CAFETERIA WORKERS V. MCELROY

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90-00530R000300560016-6
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 9
• Document Creation Date: December 27, 2016
• Document Release Date: January 9, 2013
• Sequence Number: 16
• Publication Date: July 19, 1961
• Content Type: MISC

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886 Uu'1'Ulii it rt!:Itlv1, Iauu. l nI Is I I.ILI~~ ~~' VIL11L' 1L7 V. .1%I MRO 887
Syllabus. 367 U. S.
(1VI;ELROY'ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT.
No. 97. Argued January 12, 1961.-
Decided June 19, 1961.)
The individual petitioner was a cook at a cafeteria operated by a
private concessionaire on the premises of the Naval Gun Factory
in Washington, D. C., which was engaged in the development of
secret weapons and access to which was limited to persons having
badges issued by the Factory's Security Officer. The contract-
between the Gun Factory and the concessionaire forbade the
employment on the premises of any person who failed to meet the
security requirements of the Gun Factory, as determined by the
Security Officer. On the ground that the cook had failed to meet
the security requirements of the Gun Factory, the Security Officer
required her to turn in her badge and thereafter-she was unable to
work at the Gun Factory. After a request for a hearing before
officials of the Gun Factory had been denied, the cook sued in a
Federal District Court for restoration of her badge, so that she
might be permitted to enter the Gun Factory and resume her
former employment. Held: The District. Court properly denied
relief. Pp. 887-899.
(a) Under the explicit authority of Article 0734 of the Navy
Regulations, and in the light of the historically unquestioned power
of a commanding officer summarily to exclude civilians from the
area of his command, there can be no doubt that the Superintendent
of the Gun Factory had authority to exclude the cook from the
Gun Factory upon the Security Officer's determination that she
failed to meet the security requirements. Pp. 889-894.
(b) The summary exclusion of the cook from the premises of
the Gun Factory, without a hearing and without advice as to the
specific grounds for her exclusion, did not violate the Due Process
Clause of the Fifth Amendment. Pp. 894-899.
109 U. S. App. D. C. 39, 284 F. 2d 173, affirmed.
Q_ TERIA--& RESTAURANT W_ -ORDERS UNIQN
LOCAh4'T3sAEL=CIO ET AL. V.
Opinion of the Court.
Bernard Dunau argued the cause and filed a. brief for
petitioners.
John F. Davis argued the cause for respondents. With
him on the brief were Solicitor General Rankin, Assistant
Attorney General Yeagley, Bruce J. Terris, Kevin T.
Maroney and Lee B. Anderson.
J. Albert li'oll, Theodore J. St. Antoine and Thomas E.
Harris filed a brief for the American Federation of Labor
and Congress of Industrial Organizations, as amicus
curiae, urging reversal.
MR. JUSTICE STEWART delivered the opinion of the
Court.
In 1956 the-p.eti_tioiicb Rachel Brawner a~amsh-or-t;~
corder-co kr-at a--cafetc r is opera-tedlby her ~loyer,
M eC AEI Itestaur-a-I-ts, I-sac., oaa-the~~r-elan-ises-o#'-the~?ava=1
GLu Factory' in the city of ~`'ashiYlgt~oti. She had worked
there for more than six years, and from her employer's
point of view her record was entirely satisfactory.
Th Gun--Fa.c -oryz-NKas e?g din designing, producing,
and inspecting naval ordnance, including t hetevej-apmell=t
of-we ;p-ons-systelaas of a-highly-elassifi- d-natuu- e Located
on property owned by the United States, the installation
was under the command of Rear Admiral D. M. Tyree,
Superintendent. Access to it was restricted, and guards
were posted at all points of entry. Identification badges
were issued to persons authorized to enter the premises
by the Security Officer, a naval officer subordinate to the
Superintendent. In 1956 the Security Officer was Lieu-
tenant Commander H. C. Williams. Rachel Brawner
had been issued such a badge.
' The name of the Naval Gun Factory has now been officially
changed to Naval Weapons Plant. It will be referred to as the "Gun
Factory" in this opinion.
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888 OCTOBER TERM, 1960.
Opinion of the Court. 367 U. S.
The cafeteria where she worked was operated by
M & M under a contract with the Board of Governors of
the Gun Factory. Section 5 (b) of the contract provided:
"... In no event shall the Concessionaire engage,
or continue to engage, for operations under this
Agreement, personnel who
"(iii) fail to meet the security requirements or
other requirements under applicable regulations of
the Activity, as determined by the Security Officer
of the Activity."
On November 15, 1956, Mrs. Brawner was required to
turn in her identification badge because of Lieutenant
Commander Williams' determination that she had failed
to meet the security requirements of the installation.
The Security Officer's determination was subsequently
approved by Admiral Tyree, who cited ? 5 (b) (iii) of the
contract as the basis for his action. At the request of the
petitioner Union, which represented the employees at the
cafeteria, M & M sought to arrange a meeting with
officials of the Gun Factory "for the purpose of a-hearing
regarding the denial of admittance to the Naval Gun
Factory of Rachel Brawner." This request was denied
O by Admiral Tyree on the ground that such a meeting
would "serve no useful purpose."
Since the day her identification badge was withdrawn
Mrs. Brawner has not been permitted to enter the Gun
Factory. M & M offered to employ her in another res-
taurant which the company operated in the suburban
Washington area, but she refused on the ground that the
location was inconvenient.
The petitioners brought this action in the District
Court against the Secretary of Defense, Admiral Tyree,
and Lieutenant Commander Williams, in their individual
and official capacities, seeking, among other things, to
compel the return to Mrs. Brawner of her identification
badge, so that she might be permitted to enter the Gun
Factory and resume her former employment. The de-
fendants filed a motion for summary judgment, supported
by various affidavits and exhibits. The motion was
granted and the complaint dismissed by the District
Court. This judgment was affirmed by the Court of
Appeals for the District of Columbia, sitting en banc.
Four judges dissented.' ergr4_n~ted7cert orariibecause,
tof-a?-_allege_dmconflict7between.-th Cou t:of=A.ppeals"V
decision-ands-Greenrew:_MeEiro- 360 U. S. 474. 364 U. S.
813.
As the case comes here, two basic questions are pre-
sented. Was the commanding officer of the Gun Factory
authorized to deny Rachel Brawner access to the installa-
tion in the way he did? If he was so authorized, did his
action in excluding her operate to deprive her of any
right secured to her by the Constitution?
I.
r1n Greene-v: McElroy; suer-a eCour-twasunwilaing
to~frnd,in-the aabsence-of7xplicit-au:th-or-iza.tion-_that_an3
,A-eiigmeer emplo_y_e_dtiby.:a-pivate-contractor,
on,private-pr-oper-t-y_: ou-ld=be-bar-red froim-follUwing,h
pnoOfff sslOn_-bYrgo_vernmen-tal~revocation~of::bis-secur.ily-
,cl ranee-wi=th.outacT corAinghim~th_e~r b-t to~coiifroiTtalyd
(crossexamine-ifostile_Nritin-asses. Tire-eotirt in-th_at7ccase
tfound=ttliat=iieithi~:the-Congress--iior-the=Presiden-had
texpl"icitly autiior_iz d,thenoed-ure~wltich-h-ad-been -f-el-
I ow6d7in=denying Greene aecess- :to classif iedJrrformat on?
Accordingly we did not reach the constitutional issues
='hhe appeal was originally heard by a panel of three judges, :uul
the District Court's judgment was reversed, one Judge dissenting.
After rehearing en bane, the original opinion was withdrawn, and the
District Court's judgment was affirmed. 109 U. S. App. D. C. 39,
284 F. 2d 173.
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890 OCTOBER TERM, 1960.
Opinion of the Court. 367 U. S.
which that case otherwise would have presented. We
proceed on the premise that the explicit authorization
found wanting in Greene-must be shown in the present
case, putting to one side the Government's argument
that.the differing circumstances here justify less rigorous
standards for measuring delegation of authority.
It cannot be doubted that both the legislative and exec-
utive branches are wholly legitimate potential sources of
such explicit authority. The-control--of-access.-to_a_m-ili7
stary_-base_is --clear--l-y-within -the sti-tutiona --powers
Ggranted-to_both--Congr sse and7th-e-lresi d t. Article I,
? 8, of the Constitution gives Congress the power to "pro-
vide and maintain a navy;" to "make rules for the gov-
ernment and regulation of the land and naval forces;"
to "exercise exclusive legislation . . . over all places
purchased by the consent of the legislature of the state
in which the same shall be, for the erection of forts,
magazines, arsenals, dock-yards, and.other needful build-
ings;" and to "make all laws which shall be necessary
and proper for carrying into execution the foregoing
powers ... ." B?oad-power?i-n t-his-same-area-is_ also
vizsted-in-the-President-by~Tti.cle hich._makes
K-im-theComman er in_Cliief_ofthe=Armed-Forces.
Congress-has-provided--tha-t-th Secretar-y-o-f -the-i-a y
"shM11_admnister .the Departmen:t_of the Nav- " -
-and-sh~hha_ve"custody_and-charge-o-all property=of the De
cpartnm_en-t ' 10 U. S. C. ? 5031 (a) and (c). In adminis-
tering his Department, the Secretary has been given stat-
utory power to "prescribe regulations, not inconsistent
with law, for the government of his department, . and
the custody, use, and preservation of the . . . property
appertaining to it." 5 U. S. C. ? 22. T-he_lawexplicitly,
equires7that United7States Navy Regulations-shall-bea
approyedby the=President; 10 7__ U_
and the
pertinent regulations in effect when Rachel Brawner's
identification badge was revoked had, in fact, been
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(;:1F1':'1'I I{IA \VOIIKI RS v. McELROY. 891
Opinion of the Court.
expressly approved by President Truman on August 9,
1948.
Tire-requ_i_renren-t of =_presideintial-a-phroval._o_f\avy
rggylatiorLis-s-oaf-aicien_t-__intage:' The significance of
such presidential approval has often been recognized by
this Court. Smith v. I1'h.itncy, 116 U. S. 167, 181; John-
son v. Sayre, 158 U. S. 109, 117; United States Grain
Corp. v. Phillips, 261 U. S. 106, 101); I enby v. Berry, 263
U. S. 29, 37.' 1V_c7-rlrfy-take-ia as-seCtleTlc -tih:aa~\a~y R_egta
clations_apl)r-oved-71TY-flie_Presideiit7~-aiie iir---tlie_w_ords of
~~~-i-ef_J-usti_ce_i1_Marsh-al-1_-errel_o~wed--~~-it1~-`-`the-s~a-~reti-or~ of
the law 'ii United States v. Maurice, 2 Brock. 96, 105.-"
And we find no room for substantial doubt that the Navy
Regulations in effect on November 15, 1956, explicitly
conferred upon Admiral Tyree the power summarily to
deny Rachel Brawner access to the Gun Factory.
Article 0701 of the Regulations delineates the tradi-
tional responsibilities and duties of a commanding officer.
It provides in part as follows:
"The responsibility of the commanding officer for
his command is absolute, except when, and to the
extent, relieved therefrom by competent authority,
or as provided otherwise in these regulations. The
authority of the commanding officer is commensurate
with his responsibility, subject to the limitations
prescribed by law and these regulations. . . ."
'{ See R. S. ? 1547 (1875) Which was derived from the Act of .luly
14, 18612, c. 164, ? 5, 12 Stilt. 565. See also the Act. of April 24,
1S1A c. G9, ? 9, :3 Stat.. 295; the Act of March :3, 181:3, c. 52, ? 5,
2 Stat. 819.
See also 25 Op. Atty. Gen. 270.
The absence of presidential approval was relied upon in one case
as it basis for finding certain administrative action unauthorized. See
Phillips v. United States Grains Corp., 279 F. 244, 248-249, rev'd on
other grounds, 261 U. S. 106. See also 25 Op. Atty. Gen. 270, 275.
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892 OCTOBER TERM, 1960.
CAFETERIA WORKERS v. McELROY. 893
Opinion of the Court.
Article 0734 of the Regulations provides:
"In general, dealers or tradesmen or their agents
shall not be admitted within a command, except as
authorized by the commanding officer:
"l. To conduct public business.
"2. To transact specific private 'business with indi-
viduals at the request of the latter.
"3. To furnish services and supplies which are
necessary and are not otherwise, or are insufficiently,
available to the personnel of the command."
It would be difficult to conceive of a more specific con-
ferral of power upon a commanding officer, in the exercise
of his traditional command responsibility, to exclude from
the area of his command a person in Rachel Brawner's
status. Even without the benefit of the illuminating
gloss of history, it could hardly be doubted that the
phrase "tradesmen or their agents" covered her status as
an employee of M & M with explicit precision.' But the
meaning of the regulation need not be determined in
vacuo. It is the verbalization of the unquestioned
authority which commanding officers of military installa-
tions have exercised throughout our history.'
An opinion by Attorney General Butler in 1837 dis-
closes that the power of a military commanding officer to
exclude at will persons who earned their living by work-
ing on military bases was even then of long standing.
8 A tradesman has been defined by Webster as "a shopkeeper;
also, one of his employees." Webster, New International Dictionary
(Second Edition, Unabridged, 1958), 2654.
' The contrast with the history of the security program involved
in Greene v. McElroy is striking. There it was pointed out that
"[p]rior to World War II, only sporadic efforts were made to control
the clearance of persons who worked in private establishments which
manufactured materials for national defense." 360 U. S., at 49:3.
Speaking of the Suhcrintendcnt of the Military Academy,
the Attorney General's opinion stated:
"[H]e has always regarded the citizens resident
within the public limits-such as the sutler, keeper
of the commons, tailor, shoemaker, artificers, etc..
even though they own houses on the public grounds,
or occupy buildings belonging to the United
States . . . -as tenants at will, and liable to be
removed whenever, in the opinion of the superin-
tendent, the interests of the academy require it.
`This,' he observes, `has been the practice since I have
been in con)mand; and such, I ant told, was the usage
under the administration of my predecessors.' " 3
Op. Atty. Gen. 268, 26g.
This power has been expressly recognized many times.
"The power of a military commandant over a reservation
is necessarily extensive and practically exclusive, for-
bidding entrance and controlling residence as the public
interest may demand. 26 Op. Atty. Gen. 91, 92. "[I]t
is well settled that a post commander can, in his discre-
tion, exclude all persons other than those belonging to his
post frog) post and reservation grounds." JAGA 1904/
16272, 6 May 1904. "It is well settled that a Post Com-
mander can, under the authority conferred on him by
statutes and regulations, iii his discretion, exclude private
persons and property therefrom, or admit them under
such restrictions as lie may prescribe in the interest of
good order and military discipline (1918 Dig. Op. J. A. G.
267 and cases cited)." JAGA 1925/650.44, 6 October
1925.
t?1t, irlr;tftczc:~lrlicrirtfilrc~c;ity~~fr~r~ti:clc?(=)-7:34f}tlte4\Tavy
13egaaJat.i.o.ns.=n.u.cj=i.u=the 1-igl-t-t ofl_)_e riston c, -fly r a-giu_es=
tics~Ll~lm~~~c~r?~of3,~niaaaaa-at~zlin);~rc~fficn-
l 11_der1ia4xs fror tire~:rrotiicifsl7is ca-.~-ma-t-~c-1?~tl-~c~i c canes
bo0999 0-I2-59
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S94 OCTOBER TERM, 1960.
Opinion of the Court. 367 U. S.
remain rro serious-dou_b_ts.of_AdmirxImTyr-e-e's aauthority::~to-
exclude:Rah el=Brawn erf r_om~th e _G un~Ftory~uPo L-the
Security-Officer's=determin=atioii-that L-sh-ezfailed-to meet
the"recur- ty-=requir_ements of=the cti-vity~' Her
admittance to the installation in the first place was per-
missible, in the commanding officer's discretion, only
because she came within the exception to the general rule
of exclusion contained in the third paragraph of Article
0734 of the Regulations. And the plain words of Ar-
ticle 0734 made absolute the commanding officer's power
to withdraw her permission to enter the Gun Factory at
any time.
T e1~ question-remains wh-ether Adr r-a;l-Tyree'-s-action
fin summarily-denying Rachel Brawn_er~access_to-the-si.te
of her f-or t er_employment violated=the-requirements=of
the Due Process Clause-of--theiFiftli Amendment. This
question cannot be answered by easy assertion that,
because she had no constitutional right to be there in the
first place, she was not deprived of liberty or property by
the Superintendent's action. "One may not have a con-
stitutional right to go to Baghdad, but the Government
may not prohibit one from going there unless by means
consonant with due process of law." Homer v. Rich-
mond, 110 U. S. App. D. C. 226, 229, 292 F. 2d 719, 722.
It is the petitioners' claim that due process in this case
required that Rachel Brawner be advised of the specific
grounds for her exclusion and be accorded a hearing at
which she might refute them. We are satisfied, however,
that under the circumstances of this case such a procedure
was not constitutionally required.
Th-e--Fifth,Ainendmen-t--does:rrot requir-ea=trial=.ty_pe
head g in every conceivable case of goovernm-errt;im-pa-i.r-,
anent iof_private:interest. "For, though `due process of
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I
CAFETERIA WORKERS v. McELROY. 895
Opinion of the Court.
law' generally implies and includes actor, reus, judex,
regular allegations, opportunity to answer, and a trial
according to some settled course of judicial proceed-
ings, . . . yet, this is not universally true." Murray's
Lessee v. Hoboken Land and Improvement Co., 18 How.
272, 280. The very nature of due process negates any
concept of inflexible procedures universally applicable to -
every imaginable situation. Communications Comm'n
v. iVJR, 337 U. S. 265, 275-276; Hannah v. Larche, 363
U.-S. 420, 440, 442; Hagar v. Reclamation District No.
108, 111 U. S. 701, 708-709. [D]ue process ut-lik:e
soxn~'lc~al_r_i-1-es-isynot a-tech-ii-ic`a-1-coiicehtionwitli-3
;fixed-con teii t~rrrrr-ela-ted~totime,~p.lace_an:d-ercu~rnsta-nces~'
~It~is-` camp_orrndeel ef-history cawlr,-thine-past coirrse._nf~
decisions . . . ." Joint Anti-Fascist Comm. v. McGrath,
341 U. S. 123, 162-163 (concurring opinion).
As these and other cases make clear, consideration of
what procedures due process may require under any given
set of circumstances must begin with a determination of
the precise nature of the government function involved as
well as of the private interest that has been affected by
governmental action. ?}rer-e~i't~lras~b_een~possible-to
Leh~aractcr_ifi thatyprivate~intierc_str (perhaps in oversimpli-
fication) a as-a mcrespx~ ilege~srrbj_e_ct-to~the;F-ecrt~v e~s
,pletrary-powi r,_it--h-as-trail:ition=ai-ly :b :el:d-tipat~rotice
and:lreari't g~ area_rot~coi~sti=tu-tionall_y_r_eq-uir_ed. Oceanic
Naviyatinnn. Co. v. Strmtah.an, 214 U. S. :320. 340-343;
Knaujj v. Shanglinessy,.338 U. S. 537; Jay v. Boyd, 351
U. S. 345, 354-358; cf. Buttfiield v. Straniahani, 192 U. S.
470, 497.
What, then, was the J2rivnte interesta-ffec-ted by
Admiral Tyree's action hi the present case? t most
zsstt red--ly=was-rro t=tlre-tai.f,~l~-t_Go-fc~l-lo~~--t>*c~lro~e~n=tr~rdc_r,
See Davis, The Requirement of ,i Trial-TYpe lleanng, 70 1l,tr~?.
L. Rev. 193, 222-22.I.
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,profession Cf. Dent v. West Virginia, 129 U. S. 114;
Schware v. Board of Bar Examiners, 353 U. S. 232; Truax
v. Raich, 239 U. S. 33. Rachel Brawner remained entirely
free to obtain employment as a short-order cook or to get
any other job, either with M & M or with any other eni-
ployer. AEI-that-was-denied-her-w-as-the-opport_n-ity_to
work a-t once-i olated-and-specific-military-in-stallatioia,.
Moreover, the governmental function operating here
was not the power to regulate or license, as lawmaker, an
Q entire trade or profession, or to control an entire branch of
private business, but, rather, as proprietor, to manage
the internal operation of an important federal military
establishment. See People v. Crane, 214 N. Y. 154, 167-
169, 108 N. E. 427, 431-432 (per Cardozo, J.) ; cf. Perkins
v. Lukens Steel Co., 310 U. S. 113, 129. In that proprie-
tary military capacity, the Federal Government, as has
been pointed out, has traditionally exercised unfettered
control.
Thus, the nature both of the private interest which has
been impaired and the governmental power which has
been exercised makes this case quite different from that
of the lawyer in Schware, supra, the physician in Dent,
supra, and the cook in Raich, supra. This case, like
Perkins v. Lukens Steel Co., 310 U. S. 113, involves the
Federal Government's dispatch of its own internal affairs.
The Court has consistently recognized that an interest
closely analogous to Rachel Brawner's, the interest of a
government employee in retaining his job, can be sum-
marily denied. cIthas_become-a-settled pri-neiiple-thaat
government employment,= -he-absence-of--legislation,
,can be-revoked-at the-will_of. th-e_ a.p_poirrtin-g officer. In
the Matter of Hennen, 13 Pet. 230, 246, 259; Crenshaw
v. United States, 134 U. S. 99, 108; Parsons v. United
States, 167 U. S. 324, 331-334; Keim v. United States,
177 U. S. 290, 293-294; Taylor and Marshall v. Beckham
(No. 1), 178 U. S. 548, 575-578. This principle was
CAFETERIA WORKERS v. XIcELROY. 897
reaffirmed quite recently in Vitarelli v. Seaton, 359 LT. S.
535. There we pointed out that Vitarelli, an Interior
Department employee who had not qualified for statu-
tory protection under the Civil Service Act, "could have
been summarily discharged by the Secretary at any time
without the giving of a reason . . . ." 359 U. S., at 539.
It is argued that this view of Rachel 1rawner's interest
is inconsistent with our decisions in United Public Tl'ork-
crs v. illitchcll, :330 U. S. 75, and 1I7icm.an. v. Updegraff,
344 T.T. S. 1813. In those two cases an individual's interest
in government employment was recognized as entitled
to constitutional protection, and it is contended that what
the Court said in deciding them would require us to hold
that Rachel Brawner was entitled to notice and hearing
in this case. In United Public Workers the Court ob-
served that "[n done would deny" that "Congress may not
`enact a regulation providing that no Republican, Jew or
Negro shall be appointed to federal office, or that no
federal employee shall attend Mass or take any active
part in missionary work.' " 330 U. S., at 100. In Wieman
the Court held unconstitutional a statute which excluded
persons from state employment solely on the basis of
membership in alleged "Communist-front" or "subver-
sive" organizations, regardless of their knowledge concern-
ing the activities and purposes of the organizations to
which they had belonged. In the course of its decision
the Court said, "We need not pause to consider whether
an abstract right to public employment exists. It is suffi-
cient to say that constitutional protection does extend to
the public servant whose exclusion pursuant to a statute
is patently arbitrary or discriminatory." 344 T7. S:, at 192.
Nothing that was said or decided in United Public
Workers or Wicm an would lead to the conclusion that
Rachel Brawner could not be denied access to the Gun
Factory without notice and an opportunity to be heard.
Those cases demonstrate only that the state and federal
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898 OCTOBER TERM, 1960. c;:~r l 1 I H1A WUR.hl;lt- v. McELROY. 899
Opinion of the Court. 367 U. S.
governments, even in the exercise of their internal opera-
tions, do not constitutionally have the complete freedom
of action enjoyed by a private employer. But to acknowl-
edge that there exist constitutional restraints upon state
and federal governments in dealing with their employees
is not to say that all such employees have a constitutional
right to notice and a hearing before they can be removed.
We-may_ssrlme-th=at7Rach-el7B-r-awner could-notmonstitm=
ct-ion-ally have__becn exejutleel from the Gun Factory it f-tlie
announced graunds-or-hereexcl_usioii7i-ad beenpat_ently
ar` y-or-ii=iscriminatory-Stiha-t-sh3 could7not7have:been
arbitr
--
kept out-because h -ff was-&- Democrat or a~Meth_odist. cIt>
does-riot-follo_w,_ho_wever_;_that-sh e--wasTen titled-oo-n o tic-e
any d-a h_earin-g=when-the-reason-advanced-for--her_exclusio
was; as=her_e;-entireiyzrational=and=in-accord with the.
contract, with M & M.
Finally, ist-is-to_be_nut-ed=th-at=tl7-rs=isnot-a=case-where--
gowernment,action-has-oiler-ated--to-bes ow-a-adgeof d--is=-
Ipyal_ty or infamy, with_an_attendan =fore-closure-from
otherempploynrent oppDrtunity. See Wieman v. Upde-
grafj, 344 U. S. 183, 190-191; Joint Anti-Fascist Comm. v.
McGrath, 341 U. S. 123, 140-141; cf. Bailey v. Richard-
son, 86 U. S. App. D. C. 248, 182 F. 2d 46, aff'd by an
equally divided Court, 341 U. S. 918.11 All this record
shows is that, in the opinion of the Security Officer of the
Gun Factory, concurred in by the Superintendent, Rachel
Brawner failed to meet the particular security require-
ments of that specific military installation. There is
nothing to indicate that this determination would in any
way impair Rachel Brawner's employment opportunities
9 Compare Davis, The Requirement of a Trial-Type Hearing, 70
Harv. L. Rev. 193, 229-230, and Note, The Supreme Court, 1950
Term, 65 Harv. L. Rev. 107, 156-158, with Richardson, Problems in
the Removal of Federal Civil Servants, 54 MMich. L. Rev. 219, 240-241.
anywhere else."' As pointed out by Judge Prettyman,
speaking for the Cotirt of Appeals, "f\ohly l.~as`_sai7=Cha.t
Braw?ner-is-disluy_a1T nr- s~srrsl-wetecf-of-tyre s-li frtestalrarlcr~r
of in-terrtioiia-l-w-ron,gdoirig-7 clSecrrrity-require n nts' t
such-an-insta-liatiQJii-ke-such=req'tri~relnen-ts-under-many J
other icui,isa.u.ces,_cover iiTa:i y=i)Tattexs-ot-h-er than
loy 3ty`~ 109 U. S. App. D. C., at 49, 284 F. 2d, at 183.
For all that appears, the Security Officer and the Super-
ilitendent nla.y have situply thought that Rachel Brawner
was garrulous, or careless witli Irer identification badge.
For these reasons, we conclude that the Due Process
Clause of the Fifth Amendment was not violated in this
dise.
l f armed.
i\11i. JUSTICE BRENNAN, with ivho111 THE CHIEF Jus-
TICI:, flit. JUS'T'ICE BLACK and .lusTICI?; DOUGLAS ,loin,
dissenting.
I have grave doubts whether the removal of petitioner's
identification badge for "security reasons" without notice
of charges or opportunity to refute their was authorized
by statute or executive order. See Greene v. McElroy,
3(;0 1. S. 474 (1959 ). But under compulsion of the
Court's cleterinination that there was authority. I pass to
a consideration of the more important constitutional
issue, whether petitioner has been deprived of liberty or
property without (Inc process of law in violation of the
Fifth Aniendnient.
I read the Court's opinion to acknowledge that peti-
tioner's status as all employee at the Cant Factory was au
interest of sufficient definiteness to he protected by the
In oral ai??nnunt gm,ernno'nt coun~cl emphatically rcprc cntecl
that dc,nial of accc.~s to the 'tin factory would not "bv law or in
fact" prevent ilachel liraWnot? from obtaining employment on any
other federal pruperIv.
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900
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OCTOBER TERM
1960.
,
(':\F1 1'1?13T:1 WORKERS v. \L( UI RO i
901
c
Federal Constitution from some kinds of governmental
injury. Indeed, this acknowledgment seems compelled
by our cases. Wieman v. Updegrafj', 344 U. S. 183,
(1952); United Public Workers v. Mitchell, 330 U. S. 75,
100 (1947) (dictum) ; Torcaso v. Watkins, ante, p. 488,
decided today. In other words, if petitioner Brawner's
badge had been lifted avowedly on grounds of her race,
religion, or political opinions, the Court would concede
that some constitution ally protected interest-whether
"liberty" or "property" it is unnecessary to state-had
been injured. But, as the Court says, there has been
no such open discrimination here. The expressed ground
of exclusion was the obscuring formulation that petitioner
failed to meet the "security requirements" of the naval
installation where she worked. I assume for present pur-
poses that separation as a "security risk," if the charge is
properly established, is not unconstitutional. But the
Court goes beyond that. It holds that the mere assertion
by government that exclusion is for a valid reason fore-
closes further inquiry. That is, unless the government
official is foolish enough to admit what he is doing-and
few will be so foolish after today's decision-he may
employ "security requirements" as a blind behind which
to dismiss at will for the most discriminatory of causes.
Such a result in effect nullifies the substantive right-
not to be arbitrarily injured by Government-which the
Court purports to recognize. What sort of right is it
which enjoys absolutely no procedural protection? I do
not mean to imply that petitioner could not have been
excluded from the installation without the full procedural
panoply of first having been subjected to a trial, with
cross-examination and confrontation of accusers, and
proof of guilt beyond a reasonable doubt. I need not go
so far in this case. For under today's holding petitioner
is entitled to no process at all. She is not told what she
Bill"N N. N..1., di< enliii .
did wrong; She is not given a chance to defend herself.
She may be the victim of the basest calunllly, perhaps
even the caprice of the government officials in whose
power her status rested completely. In such a case, I
cannot believe that she is not entitled to some procedures.
"IT] lie right to he heard before being condemned to suffer
grievous loss of any kind, even though it may not involve
the stigma and hardships of a criminal conviction, is
a principle basic to our society." Jowl +01-Fascist
Refugee Comm. v. McGrath, 341 U. S. 123, 168 (1951)
(concurring opinion.) See also Horner v. Richmond, 110
U. S.:1pp. I). C. 226, 292 F. 2d 719 (1961) ; Parker v.
Lester, 227 F. 2d 708 (C. A. 9th Cir. 1955). In sum, the
Court holds that petitioner has a right, not to have her
identification badge taken away for an "arbitrary" reason.
but no right to be told in detail w\-hat, the reason is, or to
defend her own innocence, in order to show, perhaps, that
the true reason for deprivation was one forbidden by the
Constitution. That is an internal contradiction to which
I cannot subscribe.
One further circumstance makes this particularly a case
where procedural requirements of fairness are essential.
Petitioner was not simply excluded from the base sum-
nlarily, without a notice and chance to defend herself.
She was excluded as a "security risk," that designation
lllost odious in out' times. The Court consoles itself with
the speculation that she may have been merely garrulous,
or careless with her identification badge, and indeed she
(night, although she will never find out. Nit, in the conl-
muon understanding of the public with whole petitioner
must hereafter live and work, the term "security risk"
carries a much more sinister meaning. See Beilan v.
Board of Public Education, 357 17. S. 399, 421-423 (1958)
(dissenting opinion). It is far Inure likely to be taken
as an accusation of commuul1ism or disloyalty than impu-
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902 OCTOBER TERM, 1960.
BRENNAN, J., dissenting. 367 U. S.
tation of some small personal fault. Perhaps the Gov-
ernment has reasons for lumping such a multitude of sins
under a misleading term. But it ought not to affix a
"badge of infamy," Wieman v. Updegraff, supra, at 191,
to a person without some statement of charges, and some
opportunity to speak in reply. ,
It may be, of course, that petitioner was justly excluded
from the Gun Factory. But, in my view, it is funda-
mentally unfair, and therefore violative of the Due
Process Clause of the Fifth Amendment, to deprive her
of a valuable relationship so summarily.
DECISIONS PER CURIAM. 903
367 U. S. June 19, 1961.
BARGAINTOWN, U. S. A., INC., ET AL. v. WHITMAN,
DISTRICT ATTORNEY OF LEBANON
COUNTY, PA., ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA.
No. 76. Decided June 19, 1961.
David G. Bress and Leonard Braman for appellants.
Anne X. Alpern, Attorney General of Pennsylvania,
and Harry J. Rubin for appellees.
PER CURIAM.
The judgment is affirmed. McGowan v. Maryland,
366 U. S. 420, and Two Guys from Harrison-Allentown,
Inc., v. McGinley, 366 U. S. 582.
MR. JusTICE DOUGLAS is of the Opinion that probable
jurisdiction should be noted.
BECK v. MAINE.
APPEAL FROM THE SUPREME JUDICIAL COURT OF MAINE.
No. 899. Decided June 19, 1961.
Appeal dismissed for want of a substantial federal question.
Reported below: 156 Me. 403, 165 A. 2d 433.
A. Raymond Rogers for appellant.
Frank E. Hancock, Attorney General of Maine, for
appellee.
PER CURIAM.
The motion to dismiss is granted and the appeal is
dismissed for want of a substantial federal question.
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