Petition for Writ of Certiorari — Greene v. McElroy

. ‘LIBRARY —<.,

SUPREME CouUPT. U.S. 11.

: <——erecmeecemetee ence ea umn . ~ 7 : 7 : , anne -

“IN THE | ‘

é\

“Buapreme Court of ‘the Wuited States

" OcToRER Term, 195K ©

2 “s L3G -

WituiAM L. GREENE, Petitioner,

Mien Sinha ear he E | |

-\ Nem M. McE.roy, THomas 8. Gates, JR., and.

Rosert B. ANDERSON, Respondents.

: A ad

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

_ STATES COURT OF APPEALS FOR THE | eee

OF COLUMBIA CIRCUIT

Q :

; ° 2 Car. W. BERUEFFY iia tapes

Pees 1625-Eye ‘Street, N.W.

. July 16, 1958

_ Washington; D. C. |

metonney for Petitioner

; abd hede WA UVa A det A BW

Page

' Petition for a Writ of Certiorari to the United States

Court of Appeals for the — of Columbia Circuit 1.

Citations to Opinions mans Dee ey (eceneneeese <om

Jurisdiction sgeetseevane ss ewes vanes ceeneas (ox:

* Questions Presented « Vevedenvartenade ‘een ccececeecoes 2

Statutes Involved .........:.. vivessevesas cares Ce

Statement pvebddstcesbesuseneweyees pee eeeeeccccees _ eae

Reasons for Granting the Writ .........6.......505. : ae

L. The existence of an unlimited power by any gov-

-ernmental official to deprive-a citizen of ‘present

private employment, prevent him from obtaining

other employment, and impose upon him a desig-

_1 nation of: disloyalty presents a novel question

‘f[ , important to the constitutional: rights of citizens .

| which has not been, but should be, determined ~ —

Oe I SE eke ose he wecekge bo ces tose eonesis | ie

II. The decision of the Court below is in conflict, with

respect to an important constitutional issue, with

Parker v. Lester, 227 F. 24708 (CA 9, 1955) . 20

Conclusion ...... reveveuvivenes? aN na yipees 22

— Appendices :

A. Memorandum, opinion of the trial one ra

‘ B. Opinion of the Court of Appeals ........ a 5a

C. Judgment of the Court of Appeals rae eae er 23a

TABLE OF AUTHORITIES

‘ Sravores, EXkCUTIVE OrnERs:

6 WO Se 8 ee se icdcce: Loum

a gp Procedure Act, 60 Stat, 243;5°5 U. S. ¢,

§1 FPS a SOE Ny CLR EP REN eee CRE, MR Fahne 5

zAtrmed Services Procurement Act of 1947, 62 a

—. BE a hoo oo ink oo ck eknes 1,3, 15:

Magnuson Act, 64 Stat. 427, 1038, 0 Us. C., $§ 191

Re aa en ree cara paw kan eke eens

. Executive Order 10290,. September 27, 1951, 16 Fed.

Be Re ee ye en ie Sn pts eater 4.-

LE _ Table of Contents Continued

' Page

Executive Order 10501, December. 15. 1953, i8 Fed.

, EE pc bis has een cewdedks ve bewe scares _4

32 C. FR, § 72.8 (1955); § 72. 2-107 (Sapp, 1956)... 7

Cases:

Adkins v. ‘Childrens? Hospital, 261 U. 2 ae 13

_ Butchers’ Union Slaughterhouse and Livestock Co. v.

Crescent City Livestock Landing and, Slaughter-

a RS Ee ry eee

Cantwell v. Connecticut, 310 U.S. 296 ..... Titss eae

Coppage v. Kansas, US t:....4.%;: ae kiw set 13

Cummings v. Missouri, 4 Wall., 2°. ..-......0........-. 13

. Endo, ex parte, 323 U.S. ........ Eras bona aswea se an

Galvan v. Press, 347 U.S..522 ........ cinhvenwes 12

Garland, ex parte, 4 Wall, 333 ......... eeukucays 13

Hamilton v. Kentucky Distilleries, 251 U. S. 146 . 12

Hannegan v. Esquiré, 327 U.S. Sena Hite 15

Kent v. Dulles (decided June 16, 1957) 26 u. Ss. Law

WO, UE kas ceedeceviskinees es ye 15

Meyer v. Nebraska, 262. U.S. 390 ue ae e is Jotiek paul 13

Niemotko v. Maryland, kt & eee 15

Panama Refining Co. v. Ryan, 293 U.S. 388 ...:.... 15

Parker v: Lester, 227 F. 2d 708 (CA 9, 1955) .. .19, 20, 21

Schw are v. Board of Bar Examiners, 353 USS. 939 14

Slochower'v. Board of Edueation; 350 U.S. 551°. oe 14

PU We , BA Oe hin 6 we Sv ee bs bs hace wanes 43

United States v. Lovett, 328 U.S. 303.......¢.... 13, 20

United States v. Rumely, wee Ue 41 ......-- or? 15

Von Knorr v. Miles, 60 F. Supp. 962 (D. Mass. 7943) 11)

Wieman v. Updegraff, GP). See | ay

Yick Wo v. Hopkins, 118 U.S. 356...............:. 12, 13

Youngstown Sheet & Tube Co, v. Sawyer, 343 US.

Ls RUPE pCRr Dr wie Oe HORTLE SS, Aer ep raster eeegs Ainit aea (15

OTHER REFERENCES:

Berle, The 20th Century Capitalist Ricvctelion (1954) 16 -

‘Industry Goal: Simple Loyalty Check,’’ Nation’ Jee |

Business, December, 1955, ERE ECE OrT eer —_

“Report of the Commission on Government Security

CRE) -bskc her Ce vedioe aces cue awe webs erines 18

The ida esate Post, November 11, 1954, p. 21. 17

em |

trots era INTHE : =

‘beieat Court of the Anited States

OcToBER TERM, 1957 :

No.

os WituiaM L. GREENE,. Petitioner, ;

V.

‘NEIL M. McEtréy, THomas S. Gates, JR., and

_ Ropert B. ANDERSON, Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE DISTRICT |

OF COLUMBIA CIRCUIT .

os

William L. Greene prays that a writ of certiorari .

issue to review the judgment of the United States

Court of Appeals for the District of Columbia Circuit,

entered in the above-entitled case on “April 17, 1958.

CITATIONS TO OPINIONS BELOW

The memorandum opinion of the trial court, printed

in Appendix A hereto, : infra, p pp. la to 4a, is. re-

parted sub nom. Greene y. Wilson, in 150 F. Supp.

>. 958 cD. .D.C., 1957). The opinion of the Court of: Ap-

o

9

—

peals, printed in Appendix. B_ hereto, infra,pp- 5a’

~ to 23a, is reported in 254 F. 2d 944 (adv.). It is

not yet reported‘in the U.S. App. D.C. — |

JURISDICTION

. The judgment of the Court of Appeals: was entered

April 17, 1958. The jurisdiction of this Court i is in- |

voked under 28 U. 8. C., § 1254(1). See an

QUESTIONS PRESENTED

1. Whether a justiciable controversy is presented

by a suit for declaratory and injunctive relief chal-

' lenging as invalid an order of the Secretary of the

Navy denying access to clearance to classified informa-

tion, which suit is, instituted by a former employee of -

_ a private business. enterprise discharged because of

- such order, and which asserts that the order is invalid -

because it is without foundation in fact; is beyond the’

statutory authgrity of the Secretary; and is in viola- _

tion of the req sagen ea of substantive and procedural

due process? ~ | ‘ie

2. Whether. the provisions of: the Asicatt Services _

Procurement:Act of 1947, 62 Stat. 21, 41 U\S.C., § 153,

authorizing defense procurement contracts ‘‘of any

type which in.the opinion of the agency head will pro-

mote the best interests of the Government,’’ grant De-

partment of Defense officials unlimited discretion to -

cause the discharge of employees of private business —

enterprises by denying access to classified information ?

and, if so, do this attempted grant and the regulations |

promulgated thereunder violate the requirements of

substantive due process? ~

3. Whether, if valid reasons: are ‘ required for the |

denial of clearance, a statement of reasons which re-

“3

“cites only conduct which i is neither illegal nor r immoral,

and all of which occurred at least seven years prior to

the issuance of such statement, is sufficient as a basis

for such denial? _ |

- 4. Whether the requirements of iil due -

process are violated by the Industrial Security regula-

tions, which permit denial of aceess to information

‘necessary for private employment on the basis of*an

inference by a governmental official of possible future |

conduct, which inference is purportedly based on. in-

formation the nature and source of which is not re-

vealed to the affected employee} and which is supplied

by persons who are not required to furnish such in-

formation under oath, nor to be cross-examined; and

which information the affected employee conseqitently

has no real and effective opportunity to refute or ex-

plain, although the regulations place the entire burden

of proving innocence upon the employee? :

i | STATUTES I INVOLVED —

5 U.S.C. § 22, RS, § 161: %

The head of each. department. ‘is siaicwined to

prescribe regulations, not inconsistent with law,

for the government of his department, the condhict

of its officers and clerks, the distribution and per-

formance of its business, and the custody, use, and

preservation of the records, papers, and property |

appertaining to it.

‘Armed Services Procuedineil pe of 1945, 62 Stat.

21, 41 U.S.C., (1952 edition), §§ 151-161: s

151(c) All purchases and contracts for’ ‘supplies |

and services shall be made by. advertising, as pro- -

vided in section 182 of this title, except that such

me

purchases and contracts may be négotiated by the

he. apeney head without advertising if-—

(1) * ? determined to be necessary in the public.

_ interest during the period of a national emergency

. declared by the president or by the eo

* & *

© %

( 12) for supplies or ‘services as to which the

agency head determines that the character, in-

gredients, or components thereof are such that .

the purchase or contract Should not ‘be publicly _

disclosed ; * * * . eG i

153 * * * Resant as prévided i in subsection. (b) of.

‘this section, contracts negotiated pursuant to sec-

tion 151 (c) of this title may be of any type ia

in the opinion of the agency head will eo the

best interests. of the Government. $99

“en N

-Exeeu ive Order 10290, September 27, 1951, 16 Pod.

Reg. 9795: ; ;

a ¢ b) Classified security intaveasdion shall not

be disseminated outside the Executive Branch by

. any person or agency having access thereto or

knowledge thereof. exeept under conditions and

through channels authorized by the head of the

disseminating agency, even though such person or |

agency may have been solely or partly responsible:

for its production.

Jecsaulive Order 10501, Pecembor 15, 1953, 18 Fed.

Reg. 7049 :

Safeguarding Oficial I planation: m the I ntor-

ests of the Defense of the U nited States

-Wuenreas it is essential that the citizens of the © |

United States be informed concerning the activi-

ties of their government; and eke

® >

Wuenreas the interests of national defense re-

. quire the preservation of the ability of the United

S

5 : co

States to protect and defend itself agaist all

3h hostile or destructive action by covert or overt

means, including ‘espionage as well as military”

— and »

’ Wuereas it is “essential that certain official in-

- formation affecting the national defense be pro-

- tected uniformly against ‘unauthorized disclosure:

Now THEREFORE, by virtue of the authority

vested in me by the Constitution and statutes, and »

as President of the United States, and deeming -

such action necessary in the best interests of the

national security, it is hereby ordered as follows:

; a Sos * * .

~ = 7a Dissemination Outside the ‘Easoutive

Branch.. Classified: defense information shall ‘not

be: disseminated outside’ thé executive branch ex-

“cept under conditions and through channels au- -

- thorized by the ‘head of the. dissseminating depart-

ment or agency, even though the person or agency

to which dissemiziation of such information is

proposed to be made may have been solely or

partly responsible: for its productign.

‘STATEMENT

In this suit, the sutitiones sought a judicial declara-

tion that an order of the Secretary of. the Navy exclud-.

ing petitioner from the plant of his employer, Engi-

neering and Research Cerporation, was. invalid as in

,exdess of the constitutional and statutory powers of:

_.the Secretary. He also sought to restrain the respond-

ents from taking any action in pursuance of the order.

(R., p. 8). The jurisdiction of the District Court was .

iivoked under its general jurisdiction, and under the -

‘Administrative Procedure Act, 60 Staf. 243, 5 U.S.C.,

§ 1009. (R., p..1)

Prior to the issuance of the order complained of;

William L. Greene was vice-president in charge‘ of .

ys

.

engineering and general ee of Engineering and

. Research Corporation, a private business enterprise

engaged in building electronic flight simulators under .

Secretary-to pétitioner’s employer: :

contracts with the Navy. He had been = by

-ERCO for seventeen years. ;

The. order which the: suit susileoiie was contained

‘in the following letter, dated April 17, 1953, a the

weet

I have reviewed the case history file on William

ih Lewis Greene and have concluded that his con-

1 During thine seventeen years, on the basis of a distinguished -

record of achievement, Greene had‘ fisen from Junior, engineer to

general manager of the company. .

After his graduation from the Guggenheim School of Aeronau- *

~ ties, of New ‘York University (R., p. 571), Greene began a career

with ERCO which, except for a brief leave of absenge, continued

until Anderson caused his discharge. (R.; p. 570). During the

latter part of World War II, he became’chief engineer of the com-

pany’s propeller division; in 1948, chief engineer; (R., pp. 570, ..

571) and in,1951, vice-president in charge of engineering. Shortly ©

thereafter, he was made general manager. (R., p. 571). This |

}

|

steady advance attests the competence and reliability deseribed by —

~~ Colonel Henry A. Berliner, chairman of the board of ERCO, who-

.. said, (R., p. 341) * 2 , > Hg was the best of the younger men we .

had there.’’

This’ evaluation “was confirmed by ‘the § testimony of ‘Gueeel

Gabriel -P. Disosway, then Director of Training for the’ Air'Force;

(R., p. 105). Admiral T. A. Solberg, retired chief of the Office of

Naval Research; (R., pp. 102, 103) and Colonel John C. Robertson,

chief of the Training Aids Division of i Air Force. (R., #. 90)..

The importance of two contributions defense, the development..

of the Navy rocket. launcher used in World War IT, and the

development, of the electronic flight ‘simulator, described in detail.

by Colonel Berliner, (R., pp. 342-344), demonstrates the validity

of the conclusion of the Count of Appeals, (infra, p. 212) which’

observed, ‘‘As we have recognized, the reality of the injury. suf-

_fered by Greene—whether or not deserved—is perfectly clear.

So, too, is the risk which the United States must take in denying

itself the benefit: of the services of a man apperently so proficient

in the science of modern warfare.”’ 5

J

‘

; . . 6

) ok +.

7

* tinued access to Navy elassified information is in- _

consistent: with the best interest# of National

security. °

In accordance with Saragraph 4. e. of the to

__ dustrial Security Manual for Safeguarding Classi-,

fied Security Information, therefore, you are re-

‘quested 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 avy classified ey:

: information, . " fs

In addition, I am \safiechie this case to the

-Seeretary of Defense recommending that the In-

dustrial Employment Review Board’s decision of |

29 J anuary 1952 be overruled

N o notice to Greene preceded : the iy. of: this

letter; no opportunity was afforded him to reply to the

instated reasons for the action. In fact, Anderson.

refused even to discuss the action with the employer.

(B., p. 202). o*, B >

This letter. compelled | the company to dimetiarge

_Greené, though not without protest by his ‘employer, =

AR.,'p. 201), and not finally until it had no alternative,

_ (R., p. 579). The necessity for Greene’s, discharge

arose from his inability to perform his duties as gen-

“eral manager without access to the work in the plant;

the company ‘s inability to segregate Navy work be- |

cause of the’ physical arrangement. of its plant; and

_ the Navy’s. position as: the company ’s principal cus-

tomer and source of financing. (R., p. 571), In addi-

~ tion, the regulations required that Greene as an officer

of. the company have security clearance.’ ‘Colonel Ber-

— lineg’s affidavit (R.,. p. 570) states, “There was no

- ‘other reason for Mr. _Greene’s Mischarge, and in the

~f

239 of. R. § 72. 8 (1955), § 722-107 (Supp , 1956).

ry *

+

.

\

g: ;

_absenee of the- letter referred: io, he“could hive con-

_ tinued in the employment of eat and Romesh

Corporation, indefinitely.”’

‘2?

The Anderson order reverned four previous. ‘deter-

sminations favorable to Greene. On: ‘August. 9, 1949,

Greene had’ been: given a “confidential” clearance by

the Army ; (R., p. 65);0n November 9, 1949, a ‘top

secret’’ clearance by the. Assistant Chief of Staff°G-2, |

oe Distriet of Washington; on February 3, 1930,

a ‘‘top secret” clearanve by the ‘Air Materiel Com- =

.* mand. , R., p. 65, Stipulation of Facts, 1 3).

“In November, 1951, two years after his first clear-

_-ance by the Army for “top: secret,’ Gréene’s cledrance

was challenged by the Army -Navy-Air Force Person- |

~ nel Seeurity | Board, which, in ‘accordance with the

regulations as they then existed, furnished. him with’a

‘statement of charges’’ to which: Greene. replied i {

‘writing and-in person.® pees

At the conclusion of these proceedings, @reene’s

_élearance was restored and remained in force uritil |

the letter ,was sent by Anderson. The theory under ©

which “Anderson asserted the right. to ove r-rule the

* 8 The charges ccidained in the: dictessies upon which these. pro-

a fetch were based were: ‘‘That over a period of years, 1943-1947,

a

or near Washington, D. C., you have closely and sympathetically.

associated with persons who are reported to be or. to have been . |

members:of the Communist Party; that during the period 1944-47 -

_ yoy. entertained and were visited at your home by military repre-

sir of the Russian Embassy, Washington, D.C.; that; ‘fur-

ther, ‘you ‘attended social functions during the period 1944-1947

at the Russian Embassy, Washington, D.C.; and on 7 April 1947 . |

- attended the Southern Conference for Huinan Welfare, Third An-

nual Dinner, ‘Statler Hotel, Washington, D.C. (Cited as Com-

munist Front organization, Congressiénal Committee on Un-Amér-

ican Activities.)’’ (R., pp. 78, seat

i]

° 2-0 . oF pl

fT on ,

u .

’ ; 4 z

ee s) / Fs

: ‘ ‘ * .

= 58) Ey , 6 i e : P

S o v F

‘

decision, of the; previous board, without, any notice or.

‘2 opportunity for Greene to reply, was summarized by

- the respondents in their brief in the Court of Appeals .. -

‘(Appellees® Brief, p- 27), in the foflowing’ language:

"Fhe: Secretary’ s letter of April 17; 1953, was.

-written.during an interim period after the abolish-

ment of the Army-Navy-Air Force. Personnel

Security. Boards and the establishment of the new

Regional Industrial Personnel and Facility Clear-

ance Program, during which: time the sodle° au-

thority and résponsibility for protecting the in-

: ‘tegrity of classifted Navy Department informa-

_ tion: was. vested: in the ‘Setretary: of the Navy.

* During this period,.the. Secretary of Defense, in

his memorandum ‘of March 27, 1953 (J.A. 198) .

authorized thé os Secretaries of the Army,

Navy, and Air Force to make.all necessary secur-

». ity determinations. From March 27, 1953 until

- > May 4, 1953 no-formal industrial personnel clear-

ance program was in effect and there existed no

‘administrative machinery for notice, service of

charges, hearing or review..

| Subsequently, regulations‘ ‘were adopt = the |

secretaries of the three defense services. In response,

to Greene’s continued demands, a statement of rea-

sons was furnished to him by the Eastern Industrial

Personnel Security Board,’ and Greene was permitted

*The text of these regulations was included as an exhibit to

> ‘the complaint, and is set forth i in the-Record, at p. 9 et seq.

. 5 The statement of reasons is set forth in full in the Record, pp.

_ 32-34. , It may be summarized by saying that it alleges no occur-

~ rence ‘after 1947, and, with the single exception of a claim that

Greene owned ‘stock and was a director of Radio Station WQQW

(now Radio Station WGMS), it had no reference to any matter |

which was not fully papporet i in the proceedings before the Army-

Navy A, Force Board. °

Ra

i testify: and. to sions witnesses” whose evidence

completely. refuted. the significance of the matters set

z forth in the statement of reasons.”

More ‘ak a year’ after the; Andeteds. letter, ‘the 3

Eastern : Industrial Personnel Security Board af.

firmed”’ Anderson’s decision, and this suit was there- —

after instituted. os .

\

* ae

The complaint (R., pp: 1-8) challediged: he a eee of

Anderson and that of the Eastern Industrial Person-

nel Security oard as unwarranted by: an facts, as -

. _laéking statutdry authority, and as violating the con:

_ stitution. ‘Following the filing of an. answer, a stipu-

, lation of facts was entered into and éross-motions for

summary judgment were filed:: é oe

ees trial Court overruled the petitioner’ S ‘motion bj .

i summary judgment and sustained that of the respo

~ ents, holding that.the acts of the respondents were‘au-

-.* thorized as security , Measures, ‘and had, therefore, in- -

vadéd no legal right of the petitioner... An- ‘appeal to.

the Court of Appeals followed, and _ judgment of

the trial Court was bathed. | 3

a.

ets: The respondents i in effect concede that the open record justifies

“this conclusion: In their brief in the Court of Appeals, they: said?

(p. 29), ‘‘And since the ,entire record ‘considered. by appellees!

included confidential information which nejther appellant nor this

urt is in a position to weigh, it.is clear that appellant’ s° charge

that. the. findings themselves are not orn by the bid oe a

is immaterial:’’

< te u, sf .

"REASONS FOR ‘GRANTING THE writ |

““, The, tence of Unlimited Power By Any Governmental’ |

to Deprive a Citizen of Present Private Employ- 3

_ ment, Prevent Him From Obtaining Other Employnient. .

and Impose Upon Him a Designation of Disloyalty Pre-

sents ‘a ‘Novel Question Important to. the. Constitutional -

Rights of Citizens Which Has Not Been. But Should Be,

Determined by This Court. .

The order of. the Secretary of the Nagy of which 3

_ this suit complains had three-direct effects upon the _

petitioner and his livelihood: it. caused. him to lose < . «

the employment which he had had for\seventeen years;

it effectively prevented him from obt ining other, em-

ployment in his chosén profession. as. an. aeronautical

engineerj; and it exposed him to a status of public a

-ridicule an seorn.” The iH i s have consistently . :

sserted- an unlimited authority to do these things to

petitioner or to any one else whose employer is en- |

gaged i in .defense procurement contracts. |

“.. The decision of the Court below upheld| the existence

of such an unlimited authority on the part of the re-:_ .

- spondents by holding that none of these invaded any

legally *pr otecte right of the petitioner. | | The. gist of ©

its decision is inthe following language w Lich it quoted

with approyal. from the war-time ease of Von Knorr

y.. Miles, 60 F. Supp. 962, 971 (D. Mass., 1943) :

_ No matter pyhat evidence. ‘might be offered’ by

_ counsel. fg the government.or counsel for the in-

dividual, government would remain legally :

free €0 disregard the testimony and rely upon its ;

uncorroborated suspicions. Since in this‘highly ex-

_ceptional case, because of its vital-interést in war

materials and war secrets during war time the .

a: The:Court below suanbed that these: three, distinot i injuries to

‘the petitioner had been demonstrated by the record. - (Infra, pp. .

2 20a, 21a). ; eke

a a j a sins v3 é : - ¢ r-

. government’ s exclusionary powers are complete,

it can refuse admittance to defense plants without |

-giving an explanation, without listening to. a pro-

test and without the semblance of a trial. .

®

Has such an unlimited and unrestricted authority :

-been‘granted tothe respondents by. Congress? Assum-

ing, arguepdo, that Congress has attempted to ‘grant

. such power, would the existence of such total govern-

mental control over the liyes and liveliho6d of citizens

be tolerable under’ the due process clause of the Fifth

“Amendment ® | The petitioner asserts that each of

these questions must be answered in. the negative, a Xt)

the very.idea that one man may be compelled to hold

© his life, or the means of living, or any material right

- . essential to the enjoyment of life, at.the mere will of.

‘another, seems to be. intolerable i in any country where .

freedom prevails,-as being the essence of slavery. it-

self.” Yick Wo y. Hopkins, 118 U.S. 356, 370.

That the ‘right ‘of the individual to elntract. for his

labor, free from arbitrary governmenta interference, ~

is. included i in the liberty and property prote¢ted by the ;

due process clause is a ‘principle to which this Court

has adhered in an unbroken line of decisions, beginning

~ . with Butchers’ Union Slaughterhouse and Livestock

Co. v. Crescent City Livestock Landing and Slaughter- —

house Co.,.111 U.S. 746, in which it was expressed in

the concurring opinion “Of Mr. “Justice Fields in the

8 The war power is, under proper circumstances, an saa

’ broad gne, and the .respondents claim that the power to deny

clearances is derived from the/ war-power. But this Court. has.

noted its re-affirmation of the principle that all powers of deel poe.

including the war power, are limited by the due provess require-

' ments of the Fifth Amendment. Galvan v. Press, 347 vs 522, :

530 ; Hamilton Vv. ba ties y 3 wesyatla 251 US. 146; 155. ©

‘following language, ‘‘The right to pursue [a chosen - 9.

occupation] without let: or hindrance, except that

which is applied to all persons of the same age, sex,

and condition; is a’ distinguishing privilege of citizens

of the United States, and an essential element of that

freedom which they claim as their birth-right.”” 111 _

US., at p: 757. Cummings v. Missouri, 4 Wall, 2, 277;

Ex parte Garland, 4 Wall., 333; Yick Wo v. Hopkins,

118. U.S. 356; Coppage v. Kansas, 236'U.S. 1; Truaz v.

Raich, 239. US. 33; Adkins v. Children’s Hospital, 261 _

_U.S. 525; Meyer v. Nebraska, 262 U.S. 390. The prin-

ciple that the right of employment will be protected

against. arbitrary interference by the government is

fundamental and vital. ‘‘It requires no argument to

_show that the right to work for a living inthe common _

occupations of the community is of the very essence -.

‘of the ‘personal freedom and. opportunity that it was

- the purpose of the [Fourteenth] Amendment to -

secure.” Truax Vv. , Raich, 239 U.S. 33-41.

The Court of A peals recognized that petitioner’s

discharge resulted/from Anderson’s order. ( Infra, pp.

20a, 21a). N otwithstanding the-clearly demonstrated

‘injury: to the plaintiff’s constitutionally protected

right, the-Wourt below denied.the existence of a justi-

- ciable controversy. Cf. Unit@i States v. Lovett, 328

U.S. 303,314. ‘The error of the Court below is the con-.

sequence of its failure to recognize that the verbalisms :

under which the result, is accomplished can not in fact. ~

and in logig alter the reality ef the interference with —

the freedom ofthe petitioner to make contracts with

other citizens with reference to his lab Whether

the interference is or is-wdt in excess of the statutory

powers of the Secretary ; whether the reasons: asserted

in support of the order and the regulations are or are ©

”

.14

~

not valid; wliether the necehinee | followed do or do

not satisfy constitutional requirements are issues

S which must of necessity be decided by the Courts.

“The Court of Appeals necessarily ‘premised - its de-

cision on the assumption that access to classified mate-.

rial can-arbitrarily be denied, even though this results

in theloss of petitioner’s employment and deprives

- him of other opportunities for employment: \This rea-

- soning ignores the fact that such access is granted as

a matter of course to others. ‘‘. . the Department of

_ Defense: will assume, unless information to the con-

. trary is received, that all contractors and contractor

’ employees are loyal to the Government of the United |

States.’’ FHegulations, R., p..54. An administrative

- official may -not arbitrarily deny one citizen what is

‘ generally granted to other citizens. ‘This Court has

only recently re-affirmed its adherence. to the require- ;

ment that. all be treated fairly in matters of engaging

in lawful occupations. In Sehware v. Board of Bar

Examiners, 353 U.S. 232, 239, this Court held that the -

_ fact that the practice. of law ij is an occupation in which

:, regulations to insure moral and professional qualifica-

tion are necessary does not create unlimited power to

deny admission to practice. It-said, ‘‘We need not

cfter into a discussion whether the practice of law is

a‘right’ ora ‘privilege’. Regardless of how the State’s

grant of permission to engage in this occupation is

characterized, it is sufficient to say that.a person can- |

not be prevented from practicing except for valid

reasons.’’? See also, Wieman v. Updegraff, 344 U.S.

183, 191, 192; Slochower v. Board of Pree 350

U. S. 551, 559.

Two. problems are presented - by ‘es petitioner’ ~

claim for relief: the’ existence of statutory authority

?

“ -

°°

ti ,

410

hie the Secretary’: 8 action; “and the ‘extent re erie

such statutory authority, | if it exists, is limited by ap

due process. clause.

The Court 6éf Appeals attempted to find pores

‘authority for the Secretary’s order in the Armed —

Services Procurement Act of 1947, 62 Stat. 21, 41

U.S.C. (1952 ed.), § 153. (Infra, p. 12a) This stat-

‘ute authorizes the head of an agency to adopt a con-.

tract of ‘‘any type which in the opinion of the agency

head will promote the best interests of the Govern-:=_

mm °° Tee interpretation of this statute by

the Court of Appeals as‘a grant of tinlimited authority -

_ to the defense departments to control employment of

workers jn-private business enterprises is inconsistent.

with thd principles re-iterated by this Court in Kent —

_ Vv. Dulles, (decided June 36, 1957) 26 U.S. ae Week,

4413, 4416, where the Co rt’ said: °

And, as we have seen, the right of exit is a 3

sonal right included within the word ‘liberty ”’

‘used in the Fifth Amendment. If that liberty ss |

to be regulated, it must be pursuant to the law-.

making ‘functions of the Congress. Youngstown

Sheet & Tube Co. v. Sawyer, supra [343 U.S. 579].

And if the power is to be adlesated, the standards

} must be adequate to pass scrutiny by the accepted

tests. See, Panama Refining Co. v. Ryan, 293

-.. U.S. 388, 420-430. Cf. Cantwell v. Connecticut,

.310 iy wa 296, 307; Niemotko v. Maryland, 340

US. . 271. Where -activities or enjoyment,

bre or often necessary to the well-being of

an American citizen, such ‘as travel, are involved;

we will construe ‘narrowly all delegated powers

that curtail or dilute them. See Ez parte Endo,

. 323' U.S. 283, 301-302; Cf. Hannegan v. Esquire,

327 USS. 146, 156; United States v. Rumely, 345

U.S..41, 46. We hesitate to find in this beoad,

: .

ra

16

generalized power authority to trench sO heavily

on the rights of the citizen. — Bil) ee eee

——---y—

‘The right to' travel abroad i is an Soe one.. But

can it be said to be more necessary to the well-being of ©

a citizen than the right of one trained-as an aeronauti- _

eal engineer and fitted by long and distinguished ex-

perience to retain or find employment with private busi-

hess enterprises engaged in that field ? or to be protected ~

against the imposition of ‘‘badges of infamy”’ by a

government official, high or petty? Aid where access

to government information is generally granted to

citizens, and is essential to employment in private —

industry, can it be said that a citizen does not have a

constitutionally protected right to be treated fairly

and not denied such access without a valid reason ?

The importance of these questions can searcely be -

denied. Obviously, the denial of the clearance and the

authority or lack of authority of the Secretary to take

that action is a matter of over-whelming importance

to the petitioner.. He has lost the employment which

he gained by spvenines years of loyal and distin- —

guished service. (Supra, p. 6). He has found it —

impossible to obtain other employment in the field of

eronoutical engineering.’ (R., p.. 572). Officials of

the government have inflicted upon him a “‘badge of

infamy.’’ Wieman v. U pdegraff, 344 U.S. 183, 191.

® Greene’s experience in seeking other employment has been gen- .

_eral with all who have suffered disqualification on the basis of

security. The denial of clearance to all practical purposes fore-

closes the possibility of employment in the aircraft industry. ‘‘In-

dustry Goal: Simple Employee Loyalty Check,’’ Nation’s Business,’

December, 1955, p. 40; See also, Berle, The 20th Contry Capittaliet

Revolution, (1954), pp. 92, 93. |

17 ge

Sete 2

_Nor, is. the-government “without a sulistantial stake .

- the injuries inflicted under the guise of security.

As the Court below noted, (infra, p. 22a), the risk to

- the government itself inherent in refusing the. services

of the petitioner’ s skill in the science of war.

- Another vital interest gravely affected by the action

of the Secretary was that of Engineering and Research

Corporation, which was deprived of the valued se

ices of a key employee. The question of whether the

: Secretary can thus deprive a business of the services of .

its employees is vital, especially to smail businesses."

-.Though we assume that a department secretary will

act in good faith, the: poténtial of damage to business

enterprises through such interferences with their « em-

ployées is tremendous.

More significant. in. evoking the exercise’ of this-

_Court’s jurisdiction than these individual. woubldere.

tions is the fact that if the Secretary possesses the un-

limited authority he ‘claimed and exercised against

Greene, every employee of every’ business enterprise

‘which contracts with the defense departments is sub--

ject to governmental control. Accurate estimates of the

number of people whose lives are subject to this'govern- :

' mental control are difficult, if not impossible. The

Commission of Government Security estimated that |

the Industrial Security Regulations apply to 22,000

private business establishments and their three million

1” The effect of haiti. a. small iestinien of its hey personnel

may, in many instances, be of great seriousness to its operations.

The record leaves no doubt that Greene was the key man of ERCO.

The extent to which the loss of Greene’s services contributed to -

. that result is problematical, but, the fact is that ERCO has ceased

to exist as an independent business enterprise. Fie Washington

- Post, November 11, 1954; P. 21.

18 e

»mployees.” This case’ itself demonstrates that not

mly are the thoughts, friends; activities, and associa-

tions of the employee examined under the Industrial -

Security regulations, that scrutiny extends as well to.

those of his relatives or former relatives. by marriage.

It would not be unreasonable to suppose that the lives

of some’ ten million people are included within the -

sweep of governmental supervision under the Indus?

trial Security program alone, Since in addition to its

eoverage of industrial plants, the regulations are also

applied to the faculties of colleges and universities

engaged in research” for. the Department of Defense,

the effect of the program upon academic freedom and

inevitably upon the educational system is a matter of '

sober coneern for the future, as well as the present,

well- being our society. ee

' Beyond tliese considerations is the need for iatees.

tion of a priceless constitutional right, integral to the

Americati way of life. Most citizens cannot in fact

enjoy the benefits of the rights and privileges afforded

them by the Constitution until they have first exer-

*ised the right to earn a livelihood at one of the com- |

mon occtipations of mankind in order to secure the

means of travel, reading, thought, and association

which are included within the scope of constitutionally

protected rights. Can this most fundamental right be

lestroyed on the basis of rumor and hearsay, the source

and content of which is not even known to the em-

+,

P ag

w

—-—_———

». 235.

12 Thid., p. 237.

19

ployee? and whieh he therefore cannot refute? As.

the Court in Parker v. Lester (CA 9, 1955), 227 F. 2d.

708, 721, said.in holding that proceedings substantially

similar to the Industrial Security peseeeny? offended

the due process clause :"* —

But the time has not come when we have to aban-

don a system of liberty for one modeled on that ©

of the Communists. Such a system was not that |

ordained by the framers of our Constitution. It

is the latter we are sworn to uphold. | :

The absolute ond unlimited “control of private em-

_ ployment approved by the Court below is wholly irrec-

- oneilable with the protection of the right of employ-

ment by the provisions of the due process clause. The

freedom of employment: from arbitrary interference —

which has been consistently sustained. by this Court.

can not exist alongside the Industrial Security regu-

dations. Any decision that the-latter are to prevail is

a matter of transcendental importance which should

be made-by this Court alone.

13 The sieniiemaaies stipilated in this case that matters of which

Greene had no knowledge served, in part at least, as the basis of

the adverse decision against him. The stipulation states; ‘‘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=souree of which has

been revealed to plaintiff.’’ R.,; pp. 67, 68, Stipulation of Facts, {| 23.

IAs is pointed out, infra, pp. 20-22, Parker v. Lester is in direct

conflict with’ the holding of the Court below on the i of the

éxistence of a justiciable controversy. Since the Court below held

that. no such — be pair rag existed, it did not reac the

gram. cenceamnr its-observations that the aenlicmey

' program ‘afforded procedural due process are dicta. owever,

these dicta (infra, pp. 15a-20a) are ‘in diametri

with the'ruling of the Court in Parker v. Lester. .

20

IL. The Decision of the Court Below is in Conflict, With Re-

_ spect to an Important Constitutional Issue, With Parker

v. Lester, 227 F. 2d 708 (CA 9, 1955). | }

The decision of the Court below denied petitioner

relief against the invalid order-of-the Secretary of the —

Navy, basing that denial on its conclusion that the case

did not preserit a justiciable controversy. The essence

of the decision is contained i in the following language

( infra, p. 21a):

The reality of the i injury, however, does not mean

that Greene is entitled without more, to ‘judicial °

relief. There must he a justiciable controversy—

one which the courts can finally and effectively

decide, under tests and standards which they can —

- soundly administer within their special field of:

competence. ‘Here there is no such controversy. 2

- This conelusion; of course, means that the elaim that

the Secretary has acted in excess of his authority can-

not be challenged, despite the admitted injury to the

petitioner, and raises inherent doubts as to the cor-

rectness of the decision. Cf. United States v. Lovett,

328 U.S. 303, 314. It is squarely in conflict with the |

decision of the Court of Appeals for the Ninth Cir- |

euit in Parker vy. Lester, 227 F. 2d 708, in which that

Court granted injunctive and declaratory relief to sea-

men who sought to enjoin the operation of the Port

Security regulations adopted ‘under the authority of _

the Magnuson Act. 64 Stat. 427, 1038, 50 U.S.C., §§ |

191, 192, 194. The regulations which the Court there

held inivalid are substantially similar to the Industrial

Security regulations: which are challenged in the

present case.

The conflict betw een the decisions is ident. In

each case, the relief sought was judicial declaration of

the invalidity of an administrative order which, in

Le “OT

@

practical effect, at least, deprived the complainants of

private employment, and an imjuncton against the en-. +

~foreement of the challenged order.” (Cf., R., p. 8,

with 227 F. 2d at p. 710). The right sought to be pro-

tected ‘was in each case that of the employee of a

private business enterprise to contract with respect to -

his labor without arbitrary interference by govern- —

ment officials. (Cf., R., p. 3, with 227 F. 2d at -p. 714).

The grounds upon which the orders were challenged ©

were, in each case, that the regulations were not au-

thorized by statute, (Cf., R., p. 4 with 227 F. 2d at p.:

710), and that the ‘regulations, both as promulgated

and as administered, have operated to deprive the

‘plaintiffs of, their liberty and: property“without due °

process of law. (Cf., R., pp. 1-8, 119, 16, with 227 F.

2d at p. 710). In each of the cases, the claimed justifi-

cation for the orders was the demand of national

security considerations.” The Court of Appeals for

the Ninth Cireuit held the controversy to be justiciable

and granted the plaintiffs in Parker v. Lester relief,

while the Court below denied petitioner any relief,

asserting that there was no justiciable controversy. -

This square conflict in the result cannot be resolved

on the basis of any supposed difference in the opera-

15 It should be pointed out that the Port Security regulations

~ do, in terms, deny employment. in the Merchant Marine if clearance

‘is refused, whereas, the Industrial Regulations on their face do

not compel the denial of employment. However, as has been shown

(supra, pp. 7, 8, 16) the denial of access to classified material

bars the person affected, for all practical purposes, from employ-

ment in the aircraft industry.

' 16 The constitutional power upon which the respondents in the _

present case must rely is the war power. The Magnuson Act has,

perhaps, a broader constitutional base, since it may be argued

that it rests upon the;war power and upon the commerce power

as well.

22

tion or sweep of the regulations.""- The constitutional

and practical importance of the conflict has been dem- |

onstrated.. .(supra, pp. 16 to 18).. The position of

the aise below, founded upon the assumption that

the

power overethe employment of private citizens is

spondents possess absolute and unréviewable

erroneous, and the question is one which should, in the .

_ interests of a clear delineation of the rights of citizens,

‘be vie nia by this Court.

""@ 4 ee .

'

CONCLUSION e

B

- For the foregoing reasons, the —* ms a writ of

certiorari should be granted.

| ee Respectfully gubmitted,

un eer Cart W. BERUEFFY

cia VE a 1625 Eye Street, N. ae

eal = : ashington, D. C. $ _ .

3 « Aiforney for Petitioner

®

aid he peace in their br fiek in the Court below - (p. 33)

attempted to distinguish Parker V Lester on the ground that the -

Port Security regulations forbid the disclosure of all information

as to the identity of the informants, whereas, respondents ‘assert,

the Industrial Seciirity regulations withhold that information only

when required by considerations of national security. The fact .~

is, as this record shows, the respondents withhold all information

from the affected employee. There is nothing in the record of this :

: case which indicates any valid reason for refusing to reveal the

identity of at least. some of the ‘informants, or for. refusing: to

_-permit their cross-examination. \ "

_ The Court of Appeals tacitly rejected this intaneed distinction,

since it asserted (infra, p. 15a) that the difference is to be

found in the fact that the Port Seeurity regulations affect all.

employees’ in the Merchant Marine.| The theory ‘of the Port

Security regulations is that. the. danger from) maritime workers

arises from their opportunities to commit sabotage or to act as

espionage couriers. Consequently, it ig the. access to ships which

8, 721.

iS

makes all maritime jobs sensitive. Sais v. sania 227 F. 2d

. 2