon or the fact of antecedent factors and the Governments were criminal or other socially undesirable conduct because the Government concedes that under the same scheme of Social Security or the conduct of an individual and his behavior in the language, which was used by Secretary Folsom in testifying before the Senate Finance Committee, has no legitimate bearing upon receipt of benefits.

Yet, under 202 (n), one cannot escape the conclusion that that is precisely -- are the basis upon which benefits are being deprived to certain class of deportees.

I have already quoted to the Court the language used by the House and the Senate Committee.

Illegal that the -- of -- deprivation of benefits are based upon deportation where the deportation is in turn based upon illegal entry, conviction of a crime or subversive activity.

Now, the Government in its original opposition that its original jurisdictional statement which was filed in this Court at -- when it was first looking at the statute, I believe, without the problems being presented as to how it could defend it, didn't have the difficulty Mr. Davis had here of distinguishing between the different characteristics of deportation.

And I think and I like to quote from the provision of the jurisdictional statement because I think it's obvious.

And the Government there suggested that the four excluded provisions do not fall into that category.

That is the category of unlawful entry, conviction of a crime or subversive activity and may have been excluded because Congress thought they did not involve serious derelictions.

I think that it is perfectly clear both from the language of the reports of the Senate and the House in describing the position and also on the basis of analysis of the provisions themselves that the distinction Congress was making between certain grounds for deportation and certain other grounds of deportation were distinctions relating to moral conduct, and ideas which have definitely, a punitive aspect.

In that sense, the Section clearly specifies or offenses for which a person is then being guilty and for which retribution is exacted.

I think one must clearly look at 202 (n) and one cannot without it in any other way.

And it sets forth the certain categories or grounds for deportation listed in the Immigration Nationality Act.

And it says that, “Individuals who have been found guilty not by any criminal case but in an administrative proceeding of those offenses for which they are deported, they shall then suffer the penalty and the punishment of being deprived of their Social Security benefits.”

I think finally, we must consider the statute to be a penalty and punitive in character under the analysis which was made by this Court in the Trop case.

That whenever a statute comes before this Court, and it -- and it has consequences which appear to deprive one of a privilege or ceratin other benefits, and then if the Court cannot find any legitimate legislative purpose for that deprivation of benefits, the only conclusion that the Court can come to is that -- or the statute is being imposed as a penalty and his punishment.

And in the language of the Trop case, the Court there said that that statute was punishment because there is no other legitimate purpose the statute can search.

Justice John M. Harlan: Supposing the statute, it said that Congress doesn't want the money of the United States taxpayers to be used to support people living abroad who have been guilty of this kind of offenses -- deported with this kind of offenses, what would you say about the statute if it has been so phrased?

Mr. David Rein: I'd it's exactly the same --

Justice John M. Harlan: Exactly the same thing.

Mr. David Rein: -- as we have now.

And that's practically what Congress said.

Justice John M. Harlan: Do you think it's unconstitutional for Congress to say that they don't want to use United States funds to officially has been -- has been deported because he's a member of the Communist Party?

Mr. David Rein: Well, I think it's unconstitutional for Congress to impose a penalty on anybody unless --

Justice John M. Harlan: Why you keep using the word “penalty” --

Mr. David Rein: -- or punishment.

Justice John M. Harlan: -- if it was used --

Mr. David Rein: Well, I think taking away benefit --

Justice John M. Harlan: Certainly, the way I have phrased the statute that I'm talking about, it would not be phrased in terms of a penalty.

Mr. David Rein: Well, Your Honor used the word “guilt”.

Justice John M. Harlan: -- the terms of policy, policy.

Mr. David Rein: Well --

Justice John M. Harlan: As a matter of policy, Congress doesn't want American money to be used for that kind -- in -- in that kind of a context.

Mr. David Rein: Your Honor used the -- the term “guilt” and I -- perhaps I assumed punishment goes with guilt.

And that would be the connotation that Congress had.

Justice John M. Harlan: I said who was been deported for being a member of the Communist Party.

Mr. David Rein: Well --

Justice John M. Harlan: Do you think --

Mr. David Rein: I think that that would have to be analyzed.

It certainly is not consistent with the general purposes of the Social Security program which is being administered here without regard to -- no one who is in the United States gets deprived or accepted as other statute, gets deprived of Social Security for conviction of crime.

Once you get to the point, the way you were taking away a privilege and you were doing it in a form where it involves an imposition of punishment, which, I think, you must say, that this statute does and I think that Your Honor's statute would do because again, to say that you take away something from somebody because of his conduct, you are saying that you are punishing him.

I can't see any other way around, unless one would say that there is certain -- the only distinction would be, you might say that a person and the distinction which have been made in the case of his -- that he might not be entitled to hold certain public office, let us say, because of that because he is not fit for that.

But you can't say he's not fit to receive money.

We don't have any sense of -- his conduct incapacitated him from acquiring some function or job so it must be considered punishment.

And if it is punishment, we need go no further in this case as to whether it's a desirable punishment or a policy punishment because if it is punishment, it cannot be inflicted without a judicial trial.

I think that's the -- the main constitutional problem we have in this case.

And in that respect, this case is no different than the Wong Wing case which --

Justice Charles E. Whittaker: But, Mr. Rein, I'm not sure I follow.

I understood you a while ago to say at the beginning of your argument that you do not contest the Government's contention that your client had no vested right in benefits under this law.

Did I correctly I understand you to say then?

Mr. David Rein: Well, I did not contest that and perhaps I'd better put it this way.

I think the question of whether or not, as it's sometimes discussed in cases of this kind, as to whether or not this is a vested right or a gratuity is not a worthwhile issue to get into.

I think he has a right which the Government concedes and we both concede that his right is sufficiently valuable that it cannot be taken away from him in violation of certain other constitutional provisions.

Justice Charles E. Whittaker: Well, then, I misunderstood you in another context then.

I understood you also to say that you agreed that the Congress could amend and change whatever rights or might be a part of some of the law.

Is that the -- I misunderstand you there?

Mr. David Rein: I said Congress has the right to amend the law reasonably.

I don't say it can amend in any way.

Justice Charles E. Whittaker: And then would you follow from that when it's unreasonable to amend in such manner as would relieve the obligation to make payment to a deportee that's unreasonable, is that your argument?

Mr. David Rein: It has no -- well, there are two grounds, I would say, with that.

It has no rational relationship to the general purposes of Social Security.

And this particular statute was not passed although it's labeled an amendment to the Social Security Act.

It was not passed within the framework of Social Security legislation.

It was passed for an entirely different reason for the purposes of punishment.

And therefore, we get into certain other factors.

Just as, for example, Congress also laid in to get an amendment to the Social Security Act, there's another provision saying people convicted of certain crimes can, in addition to getting a prison sentence, be deprived of their Social Security benefits.

Justice Charles E. Whittaker: We do not follow that if your client had no vested right or Congress could change whatever right was vested, then an exercise by Congress of either alternative in respect to the deportee would not be punishment?

Mr. David Rein: No.

Not at all.

Justice Charles E. Whittaker: It is not?

Mr. David Rein: Not at all.

He's being deprived of certain substantial benefits.

Justice Charles E. Whittaker: Well, I wonder if he's deprived if you admit that the Congress has the power to make these changes.

That was my point about it.

Mr. David Rein: No, the fact that Congress has the power to make these changes doesn't make it any less punishment.

That has nothing to do with it.

In other words -- first place, I don't say Congress has the power to make this particular change but the fact that Congress may take away certain benefits.

For example, Congress may punish, that is true, provided it does it in the constitutional fashion.

Of course, Congress may punish if that's what it intends to do.

Congress may also take away benefits if it is done --

Justice Charles E. Whittaker: I was thinking --

Mr. David Rein: -- within the framework of the Social Security Act.

But I don't think it advances the argument to say that because he has not -- does not have a vested right, it is not punishment.

One does not have a vested right, let us say, to be a member of the Board or to -- to get into certain professions, yet, it was held to be punishment in Cummings against Missouri to deprive one of that privilege.

Justice Charles E. Whittaker: Now, if that's a right, he -- what I have trouble understanding is how one can be punished by being deprived of the so-called -- some thing he never had.

Mr. David Rein: Well, this man was drawing Social Security.

Justice Charles E. Whittaker: As long as he was not a deportee.

Mr. David Rein: Yes.

Justice Charles E. Whittaker: And Congress --

Mr. David Rein: He was --

Justice Charles E. Whittaker: (Voice Overlap) but when you become a deportee, then you shall no longer be paying.

And the Congress has the right to make that change in status or not.

Mr. David Rein: Well, I don't follow you because when Congress made that change, it was taking away from him something which he had.

Now, I don't think it matters if you're going to say that it's a right, it's a privilege.

I think that it's a semantic use of language that advances us not at all because I know that Congress took away from this man his $60 a month which he was getting.

Now, I don't want to concede that by saying that it is not a vested right in a sense that by conceding that he did not have a formal contract with Congress, which could not be amended that, therefore, when Congress took away the $60 a month, they did not take something away from him.

They took away $60 a month.

There's any question about that.

And I think that that's substantial enough in interest, if I may put it that way, substantial enough in interest to bring into play these constitutional questions that follow from the imposition of a penalty.

Justice John M. Harlan: I don't really understand if there's any basic difference between you and the Government as to what you think the controlling principles are here --

Mr. David Rein: That is correct.

I --

Justice John M. Harlan: -- where you split it as to the significance of --

Mr. David Rein: Nature of this particular statute.

Justice John M. Harlan: Yes.

Mr. David Rein: And I think that that's the -- that would be true.

We both adopt the same basic legal approach and constitutional approach as to how the statute should be measured and what the principles are that should measure the statute, and our sole difference as to what is the nature of the particular statute.

Justice Felix Frankfurter: And also, what difference has it got as to what is due process or if it could have paid him.

Is that the -- it has to be used about that in (Inaudible) unreasonable, unreasonable if it's constitutional infirmity except in the loose way of talking with reference to -- to the Due Process Clause because (Inaudible) with the Constitution and I say this is unreasonable in the -- in the layman sense of the term.

Is that true?

Mr. David Rein: Yes.

Justice Felix Frankfurter: (Voice Overlap) --

Mr. David Rein: I do hang it on a number of provisions because --

Justice Felix Frankfurter: (Inaudible) the Constitution.

Mr. David Rein: I invoke --

Justice Felix Frankfurter: (Inaudible)

Mr. David Rein: -- for the --

Justice Felix Frankfurter: -- the argument, because I'm concerned, namely, ex post facto because it applies (Inaudible) of the First and Sixth Amendment.

Mr. David Rein: I --

Justice Felix Frankfurter: (Inaudible)

Mr. David Rein: If I may just say a word on that -- that that this Court has not taken that view of the ex post facto statute.

Justice Felix Frankfurter: It hasn't --

Mr. David Rein: No.

Justice Felix Frankfurter: -- it has opinions for a hundred years beginning (Inaudible)

Mr. David Rein: Cummings against Missouri relied upon the ex post facto clause, so did Ex parte Garland, and quite recently, in this Court, the Garner case and the American Communications Association against Douds discussed the statutes.

They said those particular statutes were not ex post facto because they did not operate retroactively.

But they both assumed that civil penalties were ex post facto.

Justice Felix Frankfurter: The -- this is about the -- this Court has read it down, an ex post facto (Inaudible) go for technical but lawyers understand that criminal (Inaudible)

Justice William O. Douglas: I think it'd be more to say there are some members of the Court who felt that, but I think that you're quite right in your exegesis of Cumming's case and the Garland case.

Mr. David Rein: Well --

Justice William O. Douglas: Whether that would be -- whether they would be effective today, does not matter.

Mr. David Rein: I only know what the case has said, and what --

Justice Felix Frankfurter: I think the Lovett is -- is exquisitely --

Justice William O. Douglas: That was a --

Justice Felix Frankfurter: It's part of the ex post facto.

Justice William O. Douglas: That is a bill of attainder case though.

Justice Felix Frankfurter: (Inaudible)

Justice William O. Douglas: Except for the Cummings and Garland cases.

Justice Felix Frankfurter: They rested on -- on bills of attainder.

Justice William O. Douglas: And ex post facto.

I think they were -- I think you're quite right, counsel, there were two grounds for those --

Justice Felix Frankfurter: (Inaudible)

Mr. David Rein: Well, I don't -- I don't really rely on that and --

Justice John M. Harlan: (Voice Overlap) as to that.

[Laughter]

Mr. David Rein: The principal ground on which I rely, and the principal constitutional provision is Article III, Section 2 in the Sixth Amendment on the ground that you cannot inflict punishment without a judicial trial.

Justice Felix Frankfurter: (Inaudible)

Mr. David Rein: Article III, Section 2 says exactly that, I believe.

I don't have the precise language, but it says you must have a judicial trial.

Justice Felix Frankfurter: (Inaudible)

Mr. David Rein: Well, if I may submit to Your Honor, the case that I think is controlling on this statute is the case of Wong Wing against the United States.

That is the case in which a statute passed by Congress provided that an alien -- an alien who is being deported on the ground of having been illegally here as a Chinese could, prior to deportation, be imprisoned on the ground of having been unlawful resident in the United States.

The whole process was done administratively.

This case came up after the case of Fong Yue Ting in which the Court had sustained the portion of the statute providing for the deportation of the alien by the administrative process.

But the Court said that the added feature of the Wong Wing statute that is the imprisonment of the alien made it unconstitutional.

And the Court there said, I think it will be useful to quote, page 35 to 36, it's quoted in my brief.

“We regard it as settled by our previous decisions that the United States can, as a matter of public policy by congressional enactment, forbid aliens or classes of aliens from coming within their borders and expel aliens or classes of aliens from their territory.

And can in order to make effectual such decree of exclusion or expulsion to devolve the power and duty of identifying and arresting the persons included in such decree and causing their deportation upon executive or subordinate officials.

But when Congress sees fit to further promote such a policy by subjecting the persons of such aliens to infamous punishment of hard labor or by confiscating their property, we think such legislation to be valid.

It must provide for a judicial trial to establish the guilt of the accused.

Justice Charles E. Whittaker: That's just the question I was trying to set up, Mr. Rein.

Is this stipulated amount to be paid under Social Security property in the sense of -- used by the Court, District Court?

Mr. David Rein: I would contend that it is, yes.

And I do not want to say that I think that Congress can amend the statute to be a concession in that respect, it certainly is property.

I consider that $60 a month is property.

Justice Charles E. Whittaker: And if Congress has the right to change the law, as I understood you, and Mr. Davis to agree, then you certainly didn't have property in -- in a vested sense, do you?

Mr. David Rein: Well, I don't think that that's the answer.

If Congress has right to change the law, that mean that Congress would have the right to take away under certain circumstances this property from certain other individuals.

Justice Charles E. Whittaker: Do you think it's --

Mr. David Rein: But it doesn't make it any less property.

Justice Charles E. Whittaker: Do you think it's -- then -- then the right to receive this monthly stipend stands in your view in about the same status as a house and lot to the -- on Washington?

Mr. David Rein: Well, yes.

I don't think it makes any difference, what the nature of the property is or what the nature of the privilege is so that --

Justice Charles E. Whittaker: But --

Mr. David Rein: -- you have to say it's vested or not.

Justice Charles E. Whittaker: And Congress couldn't take the house and lot by changing some law.

That would have to be unjust compensation if he had a vested property like that.

Mr. David Rein: Well, Congress might give someone a house and lot on the provisions which had said they could take it away on a certain other -- other circumstances and not under others.

Perhaps this may -- may help, Your Honor, to have my view on it.

Justice Charles E. Whittaker: Yes.

Mr. David Rein: Suppose Congress gave someone a house and lot under a statute which said, “Congress can take this away for reason A and B but not for reason C and D.”

Justice Charles E. Whittaker: Yes.

Mr. David Rein: Now, the fact that Congress can take that property away from him for reason A and B, doesn't make it any less property.

It still can't take it away from him for reason C and D.

And if Congress attempts to take it away from him for reasons C and D, he is protected against Congress in that respect.

However, he is not protected against Congress if Congress takes it away for reasons A and B, which Congress provided well reasons it could take it away.

Justice Charles E. Whittaker: And if Congress did take it away for reasons A and B, so dong would not be punishment.

I take it you would agree for.

Mr. David Rein: Yes, if it was so provided and if it was so understood in advance, it probably would not be, but -- but I'm just saying the house and lot is still property regardless of whether Congress can take it away or not.

It can validly take it away.

That would be my view.

Justice Felix Frankfurter: Mr. Rein, your argument is you say that Congress in speaking of its constitutional power, the United States (Inaudible) unconstitutional, and you're invoking constitutional provisions.

And I think when you're dealing with constitutional provisions to invalidate the power upon Congress (Inaudible) the words of the Constitution.

And I should like to read you what Article III, Section 2, which you invoke.

Clearly, it doesn't say anything about punishment.

(Inaudible) It says the trial of all crimes, of all crimes, except in cases of impeachment, shall by jury, and such trial shall be held in the State where the said crime shall have been committed (Inaudible) in these provisions that said punishment, and that provision said the trial of all crimes when (Inaudible) learned lawyers, very able lawyers have (Inaudible)

Mr. David Rein: Well, may I say -- I can only say in response that the Wong Wing case which sees to be indistinguishable here relied on that under Sixth Amendment to invalidate to statute there.

Now, there, to there was no crime but there was a punishment.

Now, I don't see how you get around the problem of saying, for example, because Congress doesn't label something a crime --

Justice Felix Frankfurter: You put question of labeling a crime in a legal document means prosecution which has to be begun by indictment and proceeded with before a jury in this loose way of talking about the Constitution as though we are really construing a newspaper article instead of the great documents by which this country was applauded and by which it -- it is going up.

Mr. David Rein: I think the purposes of those constitutional provisions are to provide that you can't reach the end result without going through that procedure.

Justice Felix Frankfurter: I don't (Voice Overlap) --

Mr. David Rein: And if Congress goes ahead and reaches the end result of imprisonment or a fine without having a prosecution for a crime, it then violates the Constitution.

Justice Felix Frankfurter: Invoked to you to construe the word but you are to quote the (Inaudible)

Mr. David Rein: On the assumption, if I may have just a moment, that an ex post facto law does cover penalties of this character, this statute is an ex post facto law.

Now, the Government makes some contention in its brief that it's not an ex post facto law because in fact the statute was passed in 1954.

The alien did not actually become -- receive his benefits until 1955.

But I think what is important here for ex post facto considerations is the date of the conduct on the basis of which the penalty was imposed.

And that conduct terminated in 1939.

I think it's indicated earlier by Mr. Davis.

He said there was no clear termination date.

What is significant here is that the Board of Immigration Appeals, which was the body which decided that the alien was deportable and set forth the grounds, said that his membership in the Communist Party had lasted or terminated in 1939 or at least that was the last date on which they found membership.

So that we therefore find that -- or the conduct which terminated in 1939 was the basis of the later penalty which was inflicted upon and first by the 1950 statute of deportation and now, by the 1954 statute.

And I think it comes within the language used to describe the ex post facto clause in the American Communications Association against Douds case in which it said that what is controlling is whether the conduct to which the individuals are being punished has been completed, so that “nothing that those persons proscribed by its terms could ever do or change the result.”

And that was the situation here.

After 1939, there was nothing that the petitioner here could do that would change the result which led to the depravation -- first is deportation, the deprivation -- laid the deprivation of benefits.

Now, the fact that he could be deported on that ground is really not relevant here because this Court has held that deportation is not punishment.

And therefore, they said that the ex post facto clause does not apply to deportation on that ground.

I think finally, and on the view that this is a penalty and that is being penalized for the conduct which was their membership in the Communist Party it is clear under the cases in this Court that the conduct here which the petitioner engaged in was protected by the First Amendment, is shown both the Yates case and by the De Jonge case.

And for any loss of privilege or punishment to be inflicted on the basis of conduct protected by the First Amendment, would be a violation of that provision of the Constitution.

Thank you.

Chief Justice Earl Warren: Mr. Davis.

Rebuttal of John F. Davis

Mr. John F. Davis: Mr. Chief Justice.

First, very -- the -- with respect to the Costello case --

Unknown Speaker: (Inaudible)

Mr. John F. Davis: -- that -- that for what it -- for any importance there is.

The proceeding is first, the denaturalization proceeding on the ground of some fraud which I do not know in connection with his actually obtaining citizenship.

Then if he is denaturalized -- when he is denaturalized, then he would be subject to deportation presumably because of commission of crimes involving moral servitude or that might be the procedure but there are two separate things, one, question of whether he described in his naturalization, and the second question, the question of deportation.

Now, with respect to whether property was taken away from -- from Mr. Nestor, I think it's important that we not treat this as though a right to $55.60 which had accrued to him was taken away at the time he was awarded this benefit of $55.60.

The law was then on the books stating that if he was deported on the basis of being -- having been a member of the Communist Party that this would terminate so he took this money at that time subject to that deficients.

The question is whether his right which existed in 1954 because of the reason that he had paid taxes under this system, whether that is a right at which the deprivation of which is -- deprives him of due process of law.

Featured:

Nelson v. Los Angeles County - Oral Argument

Thu, 29 Nov 2012 22:23:03 +0000

Case:

Nelson v. Los Angeles County

Media File:

152_19600113-argument

Related Transcript:

152_19600113-argument

Transcript:

Argument of A. L. Wirin

Chief Justice Earl Warren: Number 152, Thomas W. Nelson and Arthur Globe, Petitioners, versus County of Los Angeles et al.

Mr. Wirin.

Mr. A. L. Wirin: May it please the Court.

The petition here involves the validity of a discharge by Los Angeles County of two of its employees and initially very broadly stated the question as whether or not the discharge was that these employees were so arbitrary as to violate the due process guarantee in the Fourteenth Amendment.

I think perhaps it maybe helpful if I would state to Your Honors in capsule form and very summarily the factual situation or the basis upon which the discharges were made.

It is our position that the discharge -- the discharge of both petitioners by the County was solely because of their appearance under subpoena before a committee of Congress, the House Committee on Un-American Activities upon which appearance both defendants refused to answer certain questions pertaining to affiliation, pertaining to a communist affiliation upon -- based upon the Fifth Amendment as well as the First.

It is our further contention that the inquiry conducted by the federal agency, House Committee on Un-American Activities was wholly unrelated to fitness for employment to loyalty in connection with fitness for employment by the County.

And our further contention that both the petitioners showed the utmost candor and cooperation so far as their employer was concerned by answering all questions pertaining to their opinion and affiliation when propounded to them by the employer.

And that therefore, the rationale if not the decision in Slochower against the Board accompanied by the gloss in Beilan against the Board and in Lerner versus Casey.

Results in a conclusion, this is our plain that the discharges here were arbitrary.

Let me put the problem a little bit differently.

In terms of a statute of California, the validity of which as applied we are challenging here.

That statute appears in the petitioners -- in the brief of petitioners, the white brief, on pages 2 and 3.

These petitioners were discharged by the County under this statute.

And as I say, as enforced against these petitioners, it is our contention that the statute violates due process.

The statute appears, as I see on pages 2 and 3.

I shall, in a moment, refer particular to page 3 of the last paragraph of the statute about the middle of the page.

But let me tell Your Honors what the statute provides.

It is a -- it is divisible in two parts, and I make the distinction and the division because we think it’s important to our case.

This statute imposes an obligation upon all public employees in California to answer certain questions pertaining to affiliation and requires their dismissal if they do not comply with that mandate.

It requires such employees to answer such questions when asked by the governing agency, governing body that appears on page 2.

That portion of the statute is not an issue here because as I have already said, these petitioners answered all questions asked by the governing agency and fulfilled every requirement of any kind imposed upon them by the governing agency.

But the statute goes one step further and it is in that regard that we are here.

The statute additionally imposes an obligation upon all public employees in -- by any governmental agency in California.

When appearing was subpoenaed before a committee -- a committee or subcommittee of Congress that appears, Your Honors, at page 2 where the Government Code is being quoted at about the sixth to seventh line of the quotation in the middle of the page.

Justice Felix Frankfurter: Excuse me -- forgive me for interrupting you.

Mr. A. L. Wirin: Indeed.

Justice Felix Frankfurter: It started up by saying -- by dealing it's relevant to give the -- what you call in capsule from the situation of the fact -- the fact of this case.

Mr. A. L. Wirin: Yes, sir.

I intend to develop the facts --

Justice Felix Frankfurter: You are now arguing as though we had nothing before us except the statute.

Mr. A. L. Wirin: Oh, no, Your Honor.

I merely now calling Your Honors' attention to the text of the statute and then I would like and I maybe want to take some time, if I may, to discuss the factual situation and then apply the statute to the factual situation in this case.

And I am not -- we are not challenging the statute on its face.

We are challenging the statute as applied.

In a moment, I shall discuss the application to these cases.

At the moment, I am merely just tell -- telling you --

Justice Felix Frankfurter: What then --

Mr. A. L. Wirin: -- what the statute provides so you know what I'm talking about as I move along.

Justice Felix Frankfurter: That enlightened me.

But I would get more -- I would get -- I could easily -- more easily in my mind apply the statute before I knew the fact for having the abstract statute --

Mr. A. L. Wirin: Will you -- will you forgive me then.

Let me just call your attention --

Justice Felix Frankfurter: You're the lawyer not I.

Mr. A. L. Wirin: Pardon me.

Justice Felix Frankfurter: I say you're the lawyer who is arguing this case and not I.

So go ahead your own way.

Mr. A. L. Wirin: Well, all I want to say at this moment is that the statute in addition to requiring a person to answer before the governmental agency of a State also require an answer -- require the employees to answer questions propounded by Congressional Committee.

And then and -- and after that, I should be done with the stays of it.

Your Honors will note on page 3 --

Justice Felix Frankfurter: I -- do I gather from what you said that if California had to declare your judgment procedures, I assume it has under which you could have gone before the California Court, assuming you're outstanding there, to get declaration is for the constitutionality of the statute and they had to stay there, if I understand you, you would not be coming here finding any difficulty which the stating the statute in abstract.

Mr. A. L. Wirin: Please, I --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. A. L. Wirin: -- Your Honor understand me correctly --

Justice Felix Frankfurter: All right.

Mr. A. L. Wirin: -- completely.

I am attacking the statute only as applied to these petitioners and what I want to say now, I'm -- think -- I must say now is that this statute provides that refusal to answer questions before a committee of the Congress on any ground whatsoever and that -- that's in -- now on page 3 in the middle paragraph shall constitute ground toward dismissal.

Now, of course, the California courts and -- and the respondent read the phrase on any ground whatsoever as we also are compelled to read it, it includes refusal to answer before a Congressional Committee based upon the Fifth Amendment, that's a ground.

And -- and therefore, the courts below have held that the refusal of the petitioners to answer questions falls within the statute even though there isn't any question of what the refusal of the petitioners to answer questions was based upon their invocation of the Fifth Amendment before the Committee.

Now, let me turn to some of the facts.

Justice John M. Harlan: And the difference between the statute and the Slochower statute, as I understand it, is that the Slochower statute in terms referred to the Fifth Amendment and this one doesn't on its face.

Mr. A. L. Wirin: That's --

Justice John M. Harlan: Is that substantial --

Mr. A. L. Wirin: That's substantially correct.

Of course, the Slochower statute, if I may recall your -- didn't talk about the Fifth Amendment, it was a state statute.

And it talked about the invocation of the privilege --

Justice John M. Harlan: Correct.

Mr. A. L. Wirin: -- but Your Honors substantially correct.

But what we're saying is that our statute, I was going to say, is worst in a way than the statute of Slochower because of the comprehensive basis upon which an employee must be dismissed on any ground whatsoever, but in any event that we're mistaken about that.

We say that as applied in this case, this statute has the same effect as the application of the statute in Slochower because it's applied in this case.

The sole reason for the dismissal of these employees is the fact of their invocation of the privilege against self-incrimination when appearing before a federal agency invoking a federal privilege before such federal agency in an inquiry by that agency totally unrelated to fitness for employment by the County of Los Angeles.

Now, then, it is conceded and there is no dispute but what these petitioners upon their appearance before this Committee properly invoked the Fifth Amendment.

The Committee finally acknowledged that the Amendment was property invoked and the County here concedes that the Amendment was properly invoked by these petitioners.

Justice Charles E. Whittaker: Would it be legally (Inaudible)

Mr. A. L. Wirin: Yes.

I will accept that settling.

I think properly it goes a little -- includes legally and goes a step further, suggest kind of a moral propriety but this case doesn't involve moral so I'll -- I'll talk about this case and not the formal one that my partner's argued.

Now, a brief word as to the course of these cases through the California courts and then I must go down to discussing the factual showing made by the petitioners from which we ask this Court to draw a conclusion of that, the action of the County was arbitrary.

Petitions for writ of mandate were filed in the Los Angeles Superior Court in behalf of the petitioners except for petitions.

The Los Angeles Superior Court ordered the writ of mandate to issue in behalf of one of the petitioner, the petitioner Globe.

The petitioner Globe under the classified system in California and by the County was a probationary employee.

He was summarily dismissed because of his having refused to answer questions on the grounds I've indicated by the County.

He was afforded no hearing of any kind.

And the Superior Court took the position that that violated the -- the mandate of the rule in the Slochower case to summarily discharge a person for having invoked a privilege before a federal agency and ordered the writ of mandate to issue.

And after the petitioner Nelson, the petitioner was a -- is a permanent employee in the classified system of the County and he was entitled to a hearing and he received it.

In a moment, I shall tell Your Honors about that hearing but the Superior Court ruled adversely to him.

And then at each losing side, petitioner Nelson on the one hand, the County of Los Angeles in the Globe case took appeals and the District Court of Appeal upheld the discharges as to both petitioners.

We then filed a petition for hearing in the Supreme Court of California, the highest court of the State.

It precedes somewhat analogous to the -- to certiorari proceedings here, the Supreme Court of California granting a review in its discretion.

The California Supreme Court divided narrowly the seven-judge court, four justices voted against the hearing, three justices, Chief Justice Gibson and Justice Traynor and Carter voted in favor of a hearing but it wasn't enough and so a hearing was denied and now we're here.

Justice Hugo L. Black: Who was the third that you --

Mr. A. L. Wirin: Justice Clark -- I don't quite I say -- Justice Carter, Jesse Carter who is --

Justice Hugo L. Black: Carter.

Mr. A. L. Wirin: Carter who has passed -- no passed away.

Justice Jesse Carter and Justice -- Justice Traynor and the Chief Justice, Chief Justice Gibson voted for hearing.

Now, I think also we will not be questioned but that the sole reason given by the employer that the County of Los Angeles for the discharge was the appearance of the petitioners before the House Committee.

I think it can -- it will not be disputed but what the Civil Service Commission of Los Angeles County which accorded a hearing to Mr. Nelson in its findings ultimately against him made a finding that he was discharged because of his having invoked the privilege of the Fifth Amendment before the House Committee on Un-American Activities.

Justice Charles E. Whittaker: May I ask you right this?

Mr. A. L. Wirin: Yes, sir.

Justice Charles E. Whittaker: At that hearing, was Mr. Nelson re-asked by his employer with the County three questions he had declined to answer before the Congressional Committee?

Mr. A. L. Wirin: At that hearing, he was not re-asked the questions or any question pertaining to or in anyway in -- in -- connected with the question.

Justice Charles E. Whittaker: Would -- one -- one more question.

Mr. A. L. Wirin: Yes, Your Honor.

Justice Charles E. Whittaker: Would you tap then a defense to this discharge proceeding if he had answered -- been asked and answered those questions at that place?

Mr. A. L. Wirin: Oh, yes.

And it is our claim, and I shall get to -- I've cited quite immediately, as to the showing which he affirmatively made at that hearing pertaining to his loyalty.

Justice Charles E. Whittaker: Well, I thought that the statute said he -- it wouldn't be a defense, really, that he must only explain why he answered as he did to the Congressional Committee and that in fact to answer fully to this Civil Service Commission the very questions he had refused to answer to the House Committee would not be a defense.

Am I right or wrong?

Mr. A. L. Wirin: Well, I think Your Honor is more right than I.

And I think the statute certainly on its face and we have no construction of any -- by the -- by the courts of California to the contrary.

Justice Charles E. Whittaker: Are you going in circle on the District Court decisions?

Mr. A. L. Wirin: Oh, no.

Justice Charles E. Whittaker: I notice meager of the cited decision which is by mean in the case of Davis against the University of Kansas City in 127 F.Supp., it has a good deal to do with this question 129 F.Supp.716.

Mr. A. L. Wirin: Well, it's just how ignorance not to our -- it's responsible for him.

Not that I disrespect for --

Justice Charles E. Whittaker: No, no.

I didn't mean -- not at all.

Mr. A. L. Wirin: -- for decisions of any court.

And we shall read it by tomorrow morning and may have something to say tomorrow morning about that if it's -- if it's helpful to it, well, I hope it is.

Justice John M. Harlan: Can I --

Mr. A. L. Wirin: Yes, Your Honor.

Justice John M. Harlan: -- interject one of the remarks you made.

You say the statute has never been construed.

Do you ever discussed the Mass case?

Mr. A. L. Wirin: Yes, I'll discuss it right -- I haven't been -- I know by now.

Justice John M. Harlan: I'll tell you exactly to save your trouble.

Let me tell you what's in my mind.

Mr. A. L. Wirin: Certainly.

Justice John M. Harlan: The Mass case came down after Slochower and it came down after this client of yours who was discharged under this procedure.

And as I read the hearing that he was given before the Civil Service Commission, it was not the kind of a hearing that the Mass case with its gloss on the statute would have required.

And my question is whether in light of that later procedure required by the Mass case why this case shouldn't go back for a further hearing in light of the requirements of the Mass case.

Mr. A. L. Wirin: Well --

Justice John M. Harlan: In other words why we have to reach the question that you're imposing now.

Mr. A. L. Wirin: Well, yes.

I -- I see some problems as follows.

The Mass case was called to the attention of the District Court of Appeal when we had our appeal before that Court.

And the District Court of Appeal in our case refused to read the Mass case.

As -- as Your Honor has just -- just suggested and has refused to consider the Mass case as even requiring any kind of a hearing for -- for Globe.

He --

Justice John M. Harlan: Globe is the temporary.

Mr. A. L. Wirin: For Globe is temporary.

Justice John M. Harlan: He (Voice Overlap) --

Mr. A. L. Wirin: And -- and the District Court of Appeal ruled that the hearing accorded to the petitioner Nelson was in accordance with the -- with the Mass case.

Now, we disagreed with that and expressed our disagreement to the Supreme Court of California.

And all we could get out of the Supreme Court of California on that issue was -- was three votes.

So that we do have a situation where the California courts, first, the District Court of Appeal and then the Supreme Court itself by a majority vote seems to take the view that the requirements which the Supreme Court of California suggest that are imposed in Mass have been met here.

And therefore, I think, were properly here and I think that this matter should be resolved having -- having exhausted all of our avenues and courts in California should now be resolved by this Court.

Justice William O. Douglas: I understand that.

What they say about this case and the Mass case is one -- page 195 that is -- turns on the status, the temporary status of -- of Nelson.

Mr. A. L. Wirin: Well, we think the District Court of Appeal was in error in two respects.

In the first place --

Justice William O. Douglas: But that's their distinction, was it?

Mr. A. L. Wirin: That -- that's one distinction.

On the other hand, the District Court of Appeal does not read the -- the decision of the Supreme Court in the Mass case as permitting us to make, including Nelson, to make a complete showing at this hearing with respect to his loyalty and as showing to the effect that the same questions which had been asked of him by the House Committee had been asked by the employer and that he had answered these questions with utmost candor completely and fully and had completely demonstrated his loyalty at the hearing which he was accorded --

Justice William O. Douglas: That's was in the --

Mr. A. L. Wirin: -- before the Court.

Justice William O. Douglas: -- other ground for the -- their distinction in the Mass case.

Mr. A. L. Wirin: Yes.

And therefore, let me then come to the factual showing which was made by the petitioner Nelson at the hearing which he was accorded under California law, a showing which we say discloses complete condor to the employer.

Submitting full information concerning his opinions and his associations to the employer followed by the acceptance of his -- of that information by the employer, and we think a recognition by the employer that Nelson was a fit employee.

And when I say fit, I mean fitness including loyalty in any -- in any meaning that that word passed or has been given by this Court.

Now, here is what happened before the Commission and here is the evidence that he offered to the Civil Service Commission urging that his discharge should not be made final.

He became a temporary employee according to the record in 1949.

The moment he became an employee of the County, it was necessary for him to begin to comply with an elaborate investigatory and check loyalty system which the County of Los Angeles had been in effect a system which this Court passed upon in the opinion written by Mr. Justice Frankfurter in Parker against the County of Los Angeles, a system which this Court upheld.

And he took then a -- what I would call colloquially because it's a shorthand phrase, a -- a loyalty ought but a particular kind of loyalty oath imposed and acquired by the County of Los Angeles.

That loyalty oath was not only an -- the conventional oath of support of the Constitution.

It had affidavits and it contained an affidavit to the effect that he did not advocate the destruction or govern by violence and that he had not done so, that he did not belong to any organization that so advocates, and that he had not done so, and he was required to list such organizations as he belong to the did and this -- this of course he did not do because he was not a member of any such organization.

In addition to that, that list and Mr. Justice Frankfurter had the entire oath attached as an appendix to the opinion of this Court in the Parker case which we referred to in our brief.

In addition to that, he was required to state whether or not he was a member of or had directly or indirectly supported any of the following organizations.

And then there -- there was a list of 142 organizations consisting of some of the organizations that had appeared on the Attorney General's list of the interstates and a large number about this that a special committee set up by the Los Angeles County Board of Supervisors had considered sufficiently suspect so as to make inquiry as to membership.

And he signed that oath and that affidavit and in -- and checked one of those 142 organizations indicating that he was -- had been a member of it, namely, the United Public -- the United Federal Workers.

Now, upon his employment, he was expressly questioned pertaining to his loyalty, pertaining to his affiliation, pertaining to his membership in this organization.

And Your Honors will find if Your Honors would look at -- for instance, page 58 of the record.

It isn't the most -- it -- it is a long -- it is a statement in longhand made by Dorothy E.White as you will see on page 58 if you'll turn the page around.

Well, it is an interview by a representative of the County of Los Angeles with the petitioner Nelson.

In the course of which he asked him about his membership in the United Public -- United Federal Workers and he, with complete candor, stated he had been a member for two years from 1942 to 1944.

And Your Honors will note particularly the less legible portions of this document on page 59 in which he concludes with the statement in -- and this is in her handwriting and her statement that Nelson had said that he was definitely democratic and uphold and against all communistic principles the inter lineation of is by the representative of the County not by the petitioner.

And so having -- having told the County about that affiliation and satisfied the County with respect to his loyalty, he was employed.

Justice John M. Harlan: This was before the Un-American Activities (Voice Overlap) --

Mr. A. L. Wirin: Oh, this was -- this was in 1949, Un-American Activity is -- is 1956, this is years before.

Now, Your Honor, this is -- if you'll excuse me, this is just the beginning of it as to what I'm going to say in connection with the showing he made.

This was in 1949.

It was --

Justice Potter Stewart: Is this -- is this when he first got the job or --

Mr. A. L. Wirin: First got the job in 19 --

Justice Potter Stewart: This is on his job after application or -- or part --

Mr. A. L. Wirin: Well -- he -- he first was hired in 1949.

And that appears in the record 44 -- at -- at 40 -- 44 and 45.

But, Your Honor, he then resigned for personal reasons without any relationship to loyalty and reapplied again in April 1952.

And when he reapplied, and I think I -- I -- it wasn't clear in my explanation.

When he reapplied, he then had to take another loyalty oath, the same one.

And he then indicated again that he would have been a member of this organization and he was at that time in 1952 that he was interviewed and questioned and he made an explanation.

And this statement by Ms. or Mrs. White indicates that he had made the same statement about membership in this organization in 1949 when he was first employed.

And so, he was employed in 1952 after having passed this test.

And the record shows that at or about the time, he -- he filled out a questionnaire, an elaborate questionnaire in the course of which he was asked with respect to former employments.

And he indicated, for instance -- pardon me.

For instance in the record at 57, he indicated that he had been employed in a civilian capacity by the United States Army and he indicated on -- at 57 concerning that employment.

And at 63, page 63 at the same time in April 1952, perhaps this is a little better than the former one.

Justice William O. Douglas: What is that page?

Mr. A. L. Wirin: Page 63.

He had to indicate who all his employers were or whether he was dismissed or resigned and the reasons for dismissal.

And Your Honors will find, for instance, in the -- towards the bottom right hand column with respect to the Army that he was dismissed.

And then in the extreme bottom left hand, he indicates that he was dismissed from United States Army giving -- giving the date.

And a little bit later, in a questionnaire which he had filled out, he indicated that he had been dismissed from the United States Army because, as he put it, this appears in the record at 74, at the very bottom of the page of 74 towards the left -- left side of the page, he indicates that he was dismissed by the United States Army for alleged -- as the alleged violation of Public Law 808.

And later on, he was asked about that and he indicated that it was Public Law 808 of the 77th Congress.

And that's the statute which provides for discharge of persons in the employee of -- the agencies of the Government for security reasons and -- and provides for -- for summary dismissal.

So he told these things to the County, the County knew these things, and the County thereafter gave him promotions, gave him increase in compensation, gave him ratings, for instance, of -- of excellent.

Justice Hugo L. Black: What is the relevancy of this -- the legal question?

Mr. A. L. Wirin: Well, the relevancy to the legal question is this.

It is our contention that under the comprehensive loyalty check system invoked and used by the County as to all of its employees including this -- this petitioner, the County knew all about him, made various inquiries from him, pertaining to his loyalty, pertaining to his affiliation, all of which with respect to none of which he disclosed any information, with respect to all of which he showed complete candor.

And --

Justice Felix Frankfurter: Did you take judicial notice of that?

Mr. A. L. Wirin: No.

It's in -- this is in the record.

Justice Felix Frankfurter: What?

Mr. A. L. Wirin: Oh, no, not at all.

This is a matter which is in the record.

Justice Felix Frankfurter: You mean it was adjudicated that although the truthful statement --

Mr. A. L. Wirin: Well --

Justice Felix Frankfurter: -- the mere fact that a man and a questionnaire doesn't need for the answers of the suit, does it?

Mr. A. L. Wirin: No.

But we think that -- for instance, the statement which Ms. or Mrs. White represented the County made as a result of an interview from him is some evidence from which an inference can be drawn that the employer at least in that situation was satisfied with his fitness.

But now --

Justice Felix Frankfurter: But that --

Mr. A. L. Wirin: -- but now --

Justice Felix Frankfurter: -- that precludes the County from reexamining himself.

Mr. A. L. Wirin: Oh, not at all.

And if --

Justice Felix Frankfurter: Can I ask -- I'd like to echo some (Inaudible)

Mr. A. L. Wirin: Yes.

Justice Felix Frankfurter: What is the relevance?

Mr. A. L. Wirin: Well, the relevance of the matter is this.

We fit -- we say that we assume that under Beilan and Lerner, the County was entitled to have answers to the very questions which the petitioner refused to answer before this House Committee.

That the County was entitled to had answers to those questions.

And that we say the County had received answers to those questions.

And that when the County therefore, summarily and discharged the petitioners solely because of their appearance before the Committee --

Justice Felix Frankfurter: But is there -- is that the record solely pure?

Mr. A. L. Wirin: That's precisely the record, Your Honors.

There is -- there --

Justice Felix Frankfurter: So Justice Whittaker put a question to you to which you say give some label.

And to which you said he was more accurately in stating what the record discloses than you were.

Mr. A. L. Wirin: Well, I have said that it is probable, that a fair construction of the California statute is to the effect that even though an employee answered all questions of the employer.

He nonetheless is subject to discharge if he doesn't answer such questions put by the House Committee and -- and I would -- I would agree with that.

And this is what I -- I'm agreeing with.

Justice Felix Frankfurter: This is the sequence of events.

He -- he was asked questions, he was put through this so-called loyalty procedure (Inaudible) and he made discloses to satisfy the inquiring officer at the time subsequent even before -- before a Congressional Committee.

He refused to answer questions.

Thereupon, the County took another look at his words.

Mr. A. L. Wirin: No.

This is where we defer.

We -- we do not say the County took another look in that it --

Justice Felix Frankfurter: Well --

Mr. A. L. Wirin: -- made inquiry of him --

Justice Felix Frankfurter: No, no, no.

But it said a new situation was created by his refusal to answer questions.

And then it put him to explaining or justifying that before the Civil Service Commission.

Is that an accurate statement?

Mr. A. L. Wirin: Well, no.

I wouldn't say it was inaccurate.

Justice Felix Frankfurter: Read correctly --

Mr. A. L. Wirin: It isn't, I would say this.

This being so when he appeared before the Civil Service Commission, he then, as we claim, took on the challenge as to whether or not he was fit and loyal by offering evidence pertaining to his fitness and loyalty by offering his personnel file which showed not only these matters which I have adverted to, but which showed that as of late -- as late as January 1956, that's three months prior to his appearance before the Committee.

At that time, there had been an inquiry made in connection with his affiliation and his loyalty and that he had been checked as -- as satisfactory.

Justice Felix Frankfurter: That means the implication of that answer of yours wherein he --that the County -- that was res judicata and they could make further inquiries.

Mr. A. L. Wirin: Not at all.

Justice Felix Frankfurter: They couldn't make further inquiries, to your phrase, the -- the challenge could be taken up by him to explain why, although he made full disclosure according to his -- your view, would satisfy the inquiring of parties when he came down here, he -- he didn't.

Mr. A. L. Wirin: Well, let me --

Justice Felix Frankfurter: (Inaudible)

Mr. A. L. Wirin: -- let me answer, Your Honor -- I -- I --

Justice Felix Frankfurter: Are those -- are those the facts?

Mr. A. L. Wirin: I -- I think not quite for this -- with this -- because of this exception.

Had the County, after these employees had appeared before the Committee and refused to answer, called in these employees and said, “Now, look, you have not answered certain questions of the House Committee.

We, in order to determine your fitness, now want to ask you some questions.”

And had the County asked the same questions which the employees had refused to answer before the Congressional Committee and had the employees refused to answer those questions to the county.

In other words, had the County really taken a new -- a new look in the light of what had transpired before the Committee, that would not be our case.

Justice Felix Frankfurter: But -- but the difference between you and me your correction is merely saying the County should have done something which, all I know, I might agree with you, would be a more rational method.

What the County did do to -- to act without serving inquiry upon the stated answer before the Congressional Committee and then put him to an explanation for doing so, is that correct?

Mr. A. L. Wirin: Yes.

Justice Felix Frankfurter: All right.

Mr. A. L. Wirin: But we say that he made the explanation --

Justice Felix Frankfurter: Well, he made --

Mr. A. L. Wirin: -- by -- by offering evidence with respect to his loyalty to the County by offering his personnel record which showed that he had answered all these questions to the County before at --

Justice Felix Frankfurter: I will put to you again.

Mr. A. L. Wirin: Yes.

Justice Felix Frankfurter: Your claim then is that that res judicata and the County couldn't go about it in the frank movement, namely, you go before the Civil Service Commission and satisfied them that you have good reason for withholding answers before the Congressional Committee.

Isn't that it?

Mr. A. L. Wirin: Mr. Justice Frankfurter, not quite for this reason.

The first -- first place --

Justice Felix Frankfurter: (Voice Overlap) fact --

Mr. A. L. Wirin: -- in the first place, I'm not claiming that -- I'm not claiming the doctrine or of any concept of res judicata.

Justice Felix Frankfurter: I'm not using the word but you're claiming it in effect.

Mr. A. L. Wirin: I am claiming that this case is like Slochower because I am claiming that where an employer has information concerning an employee and has it as -- as recently as January prior to the April when he's discharged.

And then the employees called before a federal inquiry, conducting an inquiry not related to offense.

And then the employer summarily discharges the employee solely for that reason.

I am claiming that that's a violation of the principle which was laid down in Slochower --

Justice Felix Frankfurter: He would --

Mr. A. L. Wirin: -- that -- may I just --

Justice Felix Frankfurter: Now --

Mr. A. L. Wirin: -- that an -- that an --

Justice Felix Frankfurter: (Voice Overlap) -- summarily discharged.

That's my point.

He was not summarily discharged.

Mr. A. L. Wirin: Well -- well, he was summarily discharged in the first instance and then he was given an opportunity for a hearing in the second instance.

Now, as to --

Justice Felix Frankfurter: (Voice Overlap) in the first instance --

Mr. A. L. Wirin: Well --

Justice Felix Frankfurter: -- he was not summarily discharged without having been given the opportunity to explain why he didn't answer before the House Committee what you're saying he so abundantly answered to the lady who inquired him.

Mr. A. L. Wirin: Well, my --

Justice Hugo L. Black: Where is the --

Mr. A. L. Wirin: Sure.

Justice Hugo L. Black: -- where is the order which would show us whether or not -- what --what the discharge is?

Is it in writing?

Mr. A. L. Wirin: It is.

I'll give it to you.

Justice Hugo L. Black: Where is it?

Mr. A. L. Wirin: I'll give it to you in a moment.

Justice Hugo L. Black: Is it the one on page 103?

Mr. A. L. Wirin: Let's look at 115.

Justice Hugo L. Black: 115.

Mr. A. L. Wirin: Yes, 115.

Yes.

The order of discharge in the first instance appears at the bottom of page 115.

And contained in that order are merely recitals of their refusal of the employee to answer questions before the House Committee and --

Justice Hugo L. Black: Where is that?

Mr. A. L. Wirin: This is at the bottom of page 115.

It's --

Justice Hugo L. Black: (Voice Overlap) --

Mr. A. L. Wirin: It reads Exhibit A to respondent's return.

Justice Hugo L. Black: May 2nd.

Mr. A. L. Wirin: Dated May 2nd.

Justice Hugo L. Black: Well, now --

Mr. A. L. Wirin: And -- and if Your Honor will look at page --

Justice Hugo L. Black: Is that the only order that's --

Mr. A. L. Wirin: Well, if Your Honor --

Justice Hugo L. Black: If you look at the --

Mr. A. L. Wirin: If Your Honor will look at page 116 at the bottom, you will see that --

Justice Hugo L. Black: (Inaudible)

Mr. A. L. Wirin: At the bottom, you will see the recital which is made by the employer constituting the factual basis, basis for the discharge.

But Mr. Justice Black, Mr. Justice Frankfurter is quite right that after Nelson received this notice, he was entitled to a hearing and he received a hearing.

Justice Hugo L. Black: But where is that?

Mr. A. L. Wirin: Now, that hearing appears -- begins at page 1.

Justice Hugo L. Black: That's the hearing after this order.

Mr. A. L. Wirin: Hearing after --

Justice Hugo L. Black: (Voice Overlap) --

Mr. A. L. Wirin: -- this order with -- as to whether or not the discharge should be made final.

Justice Potter Stewart: And he was notified in this order of his right to request a hearing (Voice Overlap) --

Mr. A. L. Wirin: Oh, yes.

He re -- he requested a hearing and he received a hearing.

And as a result of the hearing, the Commission positive its -- its ruling in supporting the discharge on the ground that Nelson had refused to answer questions invoking the Fifth Amendment.

Justice Hugo L. Black: Where is that?

Mr. A. L. Wirin: 103.

Justice Hugo L. Black: 103.

In other words, the ground on which he was discharged, you say is set out on page 103 --

Mr. A. L. Wirin: Well --

Justice Hugo L. Black: -- after the (Inaudible).

Mr. A. L. Wirin: Yes.103, 104, 105, perhaps one -- beginning with 104, indeed what the -- what the Commission does is to quote what happened -- the quote of the exact transcript of the proceeding before House Committee and you'll note, for instance, on page 104 --

Justice Hugo L. Black: (Voice Overlap) --

Mr. A. L. Wirin: -- paragraph 7 that the -- that it says that the employee refused to answer these questions on the basis of the First Amendment supplemented by the Fifth Amendment of the United States Constitution.

And then the Board continues to find that that -- that this -- this action by this employee before this Committee under these circumstances constituted insubordination under the California statute and was ground for and constituted the basis for the discharge.

Justice Hugo L. Black: Is refusal to answer the Congressional Committee.

Mr. A. L. Wirin: Precisely.

No -- no reason for his dismissal of --

Justice Hugo L. Black: (Voice Overlap) now all the orders that were made in connection with this (Inaudible)

Mr. A. L. Wirin: These are all the orders which were made in connection with his discharge by any administrative agency.

The Los Angeles Superior Court ruled that the sole reason for the discharge was the appearance before the Committee and unification of the privilege.

Justice Hugo L. Black: What page is that?

What page is that?

Mr. A. L. Wirin: All right.

Justice Charles E. Whittaker: (Inaudible) page -- beginning 115 (Inaudible)

Mr. A. L. Wirin: Yes.

This is the -- this is the discharge.

Justice Charles E. Whittaker: The order.

Mr. A. L. Wirin: This is the order.

Then there was a review of the order before the -- before the Commission and the Commission confirmed the order.

Now, at the -- the record at 123, Your Honor will find the ruling by the Superior Court.

But -- but Your Honor -- excuse me for a moment.

The Los Angeles Superior Court so construed the matter.

If Your Honors will look at record 118.

Justice Hugo L. Black: 118.

Mr. A. L. Wirin: Yes, and the beginning of 119.

Unknown Speaker: All right.

Mr. A. L. Wirin: For instance the Court said in the -- in the last paragraph were in the record 118, in each of the cases before the Court, the petitioner was discharged from county employment upon the ground.

What ground?

Only one ground.

Justice Hugo L. Black: Where is that?

Mr. A. L. Wirin: The ground -- this is the last paragraph on page 118.

The ground that he had been guilty of insubordination and the violation of this section which we are challenging as applied.

Justice Charles E. Whittaker: (Inaudible) as clear as the order itself (Inaudible)

Mr. A. L. Wirin: I was trying to give Your Honor a few -- an -- a facetious remark, a -- a good opinion by this -- by a Superior Court --

Justice Charles E. Whittaker: (Inaudible)

Mr. A. L. Wirin: -- judgement order.

Now, then, I -- I do want to say one further word about -- about the record of the hearing before the Committee and that is, Mr. Justice Frankfurter will bear with me, if Your Honors would -- would look at page 96 of the record, you will find a document which we think has a special significance.

Your Honors will note that this document on 96 purports to represent that Mr. Nelson's file was taken by the Sheriff's Office of Los Angeles County on January 11, 1956 on the upper right hand column and was examined a file which disclosed this matter of the employment by the petitioner by the Army as well as the interview by Dorothy E. White which I've already called to your attention.

Justice Hugo L. Black: Well, why is that relevant if they didn't discharge him for that ground?

Mr. A. L. Wirin: Well, it's only relevant because of our -- our insistence, if you'll forgive me, upon our position that the County was at all times completely satisfied with the loyalty of this employee and that the -- and -- and we're trying to demonstrate beyond any peradventure of the doubt that the sole -- and perhaps we've already done it and now just bringing calls to -- to an unnecessary place that the sole reason for the discharge was because of the conduct of the petitioners before the Committee and not because of any relationship to --

Justice Hugo L. Black: Well, I don't quite understand.

If that is the sole ground of dismissal as you it is --

Mr. A. L. Wirin: Yes.

Justice Hugo L. Black: -- the -- this Court, they proceed to (Inaudible) --

Mr. A. L. Wirin: Yes.

Justice Hugo L. Black: -- what difference does it make about what happened before isn't your legal question where they had a right to discharge him on the ground that they did.

Mr. A. L. Wirin: Well, but, you see, the respondent takes the position that somehow or rather the conduct of these petitioners before the Committee is related to their loyalty to the County and to their fitness for employment.

Justice Hugo L. Black: Are you then --

Mr. A. L. Wirin: And we are trying to negate that.

Justice Hugo L. Black: Well, did the Board or the Court find it?

Mr. A. L. Wirin: No board and no court upon the discharge of either of the petitioners on the ground of lack of loyalty to the County, but solely on the ground that I've indicated.

Justice Charles E. Whittaker: You're making an argument then, as I understand it, which a little bit anticipatory of what your adversary may have to say.

Your point really is, as I understand it, if I don't understand it I want to understand it, that this man was discharged as the order says, that's Nelson now, the order at 116 says, namely, for a refusal to answer these questions to the House Committee under the ordinance in question and the question presented to us is, is that result justified by that law on those facts?

Isn't that our question?

Mr. A. L. Wirin: Precisely.

Precisely.

Justice Charles E. Whittaker: Now, we (Inaudible) are we?

Justice Hugo L. Black: Was there any ground on which he refused to answer except for the Fifth Amendment?

Mr. A. L. Wirin: He also said the First Amendment, but he always said the Fifth when he said the First.

Justice John M. Harlan: Supposing he had -- simply he gone before the House Un-American Activities Committee to your own answer when no constitutional right or so, would the -- the California (Inaudible)

Mr. A. L. Wirin: Well, I think perhaps so for the following reason.

Justice John M. Harlan: Well, if they could.

Mr. A. L. Wirin: Well, I -- I think -- I think perhaps so for the following reason, may I state the reason?

This leads me to my -- to my next argument.

It seems to us that where a discharge of a county employee would demonstrate this fitness is based because of his refusal to answer for federal agency upon invoking the Fifth Amendment.

But certain constitutional considerations and broad policy considerations come into play which might not come into play if the refusal was merely obstinate and adamant and without the use of the privilege for these reasons.

In the first place, the use of the privilege before a federal agency is, of course, a right guaranteed by the Constitution.

This Court has said recently and for many years, it's one of the great privileges and treasures of our -- in our constitutional system.

It is said that no inference of guilt shall -- shall fall as a result of the use of the privilege.

And it is said it is available to the innocent as well as the guilty.

Now, then, had these petitioners merely stubbornly refused to answer a Congressional Committee?

You would not have come into play the -- what we think is an important and ultimately over balancing consideration in favor of these petitioners that all they did is what the Constitution of the United States told them they could do at a place where they had a full right to do it.

And that therefore a discharge under such circumstances, whether intended by the County or not, has the inevitable respect of diluting or negating or seriously abridging the force and effect of this great constitutional privilege.

And of course, I could have answered your question by saying we needn't come to that because that's not this case.

But I do say --

Justice John M. Harlan: Wait a minute.

Is there anything in this record that indicates that they were drawing an inference of Communist activities, inference of guilt from his claim of privilege before the House American -- Un-American Activities Committee?

Mr. A. L. Wirin: I -- I think not.

Justice John M. Harlan: You think not.

Mr. A. L. Wirin: No.

I think that the -- the clear absolute unequivocal position which the County was taken was that the refusal to answer questions of the Federal Committee on any ground whatsoever constituted a ground for -- not constituted but made a -- it was a mandatory ground for dismissal under the statute and that --

Justice Hugo L. Black: Well, now, you make -- you state that in a way it causes distinction without any supposed (Inaudible)

I thought you said that the only thing they -- the questions they asked him and he refused to answer was based on the Fifth Amendment.

Mr. A. L. Wirin: Yes.

Justice Hugo L. Black: Now, you are saying that -- I understood you to say that on any ground whatever.

Mr. A. L. Wirin: Well, the statute under which the County function --

Justice Hugo L. Black: And your arguing as it find here.

Mr. A. L. Wirin: Yes.

The statute said on any ground whatsoever as applied here, the only ground upon which the defendants -- the petitioners now saying they relied is the -- and -- and it is considered by the County is the Fifth Amendment so that this statute broad on its face as narrowly applied to this case involved a discharge of county employees for having invoked the privilege before a federal agency of the Fifth Amendment.

Justice John M. Harlan: Is your argument a due process argument or is it abridging immunity -- federal immunity?

Which in --

Mr. A. L. Wirin: Well --

Justice John M. Harlan: -- your argument?

Mr. A. L. Wirin: -- it's essentially a due process argument.

We'd like to make also a privileges and immunities argument out of it but counsel has called our attention to the fact --

Justice John M. Harlan: It isn't raised.

Mr. A. L. Wirin: -- we didn't make that in the --

Justice John M. Harlan: And --

Mr. A. L. Wirin: -- state court.

We raised it for the first time in this Court and this is embarrassing and so we don't press -- press the matter.

Justice John M. Harlan: Well, your -- your due process argument then which you have to stand on is this.

That although if he had claimed no federal rights at all but simply it refused to answer, California could've fire him without more.

Mr. A. L. Wirin: Well --

Justice John M. Harlan: But since he claimed his federal rights, they can't fire him as a matter of due process -- due process even though the record does not show and there is an expressed disclaimer in the record that they were drawing any unfavorable of -- inference of guilt or anything else from his claim of privilege, is the your argument?

Justice Charles E. Whittaker: Is it really?

Mr. A. L. Wirin: Well, it's one of my arguments.

I think the -- the broader argument which I make --

Justice Hugo L. Black: (Voice Overlap) due process, what do you press?

Mr. A. L. Wirin: The -- the due process which this Court talked about in the Slochower case that a --

Justice Hugo L. Black: What you're talking about?

Fourteenth Amendment or federal immunity?

Mr. A. L. Wirin: Of course.

Well, I am not saying due process, I mean Fourteenth.

Justice Hugo L. Black: Yes.

Mr. A. L. Wirin: I -- I mean that --

Justice Hugo L. Black: (Voice Overlap) stated, I am not expert about that.

Mr. A. L. Wirin: Well -- well --

Justice Hugo L. Black: Definite -- definite way in which you have to raise the constitutional --

Mr. A. L. Wirin: Well --

Justice Hugo L. Black: -- ground --

Mr. A. L. Wirin: Well, I --

Justice Hugo L. Black: (Voice Overlap) objection.

Mr. A. L. Wirin: Our -- our claim is that an arbitrary dismissal by --

Justice Hugo L. Black: And what was your objection in court order?

Mr. A. L. Wirin: This was our -- this is our objection and throughout the California court.

Justice Hugo L. Black: (Voice Overlap) --

Mr. A. L. Wirin: Well, yes, we have it in the record.

Well, let's take the petition for rehearing.

Our complaint is in -- is at page 106, a complaint -- the petition filed in Los Angeles Superior Court and you'll find our federal constitutional grounds listed on page 109 and they are that the discharge was arbitrary and violated due process.

Now, we say that, we say, it violates due process and constitutes arbitrariness for an employer to be charge an employee for having refused to answer before a federal agency invoking the privilege against self-incrimination.

Now, one -- one further --

Justice Hugo L. Black: Do you have -- do you have other (Inaudible) in the First Amendment?

Mr. A. L. Wirin: Oh, yes.

But -- distilling our various points and reducing them in this Court to -- to -- as --

Justice Hugo L. Black: I -- I want to know what you raise because I'm interested in your point that whether or not if this is solely a discharge (Inaudible) the constitutional privilege.

I want to know if I'm barred from considering it by your failure to object on the right ground.

Mr. A. L. Wirin: Well, I -- let me just say this to Your Honor.

There's no question but what -- this is our position that's county counsel can help us out, there is no question about what -- throughout the California courts.

We took the position that a discharge of this petitioners for having refused to answer before this Committee, whereas the refusal was based on the Fifth Amendment was arbitrary and hence, was a denial of due process --

Justice Hugo L. Black: As far as I'm concern, the Constitution doesn't say anything about arbitrary.

Mr. A. L. Wirin: Well, the Slochower does.

Justice Hugo L. Black: (Voice Overlap) --

Mr. A. L. Wirin: The Slochower does.

Justice Hugo L. Black: Yes, I understand --

Mr. A. L. Wirin: And we think that's the umbrella which -- which covers us.

And we think it's the umbrella which covers us for still -- for still another reason.

Because in Slochower, this Court took the view that a person subpoenaed before a committee may sometimes find himself in -- in an ambiguous position as a result of which it is appropriate that he -- that he invoked the Fifth Amendment.

And Mr. Justice, of course, I'm referring to the language of Mr. Justice Clark in that decision.

I'm referring to similar language used by Mr. Justice Harlan in the -- in the Grunewald case as well as I think in -- in Lerner versus Casey.

And I'm referring to somewhat similar language, and then I shall sit down by Dean Griswold in his talks on the Fifth Amendment in which he said that often a -- a witness appearing before a -- a Congressional Committee find himself under such circumstances where he may seek the Fifth Amendment as a sanctuary from --

Justice Hugo L. Black: Well, but you have -- one of your grounds for objection is with respect to the Fifth Amendment in that it bridges its right to be free from being a witness against himself.

Mr. A. L. Wirin: That is --

Justice Hugo L. Black: That is one of your grounds.

Mr. A. L. Wirin: That's one of our grounds, yes.

And what I'm developing now is that under these circumstances of this case, the petitioners' appearance before this Committee was an appearance which justified him in using the Fifth Amendment because at one point, the Chairman questioned whether he was properly invoking the Fifth Amendment where they hadn't waived it and at another point, remarks completely unflattering to the witness were made while photographers were present.

And so we think this is precisely the kind of a case where the use of a Fifth Amendment by a witness before a committee, when that committee was not investigating his fitness for employment cannot be used as the sole reason for discharging him from county employment.

Justice John M. Harlan: (Voice Overlap) --

Justice Felix Frankfurter: Are you -- before you sit down, Mr. --

Mr. A. L. Wirin: Yes, sir.

Justice Felix Frankfurter: -- Wirin.

You make no distinction between Nelson and Globe, do you in this case?

Mr. A. L. Wirin: I -- we do in our briefs.

Justice Felix Frankfurter: In your briefs.

Mr. A. L. Wirin: And our --

Justice Felix Frankfurter: (Voice Overlap) about it.

Mr. A. L. Wirin: -- if I -- of course.

Justice Felix Frankfurter: All right.

Mr. A. L. Wirin: The time of that (Inaudible).

Justice Felix Frankfurter: But what -- where is the distinction?

Mr. A. L. Wirin: -- because tremendous distinction of course.

Globe was given no hearing, no opportunity --

Justice Felix Frankfurter: No, I don't --

Mr. A. L. Wirin: -- to explain of any kind.

Justice Felix Frankfurter: (Voice Overlap) status of the distinction.

Mr. A. L. Wirin: Well, we think the status of Globe that should not disqualify him from relief in this Court because we think Wieman versus Updegraff and Slochower against the Board drew no distinction between temporary employees and permanent employees.

The employees in Slochower included both permanent employees.

Justice Felix Frankfurter: Did they -- did the Court address itself to the problem and say there are no distinction?

Mr. A. L. Wirin: Oh, no, the courts below took the position that there is a distinction.

Justice Tom C. Clark: Slochower was permanent.

Mr. A. L. Wirin: Slochower was permanent.

In Wieman, some of the employees were not.

And in (Inaudible), of course, he was just an applicant for -- for a license and you --

Justice Felix Frankfurter: Was the point taken into consideration?

Mr. A. L. Wirin: Pardon me.

Justice Felix Frankfurter: Is this Court address itself to the problem --

Mr. A. L. Wirin: No.

Justice Felix Frankfurter: -- or merely take out that fact in the record?

Mr. A. L. Wirin: We -- we dug -- we dug it out from the -- both the record and the opinion.

Justice Hugo L. Black: (Inaudible)

Mr. A. L. Wirin: Yes, of course.

Yes.

Justice John M. Harlan: Really, the essence of your position lies in that statute?

There's no rational connection between the claim of privilege before a federal committee and a finding of insubordination as here, is -- is that it?

Mr. A. L. Wirin: Where the Committee is not investigating fitness for employment --

Justice John M. Harlan: Yes.

Mr. A. L. Wirin: -- which should be the only consideration that -- that should prompt the employer.

Justice John M. Harlan: Is that -- that's the essence of your --

Mr. A. L. Wirin: Yes.

Justice John M. Harlan: -- due process (Voice Overlap) --

Mr. A. L. Wirin: It's very -- very strongly putting here but --

Justice Felix Frankfurter: That isn't -- that is all there is to this case.

That seems to be.

(Inaudible)

Mr. A. L. Wirin: All right.

My -- my partner --

Justice Hugo L. Black: What your (Voice Overlap) --

Mr. A. L. Wirin: -- is going to follow me.

Justice Hugo L. Black: Are you abandoning this ground?

The discharge violates the rights of the petitioner under the Constitution of the United States in that with respect to the Fifth Amendment in that it abridges his right to be free from being witness against each other?

Are you abandoning that?

Mr. A. L. Wirin: We -- we are not abandoning that.

We are relying upon it and we are claiming that the discharge by the employer had the effect which Your Honor called my attention.

Justice Charles E. Whittaker: Is it --

Justice John M. Harlan: You didn't raise it.

Justice Charles E. Whittaker: -- is it one thing in your view to refuse to answer a Congressional Committee under an objection of the Fifth Amendment and another thing to refuse to answer to your employer who says now you tell me what facts are?

Mr. A. L. Wirin: That's precisely and exactly and completely our position.

Justice Charles E. Whittaker: You better read Davis against the University of Kansas.

Mr. A. L. Wirin: Oh, we certainly will and (Inaudible).

It could be against us [Laughter].

Argument of Wm. E. Lamoreaux

Mr. Wm. E. Lamoreaux: If the Court please.

I want to make one correction with reference to Globe.

Counsel stated and I think inadvertently that he was a probationary employee.

He was not -- he was merely a temporary employee.

Justice William J. Brennan: What's the difference?

Mr. Wm. E. Lamoreaux: And the difference is that a temporary employee was setup in the rules to take the place of somebody who maybe absent for temporary spasmatic work.

A probationer is afforded to a regular position and during a six-month period, he has -- doing which he proves himself then he becomes permanent.

And Globe was -- what they call a temporary eligible employee and day to day employee might have been let go on any afternoon at 5 o'clock work thus won't let him go.

Justice Potter Stewart: Is that clear as a matter of tenure or statute under California law (Inaudible) summarily dismissed at anytime?

Mr. Wm. E. Lamoreaux: Yes.

It -- I don't know whether the -- whether in the record the rules on temporary employees, I have certified copies in here.

Justice William J. Brennan: Was that ground taken by the (Inaudible)

Mr. Wm. E. Lamoreaux: I beg your pardon.

Justice William J. Brennan: Was that ground taken by the (Inaudible)

Mr. Wm. E. Lamoreaux: Yes.

Justice William J. Brennan: (Inaudible)

Mr. Wm. E. Lamoreaux: That's right.

These are temporary employees and could be let go at anytime and if they were not entitled to a hearing before the Civil Service Commission.

One statement with respect to the hearing which Mr. Nelson had before the Civil Service Commission, we thought we were complying with Slochower in that kind of a hearing and that the purpose of it was for Mr. Nelson if he wished to explain why he had taken the stand he did take before the House Un-American Activities Committee.

At the close of the Civil Service hearing, nobody had put on any testimony however it was -- had been these various exhibits which Mr. Wirin has referred to.

At the close of the hearing, the Chairman asked Mr. Pillsbury who is Mr. Nelson's attorney whether or not there would be any witnesses.

And he said at one place, “Perhaps, Mr. Nelson may wish to testify.”

And then at the bottom of page 5 in the record, he said -- Mr. Pillsbury says “There would be no other witnesses.”

And again on page 7, Mr. Pillsbury says “The employee does not carried or offered any evidence or testimony at this time.

He merely wishes to make a statement through counsel as to his position in regard to his discharge.”

And then the -- those sides rested and the counsel win their arguments.

Justice Hugo L. Black: What was he discharged for?

Mr. Wm. E. Lamoreaux: He was discharged for insubordination and refusing to obey Section 1028.1 of the Government Code.

Justice Hugo L. Black: Now, getting away -- getting away from the definition of it, the legal definition, what would he be discharged for?

Mr. Wm. E. Lamoreaux: Charged for refusing to answer the questions --

Justice Hugo L. Black: Where?

Mr. Wm. E. Lamoreaux: -- certain questions before the House Un-American Activities Committee.

Justice Hugo L. Black: Where he had claimed the privilege of the Fifth Amendment?

Mr. Wm. E. Lamoreaux: That's correct.

He claimed that.

He claimed the privilege of First --

Justice Hugo L. Black: Was there any other reason that the order shows on which his discharge was based?

Mr. Wm. E. Lamoreaux: None of it.

Justice Hugo L. Black: None of it.

Mr. Wm. E. Lamoreaux: No, they -- they can for cause.

Justice Hugo L. Black: What was -- what was his occupation?

What's --

Mr. Wm. E. Lamoreaux: He was a --

Justice Hugo L. Black: -- what position was he occupied?

Mr. Wm. E. Lamoreaux: Medical social worker.

What --

Justice Hugo L. Black: Medical social worker.

Mr. Wm. E. Lamoreaux: Now, what -- what that is, I don't know but that was the title of his -- his position.

Justice Hugo L. Black: Evidently a very sensitive position.

Mr. Wm. E. Lamoreaux: Yes.

[Laughs]

Justice Felix Frankfurter: Let me ask you this question.

Mr. Wm. E. Lamoreaux: Yes, sir.

Justice Felix Frankfurter: Can -- can a person like this employed by the County to discharge except on some statutory authority for discharge?

It must -- in other words whoever is the functionary of -- purview of discharge must he have some statutory authorization.

Mr. Wm. E. Lamoreaux: No, Your Honor.

Justice Felix Frankfurter: What?

Mr. Wm. E. Lamoreaux: No, he does not.

Justice Felix Frankfurter: But --

Justice Charles E. Whittaker: (Inaudible)

Mr. Wm. E. Lamoreaux: No, after he become a permanent tenure, he can still be discharged for -- for cause.

The -- the --

Justice Felix Frankfurter: I understand that.

Mr. Wm. E. Lamoreaux: (Inaudible) have it but --

Justice Felix Frankfurter: What is the source of authority for discharge?

Is it a statute or just --

Mr. Wm. E. Lamoreaux: Civil Service Rules.

Justice Felix Frankfurter: Civil Service Rules.

Mr. Wm. E. Lamoreaux: Of the Civil Service Commission.

Justice Felix Frankfurter: Well --

Justice Charles E. Whittaker: (Inaudible)

Mr. Wm. E. Lamoreaux: I beg your pardon.

Justice Charles E. Whittaker: They have the effect of law?

Mr. Wm. E. Lamoreaux: Yes.

Justice Charles E. Whittaker: (Inaudible)

Mr. Wm. E. Lamoreaux: Yes.

They're --

Justice Felix Frankfurter: He could --

Mr. Wm. E. Lamoreaux: They are authorized by the charter of the County, the charter set for the Civil Service System and says that the service -- the Commission shall make rules and the rules shall provide for this and this and this and this.

Justice Felix Frankfurter: And if -- if a person who has tenure as well as protected by the Civil Service law of your State, if he's fired for a reason not sanctioned by the Civil Service law of the State, could he bring a proceeding for illegal discharge?

Mr. Wm. E. Lamoreaux: Well, he first -- Justice Frankfurter, the -- the (Inaudible).

Justice Felix Frankfurter: Because I don't like the cut of your hair.

I don't like the crewcut.

Mr. Wm. E. Lamoreaux: That's true.

Justice Felix Frankfurter: Now --

Mr. Wm. E. Lamoreaux: Then he -- within 10 days, he asked for hearing and go before the Civil Service Commission.

And then the Civil Service Commission decides whether or not my boss justified and fired me because of the cut my hair.

Justice Felix Frankfurter: Now, the date for justification must be in the rules or legislation.

Is that right?

Mr. Wm. E. Lamoreaux: That's correct.

Justice Felix Frankfurter: Therefore, you must go back to some California law to justify the charge, is that correct?

Mr. Wm. E. Lamoreaux: No.

It will be just in the --

Justice Felix Frankfurter: Well, I -- my law, I mean, Civil Service Rule that had defined (Voice Overlap) --

Mr. Wm. E. Lamoreaux: That's correct.

Justice Felix Frankfurter: Is that right?

Mr. Wm. E. Lamoreaux: But he wouldn't have to necessarily go there to find a particular reason.

Justice Potter Stewart: Just -- just as the (Inaudible)

Mr. Wm. E. Lamoreaux: That's right.

Justice Felix Frankfurter: You mean he doesn't --

Justice Charles E. Whittaker: Now --

Justice Felix Frankfurter: -- he -- he wouldn't give the -- he wouldn't give the authorization of such rule so and so?

Mr. Wm. E. Lamoreaux: No.

There -- there's no -- no such thing as that to --

Justice Felix Frankfurter: Well, how does the man --

Mr. Wm. E. Lamoreaux: (Voice Overlap) --

Justice Felix Frankfurter: -- know when he fired within the authority of the rule or he is fired capriciously?

Mr. Wm. E. Lamoreaux: He --

Justice Felix Frankfurter: I don't object to the word arbitrarily so I'll use it.

Mr. Wm. E. Lamoreaux: The -- that's tested up before the Civil Service Commission.

If that -- they will (Inaudible) and still feels aggrieved then he tries by mandate.

Justice Felix Frankfurter: Now --

Mr. Wm. E. Lamoreaux: Now, there --

Justice Felix Frankfurter: When -- when, what's the name, Nelson was fired, was there any authorization covering his case?

Mr. Wm. E. Lamoreaux: The authorization covering Nelson's case was Section 1028.1 of the Government Code --

Justice Felix Frankfurter: All right.

And that's the reason --

Mr. Wm. E. Lamoreaux: -- the state law.

Justice Felix Frankfurter: --why he was fired?

Mr. Wm. E. Lamoreaux: Because it says in there makes the duty of him to answer questions so that if you don't answer you're insubordinate and subject to discharge the matter provided by law.

Justice Felix Frankfurter: But you said to an answer to Justice Black's question, he was fired because he didn't answer Congressman Miller or some congressman.

Mr. Wm. E. Lamoreaux: That is correct.

Justice Felix Frankfurter: Well, it's correct only if that comes within the provision of failure to answer insubordination.

You said -- two minutes ago, you said he can be fired for insubordination in not answering questions, is that right?

Mr. Wm. E. Lamoreaux: That's correct.

Justice Felix Frankfurter: So that the --

Mr. Wm. E. Lamoreaux: Because it would bring to Section 1028 of the Government Code.

Justice Felix Frankfurter: Well, if that's your justification, then he was quiet for not answering questions which constitute insubordination under California law.

Mr. Wm. E. Lamoreaux: That's right.

Justice Felix Frankfurter: All right.

Justice Hugo L. Black: You mean then for quiet feeling to answer questions before the Committee.

Mr. Wm. E. Lamoreaux: That's correct.

Justice Hugo L. Black: (Voice Overlap) the Committee.

Mr. Wm. E. Lamoreaux: Before the --

Justice Hugo L. Black: And that's all.

Mr. Wm. E. Lamoreaux: That's right.

Justice Felix Frankfurter: Isn't -- that is all as the California law which says that isn't subordination, isn't that right?

Mr. Wm. E. Lamoreaux: That's correct.

The -- the -- under the California law --

Justice Hugo L. Black: (Voice Overlap) insubordination to the federal --

Mr. Wm. E. Lamoreaux: -- he was insubordinate for not having answered the questions and that's why he was fired.

Justice Hugo L. Black: And the sole basis are that -- is when he is called upon the Congressional Committee he said, “I claimed the benefit of constitutional privilege not to testify.”

The California then discharged him by having claimed his privilege.

Mr. Wm. E. Lamoreaux: The discharge for not having answered.

Justice Hugo L. Black: Yes, for not having answered.

That's right.

Justice Charles E. Whittaker: (Voice Overlap) you would say (Inaudible) question.

That's the thing left in the (Inaudible) and that's all the difference involved.

Mr. Wm. E. Lamoreaux: The questions give -- or it didn't --

Justice Hugo L. Black: Did he fail to answer?

Mr. Wm. E. Lamoreaux: Yes, he refused to fail -- answer the questions which were given by, I think, Mr. Taverner for the --

Justice Hugo L. Black: Did he fail to answer the other questions?

Mr. Wm. E. Lamoreaux: Subcommittee of the House Un-American Activities.

Yes, he did.

Others --

Justice Hugo L. Black: Was he discharged for failing to answer any other questions?

Mr. Wm. E. Lamoreaux: No, just the ones that -- which we referred -- which where I referred to when I -- in -- in the record.

Justice Hugo L. Black: Congressional Committee questions.

Mr. Wm. E. Lamoreaux: Yes.

Justice Felix Frankfurter: And I suppose --

Justice Hugo L. Black: Can possible in it for you to make it involve of that.

Justice Felix Frankfurter: Well, let me ask you a few questions too.

Mr. Wm. E. Lamoreaux: Yes, sir.

Justice Felix Frankfurter: Let's be accurate about these things.

When he was before the Civil Service Commission, if the Mass case is the ruling law of California, as I suppose it is, would he have been allowed to explain the Commission why he refused to answer the question?

Mr. Wm. E. Lamoreaux: Of course, he would, Your Honor.

Justice Felix Frankfurter: Could he give explanation and certified answer to these questions, these and these and these unfair consequences would follow.

Could he have done that?

Mr. Wm. E. Lamoreaux: He could have done that.

Justice Felix Frankfurter: Could he explain that in detail if he choses?

Mr. Wm. E. Lamoreaux: He could have done, sir.

Justice Felix Frankfurter: He can give them any relevant reasons for not answering --

Mr. Wm. E. Lamoreaux: That's right.

Justice Felix Frankfurter: -- in which that Court would have had to respect.

Mr. Wm. E. Lamoreaux: That's right.

Justice Hugo L. Black: And if that is -- if he has been discharged on that ground, your order would've said so, wouldn't it?

Your order (Voice Overlap) --

Mr. Wm. E. Lamoreaux: On what ground?

Justice Hugo L. Black: -- speaks the true (Voice Overlap) --

Mr. Wm. E. Lamoreaux: On -- on what ground Your Honor?

Justice Hugo L. Black: If he had been discharged for failing to give a testimony in anyway voluntarily or involuntarily before the Civil Service Board, what was he discharged for?

Mr. Wm. E. Lamoreaux: He was discharged for refusing to testify before --

Justice Hugo L. Black: When?

Mr. Wm. E. Lamoreaux: -- the House Un-American Activities Subcommittee.

Justice Hugo L. Black: Are you able to see from this record as a representative of California or the city of whatever it is that he was discharged for failing to give any information under any circumstances to your Civil Service Board.

Mr. Wm. E. Lamoreaux: No, he wasn't discharged for -- for any failure to give certain information.

Justice Hugo L. Black: Either voluntarily or involuntarily.

Mr. Wm. E. Lamoreaux: That's right.

Justice Felix Frankfurter: Well, he was given an opportunity, was he?

Mr. Wm. E. Lamoreaux: He was given his opportunity to --

Justice Felix Frankfurter: And he refused --

Mr. Wm. E. Lamoreaux: -- to explain.

Justice Felix Frankfurter: -- didn't it?

And he refused, didn't it?

Mr. Wm. E. Lamoreaux: And he refused.

Justice Hugo L. Black: Why did he refuse?

Justice Felix Frankfurter: Page 7.

Mr. Wm. E. Lamoreaux: Page 7 of the record.

Justice Hugo L. Black: And is that the reason they discharge him?

Mr. Wm. E. Lamoreaux: No.

Justice Hugo L. Black: It is not, certainly not, the Board shows it.

Justice Felix Frankfurter: Is that part of the record (Inaudible) read?

Mr. Wm. E. Lamoreaux: This is -- this is part of the record.

Justice Felix Frankfurter: Must we -- must we give him aid of the record and that -- read the whole of it and get the order of a commission in the same way which you get the meaning of a judgment in the light of the record.

Justice Hugo L. Black: Must -- must we in order to find this man right for the discharge, find the ground [Laughter] that your order didn't rely.

Are you defending it on any ground except that he failed to testify before the Congressional Committee?

Mr. Wm. E. Lamoreaux: That's the only reason --

Justice Hugo L. Black: That's the only reason --

Mr. Wm. E. Lamoreaux: That's the reason.

Justice Hugo L. Black: -- the California depends on.

Mr. Wm. E. Lamoreaux: And because he comes squarely within the Barenblatt case.

Justice Hugo L. Black: Yes.

Mr. Wm. E. Lamoreaux: That --

Justice Hugo L. Black: (Inaudible)

Mr. Wm. E. Lamoreaux: And that there's nothing in Watkins, there is nothing in any other cases which my mind go against the way he was handled.

Now, we come to Globe and our position there is that both Mass and Slochower referred to permanent employees.

And as to those, they -- both cases are very firm and properly so that they should be entitled to a hearing and cannot be summarily discharged.

When it comes to your temporary employee, the case did not cover that situation, that's what Globe was and our position there is that he was not entitled to a hearing and therefore his discharge was also proper.

Justice William J. Brennan: (Inaudible) question asked before he could have been discharged by a superior (Inaudible)

Mr. Wm. E. Lamoreaux: Oh, yes.

That's right.

As far as Globe goes, he didn't like the way he dress, the spirit of letting go.

Argument of Fred Okrand

Mr. Fred Okrand: May it please the Court.

I'd like to address myself first with reference to the Globe discharge which was the discharge that Mr. Lamoreaux concluded on.

Our position is that the mere fact that Mr. Globe was a temporary employee, it doesn't dispose of this case.

Mr. Justice Brennan asked if he could be discharged for any reason because he was temporary employees and Mr. Lamoreaux answered yes.

We suggest that the Constitution doesn't go that far.

There is no dispute in this record that he was discharged for refusal to answer before the House Committee, no dispute at all.

Justice Potter Stewart: (Inaudible) discharge --

Mr. Fred Okrand: Now --

Justice Potter Stewart: -- for -- for having his haircut --

Mr. Fred Okrand: No.

Justice Potter Stewart: (Inaudible)

Mr. Fred Okrand: We say not.

And we say we have authority for that in the Wieman case where this Court repeated what it had been said in the Mitchell case that Congress could not pass a law which says that no Jew, Republican or Negro could be employed.

Now, Congress can't do that.

The County of Los Angeles couldn't do it nor could the County of Los Angeles have discharge a temporary employee for being a Jew, a Republican or Negro.

And we say that the County of Los Angeles cannot discharge a temporary employee for merely refusing to answer on proper constitutional ground before the (Voice Overlap) --

Justice Potter Stewart: Are the Civil --

Justice Charles E. Whittaker: Now --

Justice Potter Stewart: -- Service regulations in the record?

Mr. Fred Okrand: They are not.

Justice Charles E. Whittaker: What are the constitutional grounds (Inaudible) what prohibits one from discharging another when no reason at all admittedly need be given.

Mr. Fred Okrand: We think there may be a difference in a case where no reason may be given and a case where it's clearer that the reason that is given is an unconstitutional reason.

Justice Charles E. Whittaker: In other words, though you didn't have to give it all, it'd be given bad when you (Voice Overlap) --

Mr. Fred Okrand: Right.

If you discharge a person in violation of the Constitution, you can't do that.

That's the -- as we read Wieman and that's as we read Slochower.

We just -- we think that the Due Process Clause of the Fourteenth Amendment protects the citizen from arbitrary conduct by his government.

And it -- to go a little further, it protects an applicant to a job from arbitrary conduct by his government and in this case, it protects an employee from arbitrary discharge by his government.

Justice John M. Harlan: Well, they've fired provided that they didn't give any reason.

Mr. Fred Okrand: Well, if -- if they -- if we -- if they didn't give a reason but even if we could prove, if we could prove that it was unconstitutional reason, we would go that far and say that the Due Process Clause would protect him.

Usually, it can't prove --

Justice John M. Harlan: Tell me, did you raise or didn't you the privileges immunities point?

I understood --

Mr. Fred Okrand: Well, as Mr. Wirin --

Justice John M. Harlan: -- your partner (Voice Overlap) --

Mr. Fred Okrand: -- said this is embarrassing, we can raise that.

We raise it in our petition.

It's clear there.

It's very clear as clear as any lawyer ought to make it, but, Your Honor, we did not press it in the appellate courts.

Justice John M. Harlan: All right.

I see.

Mr. Fred Okrand: So it's in the record in the sense that we raised it but we did not press it in the appellate courts.

Justice John M. Harlan: Is there at large incidence?

Mr. Fred Okrand: It's there.

Unknown Speaker: (Inaudible)

Mr. Fred Okrand: We hope so, we think so.

We think so.

Unknown Speaker: (Inaudible)

Mr. Fred Okrand: Well, it's -- it's there in black and white in this record raised by us.

But we -- we can't tell this Court that we urged upon the District Court of Appeal or even upon the Supreme Court on petition for hearing.

Unknown Speaker: (Inaudible)

Mr. Fred Okrand: Yes.

We are present.

We're permitted to press it, we do press it.

I see I'm through just one more thing on this record 7.

Let me just say this, Your Honor.

In context, well, Mr. Pillsbury said, the employee does not care to offer any evidence or testimony as this time.

What he said was and what he meant was the employee does not care to offer any more evidence at this time.

He had already offered evidence showing his fitness for employment.

So that's the way this sentence should be read.

Justice Charles E. Whittaker: (Inaudible) if I may.

One last question (Inaudible) what would the (Inaudible) have said Nelson at this hearing that would have been a defense?

Mr. Fred Okrand: I don't know.

I don't know.

Justice Charles E. Whittaker: Would it have been a defense to have answered categorically the questions which he has said to have refused to answer to the House Committee?

Mr. Fred Okrand: We have no construction of that face of the case.

Justice Charles E. Whittaker: Well, you have the statute.

Mr. Fred Okrand: The statute --

Justice Charles E. Whittaker: What the statute say?

Mr. Fred Okrand: -- the statute would say he had to be filed.(Voice Overlap) --

Justice Charles E. Whittaker: The statute says all he can do is explain why he did what he did some place else.

Mr. Fred Okrand: Well, the statute doesn't say that.

Justice John M. Harlan: (Voice Overlap) --

Justice Charles E. Whittaker: Well, then, it --

Mr. Fred Okrand: The Mass case puts that kind of a gloss on.

Justice John M. Harlan: There is a strong implication or intimation or whatever you chose to call for the Mass case that despite the statute on its face --

Mr. Fred Okrand: Yes.

Justice John M. Harlan: -- an explanation might be a defense.

Mr. Fred Okrand: That's right.

Justice John M. Harlan: You -- you agree with that.

Mr. Fred Okrand: I agree with that.

We say however that the Speiser case says that they can't put that burden on us within the Due Process Clause.

Justice Charles E. Whittaker: Now, in -- and I can read.

Here is Section 1907 in the Civil Service Rules of the County of Los Angeles it's says, “Such an employee shall be entitled to answer, explain or deny the charge rules in writing within 10 business days but shall not be entitled to a hearing except in the case of fraud etcetera.”

Mr. Fred Okrand: That's --

Justice Charles E. Whittaker: Now --

Mr. Fred Okrand: -- first to a temporary employee, Your Honor.

Justice Charles E. Whittaker: That's a temporary employee.

Mr. Fred Okrand: Yes.

Justice Charles E. Whittaker: But he have a different rule with respect to permanent --

Mr. Fred Okrand: Well, the -- the permanent employee has a right to a full hearing.

That's the distinct -- that -- they only cite that to show that a temporary employee has no right to a hearing.

Justice Charles E. Whittaker: Now, I see.

All right.

Justice Hugo L. Black: I presume that might mean that he's (Inaudible) to deny that he refused to answer (Voice Overlap) --

Mr. Fred Okrand: Yes.

He's entitled to, he didn't though.

Unknown Speaker: Thank you, gentlemen.

Featured:

Vitarelli v. Seaton - Oral Argument, Part 1

Tue, 04 Dec 2012 20:36:31 +0000

Case:

Vitarelli v. Seaton

Media File:

101_19590401-argument-1

Related Transcript:

101_19590401-argument-1

Transcript:

Argument of Clifford J. Hynning

Chief Justice Earl Warren: Number 101, William Vincent Vitarelli, petitioner, versus Fred A. Seaton, Secretary of the Interior, et al.

Mr. Clifford J. Hynning: Mr. Chief Justice --

Chief Justice Earl Warren: Mr. Hynning, is that correct pronunciation?

Mr. Clifford J. Hynning: That's correct.

Please the court.

This case is here on a writ of certiorari to the Court of Appeals of District of Columbia Circuit.

It involves a former governmental employee, an educational employee of the Department of Interior who was removed in 1954 as a security risk from a position, which the government concedes, was non-insensitive, this is, this case doesn't involve any issue of secrets information, confidential information or anything of that sort.

The suit was instituted in the summer of 1956.

It was heard on cross motions for summary judgment in the District Court, which granted the summary motion for the government.

Then it went up to the Court of Appeals, which affirmed it.

Now it is our contention here that the firing of this governmental employee from a non-sensitive position has a security risk and under the purported authority of a security order in the security act, it was unlawful under the decision of this court in Cole versus Young.

And that he was therefore entitled to reinstatement as a result of a fact that his firing was unlawful.

Now we are asked -- we asked in the District Court for both an order expunging the record and declaring the firing to be unlawful and for reinstatement.

We achieved part of that through a so-called voluntary expunging of the record.

The issue here is whether the firing was so unlawful that he was entitled to -- is entitled to reinstatement.

Now turning to the facts --

Justice John M. Harlan: (Inaudible)

Mr. Clifford J. Hynning: That is correct, at the time of his removal.

Now there are certain changes that have occurred in the personnel policy of the Department of Interior that I am going to allude to later which somewhat modifies the answer to that question.

I think it's necessary here to recall a little bit of the political atmosphere of 1954 when this security board -- when he was suspended and when he had his hearing before the security board.

This was at a time prior to the decisions of this Court in Peters, in Service and Cole and there was a common assumption within the government that at a security hearing there were no legal problems or constitutional problems.

That appeared to be the result of the decision of this Court in Bailey against Richardson which had been affirmed by an equal division.

Now Vitarelli, as I said, was a teacher, an educational employee of the Office of Trust Territories of the Department of the Interior.

He was employed to train native teachers out in the Caroline Islands.

Now these Caroline Islands are islands being administered by the United States in trust for the United Nations.

They were the islands that were previously administered by Japan as mandated islands under the League of Nations.

Now this case started initially with a newspaper interview with a high commissioner of the trust territories of the pacific, and this was printed in a Guam newspaper of March 13, 1954 and it's been reproduced as Pages 1 and 2 of the record in this case.

The headline here was that it was going to be a security probe in the trust isles and that five employees were to be ousted as bad risks or asked to resign.

And an example was given of a known conscientious objector where the high commissioner stated that an advocate of pacifism is out of place and so sensitive and strategic in area as the trust territories.

I think this is a little ironic to find the high commissioner of trust territories believing that pacifist is out of place in some islands being administered by the United States in trust for the World Peace Organization.

A few days later he received a cable from the Secretary of the Interior advising him that he was being suspended without stating any of the charges on which he was being suspended.

I assume that this was in the interest of economy, he was going to receive letter a little later stating the charges.

That came about a week later and it's been reproduced in the record on pages 3 through 6.

Now these charges allege that in the years from 1941 to 1945 he was either a member of or affiliated with one sympathetic association with the Communist Party, with members of the Communist Party.

And then he went -- they went to list that he was in association with certain named individuals that in 1945 he had registered a preference for the American Labor Party that while an instructor at Columbia University, he had subscribed to the USSR information bulletin and had purchased copies of the Daily Worker and the New Masses.

That in a previous answer to, under the Truman Loyalty Program, he had stated that his association with these named individuals were casual and it was asserted that this was not true, that his associations were those of an intimate friendship.

It then went on to allege that he was therefore not reliable or trustworthy in view of these facts and that he had deliberately misrepresented falsified or admitted material facts or he might be subject to coercion, influence or pressure.

He was also notified that he was entitled to a hearing under the security order and he was supplied with a copy of the executive order under departmental security regulations as well as the Act of 1950, the Security Act.

At that time, he was given the alternative of returning to Washington at his own expense from half way around the world, try to answer these charges or if he wanted to bring his family back at government expense, he could resign.

He then tried to see how he could raise the funds to travel, but fortunately the government somehow or other was induced to change its mind and gave him a travel request so he could proceed to Washington.

At this time, of course, he was suspended without pay.

He arrived here and prepared an answer together with approximately 44 affidavits principally from his associates on the job out in the trust territories.

In this answer, he denied any sympathy -- membership in or sympathy with the Communist Party or anyone who was a Communist, but he was informed that his answer was insufficient and therefore a hearing was scheduled.

He appeared at this hearing with counsel together with four witnesses, live witnesses.

The only live witnesses at this hearing were the petitioner and his four witnesses in support of him.

One of them was the very distinguished author James Michener, who wrote the Tales of the South Pacific who had been instrumental for Vitarelli's employment in the Office of Trust Territories.

As I said, the government presented no evidence of any kind.

He was asked a great variety of questions.

Now these, the nature of these questions are of the --

Justice John M. Harlan: The records of the procedure are on file in this Court?

Mr. Clifford J. Hynning: No sir, no sir.

This case is submitted here on what is a somewhat abbreviated record of only about 50 pages, the record of the -- consist of the pleadings in the District Court to which were not attached the transcript.

Justice John M. Harlan: I read all of that and I couldn't find in the record, I couldn't find it.

Mr. Clifford J. Hynning: Now the questions that I am referring to were contained in certain allegations in the complaint.

And since case was disposed off on the basis of a motion for summary judgment, these questions were -- are in the record only to the extent they are contained in paragraph 26.

Justice John M. Harlan: (Inaudible)

Mr. Clifford J. Hynning: We have not discussed that question, I have no objection thereto.

Chief Justice Earl Warren: Has it been written up?

Mr. Clifford J. Hynning: It's in type written form.

Chief Justice Earl Warren: Is there any objection from the government?

Argument of John G. Laughlin, Jr.

Mr. John G. Laughlin, Jr.: No, no none.

No objection on behalf of the government.

Chief Justice Earl Warren: So then, will you present it then for the (Inaudible)?

Rebuttal of Clifford J. Hynning

Mr. Clifford J. Hynning: We will.

Now in this paragraph 26 of the complaint where we enumerated the kind of -- or endeavored to describe the kind of hearing that was afforded here and show the nature of questions asked of this witness.

We stated that he was a -- it was inquired at first whether he thought this was a republican plot to get rid of democrats.

What were his views on --

Justice Tom C. Clark: What was that first question?

Mr. Clifford J. Hynning: The question is did he believe the security program was a republican plot to get ride of democrats.

Now the exact question, well it's not in the record, is reproduced in the margin of the brief on page 9, footnote 3.

The security officer stated, do you think that the security program undertaken by Executive Order 10450 is politically inspired from the Republican administration?

Justice Tom C. Clark: Who asked that?

Mr. Clifford J. Hynning: The security officer.

Justice Tom C. Clark: What was the date?

Mr. Clifford J. Hynning: Of the hearing?

Justice Tom C. Clark: The date of that question.

Mr. Clifford J. Hynning: The date of that question was May or June 1954.

Now I think there is an even more extraordinary exchange with respect to his vote for the presidency in 1948, in 1940, which are set forth verbatim in the brief on pages 29 to 30.

They inquired whether he had voted for Mr. Wallace and in the -- who was running on the progressive ticket in 1948.

And he said I voted for Henry Wallace once and the Chairman of the Hearing Board said just one question on that, did you not vote for Henry Wallace when he was a candidate for Vice President?

Yes I did.

The Chairman - Then you voted for him once more, more than once?

Now since the issue of veracity is I believe one of the crucial issues in this administrative hearing, this was one of the means of testing his candor and truthfulness I presume.

Now among the other questions asked of him at this hearing was what were his views on racial equality.

Did he believe there was discrimination against Negros and Jews?

He was asked questions on the methods of pricing cotton in Georgia, whether he had heard of consumers union.

What was Black Mountain transcendentalism?

Justice Tom C. Clark: What is it by the way?[Laughter]

Mr. Clifford J. Hynning: I haven't found anybody who knows.[Laughter]

Justice Tom C. Clark: Did he know?

Mr. Clifford J. Hynning: He said he didn't know.

He was asked whether he was quite hap up over the one world idea, and whether he was still, June 1954, it's in parenthesis by me, a strong advocate of the United Nations.

Unknown Speaker: Who was asking the question?

Mr. Clifford J. Hynning: The security officer.

Chief Justice Earl Warren: This was at the hearing?

Mr. Clifford J. Hynning: At the hearing.

Now these questions have been -- the security officer at that time was the assistant solicitor of the Department of Interior Mr. Reuel Armstrong, who since became solicitor, but I believe has left the government service.

Now that was the nature of the hearing that he had and of course the problem that confronted his then counsel was what were the issues in this proceeding, were this -- were they charges.

They stated at the hearing his loyalty was not in question, and then they went over this whole area of political opinion.

I might say political partisan opinion.

Now a little later the Hearing Board recommended that his retention in employment was not in the interest of the national security and that recommendation was endorsed by the Secretary of the Interior, who said that as a result thereof, the employment of Vitarelli was to be terminated for the reasons specifically set forth in the letter of charges.

Now the letter of charges I have summarized to you and since it was conceded at the hearing, that he was entirely loyal, it would appear that by a process of elimination, the question was one of veracity that somehow or other he was not deemed a person who had fully told the truth.

Now I do not know this, I don't know what -- why he was terminated.

I can only go by the documents and analyze what appears in the transcript.

But I believe that when you have looked at several of these transcripts in here, you find -- tend to find a pattern on the part of the security machinery that can be described only as an obsession with veracity.

That is you are charged with something that isn't perhaps too important, but if you don't admitted and come clean in someway other, we know you are lying, we are going to get you on that.

Now I think that is the explanation of what the Hearing Board did, but it's entirely a deduction or a speculation on my part.

All that I can see in the record is that the Secretary of the Interior said that his employment should be terminated in the interest of national security for the reasons specifically set forth in the charges, and most of those charges seem to disappear if you assume that he is perfectly loyal.

Chief Justice Earl Warren: You say the government concedes that there is no question of loyalty in the case.

Mr. Clifford J. Hynning: I believe that's correct.

It was so stated twice on the face of the transcript by the security officer.

I do not believe there is any controversy with the government on that point at all, nor is there any controversy on the nature of the position he had.

Justice Potter Stewart: That is -- that's being -- as to it's being non-sensitive?

Mr. Clifford J. Hynning: As to it's being non-sensitive, that he was training teachers of native children in the Caroline Islands in the Pacific.

Now the next stage, in this proceeding came up along approximately a year later, and if it were to be written up in fiction, it would be challenged I assume by many reviewers on the ground that it involves too many coincidences.

But Viterelli's counsel was taking a trip around the world, and while he was waiting at the airport out in India, he ran into a person who said he was a personnel officer of the Officer of Trust Territories of the Department of the Interior.

So his counsel introduced himself and said that he had been attorney for Viterelli.

Now the personnel officer said well that was a case that should have been handled differently.

Now this is alleged in our complaint that Viterelli should -- wasn't a person of doubtful loyalty of security, he just didn't have common sense, because he associated with the natives.

Justice Tom C. Clark: Associated with what?

Mr. Clifford J. Hynning: With the natives.

Out in the -- he was supposed to train native teachers in the Caroline Islands, but he permitted his children to associate with native children and this reflected a lack of common sense.

Well his counsel represented these facts to the Secretary of the Interior, and on the occasion of the personnel officer's return to the United States, a supplemental hearing was held in which all of this was testified to under oath by the personnel officer.

So at this second hearing, Viterelli did have a witness on behalf of the government come in and more or less confirm what his counsel had represented had transpired there at that airport in India.

Well this was the posture of the situation, of the case, the time this Court decided Cole versus Young.

Whereupon a demand was made on the Secretary of the Interior for immediate reinstatement on the ground that he held a non-sensitive position.

When that demand was not complied with, the suit went into the District Court.

Now at that time, the government came up with the defense that in as much as Viterelli had held a position called Schedule A, that is one of the scheduled accepted from the competitive civil service under the Lloyd-La Follette Act.

He could be fired for no reason at all and therefore he had no right to -- right of reinstatement.

At that point, we served a notice for the taking of depositions on the Secretary of the Interior and the respondent members of Civil Service Commission to inquire of why they insisted on firing him with a badge of infamy as a security reason when he could have been fired for no reason at all, without any infamy, without damage to his profession and career.

The government opposed this discovery on the ground that these questions were hypothetical and immaterial.

I am now reading from page 11 of the brief, “the only relevant legal issue herein is whether the procedures in fact employed by the defendant's secretary in accomplishing plaintiff's discharged were legal and valid.

Neither the existence of any other procedure which could have been used to discharge plaintiff, nor the reason why it was not in fact employed can have any possible relevance therein.”

Noting this as a concession of record, we abandoned the effort of discovery.

Now the district judge, the -- the next step then was the voluntary expunging of the record by respondents.

They stated that a new personnel form had been issued which struck from it all references to the executive order into the Act of 1950.

And stated that that was the maximum relief to which this petitioner was entitled.

Now the district judge felt that since Vitarelli was not in the competitive civil service and was therefore an employee at will, he could not order him reinstated since the government -- since the employing department could turn around that same day and fire him for no reason at all.

Now in the Court of Appeals we argued the constitutional issue that the -- while Vitarelli could have been dismissed as an employee at will, he was not so dismissed, he was dismissed as a security risk under a legal authority which was not applicable thereto.

Now the manner of his dismissal was defamatory.

It started with a newspaper conference on Guam and it went on from there.

It defamed him in his right to follow his calling as a teacher.

Now the Court of Appeals held that there was a modicum or a minimum of constitutional rights available to an employee such as Vitarelli.

He had a right to be free from dismissal on unconstitutional or flagrantly arbitrary grounds.

But that no such dismissal had occurred here, but the treatment was not arbitrary and was consistent with due process referring to the fact that he has charges, there was the paraphernalia of a hearing and review.

Furthermore the Court of Appeals had held that even these things aside, there was a clear basis for the executive to have fired Vitarelli on the ground that he was untrustworthy.

And they recited here at this paragraph of the letter of charges which said that he was untrustworthy or alleged that he was untrustworthy.

The Court of Appeals further held that he had gotten the maximum relief that he would be entitled to under any circumstances namely an expunging of the record.

Now this expunging of the record is a rather interesting thing in this case, the government recited that they have expunged all references to any adverse findings made with respect to Vitarelli under the security order.

So that means that the letters making a finding that his removal was required by the interest of national security, that's out, and for the reason specifically set forth in letter of charges, he look -- he must then look at the letter of charges to see what remains after the expunging takes place.

Now the subject matter is suspension under the executive order, that's out.

Next paragraph says by authority of the executive order you are suspended, so that's out.

The next paragraph, number two says a specific -- a specific of security interest permits your charge as follows, so that's out, that's under the executive order.

Then you get down to paragraph number three which says your behavior et cetera show you to be unreliable in the light of the facts above alleged that's out, because it refers obviously to the facts above alleged.

Moreover the language of numbered paragraph 3 is paradigm from the criteria for security dismissal under the executive order.

Now in the next paragraph number four, there is your advice of your rights to have a hearing under the executive order.

So that's out.

The last paragraph says you get a copy of the executive order, well that's out.

Unknown Speaker: Where are you reading?

Mr. Clifford J. Hynning: I am reading from the record pages 3 through 6.

Now that follows therefore that this document which furnishes a clear basis for the Secretary's action after being expunged reads to Vitarelli from the Secretary of Interior signed Douglas McKay.

I think that's all that remains under that expunging.

Now the basic contention that remains here I think is that the constitutional rights of an employee such as Vitarelli are coterminous with the rights given to him by Congress and if Congress has given him no rights, he has no constitutional rights.

Justice John M. Harlan: Excuse me Mr. Hynning, but I suppose Vitarelli has stated (Inaudible)

Mr. Clifford J. Hynning: That is one -- no – now I think at this point I should take up the change in the personnel policy that's occurred in the Department of the Interior, and in doing that I want to apologize for bringing it up at this late stage.

But neither counsel for the government nor I knew about this until after the final brief had been filed in this case just a few days ago.

And it took a little clarity now to find, but at the time of Vitarelli's dismissal in 1954 all the overseas positions of educational employees at the Department of Interior were in Schedule A.

But then in 1956, the President authorized a gradual blanketing in of overseas positions and the Secretary of the Interior acting entirely within the Department of the Interior blanketed in all these education positions as of April 1, 1956 before this lawsuit was started.

Justice William J. Brennan: Blanketed in what?

Mr. Clifford J. Hynning: Into the competitive civil service.

Now under and --

Justice Felix Frankfurter: May I trouble you for the date?

When -- when was the dismissal?

Mr. Clifford J. Hynning: The dismissal was made effective September 10, 1954.

He was suspended in April 1954.

The change in the personnel practices of the Department of Interior were made effective on April 1, 1956.

Now under this blanketing in procedure it was necessary for an employee to meet two tests.

He had to pass what was equivalent to an -- passing an unassembled civil service examination that is he was qualified by training and experience.

And secondly he had to have the recommendation of the high commissioner.

Now it is our --

Unknown Speaker: (Inaudible)

Mr. Clifford J. Hynning: Then he became a regular civil servant that is a civil servant in the competitive civil service and entitled to the statutory protections of the Lloyd-La Follette Act.

Justice Hugo L. Black: What date was that?

Mr. Clifford J. Hynning: This was done in the Department of Interior as of April 1, 1956.

Justice Felix Frankfurter: And he satisfied these two conditions?

Mr. Clifford J. Hynning: He satisfies the first condition, the second condition involves the act of the High Commissioner of the Trust Territories, an official of the Department of the Interior.

Now with respect to that I think that the Court must assume that in exercising that discretion the High Commissioner is going to act in an honorable and responsible manner and to the mere fact that Vitarelli is a litigant in this case is not going to leave the High Commissioner to refuse to make such a recommendation.

Justice Felix Frankfurter: Well, but as a matter of fact he has not been covered in because he has not satisfied the two conditions.

Mr. Clifford J. Hynning: He has not been covered in because he has been off the government role since 1954.

Justice Felix Frankfurter: He was not being covered in.

Mr. Clifford J. Hynning: That's correct.

Justice Felix Frankfurter: Therefore he is not within the protection of that.

Mr. Clifford J. Hynning: Well that raises the question whether the position or the employee is in.

Now if -- if he were to be reinstated on the ground that his --

Justice Felix Frankfurter: But it must be – it must be the official because if he wouldn't pass an examination, the office can't pass it.

Mr. Clifford J. Hynning: That is true.

Justice Felix Frankfurter: That was first condition, he must pass a certain examination.

Mr. Clifford J. Hynning: That's correct, that's correct.

Justice Felix Frankfurter: And therefore, it must be individual and not -- and not abstract office.

Mr. Clifford J. Hynning: I -- yes, but I think it also follows that at the time of the order of reinstatement that the position to which he would reinstated under the present personnel situation of the Department of the Interior, he would be ordered reinstatement to a position which is in the competitive civil service.

Justice Felix Frankfurter: He would be eligible for it.

Mr. Clifford J. Hynning: That's correct.

Now this is one of the rights that he stands to lose that is to compete for being blanketed in unless he secures an order of reinstatement, so that at issue here are two things.

Justice Felix Frankfurter: That isn't quite so, is it?

Mr. Clifford J. Hynning: He doesn't need the test of eligibility unless he becomes an employee of the Department of Interior again.

Justice Felix Frankfurter: (Inaudible) employee, it doesn't follow that the high commissioner has to give in (Inaudible).

Mr. Clifford J. Hynning: That is --

Justice Felix Frankfurter: And that wasn't if he had to take an examination (Inaudible).

Mr. Clifford J. Hynning: Well I said the examination here is an unassembled examination, that is based on training and experience not a written examination.

Justice Felix Frankfurter: But the assessment must be made on that.

Mr. Clifford J. Hynning: That's correct.

Justice Felix Frankfurter: And therefore he – that must be satisfied.

Mr. Clifford J. Hynning: That is correct.

Justice Felix Frankfurter: I am not saying that all these things shouldn't happen, I am suggesting they haven't happened, and it is not within the protection of the -- of the Civil Service Commission protection.

Mr. Clifford J. Hynning: Oh, I certainly agree I am not here contending that he is now entitled to the protection of the Lloyd-La Follette Act.

I am contending however that these attempted personnel actions taken in October 1956 by which he was purportedly dismissed without any reason at all, since they related to a position which had been blanketed in under the Lloyd-La Follette Act necessarily did not meet the statutory test of the Lloyd-La Follette Act and therefore those personnel actions were invalid.

Justice Felix Frankfurter: Therefore if those restrictions were illegal imposed, they should be -- they should be expunged or vacated, so that then the process by which he could become again may become (Inaudible).

Mr. Clifford J. Hynning: I don't quite follow Your Honor when you say those restrictions.

Justice Felix Frankfurter: Well I mean if he was properly fired in 1954?

Mr. Clifford J. Hynning: Well then he has -- then he has no cause whatever.

Justice Felix Frankfurter: Therefore all of that should out.

I think I am making a (Inaudible) likely in my mind.

If this (Inaudible) then he is not protected.

Mr. Clifford J. Hynning: He is not at the present time protected, that's granted.

Justice Felix Frankfurter: He is not protect in all fairness or according to all honorable fairness, in your words, he ought to be covered.

Mr. Clifford J. Hynning: I am saying that this suit involves two things, it involves a claim for reinstatement as well a claim for back pay.

Of course, the claim for back pay isn't properly before this Court on certiorari from the District Court.

Justice Felix Frankfurter: But if he isn't covered by the -- If he isn't covered, if he isn't protected by the civil service safeguard, he maybe fired for no reason at all.

Mr. Clifford J. Hynning: That is correct.

Justice Felix Frankfurter: And he says that's sufficient.

Mr. Clifford J. Hynning: Well he was not -- he was not fired for no reason at all here.

Justice Felix Frankfurter: Well but he could be.

Mr. Clifford J. Hynning: He could have been, he could have been.

Justice Felix Frankfurter: And he could deny, if he is not covered?

Justice John M. Harlan: What you are saying --

Mr. Clifford J. Hynning: Well, I am not certain if the answer is necessarily yes to the last question.

He would have to be fired from a position and if that position is covered by the civil service standards, then there is a question --

Justice Felix Frankfurter: Well, we are back where we were.

I don't I think the position is covered, the position must be covered but he must be selected for the covered position.

Justice John M. Harlan: I thought you are claiming there is more than -- that there is not only money at stake here namely his salary.

Mr. Clifford J. Hynning: That is not properly at stake this particular lawsuit.

Justice John M. Harlan: No, I understand that, but that's the consequence or might be the consequence if we reverse this case.

You are saying in addition to that he has sort of a mandatory right to take his civil service examination, don't you?

Mr. Clifford J. Hynning: I am stating that he -- if his dismissal as the security risk in 1954 is unlawful, as we were contending, then he is entitled to reinstatement to the situation he had at that time.

Justice John M. Harlan: Without an examination?

Mr. Clifford J. Hynning: Well he had -- and then he would be entitled it seems to me as one of the rights of reinstatement to compete for securing a competitive civil service status under the blanketing and process.

That would be my answer to the --

Justice Charles E. Whittaker: Even though the government might have the right then meanwhile to discharge him, because it didn't like the color of his hair?

Mr. Clifford J. Hynning: Well, I believe the government concedes that they cannot discharge a man because they don't like the color of his hair, that that is the kind of the thing which even a person outside the civil service is protected for under the constitution.

Justice Felix Frankfurter: But they may not disclose the fact.

Mr. Clifford J. Hynning: They maybe silent on the subject.

Justice Felix Frankfurter: All right.

Mr. Clifford J. Hynning: And it's the fact that they were not silent here, but they said he is a security risk and they discharged him in a defamatory manner.

Justice Felix Frankfurter: That says on the hearing during which he was illegally discharged.

Mr. Clifford J. Hynning: That's correct.

Justice Felix Frankfurter: That's there on the part of the government after -- while he still is and before it covers.

Mr. Clifford J. Hynning: That's correct.

That's correct.

Now it's our contention that -- therefore that his dismissal in -- in 1954 was unlawful under the authority under which it purported to be made.

Justice Charles E. Whittaker: Assume that's true.

Mr. Clifford J. Hynning: Secondly that it was done in such a defamatory manner and a gratuitously defamatory manner, that is the executive here has the power to discharge him for no reason, but it insisted as it were on imposing a badge of infamy on him.

Well that's violated his constitutional rights, so that there he --

Justice Charles E. Whittaker: So that would be void, wouldn't it?

Mr. Clifford J. Hynning: I beg your pardon?

Justice Charles E. Whittaker: So that could be void.

Mr. Clifford J. Hynning: That would be void, now if that's void then he is entitled to reinstatement.

Justice Charles E. Whittaker: All right, but could not the government then the next day discharge properly just by saying, you are discharged without reason?

Mr. Clifford J. Hynning: I so conceded in the District Court and the Court of Appeals and I would concede here today, but for the intervening change of the general personnel policy of the Department of the Interior.

Justice Felix Frankfurter: But you can appeal to the honor of the department and not to any coed legal right.

Mr. Clifford J. Hynning: I think, if as a result of reinstatement he then becomes eligible to compete for recognition of that right.

Now I certainly would go on to concede that I do not believe that the denial of that right to him after his reinstatement is one that can be litigated.

Justice Hugo L. Black: (Inaudible)

Mr. Clifford J. Hynning: Now the government says here that his constitutional right, as I said, is coterminous with a statutory right.

Now I believe that is not true, that is I believe that he has a constitutional right here not to have been defamed gratuitously.

Secondly, we have contended that it is no justification in any court exercising the judicial power to justify an act on the basis of what could have been done, but wasn't done.

And it doesn't, it seems to me, help the government one iota to come in here and say, we could have fired Vitarelli for no reason if in fact you gave the wrong reason.

Justice John M. Harlan: A step without reason, that's your position.

Mr. Clifford J. Hynning: I beg your pardon?

Justice John M. Harlan: A step without reason, and the question is whether or not the procedure under which he was fired was adequate for the reason for the ground on which they purported to fire him, namely as a security, that's your position?

Mr. Clifford J. Hynning: That's correct.

Now I think they are also stuck with the position they took on the discovery motion, that is they at that point presented to the lower court that this firing of him for no reason at all was legally irrelevant.

Now they prevented discovery and I think they are bound by that position having taken it in the lower court.

Now our next contention is that his firing under the departmental security regulations violated the regulations whereby the Secretary of the Interior had provided for the security risk dismissals.

Now the government here seems to challenge this Court's ruling in service, by saying it seems anomalous, that the head of a department would limit its authority.

Well of course, that is precisely what this Court held in Service that there the Secretary of State had limited its authority -- his authority under the McCarran Rider.

So that I think that these regulations are binding on the Secretary of the Interior and I believe they are violated, although the proof of their violation is to be presented in terms, which sounds like the constitutional arguments.

Justice Charles E. Whittaker: Assume that that's all true and I should follow that, yet would not that status end when the government did properly discharge him?

Mr. Clifford J. Hynning: Well the question then you see is what was the illegal effect of these papers in 1956.

Now there were two papers there, one was an expunging of the record.

They said the record is expunged and he is now fired for no reason, and that presents the question, two questions really, can you fire the man without rehiring him, that is can you fire the man in (Voice Overlap)

Justice Charles E. Whittaker: But the theory is he has never been discharged, that the proceeding up until that time was for the discharge was only void and ineffective and he is still an employee and entitled to pay.

Mr. Clifford J. Hynning: Well that of course was the not theory of the government in presenting those documents, because on the face on the document --

Justice Charles E. Whittaker: Because the legal effect of it, if your other argument is sound.

Mr. Clifford J. Hynning: Well I think it -- my argument certainly is that the firing in 1954 was invalid.

Now I am also contending that these attempted firing, this attempted firing in 1956 is equally invalid, on the ground by that time -- and this brings me back to the discussion I had with Mr. Justice Frankfurter.

By that time the position which Vitarelli would have had, but for the intervention of his unlawful firing was in the competitive service -- civil service and therefore subject to the Lloyd-La Follette Act, and that these 56 documents on their face do not comply with the Lloyd-La Follette Act.

So our contention is the 56 firing fails.

And that --

Justice William J. Brennan: Does that add up to what you are contesting?

None of this happened at al in 1956, then they sought (Inaudible) have been done without giving him this opportunity to qualify for the new civil service?

Mr. Clifford J. Hynning: I believe that's correct.

Now in by way of concluding, let me state why I believe reinstatement is necessary in addition to the -- in addition to the reason already given.

This man has suffered a gratuitous defamation.

It's perhaps somewhat unique in the security annals that you start out by telling the press you're going to remove a man as a security risk before you give him charges or have a hearing.

Now where a defamation occurs in -- normally there are two things that happen one is the retraction and the other are the -- are the payment of damages.

Now the government has contented here in the brief in the Greene case, they haven't consented to be sued in tort for damages.

But they haven't made a retraction, what they have done here is to expunge the record but they haven't rectified the error, by saying we were wrong.

They haven't reemployed the man.

Now that is the test of the man in the street in the security case, when is it shown that a security case is wrong the government takes him back.

And I submit that that kind of retraction means reinstatement.

I'd like to reserve the --

Justice John M. Harlan: Could you – are you going to deal at all with the respects in which you claim that the regulations that were --

Mr. Clifford J. Hynning: Yes let me – yes, I will come to those right now.

Justice John M. Harlan: That's why I raised the question about the record, the proceedings that you may have a bearing on.

Mr. Clifford J. Hynning: The regulations, on their face, state that they apply to any removal of any employee on security grounds with the exception of temporary employees.

They then go on to say that, in such a case, where they -- where an employee is being removed on security ground, he is entitled to a written statement of charges, and I am now reading from the regulation, “as specific and detailed as security considerations permit.”

Now we come to the charges to see whether it meets that test.

The charges, in view of the concession that is loyalty was not in issue, gets down to a charge of veracity, and that charge of veracity is that he had stated that his associations with three named individuals were not casual, but were on the contrary associations of an intimate friendship.

Now I submit that you test whether or not a charge is specific by trying to determine whether you can answer the charge on the assumption of innocence.

Of course, if you assume the man is guilty there isn't any point of this inquiry.

But if the assumption of innocence is applicable, then a charge that the man has said his relationship was casual, how can he answer that in terms of something that didn't occur.

I mean if -- if his sole association was casual, that's all it is, how can he answer something more that it was one of intimate friendship without telling him times, places and so on.

We submit that that weighting of the charge doesn't meet the test of specificity.

It's I think entirely subject to the criticism of this Court in Simmons against the United States of a game of blind man's bluff.

Justice William O. Douglas: That's number three at the bottom of Page 5.

Mr. Clifford J. Hynning: That's correct.

Now the second thing he is entitled to a fair hearing.

Well, I think this hearing is one of the strangest hearings I have ever examined, and I believe that the questions asked of a partisan nature clearly demonstrate that.

Now the preceding counsel had dealt very exhaustibly with the issue of confrontation and I don't want to take any more time on that than is necessary other than I think to say, here is the case that requires no balancing of interest.

There is no question here of government secrets, there is no question of a sensitive job.

The man is concededly loyal, what was there in this case that required the secret importance.

I would like to reserve the balance of my time.

Chief Justice Earl Warren: You may.

Mr. Laughlin.

Rebuttal of John G. Laughlin, Jr.

Mr. John G. Laughlin, Jr.: Mr. Chief Justice.

Chief Justice Earl Warren: Mr. Laughlin, to satisfy a curiosity, would you please tell us what Black Mountain Transcendentalism is?

Mr. John G. Laughlin, Jr.: I, I do not know.

Justice Felix Frankfurter: How can we decide this case?

Mr. John G. Laughlin, Jr.: I beg your pardon.

Justice Felix Frankfurter: How can we decide that case?

Mr. John G. Laughlin, Jr.: I will work on that tonight.

In accordance with this Court's decision in Cole v. Young, we concede here as we have conceded in the courts below that petitioner's removal from federal employment was not authorized by the act of August 26th, 1950.

Consistent with that concession, the Civil Service Commission has expunged from its records all adverse findings relating to petitioner that were taken in accordance with Executive Order 10450.

The Department of Interior likewise consistent with that -- this concession has similarly expunged its personnel records with respect to Mr. Viteralli of all implications that his removal from government service was pursuant to the act of August 26 to the executive order and to the departmental order and there is no basis upon his -- from his personnel record from which anyone could infer that Mr. Viteralli is or was a security risk, whether that was the reason or is the reason for his separation from government service.

This administrative relief, which has been accorded to the petitioner is a substantial compliance with the -- one of the prior for relief that he sought in his complaint filed in the District Court.

In addition, however, he asked that his removal in 1954 be declared invalid, and that he -- that the courts direct that he be reinstated to his former position.

These are the two issues, which are involved in this case as we view it.

The question of whether or not his removal was invalid must we think be disassociated from the question of whether or not the authority relied upon by the Secretary of Interior was erroneous.

We concede of course that the authority far fell with the decision in Cole v. Young, but it does not follow because the Secretary's authority that he relied upon has fallen that the removal is necessarily invalid.

We are concerned here with an employee who is not a veteran, who was not in the classified civil service, as such his employment was without fixed tenure, and he was at all times subject to removal for cause or for no cause or for a reason and without assignment of reason.

Justice Felix Frankfurter: May I ask -- might trouble to ask you what -- whether any general policy followed the decision of the Court in the Cole case, is there any -- generalized to this case?

Mr. John G. Laughlin, Jr.: Generally the policy was if the employee were in the classified -- I -- I don't want to be too categorical about this, because I know of one instance in the Court of Claims where restoration was made on the strength of the decision in Cole v. Young.

And this case, we cited in our brief as the Langley v. United States, it was a super back pay.

Now there restoration was affected but that involved an employee who was subject to the Veterans' Preference Act or to the Lloyd-La Follette Act.

Justice Felix Frankfurter: But what happened as to their retention after discharge?

Mr. John G. Laughlin, Jr.: Well the proceedings either had the -- whatever proceedings had been taken were either expunged from the record and commenced new or another possibility which might have been open, say in the Cole case, was that to grant him an appeal to the Civil Service Commission, which was the procedural right that it was denied the petitioner in the Cole v. Young case.

Justice Felix Frankfurter: It involved a good many employees, isn't it, the Cole -- the decision in the Cole case?

Mr. John G. Laughlin, Jr.: It -- I don't have any idea how many it was in terms of numbers Mr. Justice Frankfurter.

Chief Justice Earl Warren: As to those that had no civil service standing, would you give them a same treatment that you gave this man, fire him immediately?

Mr. John G. Laughlin, Jr.: I don't know that that is true, I don't know how many of the Schedule A or accepted employees were affected by the decision.

But here there was of course an application for reinstatement that followed immediately after the Court's decision in Cole v. Young that was denied by the Department of Interior for reason which are not apparent.

So I suppose and I would hope that it was handled on an ad hoc basis and that there was no fixed policy again the blanket dismissal of all such employee, but rather a good faith reevaluation of the action that had been taken in the light of the Court's decision.

Chief Justice Earl Warren: The reason I ask it was because there is an apparent to the session here that this man was a loyal.

Mr. John G. Laughlin, Jr.: Yes that, as I understand it, it appears on the transcript of the hearing unlike Mr. Justice Harlan I have been able to get a hold of that entire hearing as yet, but I do know that he was cleared under the Executive Order 9835 loyalty program.

The validity of his removal must we think be said in the light of the traditional role that the courts have played where employee removals are involved.

This of course, now this case involves a removal by the executive which had, what it was, without any limitations as to your procedural or substantive -- of a substantive character.

Now for a 170 years the inquiry of the courts has been as to whether or not the removal has been effective in compliance with the procedural limitations that had been imposed upon the employment either by Congress or by regulation or by executive order.

That is perhaps open to another limitation that being whether or not the removal was effective for some patently arbitrary or discriminatory reason.

Here however we are dealing with an employee at will without any tenure and no procedural rights, statutory regulatory were involved in affecting his removal.

In these circumstances, we submit, that there is no basis upon which this Court may invalidate that removal.

Justice John M. Harlan: What about the secretary's regulations that you are referring to?

Mr. John G. Laughlin, Jr.: Well, in our view Mr. Justice Harlan.

Justice John M. Harlan: Wouldn't they govern?

Mr. John G. Laughlin, Jr.: I beg your pardon.

Justice John M. Harlan: Wouldn't they govern dismissal on security grounds?

Mr. John G. Laughlin, Jr.: Not necessarily.

First of all in our view the regulations fall with the statute if the -- we can see of course the statute did not authorize his removal.

The regulations were promulgated in accordance with the statute and the executive order.

So we fell it would be bit contradictory to say that while he was not entitled to the procedural protections of the statute or he was no authorized could not have been dismissed under the authority of the statute that the regulations implementing that statute there -- yes that they -- the validity of his removal must be judged by the regulations.

I only say that the regulations, the procedures prescribed in the regulations do not differ in any material respect from those that appear in the statue itself.

And secondly --

Chief Justice Earl Warren: (Inaudible) what you say -- didn't we have the other situation in the cases we have been hearing today the Greene case and the Taylor case, the statute didn't provide for any procedure, but the set up procedure and the question is whether they should abide by that procedure, and I got to this agreement that they should.

Mr. John G. Laughlin, Jr.: Well, here we do not have a procedure set up applicable to or purporting to delimit, the plenary removal authority of the Secretary of Interior.

That is my second point and answer to Mr. Justice Harlan that unlike the Service case where you had positive indication that the Secretary of State had intended to circumscribe his summary removal powers under McCarran Rider, we don't have that here in our view and for these -- for this -- for that additional reason, the validity of his removal should not be measured in terms of those regulations.

Chief Justice Earl Warren: But didn't you have -- didn't the regulations provide a procedure?

Mr. John G. Laughlin, Jr.: They did, procedure for removals we suggest under the Act of 1950.

That Act, of course, did not authorize his removal and the procedures were promulgated implementing they are the same as they are in they are in the statute in substance and in effect, so that there is really is no difference and the procedures that the statute prescribes and what is set out in the Department of Interior order 2738.

The statute falls, we think, the regulations which are in terms the same as the statute necessarily fall too.

So he was --

Justice Charles E. Whittaker: What you are saying that the regulations here apply only to the case where the person had the tenure under civil service, but did not apply if he was Schedule A employee (Inaudible), is that what you saying?

Mr. John G. Laughlin, Jr.: Well, I am concerned here Mr. Justice Whitaker with whether or not his removal was invalid and our position is that the statute did not authorize it, we concede that.

The regulations are not a proper basis for saying the validity of that removal because they, in our view, fall with the statute.

We defend this removal only as an exercise of the plenary authority of this Department of Interior to remove this employee and employee at will.

Justice Charles E. Whittaker: Now then were these regulations applicable to exercise that power?

Mr. John G. Laughlin, Jr.: Not in terms and we say no that they were not intended in contrast to the Service v. Dulles case, they were intended to apply or to delimit the plenary authority upon which we now rely.

Justice Charles E. Whittaker: But when you -- but you did attempt to exercise the power of discharge to use those regulations.

Mr. John G. Laughlin, Jr.: We did and we think moreover that we follow those regulations scrupulously, that this point of course I am saying that they are not simply not a basis.

Later I will explain why we think that they were complied with so that there can be no valid basis for complaint in that respect.

Chief Justice Earl Warren: Is it your position whether you did or did not, did or not follow the regulations, the discharge was lawful?

Mr. John G. Laughlin, Jr.: The discharge is valid and lawful.

Justice William J. Brennan: Well, does that include (Inaudible) originally the statute it was thought to be a limitation upon the plenary power of discharge in this type case required where you were dealing with the security risk to follow certain procedure.

And then when Cole and Young was decided that this was discovered that the statute did apply to this class of employees.

Mr. John G. Laughlin, Jr.: Well, that suggests that the statute in our view was not intended to delimit the plenary authority -- plenary removal authority of the Executive Branch of the government.

Justice William J. Brennan: Well, it was intended where you so -- it was thought before Cole and Young, was it not, that you could not remove on this ground without following the statute?

Whether that was the interpretation or not I don't know, but how many employees at will are relevantly few, to what extent it was considered as applicable or a limitation on that I don't know.

But (Inaudible) that the Act was rather delimitation on the -- or a (Inaudible) to facilitate the removal on -- for some reason (Inaudible) that his employment was not fairly consistent with the national security.

Mr. John G. Laughlin, Jr.: From the fact and if we are correct that the removal was not invalid if necessarily follows that he is not entitled to reinstatement in his former position that I think is a proposition that he is not in dispute here so that the real and critical issue is whether or not he was validly and effectively removed in 1954.

Now further bearing upon his right --

Justice John M. Harlan: The regulations, if we accept your view the regulations don't apply, then you are faced with a constitutional question if there is one or two as to whether what was done is constitutionally --

Mr. John G. Laughlin, Jr.: No, because our answer to that is that the records have been expunged of all security risk matters and that therefore there is no occasion as in the Peters case for this Court to reach the more difficult constitutional question.

Justice John M. Harlan: (Inaudible)

Chief Justice Earl Warren: We will recess now.

Featured:

Vitarelli v. Seaton - Oral Argument, Part 2

Tue, 04 Dec 2012 20:36:32 +0000

Case:

Vitarelli v. Seaton

Media File:

101_19590402-argument-2

Related Transcript:

101_19590402-argument-2

Transcript:

Argument of John G. Laughlin, Jr.

Chief Justice Earl Warren: Number 101, William Vincent Vitarelli, Petitioner, versus Fred A. Seaton, et al.

Mr. Laughlin you may proceed.

Mr. John G. Laughlin, Jr.: Mr. Chief Justice and may it please the court.

The government has been unable to locate the original of the transcript of the hearing of June 22 and July 1 of 1954.

Mr. Hynning has made available his copy of the transcript.

This copy contains certain marginal comments that we will, as soon as practicable, delete and file with the Court at the earliest practicable movement.

Chief Justice Earl Warren: Thank you gentlemen.

Mr. John G. Laughlin, Jr.: On the subject of the hearing of July -- or June 22 and July 1, I would in fact advise the Court that the encyclopedia Britannica devotes a full page to transcendentalism without any reference to Black Mountain transcendentalism.

Black Mountain is a range in the tribal area of West Pakistan.

I hope the Court won't press me as to what is meant by transcendentalism but it will accept my word that it insofar as I am concerned it does not add a semblance or relevancy to the inquiry that was directed to Mr. Vitarelli.

Justice Felix Frankfurter: I think we can stand that.

Thanks Mr. Laughlin.

Mr. John G. Laughlin, Jr.: Mr. Justice Frankfurter I endeavor to enquire -- conform myself as to how many individuals were affected by the Court's decision in Cole versus Young, and with a very rough approximation was some 300 employees.

I don't hold that out as in any sense being accurate but that's a rough approximation that I was able to come up with.

Justice Felix Frankfurter: Can you supply -- the line between sensitive and insensitive -- non-sensitive areas, your figure is (Inaudible)

Mr. John G. Laughlin, Jr.: That is the figure that I was able to come up with now.

Chief Justice Earl Warren: Now what does the 300 represent?

I missed a portion of it.

Justice Felix Frankfurter: Employees removed from government employment pursuant to the act of August 26, 1950 in non -- who were holding at their time of removal non-sensitive positions.

Justice Felix Frankfurter: Oh, you mean that were actually removed would require restoration to their position, is that what you mean?

Mr. John G. Laughlin, Jr.: That's right.

Justice Felix Frankfurter: Well my question was a little broader than that, namely how many were potentially affected and that was turned into hundred or thousand.

Mr. John G. Laughlin, Jr.: Well certainly, I would agree that that would be quite -- quite true.

By way of summation of my remarks yesterday, I would like to say that unlike the situation in Service v. Dulles and in Cole v. Young, additional removal from federal employment did not violate any procedural right conferred upon him by statute, or in our view, by regulation.

If however, the regulations promulgated by the Department of Interior are deemed applicable to a removal of an at-will employee, then of course our position is that these -- these procedural requirements were strictly complied with.

The only inquiry we feel that might be opened as to the sufficiency of this hearing is to the fairness.

And of course the Court will have available if it deems that this is a necessary inquiry in the case to have available the full hearing and we trust and hope that it isn't all as bad as the excerpts of petitioner's counsel have made it out to be.

If we are correct in our position that there was no invalidity as distinguished from a lack of authority, a statutory authority here, in petitioner's removal, then as I said yesterday we think it follows that there is no right to reinstatement in his former position.

Or another reason we think that there is no present right to that -- to reinstatement because of the personal action which was taken in 1956.

I should say that that notification of petitioner's termination bears the same date as the original notification and purports to affect his termination as of September 10, 1954.

Justice Charles E. Whittaker: (Inaudible)

Mr. John G. Laughlin, Jr.: I think that that if the 1954 termination be deemed invalid, that the 1956 notification would not validate that removal.

Petitioner's reference to the fact that the position formerly occupied by petitioner was converted to the competitive service on April 1st of 1956, in our view and as I think Mr. Justice Frankfurter made clear yesterday, becomes a relevance only in the event that there is a reinstatement of the petitioner.

That would be an emolument of his office which presumably he would be entitled to, that is to have the High Commissioner of the Trust Territory exercise his discretion and either recommending or not recommending the petitioner for conversion from accepted to competitive status.

Only in that event, even though that condition has been satisfied, would he be within the classified service so-called and eligible for the procedural protections of the Lloyd-La Follette Act.

Well petitioner's main contention in this Court is that he is entailed to reinstatement and in pursuance of that position, he insists that only by reinstating him in his position can the badge of infamy which has been fastened upon him by the 1954 removal be rectified.

We question whether that is a necessary element of relief and we point to the case of Peters v. Hobby which, as the court knows, was a loyalty case and where a reinstatement could not in the Court's judgment be granted to the petitioner there.

There of course there was fixed 10 year of employment that had expired at the time of decision.

But we think here that because of the status of this particular employee that we have an analogous problem, in the sense that he is and was at all times subject to removal at will and that to reinstate him in these circumstances would not add anything in the way of substantive relief that which is already been administratively accorded to him.

Chief Justice Earl Warren: Assuming Mr. Laughlin that he had never been properly discharged and this Court so -- this Court should so find and assuming also that Secretary of the Interior could fire him without cause if he was on a payroll, why shouldn't he be restored to his position at this time?

Mr. John G. Laughlin, Jr.: Well of course I think if the Court should hold that he has not been properly discharged, then restoration would be in order.

Chief Justice Earl Warren: If this Court should hold for any reason he had not been properly discharged, then he would be entitled to reinstatement?

Mr. John G. Laughlin, Jr.: If he had not been properly discharged in 1954 or 1956 --

Chief Justice Earl Warren: Yes.

Mr. John G. Laughlin, Jr.: -- then he would be entitled to reinstatement.

Chief Justice Earl Warren: Yes, well that's -- that's the point that I am --

Justice Felix Frankfurter: When you say entitled, that would atomically follow, wouldn't it?

Mr. John G. Laughlin, Jr.: I think so from the prior decision of this Court that it would be necessary -

Justice John M. Harlan: Am I right in thinking that the 1956 discharge on its face did not reported his charging at that time, it reported his charging nunc pro tunc?

Mr. John G. Laughlin, Jr.: I think that's the only inference to be drawn from that nullification by -- by reason of the -- the backdating it to the original date of his termination.

Justice Felix Frankfurter: Would that -- would that fall giving it such legal validity as it would be entitled to have if he didn't seek retroactive effect?

Mr. John G. Laughlin, Jr.: No in our view that is nevertheless entailed to prospective application --

Justice Felix Frankfurter: Well, whatever he is entitled to prospectively would not be curtailed or limited or nullified by the fact that he did more than any of (Inaudible) would do.

Mr. John G. Laughlin, Jr.: I think that is correct if I understand --

Justice Felix Frankfurter: That is if it -- if in 1956, they saw it retroactively to validate what was invalid in 1954, it couldn't be completely nugatory effect if it could have prospective effect.

Mr. John G. Laughlin, Jr.: No, I think that well we could not report by dating a notification of personnel action two years back that that discharge would become effective as of that time, but it might well can be suggested, that is the case here, that it might --

Justice Felix Frankfurter: If it -- if it could, if properly praise the remark to the Court to give retroactive effect, it would be giving prospective effect if it's legally curtailed (Inaudible).

Mr. John G. Laughlin, Jr.: Well that is what we urge upon the Court, yes.

We suggest that the judgment here should be according to the Court --

Justice Charles E. Whittaker: (Inaudible) he would then be covered in Civil Service system and that he therefore is not automatically discharged without a cause, because he gets (Inaudible).

Mr. John G. Laughlin, Jr.: If the Court please, the conversion is of the position from --accepted status to competitive status.

As is clear, I think the occupant of that position does not automatically convert from an accepted status to a competitive status.

He must first qualify, second he must have the recommendation of the High Commissioner.

Now until that -- those two conditions are satisfied, the occupant of that position, under civil service regulation, this is what they call a status quo employee, as such he is subject to summary removal in the same fashion that he remains an employee at will.

So that -- and even -- even though he is permitted to remain in that position, a position in the competitive service, he is nevertheless subject to a summary termination.

Justice Felix Frankfurter: Let's see if I understand that.

Assume a man, who was a training specialist that Vitarelli was, assume a man was in that condition at the time that the position was covered in and therefore subject to civil service benefits.

Would such a person automatically -- would such a person automatically be now under civil service protection in that position or would he have to be appointed as such under the new covering in civil service faith?

Mr. John G. Laughlin, Jr.: He would not be in the competitive service.

He would not have to be appointed, if the Court please, there may be a technical difference, but he must be recommended by his -- the employing agency or in this case the High Commissioner of the --

Justice Felix Frankfurter: But covering in the position does not necessitate that the chief should recommend him for the position?

Mr. John G. Laughlin, Jr.: That is right.

It is incumbent upon the agency to recommend to a Civil Service Commission whether or not an individual employee is to be converted in to the civil service.

Justice Charles E. Whittaker: (Inaudible)

Mr. John G. Laughlin, Jr.: That is correct.

Justice Charles E. Whittaker: (Inaudible)

Mr. John G. Laughlin, Jr.: That is the status of -- that would be the status of petitioner, where he restored, and he would, we think in the event of restoration, be entitled to what might be classified as an employment benefit that is accrued during the period of his removal.

Justice Felix Frankfurter: He may be qualified -- he may be qualified with the one out of three -- one in three selection rule apply?

Mr. John G. Laughlin, Jr.: No.

As I understand it in respect to the Schedule A positions of the Department of Interior, particularly the overseas positions here, I don't understand there to be a written examination required.

These are jobs that are not susceptible of written examination that's why -- it's the one reason that they are Schedule A to begin with.

The qualifications as I gather from the civil service regulations are that the employee have completed a satisfactory period of service.

I don't think it --

Justice Felix Frankfurter: It depends on the choice of the head of the division or department, is that right?

Mr. John G. Laughlin, Jr.: That's -- that's right.

It comes down to that and I think that would be the situation in this case where he restored.

Chief Justice Earl Warren: Mr. Laughlin this is rather technical question and it wasn't briefed by either parties, as I understand that the counsel never heard of it or wasn't in a position to know the existence of this until last few days and I wonder if it wouldn't be allowed for each of you to submit a memorandum on this -- on this subject.

Mr. John G. Laughlin, Jr.: We will be glad to do so.

Chief Justice Earl Warren: Covering -- covering that subject.

Mr. John G. Laughlin, Jr.: We will be glad to do so.

Chief Justice Earl Warren: We will have it in my mind (Inaudible).

Thank you.

Will you write the first memorandum on it Mr. --

Mr. John G. Laughlin, Jr.: Will do.

Chief Justice Earl Warren: Thank you.

Mr. Hynning, you may proceed.

Argument of Clifford J. Hynning

Mr. Clifford J. Hynning: If the Court please, I would like to spend a few moments on the 56 personnel document.

As I -- as the record show, there were three documents filed.

There was an affidavit -- this appears on the record starting on Page 32.

There was an affidavit by the personnel officer of the Office of Territories of the Department of the Interior.

And it stated that this affidavit accompanied the defendant's opposition to plaintiff's motion for summary judgment.

And the posture there taken by the Department of Justice was that this was a expunging of the record.

Now the affidavit states that the attached form 50, which is the document on Page 33, is a true copy of the official document reflecting the termination of Vitarelli from a position under the jurisdiction of the Office of Trust Territories, and that is all the affidavit states.

Now the notification of personnel action that's on Page 33 is exactly the same as the documents entitled Notification of Personnel Action on Page 31 except for two particulars.

It omits a sentence and it adds a sentence.

The sentence that it omits is the sentence that appears at the top of Page 32, the 5th line, “This action is being taken in accordance with the provisions of Executive Order 10450.”

That sentence does not appear in the new 56 form 50.

The second change is the addition of a sentence appearing on the top of page 34, “This form 50 is a revision of and replaces the original bearing the same date.”

In all other respects the two documents are identical.

Now that means that there are two dates on each document, a date appearing after line number four, which in normal personnel practice reflects the date on which the document is prepared.

In both instances that date is 9/21/54.

The effective date is line number six, and that's date 9/10/54.

Now I submit that at the time, this document was prepared under the Department of the Interior, sometime in October 1956, it was -- it purported to be an expunging of the reference to the fact that the earlier document had been taken in accordance with the provisions of Executive Order 10450 and was nothing else.

It was not in my opinion a re-firing of the individual.

Justice Felix Frankfurter: Would you be good enough to state what 21 remarks, what's the significant of all that writing?

(Inaudible) what's the point of that?

Mr. Clifford J. Hynning: I -- that appears and it says, this action is subject to all applicable laws, rules and regulations and maybe subject to investigation of -- I don't know what it means.

I assume this is jargon that appears sort of a savings clause on all personnel forms.

I am not attributing any significance to it that -- that this means --

Justice Felix Frankfurter: I still gather you didn't, but I just wonder what is the significance?

Mr. Clifford J. Hynning: Possibly it could be contented that it meant this was subject to the Lloyd-La Follette Act but I don't think that could follow.

Justice Felix Frankfurter: It maybe a formula, you've got (Inaudible).

This maybe a be a routine way of qualifying whatever they say subject to whatever they may or may not be subject to civil service regulation.

Mr. Clifford J. Hynning: Now one of the difficulties here, this was reset in type, in the court below we had a photostat and there we could see whether this was printed or type written, at the moment I don't know whether this was something --

Justice Felix Frankfurter: It has a bearing on our problem?

Mr. Clifford J. Hynning: As far as our view of the case is concerned, no.

Justice Tom C. Clark: United States Civil Service has power to investigate and set aside or refuse to affirm summary dismissals that as explained the (Inaudible) of summary dismissals (Inaudible)?

Mr. Clifford J. Hynning: Assuming -- this may not answer your question directly, but assuming that in 1954 Vitarelli had been summarily removed without any reference to security status whatever.

As of that time he would have had no administrative rights of appeal or review by the Civil Service Commission.

Justice Tom C. Clark: What about 1956?

Mr. Clifford J. Hynning: In 1956 we have two changes in circumstances.

One is the fact that this is a document coming two years after he is off -- out of service.

Justice Tom C. Clark: Well, I am not talking about -- suppose this is just a 1956 document, all he would (Inaudible) 1956 but no prior history that the head of the department (Inaudible).

Could he have done it without asking the civil service and having it approved?

Mr. Clifford J. Hynning: Well, I would like to reserve that question to the answer I am going to try to make in the written brief because I have not determined to what extent it was within the power of the Secretary of the Interior having on April 1 decided that all the positions, educational positions in the Office of Trust Territories were to be put in the competitive civil service.

Whether he could take this long a time, that is from April 1 to let us say October 15 or October 1, to make up his mind.

Now perhaps he could in which case the answer would be that there would be no right to review.

Justice Tom C. Clark: Is that the only statute on which they rely for the right to dismiss summarily for any cause they see there.

Mr. Clifford J. Hynning: I believe the Department of Justice is relying on a statute.

They are relying on the inherent power of the executive to dismiss an executive employee unless that employee has some rights either under a statute or under the constitution.

And of course the rights under the constitution are deemed to be limited to matters of things that are clearly irrational or that involve matters of partisan politics.

Justice Tom C. Clark: But if the head of the department does have such inherent power, what was the reason in 1956 for adding the statement about the rules and regulations?

Mr. Clifford J. Hynning: I do not know sir.

Justice Tom C. Clark: If that's what they are depending on, why did they add this in 1956?

Mr. Clifford J. Hynning: I can't answer that question.

I can speculate as I have I think it's jargon.

Justice Felix Frankfurter: Well, formula -- I mean -- it has application -- it has application so they stick it on everywhere on each --

Mr. Clifford J. Hynning: Well, I think you are trying to subject some of the personnel forms of the government to a logical reasonable analysis and that can't be done sometimes.

Justice Tom C. Clark: Well, I should say that --

Mr. Clifford J. Hynning: At least that's my personal opinion.

Justice Tom C. Clark: -- (Inaudible) but I should think that they have a summary right to dismiss.

And we assume that the Secretary of Interior has a summary right to dismiss and that's what they're basing it on.

There will be no other reason for them to put in something about the civil service supervision.

Mr. Clifford J. Hynning: I want to be fair here to the Departments of Justice.

I suppose they would say -- it's stating that it is subject to the applicable law, its weasel language.

If the law isn't applicable, it isn't subject to that.

Justice Tom C. Clark: Well, maybe it's legal language but its language --

Mr. Clifford J. Hynning: I said we have to --

Justice Tom C. Clark: -- would construe in connection with determining whether they dismissed him summarily at that time as of that date on so-called inherent power subject to no man's supervision.

Mr. Clifford J. Hynning: Well, you persuaded me I should withdraw my earlier answer and give a little more reflection to this in the memorandum I shall submit.

Justice Felix Frankfurter: Well it would be very easy to determine whether this is a regular form, the generality -- but there are no instances where they -- of dismissals or of suspension under the competitive classification, and therefore they used this form when it is not in the competitive class.

I mean that would not surprise me it is a public document that's printed or censored, but easy enough to find out I suppose.

Mr. Clifford J. Hynning: That's more within the knowledge of the respondent than it is mine.

Justice Felix Frankfurter: (Inaudible) we would like to know about that.

Justice John M. Harlan: As I understand your point about the document on 33, which is the 1956 Notification of Personnel Action, you say that has no greater effect than there had been a letter stuck in the file saying that there was typographical error on the original personnel action and that's hereby corrected.

Mr. Clifford J. Hynning: Well, I -- I don't like to ask a question -- which answers a question which speaks in terms of labeling or an error or error in citation.

This -- this was a very substantive wrong done to Vitarelli.

I think this is one of the things in this -- in the brief I have criticized the Court of Appeals very strongly on, saying this is an error in labeling.

I don't think it has any -- in my view the 1956 document means nothing more than they have endeavored partially to comply with our request for an expunging of the record and that alone, and I believe it was on that basis this document was submitted to the district court and used by respondents there.

Now I think this perhaps is further supported by the third document that was submitted in 1956 and that's the document on Page 34, which is an affidavit from the Civil Service Commission, which says that all records of the Commission have been expunged of all adverse findings made with respect to Vitarelli under Executive Order 10450.

Now Mr. Hall (ph) could not make that statement if he did not have a new form 50, which had deleted from it the reference to the Executive Order 10450.

And it would appear to me that this third document clinches my arguments that all that was attempted, intended, or actually done in the 1956 document was an expunging and nothing more and that could not be taken to have the effects of a 1956 firing.

Justice John M. Harlan: In another words what you say is that if the 1954 firing is no good, the man has never been fired.

Mr. Clifford J. Hynning: That is our position.

Now I would like to make one other technical observation on the statute there has been a suggestion here that the 1950 Act or the Act of August 26, 1950 does not apply to persons outside the competitive civil service.

I think that is easily answered by the text of the Act itself, which is printed in the government's brief, Page 28.

And if you look there, after the first italicized proviso, that any employee having a permanent or indefinite appointment, now an indefinite appointment means the person who has an appointment outside the competitive civil service.

And while there may have ben some legislative history to suggest that they wanted additional powers, nonetheless the face of the statute shows that it had application to people in the -- who were not in the competitive civil service so long as their position had some rational relationship with the national security.

I have just apparently one or two minutes left and I would like to urge this Court to overrule Bailey against Richardson.

I believe the premisses under which that case was affirmed without an opinion by this Court have been completely rejected in subsequent decisions in Peters, in Service, in Cole.

And I believe that much of a difficultly in lower courts comes from the facts that the lengthy opinion of the Court of Appeals in the Bailey case still has a certain degree of standing which I believe it should not have and does not have under Peters, Cole, and Service and -- but that is a --

Justice Hugo L. Black: Well, that was an equally divided court.

Mr. Clifford J. Hynning: An equal division, that is correct but that --

Justice Hugo L. Black: Why do you say overrule it?

Mr. Clifford J. Hynning: I -- I say -- I think the principle of Bailey is wrong and the fact that it is wrong I think is demonstrated by the decisions of this Court in Peters, Cole and Service.

Now Bailey essentially held that the a governmental employees has no constitutional right.

He is a policeman -- he has the privilege no one has the constitutional right to be policeman kind of argument.

I believe that has been rejected by this Court, but the language appears to have --

Justice Felix Frankfurter: Whose language?

Mr. Clifford J. Hynning: I beg your pardon.

The language of the Court of Appeals.

Justice Felix Frankfurter: Well, I know but we can't overrule a case that -- it's stopped by overruling any sense, and doesn't overrule a case (Inaudible)

Mr. Clifford J. Hynning: I stand corrected.

Justice Felix Frankfurter: That we can't overrule a case that isn't here.

Mr. Clifford J. Hynning: I stand corrected.

Well, now -- my language was certainly subject to your criticism.

Justice Felix Frankfurter: And then you suggest that if subsequent cases have laid down documents that contradict Bailey below, why should anybody who needs the legal material confidently bother about what the lower court has done when it's to be wiped out in principle by later decisions of this Court?

Mr. Clifford J. Hynning: Because --

Justice Felix Frankfurter: And a divided -- a divided court is -- nearly of necessity (Inaudible) mean the lower court's judgments standing on necessity.

Mr. Clifford J. Hynning: The fact of the matter is Mr. Justice Frankfurter, the governments briefs rely on Bailey against Richardson, that they have persuaded district court that that's good law, and they persuade --

Justice Felix Frankfurter: But if we were to consider all the ruling, every miscitation of even the most eminent counsel, our report would be even thicker than they are?

Mr. Clifford J. Hynning: I believe that if this Court decides Vitarelli versus Seaton in the favor of petitioner, that will be made even clear.

Thank you.

Featured:

Greene v. Mcelroy - Oral Argument, Part 1

Tue, 04 Dec 2012 20:36:50 +0000

Case:

Greene v. Mcelroy

Media File:

180_19590401-argument-1

Related Transcript:

180_19590401-argument-1

Transcript:

Argument of Carl W. Berueffy

Chief Justice Earl Warren: Number 180, William L. Greene, Petitioner, versus Neil McElroy et al.

Mr. Carl W. Berueffy: Mr. Chief Justice, may it please the Court.

Chief Justice Earl Warren: Mr. Berueffy.

Mr. Carl W. Berueffy: Berueffy.

Chief Justice Earl Warren: Berueffy, yes.

Mr. Carl W. Berueffy: This case, of course, involves the same issues in the main -- on the merits that are involved in Taylor against McElroy.

I think the best way to examine what is at issue here is to examine first what happened.

And if I may put this case in chronological order, I would summarize it as follows.

In 1936, this petitioner, William L. Greene graduated from New York University as an aeronautical engineer, a profession which has come to be of great importance in this country.

He went to work for Engineering and Research Company, a private corporation and the history of his rise in that corporation which, although not a large one, is a very substantial one, is almost spectacular.

Best summarized by saying that at 35 years of age, he became the Vice President and General Manager of that company.

And this could indicate nothing other than his devotion to the duties of his work and to his employer and to the Government and to the military services because that company came to be engaged almost entirely in military production.

Now, in 1942, he made a marriage with a girl to whom I shall have occasion to refer, I think, in the future, Jean Hinton without going into all of the details, could be said this was an unfortunate marriage for many reasons, and it terminated in 1947.

All of the charges with no exception relate in the Government's statement through the period beginning in 1942 and ending in 1947 or a very trivial contact continuing over into 1948.

Now, while this marriage was in existence, Mr. Greene was one of the people selected by the Air Force and by industry to go to Germany to see what could be discovered by way of German war secrets and war preparation.

He came back in 1947 or thereabouts, about the time of the termination of the marriage through the divorce.

The Navy and the Air Force was in great need of a device called the electronic flight simulator, a device which simulates for flight conditions for the purpose of training pilots in the handling of the planes.

The record shows that at least two companies had failed to produce this very necessary device.

And so, the Navy came to ERCO and Admiral Solberg, the Chief of Naval Research at the time, testified that one of the things that brought him to ERCO was the high caliber of the engineering staff which had been assembled by Mr. Greene in that company.

In 14 months, Mr. Greene made this device.

And this is the classified information about which we will be talking exclusively in this case, that is the material that went into the making of the electric flight simulator.

Now, in 1949, two years after the determination of these things that the Government says no, justify throwing him out of work, the Government gave him a clearance for access to top secret information.And two years later, in 1951, there was a proceeding to revoke his clearance for access to that information.

And this went and a procedure such as -- has been -- has been described to Your Honors here occurred before an organization then known as the Industrial Employment Review Board.

Justice Potter Stewart: How is the occasion for initiating that 1951 proceeding?

Mr. Carl W. Berueffy: Well, there was so-called derogatory information, Mr. Justice Stewart.

And that was summarized by saying that he had known some Communists without naming them that he had seen some Russian diplomats that -- without naming them and that he had gone to a dinner of the Southern Conference for Human Welfare.

Justice Potter Stewart: Oh, I understood you to say that he had been cleared in 1949.

Mr. Carl W. Berueffy: That's right.

Justice Potter Stewart: And then what was it that -- that led to the revocation of clearance in 1949 --

Mr. Carl W. Berueffy: That, I couldn't say --

Justice Potter Stewart: (Voice Overlap) --

Mr. Carl W. Berueffy: -- there was simply a notice to ERCO that derogatory information had been --

Justice Potter Stewart: On the Government's own notion?

Mr. Carl W. Berueffy: Yes.

Justice Potter Stewart: There had been no request by his employer for access to information that are more --

Mr. Carl W. Berueffy: No, sir.

Justice Potter Stewart: -- classified.

Mr. Carl W. Berueffy: Although Greene never asked for other than top secret, the Government had -- other than secret, the Government had pretty consistently giving him -- given him access to top secret information.

Well, this went to the Board.

Now, the Government admits in its brief that everything that had subsequently considered was talked about in this hearing before the Industrial Employment Review Board.

I don't think that's quite accurate because I think there was one matter which cannot fairly be said to appear in that -- in that earlier hearing and that is the matter of Greene's having worked as a consultant for Mr. Laughlin Currie, a one time Presidential Assistant.

At any event, this Board examined all of this material and restored Greene's clearance, then he went back to work for ERCO and the Navy insist -- continued to insist that ERCO do this work as fast as possible, and this was the situation until the following year.

And in April of 1953, and this was six years after anything that the Government had alleged or had considered or that we ever learned about as being direct derogatory information, the Secretary of the Navy wrote a letter to ERCO.

And this was a very short letter and what it says is, "I have reviewed the case history of William Lewis Greene and pursuant to this contract, I direct you or I request you to exclude him from your plans and to deny him access to classified information.

And I think the phraseology is important because they are not, at this point, talking about denying access to classified information.

They are telling a private employer that he may not admit his own employee to his own plant.

Now, this letter was sent to ERCO and the Government stipulates that they never sent any letter to Greene about it.

And the -- the letter recited no reasons for a change, although at the time there was a directive from Mr. Wilson, the Secretary of Defense, saying that the Secretaries were to continue to apply the -- the criteria applied by the Industrial Employment Review Board.

Now, the next thing that happened was that Mr. Wells, the President of ERCO, wrote to the Secretary of -- of the Navy and said, "This man is very valuable to us.

Not having him is a great blow to the company.

May we come in and talk this over with you?"

And the answer of Mr. Anderson was, "There isn't any purpose and any further discussion of his case."

So Greene was out.

The trial judge in this case described what ERCO did as a willing compliance with the request of the Government.

But what ERCO actually did was to, as the record shows, hold this job open for Greene for over a year, hoping that he could get clearance.

This is still in 1953.

They wrote Greene saying, "Please, get it cleared up.

If there is anything ERCO can do to help you by way of evidence, let us know."

And Mr. Berliner, Colonel Berliner, the Chairman of the Board, the principle stockholder of ERCO, made an affidavit that he would -- there was no reason for Greene's discharge except their letter that they received from the Secretary of the Navy.

He also, at -- in the testimony before the hearing which subsequently occurred, he testified that he would stake his entire company on Mr. Greene's judgment as to the -- his ability to build this flight simulator.

I think there are few employees who have received a more convincing demonstration of their employer's confidence.

After a great deal of effort, the Secretary of the Navy, the Assistant Secretary of the Navy in response to a request -- to a demand, requested the Eastern Industrial Personnel Security Board, which had, by this time, been set up to review his case.

And at -- this was in September, but there was no hearing until the following late April or early May.

This is in 1954.

During that intervening time, we made an effort to find out what this case was about and finally, the Board sent a series of 13 charges which are in the record and which, for the most part, relate to matters concerning Jean Hinton Greene, the girl to whom he had previously been married and probably at this time, he had been divorced for seven years.

Justice John M. Harlan: What page is that on the record?

Mr. Carl W. Berueffy: The -- the statement of charges appears in the printed record beginning on page 9 and going to page 11 over the signature of Robert C. Sullivan.

We were faced with charges, and I read only one -- paragraph (4) on page 10, "Many apparently reliable witnesses have testified that during the period of subject's," that means Mr. Greene, "subject's first marriage, his personal political sympathies were in general accord with those of his wife," that's Jean Hinton, "in that he was sympathetic towards Russia," and may I just comment parenterically that at the time to which this reference is made, the Russians were fighting on our side as hard as they could for their lives the same as we were fighting for our lives, "followed the Communist Party, followed the Communist Party line presented fellow traveler arguments was apparently influenced by Jean's wild theories EGC."

Justice John M. Harlan: (Inaudible)

Mr. Carl W. Berueffy: Yes, sir.

I have never been able to determine exactly what EGC covers in that paragraph.

Now --

Unknown Speaker: (Inaudible)

Mr. Carl W. Berueffy: I think Jean may possibly have had some "wild theories", but I don't know that there is any rationale relation between a wild theory and a finding that this distinguished engineer is in the future going to be guilty of treason to this country.

And that's what these gentlemen have found.

We do have an example of -- of what Jean's wild theories were.

This is on page 379 of the printed record, question addressed by the Security Officer of the Board to Dr. Marjorie Greenberg, a physician who was Mr. Greene's -- who is Mr. Greene's sister.

I would like to read this, if I may.

Question, "Were there any beds in their house which had no mattresses on them?"

Answer, "Not that I observed.

Jean slept on a board because of her back."

Question, "Did you ever hear her said that Jean slept on a board in order to keep the common touch?"

Answer, "That's a new one on me but everybody I've ever known who had any disturbance with their spinal column had to sleep on a board."

Now, this is a wild idea, no doubt and if I were a mattress [Laughter] -- if I were a mattress manufacturer, I -- I might be regard this is subversive.

[Laughter] But the point is, is this material to defend -- to deprive the Government and the military of the services of a man who have -- who has served it well, extremely well, testified to not by Greene and his friends, but throughout this record to -- by military officials concerned with the problem of getting this material.

Now, coming to the issues, as I see them in this case, we are first met with the problem of what is it the Government did?

The Government says, "We merely denied this man access, and any damage was consequential."

But in their brief, they admit in the face of what they cannot practically deny that to a man in the profession of aeronautical engineering, the denial of clearance is -- is the equivalent practically of denying him a right to work at his profession because there is no significant aircraft manufacturer who can employ an aeronautical engineer who does not have clearance.

It's simply can't be done.

The Government admits this.

But they say, "We have control of the classified information of the Government -- that belongs to the Government."

But the Government does not limit its claim of employment to the control of classified information for two reasons.

First, as we show in our brief, you cannot be an officer of a corporation without clearance.

And as the Vice President and General Manager of ERCO, Greene was, of course, a corporation officer.

And there are, I suggest, many officers of a corporation who do not need access to classified information.

And as the Solicitor General said yesterday, this isn't -- in any case, this is not free access to all the secrets of the Government.

This is access to that information which you need to perform your duties on the contracts that your employer is doing for the Government.

That's all it is.

You could have access to top secret or super top secret or any other classification, but if you didn't require that information in your job, you couldn't get it.

So, the Government is controlling or attempting to control the officers of corporations.

Furthermore, and this case demonstrates, the Government is not limiting its control to ownership -- to -- to material of which it really has ownership because the executive order which is put -- which is stated in -- in its text in -- as an appendix to our brief says that whether or not you produce this -- this information, if the Government classified it, you may not have access without clearance, that is it's subject to control under that executive order.

So, here, you get some information that the Government had, but it isn't valuable.

It is invaluable until a man, like Greene, makes the engineering flow that turns it into something that's useful, and it isn't valuable I suggest until a man, like Taylor turns it out on the lays in a -- in the form of a useful thing and this is what the Government is controlling.

Now, this is what the Government says.

They -- they have a right to control and let me suggest, if I may, that the way the Secretary of the Navy handled this case indicates exactly what the Government does claim and what the Government repeats in its brief, I suggest, in this Court which is that this is an absolute power, that it is unrestrained, that nobody can question and because those are relatively strong statements, I -- I think I should read from page 43 of the Government's brief in the Greene case.

Down towards the bottom, "That the executive may ultimately act in this area on mere doubts or simply a lack of complete confidence."

And on page 44, "Action which may, if necessary, be based on no more than doubt and which is, in itself, not judicially reviewable."

And then finally quoting with a probo from Von Knorr against Miles, "The Government would remain free to disregard the testimony and rely on its uncorroborated suspicions and its uncorroborated suspicions," as the Government says elsewhere in its brief, "may be fully consistent with the likelihood that this man is in fact both loyal and discreet."

Now, this, I'm -- I would like to say as a slanting reply to what Mr. -- what the Solicitor General has said, this is a claim of absolute authority, of unlimited authority.

And it is in square conflict, I submit, with the statement of this Court in -- in Wieman against Updegraff that you cannot exclude even from the exercise of what used to be denominated a privilege on the basis -- on a basis which is patently arbitrary or discriminatory.

And this Court has many times said that government officials may not act in an arbitrary fashion, may not draw irrational or dogmatic inferences from facts.

Now, I think, unless you are going to be -- to accept what is a clear transparency, the Government is claiming to exercise an unlimited control over the employment and the livelihood and the very lives of what is today approximately 3 million employees in private industry.

I -- I think that it is impossible to determine this kind of a case without facing the realities.

And the reality is that this is an exercise of control on an unrestrained and unlimited basis.

Now, first question that comes --

Justice Potter Stewart: That theory and that position which you pointed out is the Government's position is the basic ground upon which the Court of Appeals decided this case, isn't it?

Mr. Carl W. Berueffy: I think so, yes.

I -- I have had some difficulty knowing exactly what it was the Court of Appeals said, but they did, in effect, say, "Well, this is a matter of politics of the --

Justice Potter Stewart: Executive power.

Mr. Carl W. Berueffy: Executive power.

They did make a reference to inherent power of the executive.

That is the theory that was advanced by the Court of Appeals.

And that brings us, I think, to the question of -- of where does this power come from?

In a government where we've got a Due Process Clause, the very essence of which is protection against arbitrary governmental action as this Court said in Slochower.

What is this kind of a power that's unlimited control?

Where does it come from?

Government says it comes from an inherent executive power, an inherent executive power which the -- the -- which the executive had always had.

Now, I think there might be an -- I think there might be an inherent power to do some things, but I think you have to go a long way to spell out an executive -- an inherent executive power thus to interfere what the private employment and private livelihood of a citizen of the Government.

And I don't think we need to be concerned about, although I -- I'm sure that Greene's right to private employment is a constitutionally protected right which I cannot believe to be less important than the right to travel or -- or any of the things that this Court has given protection for.

But even if the -- what the Government was -- says is true, that this is only an exercise of the privilege, the -- the Government can give or take as it chooses.

I think what Wieman, what -- what Slochower and what -- and what these other cases have said is that even so the Government can't do this on an arbitrary basis.

Now, yesterday, the -- the Solicitor General conceded, I thought, that you couldn't do it on the arbitrary basis of -- of taking one out of every three.

Now, since -- since we are in the process of defining future conduct, and that is what we are doing realistically, Greene never did anything and there isn't anything in these charges.

Greene never did anything illegal, immoral or indiscreet, and I should say making a bad marriage is indiscreet.

And the record shows --

Justice Felix Frankfurter: Isn't it?

Mr. Carl W. Berueffy: Well, is it an indiscretion that -- that warrants an inference --

Justice Felix Frankfurter: You didn't -- you didn't make that part of occasion.

[Laughter]

Mr. Carl W. Berueffy: Well, Your Honor --

Justice Felix Frankfurter: It's ill luck, isn't it?

Mr. Carl W. Berueffy: It's -- it's ill luck, it's indiscreet, it's a thing that's happened to a great many people.

I -- I think --

Justice Mr. Justice Whitaker: You don't indent to (Inaudible)

Mr. Carl W. Berueffy: I think on the basis of the evidence that we would -- we would say that they constitute the bulk.

And may I call your attention, Justice Whitaker, to the -- to the Appendix B to our brief in which I have tried to set up the categories in which I think these charges fall.

One, there were contacts with the Soviet Embassy.

These were business contacts.ERCO had sold a great deal of material to the Russians prior to --

Justice Mr. Justice Whitaker: (Inaudible)

Mr. Carl W. Berueffy: Yes, you mean the Russian diplomat?

Justice Mr. Justice Whitaker: Yes.

Mr. Carl W. Berueffy: Yes, sir, no doubt about that.

Then four of them were people that Greene had met in the course of this business of attempting to sell the worked propeller.

One of them, the fact is he never met and the record pretty well bears out the fact that -- that this (Inaudible) was gone out of the country before Greene ever tried to sell the propeller.

Now, this -- of course, I'm not asking the -- the Court to -- to review this record and make fact findings, but I am saying that the Solicitor General has said -- conceded, I think, that we must have some kind of a rational basis.

I think in answer to Mr. Justice Harlan's question, he indicated that he didn't think this could be completely arbitrary, although that's the way the -- the Secretary maybe acted, as I pointed out.

Now, as I say, you are trying to define or to divine some things which were not illegal, which were not immoral, which in the case of trying to sell goods to the Russians in the early 1940s was not even unusual.

You're trying to -- to divine a future conduct which can't be equated to anything expect the possibility that this man will commit treason against the Government.

This is the real need, and I -- I think this is the way it's got to be faced.

Now, Solicitor General said you couldn't do it by picking every third man.

This, he thinks, would be arbitrary.

I suggest that there are other procedures of divination which people in the past have used that -- for instance, lot casting or say putting all the names in the hat and pulling out 10 or 1000.

Others have -- have tried to divine the future by looking at the entrails of a freshly slain animal.

But even in the days of the Romans, they didn't try to define future on the basis of information from anonymous hidden formats.

And this is what this Government is trying to do.

Now, if there has to be some process, I submit, it has to be due process.

It has to comport with the requirements of the Due Process Clause.

In Taylor, Mr. Rauh talked about the problem of confrontation.

The problem of due process in Greene is much broader than confrontation because, as I understand it, any kind of a process would require some kind of notice, some kind of hearing, some kind of effective opportunity to defendants or one's self.

In this case, the Government stipulated that we didn't have notice.

They stipulate that -- that we were not informed.

And I would like to read that particular paragraph to you.

That stipulation of facts begins on page 27 of the printed record, and the particular paragraph is on page 30, paragraph (23).

In making its decision, the Eastern Industrial Personnel Security Board took into consideration the whole file of the case which includes information, neither the content nor source of which has been revealed to the plaintiff.

So, admittedly don't get notice, we admittedly do get what this Court says in De Jonge against Oregon that we couldn't get by way of treatment, namely, we may very well have been convicted on a charge, that we never know anything about.

Chief Justice Earl Warren: Did I understand you to say that it was stipulated that they -- that the petitioner obtained no kind of notice?

Mr. Carl W. Berueffy: Yes, sir.

May I --

Chief Justice Earl Warren: Where is that?

Mr. Carl W. Berueffy: That's paragraph (14) on page 29.

Prior to the letter of April 17th, 1953 referred to in paragraph (13), no communication of any kind relating to the action of Robert B. Anderson was sent to the plaintiff and his employer and except as herein set forth, there was no direct communication between the Department of Defense and the plaintiff.

And then, I might say that we set forth as part of the stipulation, every piece of correspondence between the -- the Department and Greene or myself, including my brother, who saw the final letter to the Board.

So that it was stipulated that we got no -- no notice before Anderson's action.

And, of course, we did get the statement of charges.

And this is all that we ever got.

Now, I understood, with some surprise that Mr. Rauh in the Taylor case was supplied with synopsis of what the informant said.

But we got no such treatment as that.

And when I asked if it wouldn't be well in -- in view of the complexities, if I went to New York and headed something in the nature of a pre-trial about what the fact issues work, there was no response.

We got to the letter but --

Justice John M. Harlan: Did you request it?

Mr. Carl W. Berueffy: A pre-trial conference, yes, sir.

Justice John M. Harlan: Is that in the record?

Mr. Carl W. Berueffy: Yes, it is.

Justice Mr. Justice Whitaker: (Inaudible)

Mr. Carl W. Berueffy: Sir, that appears on page 2 and 3 in the record as part -- as part of paragraph (5) of the original complaint.

This is the undated letter which, if you'll indulge me just a moment --

Justice John M. Harlan: But don't take your time on (Inaudible)

Mr. Carl W. Berueffy: Well, there is a letter in which I've said recited the earlier charges and said these aren't -- these aren't sufficient, may I come to New York and let's have a pre-trial conference this evening, what's really in issue here, no answer.

All we got, all we ever had to -- to go on was this summary of 13 alleged charges.

Some of which were not true, some of which were obviously couldn't be true, none of which was ever admitted by Greene despite the Government's contention to the contrary in its brief.

Now, it is true that we didn't deny such facts as that -- that Greene had married Jean Hinton Greene.

We did -- we did deny that she was a Communist.

And we did bring two witnesses.

The best we could do is say that, "I didn't know that -- that she was a communist.

We couldn't, of course, get Jean herself because we have no subpoena power.

Never mind."

So we tried.

The --

Justice Felix Frankfurter: Has the Government subpoena power in -- in these cases?(Voice Overlap) --

Mr. Carl W. Berueffy: No, sir.

Nobody has subpoena power.

You get witnesses, sir, only if they are willing voluntarily to -- to come and at your own expense.

And the hearing, of course, is held in New York and if you have many witnesses, it gets to be a problem too.

Justice Mr. Justice Whitaker: Did you say there is no provision to hung witnesses?

(Inaudible)

Mr. Carl W. Berueffy: No provision for hung witnesses, none.

The Government -- the Board does permit you to submit affidavits which are -- if you can't get a witness but, of course, it's a practical matter.

You've got to defend these things.

You -- you want your witnesses there.

Justice Felix Frankfurter: The witness has sworn before the Board?

Mr. Carl W. Berueffy: The witnesses for the respondents are sworn and cross-examined by the security officer.

Justice Felix Frankfurter: Is that the policy of administrative note, a special authorization or just a general statute?

Mr. Carl W. Berueffy: I suppose that's on general statute.

And -- and actually, the reference, of course, is not to the perjury statute but to the false statement statute to the Government.

Justice Felix Frankfurter: I understand.

Justice William J. Brennan: You said the witnesses for the employee (Inaudible) not the witnesses at the (Inaudible)

Mr. Carl W. Berueffy: You -- you never see any witnesses for the Government, Mr. Justice Brennan.

You don't know whether there are any or not.

In our case --

Justice Potter Stewart: Well, there was, for instance, I think in the former case, there was a one government witness, wasn't there actually?

Mr. Carl W. Berueffy: No, in neither case was there a government witness.

The -- in both cases, the -- the Government's case consisted of reading --

Justice Potter Stewart: Mr. Taylor's residence in 1942 or 1943 in Buffalo, am I mistaken about that?

Mr. Carl W. Berueffy: Oh, in -- in Taylor --

Justice Potter Stewart: Yes.

Mr. Carl W. Berueffy: In Taylor did offer to produce a witness, yes --

Justice Potter Stewart: Yes.

Mr. Carl W. Berueffy: -- as to residence but they didn't produce any witnesses in our case.

So that -- and this is one of the unfairness.

As you know, every witness is difficult and -- and worries on cross-examination.

But if the Government's witnesses aren't subjected to this, of course, their frailties never show up, whereas the employee's witnesses are -- suffer the frailties that in a normal judicial trial would -- would not be important because one offsets the other.

But you've a got a perfect -- you've a got a perfect presentation for the Government which nobody can attack and you have to deal with the frailties of your own witnesses.

Now, Mr. Rauh, I think, has covered confrontation.

I would like to say only this, that as I understand cross-examination, its purpose need not be limited to showing that the witness is a perjurer.

I, personally, would have liked to cross-examine the informant on paragraph simply because it is a matter of academic curiosity.

I would have liked to known whether he and I had the same idea of what a wild idea is.

I -- I think this is important.

If you are going to -- to try to base a decision on this kind of material, then the process isn't fair.

It doesn't even approach fairness, unless you -- you have some ability to -- to be sure you are talking about the same things.

And you can't do this without cross-examination, not when they use terms like this, not when it's -- in the little citation in our brief, a hearing officer says to you, "Well, now, if you are talking about liberals, that's a play on word.

Isn't that the same thing as communism and liking Russia?"

That citation has -- that quote is in our brief.

It may not be, I submit.

There could be a liberal but wasn't a Communist.

Justice William J. Brennan: Do you think that's an arguable question?

You really do think.

Mr. Carl W. Berueffy: Yes, I think [Laughter] that is arguable.

I would like to reserve my remaining time, if I may.

Chief Justice Earl Warren: You may -- you may, Mr. --

Justice William J. Brennan: (Inaudible) Where -- where did the government officer get this done?

Argument of Doub

Mr. Doub: I don't know.

I think it's just a routine matters, wearing witnesses probably --

Justice William J. Brennan: But that's not a routine matter.

Mr. Doub: But I don't know whether -- I don't know.

I don't think there is certainly no statutory authority, and I know of no other.

Justice Felix Frankfurter: Unless you're a (Inaudible)

Have you filed, Mr. Doub -- Mr. Doub?

Mr. Doub: No, sir.

Unknown Speaker: (Voice Overlap) --

Mr. Doub: Mr. Chief Justice --

Chief Justice Earl Warren: Mr. Doub.

Mr. Doub: -- Members of the Court.

To our great traditions of individual liberty of the value of the human person, human spirits requiring fundamental fairness in our normal procedures, to those principles require a trial type due process hearing when the Government is determining whether it will deny access to government secrets in that limited restricted area, is there any exception to their basic principles and their application of due process?

Now, a -- a more precise constitutional test would be has the Government limited the constitutional liberties of the citizen in this case to any greater extent than is reasonably necessary and proper under all the circumstances.

Now, if we have, this procedure is invalid.

But in answer, it does require, may I submit, the most careful and full and comprehensive evaluation of the problem upon a realistic basis and all the factors that are involved in the equation not just one and you've only heard one so far.

You remember you have said due process takes into account the nature of the problem and it is not a mechanical instrument or yardstick.

Now, the first factor in the equation is our great traditions of liberty and freedom.

Now, the second is this, as Mr. Justice Frankfurter said in the Anti-Fascist Committee case, “We recognize its summary administrative procedure may be sanctioned by history or obvious necessity.”

Now, the United States is the only government in the world that accords any hearing at all in connection with access to government secrets.

Now, this program did not evolve during some temporary period of hysteria.

It has perhaps existed three or four years ago.

It originated in the beginning of 1942 during the war.

And it was operated then upon a completely informal basis, as is being done in Great Britain and each of the NATO countries, the Defense Department informs me.

The United States would -- would decide that it lacked confidence in someone working in a defense plant, and it would notify the company that it didn't trust such, such, such and such a man.

The company would move him to a non-sensitive position, if it had one, if it could, or it would dismiss him.

And as a matter of fact, the Report of the Commission on Government's Security states that 2000 industrial employees were dismissed during the war as a result of that informal procedure.

Now, then, efforts were made to formalize and this formalized proceeding which was designed not to operate on such an informal basis but to accord hearing privileges or rights, these hearings, limited hearings, they are limited hearings, of course, I think, started in 1949.

But in any event, this program in one form or another has been in effect for 17 years.

Now, there is a confusion about the nature of the -- of the issue in these hearings.

And I might say, as I said before, that Canada, Australia, Great Britain, France, countries that had -- know something about traditions of freedom, have continued to operate on the informal basis.

Now, I would like to put the problem in the terms that the Prime Minister of Canada recently put in.

He said -- he said to the parliament this.

First, he said employer should always try to avoid dismissals if it all possible.

They have a duty not to increase the difficulties or disabilities of persons whose only misfortune is that their liability is open to question.

And I might say here that there was no directive to this employer to dismiss Mr. Greene.

And I emphasize that because no one in the defense establishment had any authority to tell an employer to dismiss anyone.

And it would have been exceeding authority to have done s.And as a matter of fact, the regulations and policy of the Department, Defense Department made clear that it's their hope that employers will transfer someone who isn't cleared for access to secret information, a classified information to a non-sensitive position.On the other hand, I must conceive --

Chief Justice Earl Warren: Mr. Doub, I understood counsel to say that the letter directed the -- the employer to let him from having access to the plant where he worked --

Mr. Doub: Well --

Chief Justice Earl Warren: -- where he was -- where he was the --

Mr. Doub: We --

Chief Justice Earl Warren: -- executive officer.

Mr. Doub: That's right.

We caused his dismissal in this way.

This was a small comparatively small research corporation.

It had several thousand employees.

But all of its work, apparently, was classified navy and air force work.

If it had been General Electric, it perhaps could have moved him over to something else or General Motors.

But here, the denial of access to -- to top secret information, and what we are dealing with here was top secret, he's -- the head of this company testified that he wanted and needed a top secret clearance for this man, the highest priority known, the government secrets.

Chief Justice Earl Warren: Well, I -- I'm -- I was just directing my question to your statement that you did not ask the company to discharge him.

Mr. Doub: We did not.

Chief Justice Earl Warren: You merely told him that he shouldn't have access.

But --

Mr. Doub: Right.

Chief Justice Earl Warren: -- as I understood counsel, the -- the letter of the Secretary directed them not to permit him in the plant.

Mr. Doub: Well --

Chief Justice Earl Warren: Now, if -- if a man can't get in the plant that he is the executive officer of, how can you say that he didn't -- that the Secretary didn't direct him to discharge him.

Mr. Doub: Well, because the statement made by counsel is not strictly accurate.

What he said was --

Chief Justice Earl Warren: Where -- where are you reading from, Mr. --

Mr. Doub: I am reading on page 4 of our brief.What he said was, "You are requested to exclude William Lewis Greene from any part of your plants, factories or sites at which classified navy projects are being carried out and to bar him access to all navy classified security information."

Chief Justice Earl Warren: That's the way I understood counsel and --

Mr. Doub: Oh, I -- I misunderstood.

Chief Justice Earl Warren: -- that's the way I thought they had said it to you.

And you said that -- that the -- the whole thing was researched and therefore, he couldn't be in the plant at all --

Mr. Doub: Well, I think --

Chief Justice Earl Warren: -- under the government order.

Mr. Doub: I think it had that effect --

Chief Justice Earl Warren: Well, that's what I understood.

Mr. Doub: -- Your Honor, because it says from any --

Chief Justice Earl Warren: Yes.

Mr. Doub: -- part of the plant --

Chief Justice Earl Warren: Yes.

Mr. Doub: -- where work is being done --

Chief Justice Earl Warren: Yes.

Mr. Doub: -- and I think that the work was -- that's -- that's all the work they had.

Chief Justice Earl Warren: Yes.

Mr. Doub: But the -- I do think that you may not ignore the important distinction because if we are dealing with employment outside of this restricted field and access to information, I think, entirely different constitutional principles might logically apply.

And -- but I'd like to continue with what the Prime Minister said, "The assessment of the reliability of a person does not necessarily or even usually involve anything that could be regarded as charges against him.

Decisions on reliability are taken everyday in the public service and indeed, in business and in almost every sort of organization."

The question at issue is not guilt or innocence of some particular charge, the sole question is whether a certain person can or cannot be entrusted with secret defense material.

It would give a completely false atmosphere.

And that false atmosphere has already been created here.

It would give a completely false atmosphere to the matter if it were assumed that reliability can somehow be put beyond doubt by meeting formal charges or indeed that reliability cannot be brought into doubt except on the basis of formal charges, assessment of character maybe the only consideration in some instances.

That is not a matter of charges or a trial or a proof, it is a matter of judgment.

Justice Hugo L. Black: What was the occasion of this address?

Mr. Doub: He was address -- the Prime Minister St. Laurent was addressing the Canadian Parliament indicating the nature of the issues in Personnel Security cases in Canada.

Justice Hugo L. Black: What was the objective of his address?

Mr. Doub: Well, he was explaining --

Justice Hugo L. Black: Has he been talking about statutes or laws that have been passed or that he wanted to pass?

Mr. Doub: No, he was -- he was defending their Personnel Security program.

Justice Hugo L. Black: Well --

Mr. Doub: And he was explaining why they didn't accord hearing.

Justice Hugo L. Black: Had the Parliament passed it or had someone raised a question in the Parliament that they ought to have hearing?

Mr. Doub: I -- I don't know.

Justice Hugo L. Black: You don't know what the speech was about?

Mr. Doub: Well, I do know [Laughs] what is valid.

Justice Hugo L. Black: Is it a statute -- is it a statute in this country which authorized it?

If so, where is it?

Mr. Doub: No, there's not.

Justice Hugo L. Black: There's not?

Mr. Doub: There is not an expressed statute for this program.

There -- there are three or four statutes from which, I believe, you can well deduce.

Justice Hugo L. Black: Did you say --

Mr. Doub: And they have one in -- in --

Justice Hugo L. Black: I don't know, I am asking you the question because you read this.

Do they have one in Canada?

I don't know.

Mr. Doub: No.

Justice Felix Frankfurter: Well, isn't the Canadian system like in England?

And isn't this the internal executive scheme both in England and in Canada, more particularly in England, who are dealing with people who are not to be trusted or -- or not -- about whom questions are raised to a government employee and they have a government, I think, they're familiar with England, they have a government, takes very careful measures within its full rights of discharging anybody not to do any damage.

The difficulty is that -- that -- in the first place, this isn't the question of dismissing some government employee for a good reason or bad reason or no reason in the absence of limitation upon such dismissal by a Civil Service Act.

In the second place, he must do -- the situation of the Civil Service Act may not or does not imply, the Government may limit its powers, its constitutional powers by wrecking a system of administrative procedure and then the question is, as it is here, whether the system of administrative procedure grants certain safeguards though pursued constitutional may not require such safeguards to re-grant it.

Mr. Doub: That's right.

We --

Justice Felix Frankfurter: You got a very different system from what --

Mr. Doub: We --

Justice Felix Frankfurter: -- that under which both England and -- and Canada and, I believe, Australia are operating.

Mr. Doub: Well, I think --

Justice Felix Frankfurter: There, it's entirely within the Government without any statute setting up this system wholly apart from the fact that in none of those three nations that I have named that they got a Due Process Clause.

Mr. Doub: Well, I -- I would like to point this out, Mr. Justice Frankfurter, that a few years ago, many of the critics of the Government Security programs made invidious comparisons between our and the English and Canadian system pointing out that their systems were limited to sensitive positions in the Government and sensitive positions in industry.

But you remember prior to Cole against Young, the Government was applying its security system in non-sensitive positions.

Now, that -- I think that fact, it's only about 5% or 6% of the employees of -- of the Government.

And also, they pointed out that in England, transfers are made wherever possible but not always as the Prime Minister even said --

Justice Hugo L. Black: May I supplement what the question that Mr. Justice Frankfurter suggested to say that to me that probably another question something like steel seizure case.

Do you -- do you rest entirely here on the executive power to promulgate broad rules which have the effective law, determining who can and who cannot work for private employee without -- without any act of Congress?

Mr. Doub: Well, Mr. Justice Black, I will turn to that.

I had hope to go on, on the constitutional --

Justice Hugo L. Black: I have no objection, I just want to say that I --

Mr. Doub: Could I -- could I differ a little --

Justice Hugo L. Black: -- I thought you will discuss it.

I don't know (Voice Overlap) --

Mr. Doub: I will.

I -- I will discuss this.

Justice Hugo L. Black: -- but I'm interested.

Mr. Doub: I will discuss this.

You'd be interested in the -- at the -- in the appendix of the Report of the New York Bar Committee, and a report that's not always laudatory, in fact, it's critical of the security programs of the Government.

[Laughs]

Justice Hugo L. Black: (Inaudible)

Mr. Doub: You'll find in the appendix some quotations that I wish I had time to read confirming the position the -- the Defense Department has taken and the Government has taken as to why it can't provide confrontation.

Those are statements by the Prime Minister of Canada and statements by the Prime Minister of Great Britain.

Now, I like to --

Chief Justice Earl Warren: Did the text of the -- text of the Report confirmed that as the opinion of the Committee?

Mr. Doub: Well, I was referring to quotations from --

Chief Justice Earl Warren: I know you were but -- but how about the Report of the Committee itself?

Did it -- did it follow those citations and suggest that confrontation was not necessary or did it arrive at the contrary conclusion?

Mr. Doub: Well, I -- it -- as I recall the -- the New York Bar Committee Report, it recommended a limited form of confrontation.

Chief Justice Earl Warren: Yes.

Mr. Doub: And I know the right commission report recommended it as to casual informants, none suggested it was a constitutional principle though.

Chief Justice Earl Warren: No, but it did --

Mr. Doub: And the question of --

Chief Justice Earl Warren: -- suggest that this procedure was bad, did it not?

Mr. Doub: Well, they thought it could be improved.

Chief Justice Earl Warren: [Laughter]

Justice Hugo L. Black: You're not taking that -- you're not agreeing with that.

Mr. Doub: [Laughs] Well, I don't say that it can't be improved.

All we say is that's the matter -- we -- there'd been constant improvements so far, and we hope there'll be more.

But it always says that's a matter of administrative or executive or legislative power.

Now, I'm going to leave our foreign Prime Ministers and go back to our own --

Chief Justice Earl Warren: Good.

Mr. Doub: -- authorities.

Judge Wyzanski said, in effect, the same thing.

You will find in an opinion I have quoted, and Justice Douglas likewise did in his concurring opinion in the Anti-Fascist Committee case.

And I'd like to read you what he said because he recognized so clearly the distinction that we are making here.

Justice Hugo L. Black: Was that -- I don't remember.

Was that a case of a government employee or an employee of a private company?

Mr. Doub: It didn't involve any employee, Mr. Justice Black, it involved the Attorney General's list and the listing of the -- of the Anti-Fascist Committee.

It was in effect whether he could make a designation without any hearing at all --

Justice Hugo L. Black: Well, you -- we're not talking about --

Mr. Doub: -- which would --

Justice Hugo L. Black: (Inaudible) case.

Mr. Doub: No, no, I'm not.

Mr. Justice Douglas said this.

The problem of security is real and the Government need not be paralyzed in handling it.

The security problem, however, relates only to those sensitive areas where secrets are or maybe available.

The department heads must have leeway in handling their personnel problems in these sensitive areas.

The question is one of the fitness or qualifications of an individual or a particular position, one can be transferred from those areas, even when there is no more than a suspicion as to his loyalty.

Now, here, we're not dealing with a suspicion as to loyalty.

The suggestion of my friend on the other side, what's involved here is potential treason is totally unsound or a -- a clearance should be denied to a blabber mouth, to one who has committed no offense.

And this man was not charged with any offense known to our law.

Chief Justice Earl Warren: No, but I understood he was -- but in the Taylor case, he was, he was charged of being a Communist, but in this case, I understood that he was -- he was charged with having Communist beliefs, that he was charged with associating with his wife who was a Communist, he is charged with associating with Soviet agents, he is charged with associating with Soviet diplomats and other things from which no person in this day and age could gather any other impression than that.

He was a dangerous individual because he would -- he would divulge secrets to those people.

Mr. Doub: Well, I --

Chief Justice Earl Warren: But what other -- what other import could there be to these charges, if not that?

Mr. Doub: Well, I -- the -- I have read this entire record with care, Mr. Chief Justice, and I found that there was no dispute as to any facts at all.

The dispute was as to the inferences to be drawn from undisputed facts.

Chief Justice Earl Warren: Exactly.

Exactly.

But if you --

Mr. Doub: Now --

Chief Justice Earl Warren: -- charge him with having -- having contact with -- with Soviet agents and he says that the reason for it was that the Government and his employer was trying to negotiate some contracts with him, there is a great difference of opinion between the purpose for -- for which he says he saw those people and the one for which the Government seeks to deny him access to -- to secrets, is that not right?

Mr. Doub: Mr. Chief Justice, this man had the most extraordinary number of associations, not only with persons in the Russian Embassy, from military attaché, and not only with persons the Government has believed pro-communist, but even with persons whom the Government believes had been actively engaged in espionage.

Now, we don't -- we have never said that Mr. Greene by virtue of those extensive associations was not a good loyal American, he may well be and he probably is.

And certainly, there is no -- nothing in this record to show that he is not.

The problem -- the problem from the point of view of the Board -- Board was, if you have a man over a long period of years with close associations, with Silvermaster who was publically identified and testimony before a committee as head of an espionage ring and documents were photographed by his associate Ullman, who lived in his house in his basement, Mr. Greene, strangely enough, had access to that basement.

He used to go down there and he saw all the --

Justice William J. Brennan: Mr. Doub, what you are telling us now, what he admits or --

Mr. Doub: Yes, this is all what he admits.

I wouldn't say anything except what he admits.

And now, you finding then in partnership, he organized a partnership which does work for a short period of time for a company out in Ohio, that the Government considers controlled and dominated, operated entirely by Communist, he takes in as his partner a man whom the Government -- was a communist, he -- he make trips to Nags Head with persons identified as Communist.

He stores his furniture with someone identified as a communist.

In other words, now -- he denies that he saw them do anything improper, he said he never saw Silvermaster do any spying, and he said that while they were -- they were pro-Russian, pro-Soviet, he didn't know that they were subversives.

Now, the problem is, if the Court please, what in the world is a security board going to do with a case like that?

Now, all there is against him is his associations.

And they weren't just remote associations, as counsel on the other side suggested.

Now, obviously, you are not going to convict him of any crime at all.

But the -- if the question is not one of doubt, in other words, is the Defense Department going to disclose to someone in that position the top secret information of the United States?

Now, if it did, and is the Court to compel it to do so or to say, "You must do so unless you confront him with his accuses."

Well, actually, he never requested to confront anybody in this record, as long as the hearings were going on.

He -- I think he did have perhaps after his clearance was revoked.

But I do ask you to think of it in terms of the problem.

Would it explicable to the American people to say the Defense Department has to trust those whom it doesn't trust?

Justice Hugo L. Black: Do you see any difference between the power of your Board over the employee of the Government and a non-employee?

Mr. Doub: I cannot see any difference, Mr. Justice Black, between the employees of the -- of a contractor and employees of the Government doing insensitive positions.

Now, I think there is a different between employees in non-sensitive positions.

I think if they are in non-sensitive positions, I'm not sure the Government is entitled to the -- to claim the benefit of the doubt.

In other words, isn't this fundamental distinction --

Justice Hugo L. Black: I'm not -- I'm not asking you about that distinction, I recognize (Inaudible)

Mr. Doub: Yes.

Justice Hugo L. Black: I'm asking you if you draw any distinction between the power of the Government in connection with employees of private companies to cause a government contractor, employees of the Government, just what you call an inherent power that comes from something.

Mr. Doub: Well, logically, there's -- there's no difference for this reason.Certainly, the Government is as much entitled to exclude private persons whom it does not employ from government secrets as it makes --

Justice Hugo L. Black: (Voice Overlap) government secrets but from government -- from employment with a private company, it seems to me, there ought to be some difference.

The Government doesn't have to contract with the client for a certain private company though.

Mr. Doub: That's true, we could --

Justice Hugo L. Black: Could the President -- could the President had promulgated the Walsh-Healey Act?

Mr. Doub: No, sir.

Justice Hugo L. Black: Suppose he had done it on the ground that needed to be done, interest in national defense and security?

Mr. Doub: Well, we think --

Chief Justice Earl Warren: You can answer that after lunch.

Featured:

Greene v. Mcelroy - Oral Argument, Part 2

Tue, 04 Dec 2012 20:36:51 +0000

Case:

Greene v. Mcelroy

Media File:

180_19590401-argument-2

Related Transcript:

180_19590401-argument-2

Transcript:

Argument of Doub

Mr. Doub: -- this program as I see it, is this that in the case of sensitive positions, whether in the Government or outside, the Government is entitled to the benefit of the doubt.

But in the case of non-sensitive positions the ordinary employment by the State or by others then the employee is entitled to the benefit of the doubt and therefore ordinary due process requirements must be met.

And it seems to me that that distinction is a reasonable and logical one.

As the Solicitor General pointed out the only power asserted by the Government in this case is the refusal to disclose to a private person secret, top secret in this case military information and it's -- for which it's responsible.And that information is made available to private persons solely for the benefit of the United States.

Chief Justice Earl Warren: Well, Mr. Doub, does that carry into the conclusion that -- that you can -- the Government can cause the result that happened to this man without any procedure of any kind and without giving him any notice of any kind of the charges against him?

Mr. Doub: Well, as a matter of fact, if the Court please, you'll find the statement of the derogatory information was furnished.

Chief Justice Earl Warren: No, no I didn't ask -- I didn't ask you that.

I know there was happening here eventually but -- but does it carry you, does your argument that you just made, carry you to that conclusion?

Mr. Doub: Yes, it -- it would Your Honor.

It would.

Chief Justice Earl Warren: It would.

Mr. Doub: In other words, it would presuppose that there may be in an individual case an injustice and an inequity.

But when you balance that against the right itself, preservation of the Government, the greatest responsibility we have or we say the interests -- the people of the United States are entitled to the benefit of the doubt in this restricted area even though -- even though in denying a man access, it may have the consequential effect as it did here of loss of employment.

Chief Justice Earl Warren: Now, that isn't exactly the -- if I may finish this.

That isn't exactly the way I understood the Solicitor General.

I understood the Solicitor General this morning to -- to say that some procedure must be given to this man and that if it was arbitrary, completely arbitrary, that it -- it would violate his rights.

Mr. Doub: Well, as I understood the Solicitor General, we're both in accord that no discriminatory policy can be adopted such as no Democrats may have access to secret information or Republicans.

And -- but I don't believe he intended to go further than that, but in any event if you feel there must be the Constitution requires a form of hearing then I will address myself to the point that this limited, restricted hearing under these circumstances and you must consider all the circumstances may be adequate.

But may I point that --

Chief Justice Earl Warren: We are not pointing it to that.

May I ask, if it wasn't the fact that the petitioner in this case was discharged by -- caused to be discharged by the letter of the Secretary without affording him any procedure of any kind and without giving him any information of any kind.

Mr. Doub: No, he -- he requested a hearing and was (Voice Overlap) --

Chief Justice Earl Warren: Well, I know, but he was already (Voice Overlap).

He was already discharged, wasn't he?

And he didn't get it for some seven months after that.

I'm --

Mr. Doub: Yes.

Chief Justice Earl Warren: -- referring to these two -- two items that were called to -- to our -- our attention.

The one that -- on page -- on Page 29 of the record where on or about April 17th, 1953, Robert B.Anderson sent -- the letter set forth in paragraph 5 of the complaint, and then prior to the letter of April 17th referred to no communication of any kind relating to the action of Robert B.Anderson was sent to the plaintiff and his employer.

And except his hearing set forth, there was no direct communication between the Department of Defense and the plaintiff.

So, that's what caused his discharge.

Now, later it's true he did have a hearing some seven months later or eight months later before the Eastern Industrial Personnel Security Board but at that time it stipulated that in making its decision the Board took into consideration the whole file to the case which includes information neither the content nor source of which has been -- has been revealed to plaintiff.

Now, that's a stipulation of the parties as I understand it.

Mr. Doub: Well, I would like to give Your Honors these page references in the transcript where he was -- where the Board told him that a witness says this, what comment do you have to make on it?

And --

Chief Justice Earl Warren: Now, what do you do with this stipulation that I just read?

Mr. Doub: Well I don't think it was -- I think it meant, Mr. Chief Justice, that they did not give him a separate summary of the information that they had in the file.

But they did in when he was testifying, they did quote to him things that witnesses said and I would like to give you paper --

Chief Justice Earl Warren: No, but this stipulation says that he got neither the content nor source of which --

Mr. Doub: Well, he certainly was not given the sources.

Chief Justice Earl Warren: Yes.

And this says the content, your stipulation, what are you going to do with it?

Mr. Doub: Well, he -- he was given the content of a great deal of material and I'd like to give you the page references where they appear.

What I want --

Chief Justice Earl Warren: Well I -- I won't bother you to do that because I won't read them right now, but I just wondered how, what are you going to do with that stipulation?

Mr. Doub: Well, I accept it as -- as it stands, but the record does show that if any one is interested that in 20 or 22 instances, statements of -- from what they had in their file were read to him or summarized to him during the course of the hearing.

Now, if the court please, this power of -- of acting on a doubt or on whether someone is trustworthy is one that's freely used by every private employer in the world, so the effort here is not to subject the Government, that duty is comparable to that of a private person but to greater duties because it is the Government.

Now, may I point out this.

We would -- I think we'd have to agree that no one has any constitutional right to access to government secret, no one has any legal right.

So then -- then to find a constitutional basis we're saying that Mr. Green is entitled to a constitutional trial type due process hearing.

We have to find some interest that he has.

Certainly it's not the right of access.

So, you say, well it's -- it's financial determinant.

Here, he consequentially lost his job.

Now is that -- is that a sufficient interest?

Certainly it's not enough as Mr. Justice Black said in Lukens Steel after stating that no legal rights were invaded when the Government refused to contract with a private corporation, he said this, “It is by now clear that neither damage nor loss of income in consequence of the action of the Government, which is not an invasion of recognized legal rights is in itself a source of legal rights in the absence of constitutional legislation recognizing it as such.”

Justice Hugo L. Black: I wouldn't think that as in application here, maybe it does, that was said with reference to business people who wanted to claim they had a legally recognizable right to make contact with the Government.

Mr. Doub: That's right.

Justice Hugo L. Black: Your question is whether the Government can invade this man's undoubted right to hold his job unless there's some for some legal reason the Government can have him removed.

Mr. Doub: That's right.

And -- and you -- you pointed out, Mr. Justice Black, that the Government had the unrestricted power to determine with whom it will be --

Justice Hugo L. Black: That's right, that's correct.

Mr. Doub: Now --

Justice Hugo L. Black: But we didn't have anything there about the conditions of employment that would --

Mr. Doub: No.

Justice Hugo L. Black: Affect anybody else?

Mr. Doub: No.

But your -- but if the language does to him -- to United States, applicable here, and suppose Greene had been transferred from a -- this sensitive job to a non-sensitive job, would he have had legal standing to say his constitutional rights were invaded?

He would have had no financial loss but if he wouldn't, then you set up one constitutional standard for those who consequentially lose their position, not because although the Government did the same thing in each case, it denied clearance and because his employer doesn't have non-sensitive work for him, I -- I say that would be a completely illogical conclusion.

So, I don't think it can be predicated upon a financial loss.

Chief Justice Earl Warren: Well, are you certain that -- that the Government could by a procedure of this kind or lack of procedure of this kind so circumscribe the activities of a -- of a man whether within or without the plant he is working in so that he cannot -- he cannot hold the kind of position that his -- his training and ability entitle him to?

Would you say that is clear that they could do that, move him around in that way and eventually move him down where all he could do is clean up the building?

Do --

Mr. Doub: Well --

Chief Justice Earl Warren: -- you assume --

Mr. Doub: -- if the Court please --

Chief Justice Earl Warren: -- but that's perfectly all right to take and do, that they can do that, but I don't know that they can do that.

I -- I don't think that's been established, has it?

Mr. Doub: Well of course --

Chief Justice Earl Warren: By --

Mr. Doub: -- it's no.

Chief Justice Earl Warren: -- branding him -- by branding him as a man who is not fit to -- to have -- have these secrets because of his associations with subversives?

Mr. Doub: Well, if the Court please, no characterization has been made of him by the Government beyond denying him access to government secrets, as in the case of a government employee who's denied access.

That's, in other words, we go no further than we had to go in denying him access.

Now, it's true that these unfortunate consequences have -- have fallen.

Actually this administration destroyed, obviated the old President Truman loyalty standard which did involve stigma and we set up a standard that we tried to make as innocuous as possible and that was clearly consistent with the --

Justice Hugo L. Black: Make it what?

Make it what?

Mr. Doub: As innocuous as possible from the standpoint of the individual [Laughs] and that was clearly consistent with the interest of national security.

Now -- now the New York Bar Committee has suggested pretty good standard.

They say that is continued employment is undesirable.

Justice Hugo L. Black: May I ask if your argument is something like this.

And may lead to something else in connection with it, or may not.

You are saying it for the good of the public, public welfare demand, something be done to this man whereby he surrenders for the public good his job with all the losses that may entail to him.

Now, if he'd owned the laundry as an individual and done that could you -- could you take it with that (Inaudible)

Mr. Doub: Certainly not.

Justice Hugo L. Black: What's the difference?

Mr. Doub: Well, if the court please --

Justice Hugo L. Black: Well let's suppose he does on the growing concern, there's no inability --

Mr. Doub: Well --

Justice Hugo L. Black: Can you take it -- take it away from him without paying?

Mr. Doub: Of course, we didn't direct his employer to dismiss him.

Justice Hugo L. Black: Well, for that was --

Mr. Doub: -- We --

Justice Hugo L. Black: not -- that -- that wouldn't be -- that wouldn't a defense if -- if the compensation so as it applied, would it?

Mr. Doub: No, no.

Justice Hugo L. Black: What do say?

Maybe it has nothing to do with it, but would -- would it not have something to do with the consideration of the whole subject?

Mr. Doub: I don't know, Mr. Justice Black.

I don't know the answer to that.

May I say this on stigma, is there a more stigma here than if we had denied him a clearance without a criminal conviction for accepting a bribe or for theft or for rape, and in each of those cases the courts have refused to find the constitutional right entitling an employee to be protected by procedural due process when his employer, private or the Government, dismisses him for those reasons.

Actually, this case seems stronger from the government's point of view because here you are dealing with secrets of the United States.

Chief Justice Earl Warren: Well, what if they want to say if a man had been convicted of -- of rape and another thing if they were just some anonymous or baseless charge against him that he -- he had done such a thing when he wanted to be confronted by the witness against him and was denied the opportunity?

How would it then --

Mr. Doub: There could be a difference.

Chief Justice Earl Warren: I would think that there --

Mr. Doub: -- (Voice Overlap)

but in the case that I cited Your Honor to you there was no conviction.

The employee was dismissed on the ground that his employer believed he had committed a theft or a rape or somehow they're dishonest.

Justice Hugo L. Black: But was he employed at will?

Mr. Doub: Yes at will, now --

Justice Hugo L. Black: But if the Government had done that, you wouldn't have any problem there, would you?

Mr. Doub: No.

Justice Hugo L. Black: If the Government had employed him at will, but what is it that causes --

Mr. Doub: No.

Justice Hugo L. Black: -- you to say that he's entitled to due process.

I -- I'm asking you that because to me if he's entitled to due process, it's one thing.

I find it a little difficult to shrink it to the dimension as it had been suggested in one type of case and expanded in another.

If he's entitled to due process at all, how can we say that it's just the slight amount that is suggested here by weighing each time?

Mr. Doub: Well, I was trying to consider all the factors involved in this very determination, is he entitled to a due process trial hearing?

I pointed out financial determinant, is not enough.

I was pointing out stigma, is not enough.

Justice Hugo L. Black: So, you say he's not entitled to due process here?

Mr. Doub: Not entitled to a due process trial type hearing because if he is entitled to it, why, of course, there's no reason for us to be here.

Justice Hugo L. Black: What, you mean no he is -- the different ideas of due process as you know and all of us know, do you -- are you saying the government has a right, I can understand that argument, but for many years the Government had fired whosoever it chose whenever it saw fit, and nobody raised much questions about it.

Are you standing now on the base that he -- he is entitled to some of the elements duly recognized as the part of due process and not entitled to others or that he is not entitled to any of them?

Mr. Doub: Well, if the Court please, I think a very strong argument can be made, that in these sensitive areas that we are talking about no constitutional rights were involved at all.

In other words, as the District Court and the Court of Appeals for the District of Columbia held, he has no constitutional right to confrontation.

That this is a matter -- this question of the Government just determining to whom it will admit to access to its secrets is a matter for the executive determination.

And unless that's one approach to it, even though there are these distasteful qualities to the legal mind, where you have no trial type due process hearing and they are distasteful.

There's no -- no question about that.

But in this restricted area there should be no such requirement.

Now another approach is, well assuming, that -- that that's not correct, that there are rights to work that are effective here, why then we would -- there would be the position while this restricted type of proceeding meets the test of due process even though it's not the one that we ordinarily associate -- we like.

In other words, it is limited, it is restricted.

Actually, in spite of all our horrors of baseless informers, I think the statistics are -- are very interesting on the extent to which this limited restricted hearing has worked in favor of employees of 3400 cases, in a five-year period before hearing boards, clearance was restored as a result of these limited hearings in 2453 cases.

That's, in other words, over 60%.

Now, of course, the answer could be, well, if there was confrontation, it would be lower.

But I think we do have to balance Mr.Justice Black, this -- these rights of the individual against the other interests that are involved here, and they are tremendous, they are tremendous, yes.

Unknown Speaker: Many of them.

Mr. Doub: Yes.

Unknown Speaker: Good.

Chief Justice Earl Warren: Mr. Doub, when was this man denied access to these secrets?

What date, then by what documents or by what act was he denied?

Mr. Doub: He was denied access by the Secretary of the Navy in April 1953.

Chief Justice Earl Warren: That was the letter -- the letter that -- that Secretary Anderson wrote to him and just tell -- telling him that he was denied access.

Now there were no procedure of any kind before that, was it?

Mr. Doub: Yes, there'd been a hearing before that and --

Chief Justice Earl Warren: Well, I know but none according to the proceeding that the -- the regular procedure --Yes, there'd been a -- he's had a -- he'd had a hearing before a board that it cleared him.

Chief Justice Earl Warren: Cleared him, yes all right.

Mr. Doub: Cleared and the Secretary of the Navy wrote this letter saying he'd reviewed those proceedings and he was revoking his clearance.

Chief Justice Earl Warren: Did he say that -- did he say that it was on a review of those proceedings?

Mr. Doub: Yes, he did.

Chief Justice Earl Warren: That's what the letter said.

Mr. Doub: Yes, sir.

Chief Justice Earl Warren: All right.

Justice William J. Brennan: So, this was under reversal was it in effect this time?

Mr. Doub: And was reversal, yes.

Justice William J. Brennan: By the secretary of the Board.

Mr. Doub: And then, then he referred it to this another hearing board when the employee requested it.

Well just before leaving the constitutional issue I just conclude with this.

There's one other facet here and that is what would be the consequences of a holding where the trial type hearing with confrontation as a constitutional prerequisite to a denial of access to secret information.

Now, I'd like to suggest that the consequences of such a hearing may be far worse than the possibilities of inequity or injustice in a particular case under these regulations.

First, it -- it would mean that the Government, unless it's prepared to produce its sources of information in a hearing, information that is classified, unless it's prepared to do that, it then cannot revoke the clearance or deny clearance to any industrial worker.

It must trust those whom it doesn't trust.

It must accept as reliable those who it doesn't consider reliable.

The decree would amount to a mandamus of the executive to disclose publically to the petitioner one of two kinds of information, the secrecy of which the executive has determined to be required.

Now, further more, when you define a constitutional principle of that kind, it means it's applicable in time of war as well as in peace.

Now, can it be in time of war even, we must admit to access to government secrets, persons whom we don't trust?

I think that would seem inexplicable to the, not merely the political branches of the Government, but to the people of the United States.

And wouldn't it mean that a constitutional principle had been defined on such a metaphysical basis as even to endanger the security of the United States?

Of course, it would deny to the Government the privilege of every private employer, to deny the -- to the executive in the case of military secrets the privilege to exercise by the judiciary in determining whom it will admit to its judicial secrets.

So, I don't believe that this issue can be resolved merely in terms of -- no exact words so I say, on personal freedom.

There are too many other factors here.

Now I like to return, in the few minutes left to me to Mr. Justice Black's question about statutory authority.

Our brief argues extensively --

Justice William J. Brennan: (Inaudible) Is there any indication what kind of informants do you have involved here?

Mr. Doub: No, and I read this record carefully, Mr. Justice Brennan, and I could not tell from the record whether they were causal, whether they were intelligence agents or what they were.

In other words, there were a number of quotations or -- or the -- the Board would say to -- to Greene, we have information as to this list.

And in every case except one Mr.Greene said, yes that's right.

But -- and he would explain why he saw this --

Justice William J. Brennan: By this time someone that had him under surveillance, doesn't they?

Just knowing --

Chief Justice Earl Warren: I suppose it wouldn't make any difference to you and your argument whether they were -- were employees of the Government, undercover agents or whether they were just casual informers, neighbors, or -- or strangers, or whoever it might be?

That -- that's your position?

Mr. Doub: Well Mr.Chief Justice I have before me a statement of Attorney General Brownell.

Chief Justice Earl Warren: Well, no.

I was -- I don't care about Brownell's, Mr. Brownell's statement, I just like to get your opinion in -- in how far you go on your argument.

Would it make any difference to you in this case, whether it were known as a fact, how many of these were witnesses that you used to deprive the man of his rights, were employees of the Government and -- and therefore in a confidential relationship or how many of them might have been people who just wrote in and said we -- this man is a Communist.

We know he does so and so.

What is the fact?

Will it make any difference to you or not?

Mr. Doub: Well, I think that it's perhaps debatable.

As a matter of fact, there's been criticism and there have been suggestions made that an improved policy would be to require casual informants to be produced.

But my position is if there's no constitutional principle distinguishing between the two, in other words, I can ---- (Voice Overlap) how the -- it may be the executive should change this or the legislative power.

But I can't comprehend the definition, or -- or I just can't formulate a constitutional principle that would apply to one, but not apply to the other.

That's my difficulty.

Now the -- what I was going to say was that it was stated, I think, by Mr. (Inaudible) that only the Chief of Intelligence, Mr. Hoover, had made the statements about the casual informers.

Attorney General Brownell did make a comparable statement that they could not be produced.

Now, on statutory authority, one statute defines the congressional policy that it's illegal for any person having defense or classified information to disclose the same to unauthorized persons.

Now, this program we think represents an attempt to faithfully execute that law to define who are authorized and who are unauthorized.

And another statute authorizes the head of these department to prescribe regulations for the custody, use, and preservation of records, papers and property and we think that would extend to the protection of property the title of which is not yet under the United States such as guns, aircraft parts, electronic parts being produced in United States because they are appertaining to the department.

And the statute use the word ‘appertaining.'

Further, there've been numerous appropriations by the Congress for the Defense Department upon representations by the Defense Department explaining that the money was to be used for this program says that further, there's a statute appointing the right commission and to study this and the other security programs and providing for the appointment of members of the Senate and members of the House, all showing a -- a close acknowledgement by the Congress of the existence of the program and knowledge of the program, and -- and indeed you'll find that the commission itself found statutory authority which included members of the Senate and the House.

And you'll find a -- a very good analysis in its report of -- of the statutes involved.

Justice Potter Stewart: When all is said and done now, Mr. Doub, is am I right in understanding that you don't rely fundamentally on -- on any statutory authority if that is -- that's your position that in the absence of any such statutes, what is here present is an inherited -- inherent power --.

Mr. Doub: That's right.

Justice Potter Stewart: -- of the executive which is fundamentally --

Justice Potter Stewart: -- non reviewable by the judiciary.

Mr. Doub: That's -- that's correct, Your Honor, and I might say that none of the

Justice Felix Frankfurter: -- (Voice Overlap)

Mr. Doub: -- critics --

Justice William J. Brennan: (Inaudible) executive orders as to inviolability of some of the confidential information.

Mr. Doub: Well, our -- our position as we outlined it in our brief is first, that this is an inherent power of the executive, but if the executive has secrets, inherently it must protect them and has the power to protect them and determine and select who shall have access to them and as the Solicitor General says the Government's operated on that basis for 170 years, and, of course, every government must be on the same position and we've developed that.

Now, the right commission takes a different position.

They feel that -- that it's a matter of statutory authority, but they conclude there is statutory authority and they have a more extensive discussion of the statutes than I think we have in our brief.

Mr. Justice Brennan, I -- I understand there is a statute with respect to oaths and if -- if we find there is, I'd -- I'd like to give you a reference to it later.

Justice Felix Frankfurter: Mr. Doub, I assume this is -- is also an either or -- or -- either or proposition, namely, the Government has confidential information.

It therefore, may withhold it and therefore it may generate a process by which a man loses his job, is that right?

I suggest the third alternative, if they have confidential information and if they hold on to it, and forgo therefore the right to have this individual (Inaudible) if it doesn't want to disclose it.

Mr. Doub: Well, I --

Justice Felix Frankfurter: It has to do that in connection with criminal prosecution.

Mr. Doub: That's right.

That's right and if -- but as I pointed out, Mr. Justice Frankfurter, think what an intolerable choice that is for the Government in this sensitive area relating to its sequence.

Unknown Speaker: That's the penalty the man paid for being in high position.

Mr. Doub: [Laughter].

Well, we respectfully --

Justice Felix Frankfurter: (Inaudible) that's what being in high office we learn that.

Mr. Doub: We respectfully submit that this judgement should be affirmed.

Justice Potter Stewart: Did you see the -- the constitution has at least this much effect, that if the department head, if the secretary sets up regulations for everybody, he has to abide by his own regulations for everybody.

Mr. Doub: Yes.

Justice Potter Stewart: And if he fires -- if he denies or asks the employer to deny confidential -- classified information to John Smith, only after a hearing and to Tom Jones and Bill Green, then with respect to Richard Brown he has to have a hearing, he has to -- the procedures whatever they are, I gather it's your position that there --

Mr. Doub: I think so.

Justice Potter Stewart: -- need not be any, but if there are any they have to be non-discriminatory.

Mr. Doub: Yes, I think there have to -- there has to be administrative regularity, I should think -- I think even though there --

Justice Potter Stewart: And that's the constitutional.

Mr. Doub: I still interpret your decision --

Justice Potter Stewart: (Inaudible)

Justice Hugo L. Black: Not merely non discriminatory but if you set up procedures (Inaudible)

Mr. Doub: That's right -- that's right.

And I might say that I think there's an arguable point on administrative regularity in connection with the authority of the Secretary of the Navy, to act after this man had been cleared, but that question was not raised by counsel on the other side.

Chief Justice Earl Warren: Thank you.

Mr. Berueffy.

Argument of Carl W. Berueffy

Mr. Carl W. Berueffy: Mr. Chief Justice, may it please the Court.

Mr. Justice Harlan first you asked me a question and I couldn't find the -- the precise citation.

My letter to the Board, in which I asked for a pretrial conference and which I asked for great deal of information begins on page 178 of the printed record and extends to page 181 of the printed record.

I would like, if I may, to devote my time to two basic propositions.

First, Mr. Doub, is I think not observing a very basic difference.

It seems to me that Colonel Berliner as the head of ERCO could have fired Greene on any ground that he wished to fire Greene on, good, bad or indifferent.

It seems to me that as to a government employee subject to limitations that we all know, that same power would exist.

What we are talking about here, however, is a perfectly satisfactory relation between an employer and his employee and a third person, albeit, the Government, coming in and interfering with that employment and this is what I think, Truax against Raich, said was protected against constitutional --

Justice John M. Harlan: But the Government, after all, thought that they are not taxed to have that right in accordance with the sanction of that right that complement didn't it?

Mr. Carl W. Berueffy: The Government purported to make that contract with the company.

Justice John M. Harlan: No, it's not the question of barging in without any power or right that it should come to the conclusion that it pressurized (Inaudible)

Mr. Carl W. Berueffy: Well, I think in general, Mr. Justice Harlan, that might be considered and that -- that brings us to our problem of -- of what the Solicitor General said yesterday as I see it, which is as a practical matter, the Government has to deal with -- with private businesses now, if it wants to get these things done.

Now, where does the authority for this kind of a contractual provision, which in reality and which in effect gives the Government control over the employees of -- the people who are employed by private business?

Where does that come from?

Well, the thing that seems to me most important is, that one might concede that the Government could exercise such an authority to him and could by some fair procedure exclude those persons as to whom it is has a doubt.

I concede this for the purpose of argument only, but still I don't think that it is possible, inherently, in the American system of constitutional government, to have any government official with an absolutely arbitrary power to do this kind of thing.

I think we are now talking in -- in very real terms of too much power in the hands of the Government.

First proposition is this.

Let's assume that on the basis of these things, if in context, these things that are said about Greene, if in context one might have a reasonable doubt as to whether it was wise to permit access or not, still it would have to be a reasonable doubt, and it can't be a reasonable doubt unless there's been something approximating a fair procedure.

Now, I am not necessarily talking about a judicial trial or anything like that, but there has to be a fair procedure for determining what the facts are and how they fit into the context.

Justice Potter Stewart: Well, I'm interested in what you just said, you said you are not contending here that the -- all the procedures that due process requires surround a judicial proceeding are applicable here.

Mr. Carl W. Berueffy: I think this is absolutely correct.

I think --

Justice Potter Stewart: Now what are you saying, what are the minimal requirements which are applicable?

Mr. Carl W. Berueffy: I think -- it think the minimum requirement if I may say so, is some kind of a procedure which looked at overall results in some confidence that this is a fair result and that it has been fairly arrived at.

Justice Potter Stewart: What does that mean?

Mr. Carl W. Berueffy: All right.

Justice Potter Stewart: Translate that into what you think, would have satisfied (Inaudible)

Mr. Carl W. Berueffy: Well, of course our position is that we didn't get anything and therefore anything we asked for, that we're entitled to gives us a right to the judgment here.

I think you have to have some kind of a fair notice, which tells you what the real facts are, what the real facts upon which the government proposes to act by depriving you of your employment.

This you must have.

This is -- this is an absolute requirement of -- of anything to be described as a pair process.

This by stipulation, I might say, signed by the Assistant Attorney General, we did not get.

Justice John M. Harlan: You've got the end result.

You've got it on after the event so to speak, but after you demanded a hearing in that.

Mr. Carl W. Berueffy: We didn't get it even then, Mr.Justice Harlan.

The stipulation that -- that they have never told us, either the source or the (Inaudible) of all these things that they brought against him.

Now, I think if the Secretary of -- of the Navy is a reasonable person, I think he did not deny Mr. Greene clearance because Mrs. Greene, the former Mrs. Greene thought that sleeping on bed boards kept the common touch.

So, we don't know what it is that this decision was based on.

All we know is by stipulation there was something we didn't know about.

Now, the second thing is I don't think you have to have a jury trial and I don't think you have to use the formal rules of evidence, but you do have to arrive at facts on some kind of a rational, factual basis.

And it isn't fair and it isn't correct to say, that because Greene said that he knew Silvermaster who incidentally was Mrs. the former Mrs. Greene's superior in the Department of Agriculture and that I am comprehensible that he wouldn't have had some contact with his -- with his wife's superior.

That isn't the equivalent of saying that Greene knew that Silvermaster back in these years, 15 years ago, that Silvermaster was a spy, if he was a spy.

And I would like to call your attention on this point to what I consider, possibly, the most salient thing in this entire record, at the bottom of page 425.

Greene was going to -- was being asked about his knowledge of these people and he said, “I had no indication that they were Communists, and when I was interviewed by the FBI, I said that”, and the FBI man, one of the FBI men said, “that's right, they didn't go around carrying signs that they were Communists because they were all working for the Government.”

Now, I think if you're going to say that the Government has a doubt about Silvermaster, and therefore, we're going to have a doubt about Greene, that we need in some kind of a factual situation to determine the -- the things that give significance and lend content and then I wouldn't say that it -- it was an unfair or unreasonable request to say that we ought to know what the Government did decide.

Justice Hugo L. Black: Suppose if the Secretary had said in opinion in which he said, “Since I have not had access to the FBI files I put those out of my mind.”

And I make my determination solely upon the impression that Mr. Greene made on me, assuming that he himself had attended this hearing, so that the -- on the impression that Mr. Greene made on me from answering the questions that were put to him, what would have been your position?

Mr. Carl W. Berueffy: Well if I may refer to an earlier illustration, if this is not an arbitrary decision.

Justice Hugo L. Black: I'm just asking that question on the premise that you had written, started around, namely, that you can recognized that you are not entitled or you don't claim that you are entitled to a full due process hearing.

Mr. Carl W. Berueffy: But I am entitled, or Greene is entitled it seems to me, basically and fundamentally to a restriction that the secretary must not make an arbitrary decision.

Justice Hugo L. Black: Would that be arbitrary if he --

Mr. Carl W. Berueffy: It certainly was decided --

Justice Hugo L. Black: -- (Voice Overlap)

Mr. Carl W. Berueffy: -- merely on my impression, I would like to make this illustration if I might, going to back to my earlier one.

If you were going to predict future disloyalty or whatever it is that you are predicting here, it might be better if you do it by -- by looking at the intros or by sticking the -- the nine-tenths of the -- to the volume of purging, because at least you could say we're relying on divine providence and not upon a fallible man.

Justice William J. Brennan: But he's is not making any prediction, he's just saying I don't want to take a chance.

Mr. Carl W. Berueffy: Well, if I -- I just can't see that that's not taking and making a prediction because you're not going to take a chance that involves taking or making a prediction.

The past has been Greene.

The past as the record shows is that he was reliable, that he did do -- did make -- pay attention to security rules.

That he did have the confidence and respect of the people that knew him.

Now, you are saying an -- a stranger, a total stranger can -- can say, well I just have an impression that I don't want to take this man and I think, and I should point out here, that the mere fact that the result might ultimately turn out the same, in a due process hearing doesn't excuse the absence of procedural due process as this Court held in Coe against Armour Fertilizer.

I -- I think at this point that -- that this I couldn't say was a fair procedure.

I -- I think any government decision has to be made on facts and when you are making an individual adjudicatory finding of fact, it has to be on something more than just an impression --

Justice Felix Frankfurter: Why do you -- why do you be as skewed as that in your statement?

In the first place when you say adjudicatory you are already bringing a lot of preference.

In the second place the President of United States very often makes that this Court had failed, very important determinations presumably on facts which we couldn't possibly review.

Mr. Carl W. Berueffy: That is correct, but never has this Court insofar as I know, given the President a power to make a completely arbitrary decision.

Justice Felix Frankfurter: He may make it in -- in raising or lowering the tariff and he may make it in denying a -- an international flying certificate or whatever it's called.

Mr. Carl W. Berueffy: Certainly, there are certain legislative and general things that the President does on --

Justice Felix Frankfurter: Merely suggesting it's not necessary to be extreme in order to be -- to present the problem in this case, the issues in this case.

Mr. Carl W. Berueffy: I -- I have no intention.

I -- I think that any decision in this case that isn't -- isn't based on putting these facts in context, with some kind of a record we can look at is -- is necessarily in and on its face, arbitrary.

Mr. Arthur J. Goldberg: You know that is the number of governmental decisions that have serious consequences for everybody, that are not adjudicatory.

Mr. Carl W. Berueffy: That is true.

But I don't think that anybody's ever been thrown out of a job without some --

Justice Felix Frankfurter: Well, the President had fired members of the cabinet and law officials all the time arbitrarily because they didn't like him or they didn't go along with him or they didn't -- what not or like --

Mr. Carl W. Berueffy: Certainly --

Justice Felix Frankfurter: -- always because that all is a (Inaudible) or -- or also a lady was involved in the center of a controversy regarding what the political decisions by by a person.

Mr. Carl W. Berueffy: Certainly, but those are subordinate to the President.

Justice Felix Frankfurter: (Inaudible)

Mr. Carl W. Berueffy: Those are subordinate to the President, not somebody else as employed.

Just one thing that I -- I would like to say and that is, it's beyond this --

Justice John M. Harlan: Isn't -- isn't it basic to your position the grounds on which this man was discharged?

Isn't that basic to your position?

Mr. Carl W. Berueffy: Well, basic to my position is the fact that if -- if you're going to discharge a man there has to be some reasonable relations between something that's a legitimate ends of Government and what it is that he -- he is supposed to have done.

Justice Charles E. Whittaker: (Inaudible)

Mr. Carl W. Berueffy: I would say that it is a legitimate end of Government, Mr. Justice Whittaker, to take a man of doubtful loyalty, but I think that off of the job, but I think that before, I want the Secretary of Navy or anyone else, designating any citizen of this country, as a doubtful -- person a doubtful loyalty, there has to be a relationship between what it is that he's supposed to have done and the problem of doubtful loyalty.

Justice Charles E. Whittaker: In other words, it must be done by some kind of a fair process.

Mr. Carl W. Berueffy: Certainly.

Justice Charles E. Whittaker: All right, now then imagine that was just (Inaudible)

Mr. Carl W. Berueffy: Yes, sir.

Justice Charles E. Whittaker: (Inaudible)

Mr. Carl W. Berueffy: I don't think we need a judicial hearing.

Justice Charles E. Whittaker: All right you mentioned one month, you know this (Inaudible)

Mr. Carl W. Berueffy: Yes, sir.

Justice Charles E. Whittaker: Do you contend that there should -- must be confrontation and right of cross examination?

Mr. Carl W. Berueffy: I -- I think on confrontation, that clearly you cannot put allegations in Congress without knowing the identity of the witness and his opportunities for observation, his motivation, as well as just the -- the essence of what he has said.

Now, I would say that we're getting into -- in (Inaudible) case, we got into this problem of confidential and casual importance.

I think the answer to this is, that the judgment ought to be drawn on a record, uncomplicated by facts that are known only through the trier of facts and I think the Government's plea of necessity here is a specious one.

Justice Charles E. Whittaker: I just don't understand to say you do not argue that use of your due process (Inaudible)

Mr. Carl W. Berueffy: Well, in an administrative hearing, you don't apply to technical rules of evidence, you can admit hearsay.

But you can't make a decision resting wholly on hearsay.

Justice Potter Stewart: Mr. Berueffy, before you sit down, may I ask you one question.

Is it your contention that Mr. Greene was treated in a discriminatory way, that is treated unlike other people have been or are treated under this program?

Mr. Carl W. Berueffy: Well, that he was so treated, I think that's not subject to doubt.

Justice Potter Stewart: Well?

Mr. Carl W. Berueffy: Because he didn't get any kind of a hearing.

The hearing he got resulted in a clearance.

Then he was arbitrarily thrown out of work, for -- for a year.

Actually, before he ever got a hearing -- hearing was the following the act.

Justice Potter Stewart: By -- by a reversal of the -- of the (Inaudible) was that it?

Mr. Carl W. Berueffy: This wasn't a reversal of the hearing board, Mr. Justice Potter, and all I can say at this point is -- is please just read the letter on page two of the record to see whether it was or it wasn't.

Unknown Speaker: Maybe I didn't --

Justice Potter Stewart: Excuse me.

Well, I'm sure I have the answer to my question.

Mr. Carl W. Berueffy: Well then if I --

Justice Potter Stewart: You -- it is your point.

It is your claim here that -- that there was discriminatory treatment of this man as --as contrasted to other men under this program.

Mr. Carl W. Berueffy: That's right, he didn't get any promise --

Justice Potter Stewart: It's your further point then, is it that -- that the department did not follow its own regulations?

Mr. Carl W. Berueffy: Or in -- clearly -- it's clear they didn't follow their own regulations, because the Secretary of the Navy was instructed to apply the standards for interim clearances, which had been applied by the Board.

But he wasn't instructed to review and he did not review.

He didn't say I reviewed these findings.

He said I reviewed the -- the case history file and concluded that his access is inconsistent.

I mean, he just completely ignored the previous favorable finding of the Board.

Justice Potter Stewart: Well, that's (inaudible)if I should say is true and I'm not familiar yet from the record, of course.

If what you say is true, wouldn't you then prevail without going any further on the basis of what the Government's already conceded?

Mr. Carl W. Berueffy: I think so.

Justice Potter Stewart: Without making any --

Mr. Carl W. Berueffy: I mean I -- I -- I've argued the constitutional questions, but there are many reasons why you need not reach them.

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