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08/21/59 Cafeteria and Restaurant v. Neil H. Mcelroy


August 21, 1959




Before EDGERTON, FAHY and DANAHER, Circuit Judges.


August 21, 1959.



A private corporation, M & M Restaurants, Inc., under a contract with government officers, operated a cafeteria in the Naval Gun Factory, property of the United States. The corporation employed appellant Brawner, a civilian, as a cook. Without a hearing of any sort, the Superintendent and the Security Officer of the Naval Gun Factory excluded her from the premises and thereby deprived her of her job. They said she did not meet the "security requirements". No one told either her or the corporation which employed her what the security requirements were, or why she was believed not to meet them. The employer asked for "a hearing relative to the denial of admittance to the Naval Gun Factory of Rachel Brawner." The request was refused.

Brawner and her labor union sued the Secretary of Defense, the Secretary of the Navy, the Superintendent and the Security Officer of the Gun Factory, and also Brawner's employer, for the loss of her job, and have appealed from a summary judgment dismissing the complaint.

Except with respect to the employer, the District Court erred. This has now become clear. On June 29, 1959, the Supreme Court determined that the Secretary of Defense and his subordinates have not been empowered to deny a contractor's employee access to his work, and thereby deprive him of his job, on security grounds, "in a proceeding in which he was not afforded the safeguards of confrontation and cross-examination." Greene v. McElroy, 360 U.S. 474, (Slip op. pp. 33-34). What government officers are not empowered to do in such a proceeding, which includes a limited sort of hearing, they are not empowered to do in a proceeding that includes no hearing at all. As in the Greene case, if the action of the government officers was in accordance with Navy regulations, the regulations were unauthorized and invalid.

It is immaterial that Greene's working place does not appear to have been, as Brawner's was, on government property. From the premise that "the United States could validly exclude all persons from access to the Naval Gun Factory", appellees draw the conclusion that the Secretary of Defense could validly exclude Brawner from her work there, on "security" grounds, without giving her a hearing. If the conclusion followed from the premise, it would likewise follow that the Secretary could deprive government employees of their jobs on similar grounds, without giving them a hearing, by simply excluding them from the places where they work. But neither Congress nor the President has authorized any such thing. And it is clear that government officials may not deprive government employees of their jobs on security grounds except as authorized by Congress or the President. Peters v. Hobby, 349 U.S. 331; Cole v. Young, 351 U.S. 536.

The government challenges the standing of appellant labor union to sue. We think the union here had standing to protect the interests of its members. *fn1 Cf. Nat'l Ass'n for the Advancement of Colored People v. Alabama, 357 U.S. 449, 459-460; MacArthur Liquors, Inc. v. Palisades Citizens Ass'n, - U.S. App. D.C. -, 265 F.2d 372.

Since Brawner's employer could not employ her within the Naval Gun Factory, the only place where it had contracted to employ her, when the government appellees would not let her enter the place, it is not responsible for ceasing to employ her. Appellants' claim against the employer is for alleged breach of contract, and impossibility of performance defeats the claim. The judgment in favor of M & M Restaurants, Inc., is therefore affirmed. The judgment in favor of the government appellees is reversed and the case is remanded to the District Court for proceedings consistent herewith.

So ordered . IN AGREEMENT

FAHY, C. J., concurring: I have concurred in Judge Edgerton's opinion, but in view of the dissenting portion of Judge Danaher's opinion I add these words of my own.

As has been pointed out, appellant Brawner was a privately employed cook in the cafeteria, conducted with Government agreement by M & M Restaurants, Inc., on the premises of the Naval Gun Factory. None of the papers before us indicates that she had access to classified information or to any restricted part of the Naval Gun Factory which posed a security problem over and above that affecting her as a cook in the cafeteria. Under settled law, recently expounded by the Supreme Court in Greene v. McElroy, 360 U.S. 474, the right to hold specific private employment comes within the "property" protected by the Due Process Clause of the Fifth Amendment against unreasonable governmental interference. The question before us, therefore, is not whether the Government can control access to the Naval Gun Factory, which of course it can do, but whether the control it exercised in this instance, which caused the loss of the cook's employment in the cafeteria, conformed with the requirements of the Due Process Clause. The location of the employment is a relevant circumstance on the issue of due process of law, but does not dispense with the issue. Since we are a government of law, and I can find no authority in any law, Executive Order or regulation which authorized the deprivation of this cook's employment in the manner in which it occurred, for that reason alone I think the deprivation was invalid, as in Greene .

Appellant Brawner was not a visitor or a tradesman or tradesman's agent within the meaning of the regulations controlling the access of these persons to the premises. She was not an employee of the Navy, and and so was accorded none of the benefits of the clearance regulations applicable to such an employee in security matters. She was simply deprived of her employment out of hand, without notice, hearing, opportunity to be heard, or statement of reason except that she did not meet "security requirements." Even were this authorized by some law or competent authority I do not see how it could be squared with due process of law. Due process of law requires a reasonable procedure; and to be reasonable a procedure must be such as reason is able to appraise in all the circumstances as fair; and in order for reason to do that I think the procedure must at least in the circumstances before us disclose to the person affected enough of the basis for the action to enable her to test its truth, with an opportunity in some manner to do so.

We do no decide that confrontation and right of cross-examination were essential, the question reserved by the Supreme Court in Greene, for here as there that question is not reached because in any event the manner of deprivation of employment was unauthorized and in this case was otherwise unreasonable as well. Since it was unauthorized and unreasonable due process of law was lacking in both respects.

We are not concerned with truck drivers and others mentioned by my brother Danaher; none of these complains of having been deprived of his employment by governmental action. If any were to do so, we might have a question like the one we do have. Finally, I do not understand the relevance of the reference in the dissenting opinion to the authority of the Superintendent to bar a petty thief or a numbers player or a narcotic peddler, or other unfit person. But when any deprivation of liberty or property does involve such as these the courts do not withhold from them the application of the Due Process Clause. The Fifth Amendment provides that "No person shall be . . . deprived of life, liberty or property without due process of law."


DANAHER, C. J.: I concur specifically in the majority's opinion affirming the judgment in favor of M & M Restaurants, Inc. Otherwise I dissent.

To say that some officials may have abused their authority is not to deny that authority exists. This is not such a situation as was presented in Greene v. McElroy, 360 U.S. 474. The property here is owned by the Government and is part of the naval establishment. Control of access to the Naval Gun Factory has legally been vested in the Superintendent. When the public may enter and for what purposes and under what circumstances may be determined by that officer, in accordance with governing regulations. Congress has even made it a criminal offense, under some circumstances, for unauthorized personnel to be upon the premises. 18 U.S.C. ยง 1382 (1952).

The basic principle of control by the Government of its own naval establishment is here paramount, I think. Truck drivers, plumbers, telephone operators, electricians, artisans in every walk of life, in one way or other and at one time or other may have legitimate business with a naval base, but the privilege of access is to be extended and may be continued only as those charged with maintaining the security of the Government's operation may by regulation prescribe. If some petty thief or numbers player or narcotics peddler or otherwise unfit person should insist upon continuance of a previously extended privilege of access, I think the regulations authorize the Superintendent to bar him.

I am unable to conclude that regulations under which the officials here acted were invalid or unauthorized. Particularly do I dissociate myself from the suggestion that invalidity implicitly turns upon whether, in application, provision has been made for "confrontation and cross-examination" of sources whose reports may have led to revocation of the privilege of access to the Government's enclave.

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