MR. JUSTICE STEWART delivered the opinion of the Court.
In 1956 the petitioner Rachel Brawner was a short-order cook at a cafeteria operated by her employer, M & M Restaurants, Inc., on the premises of the Naval Gun Factory
The Gun Factory was engaged in designing, producing, and inspecting naval ordnance, including the development of weapons systems of a highly classified nature. 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 Lieutenant Commander H. C. Williams. Rachel Brawner had been issued such a badge.
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 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Since the day her identification badge was withdrawn Mrs.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 restaurant 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
As the case comes here, two basic questions are presented. Was the commanding officer of the Gun Factory authorized to deny Rachel Brawner access to the installation 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.
In Greene v. McElroy, supra, the Court was unwilling to find, in the absence of explicit authorization, that an aeronautical engineer, employed by a private contractor on private property, could be barred from following his profession by governmental revocation of his security clearance without according him the right to confront and cross-examine hostile witnesses. The Court in that case found that neither the Congress nor the President had explicitly authorized the procedure which had been followed in denying Greene access to classified information. Accordingly we did not reach the constitutional issues
It cannot be doubted that both the legislative and executive branches are wholly legitimate potential sources of such explicit authority. The control of access to a military base is clearly within the constitutional powers granted to both Congress and the President. Article I, § 8, of the Constitution gives Congress the power to "provide and maintain a navy;" to "make rules for the government 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 buildings;" and to "make all laws which shall be necessary and proper for carrying into execution the foregoing powers . . . ." Broad power in this same area is also vested in the President by Article II, § 2, which makes him the Commander in Chief of the Armed Forces.
Congress has provided that the Secretary of the Navy "shall administer the Department of the Navy" and shall have "custody and charge of all . . . property of the Department." 10 U. S. C. § 5031 (a) and (c). In administering his Department, the Secretary has been given statutory 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. The law explicitly requires that United States Navy Regulations shall be approved by the President, 10 U. S. C. § 6011, and the pertinent regulations in effect when Rachel Brawner's identification badge was revoked had, in fact, been
The requirement of presidential approval of Navy regulations is of ancient vintage.
Article 0701 of the Regulations delineates the traditional responsibilities and duties of a commanding officer. It provides in part as follows:
It would be difficult to conceive of a more specific conferral 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.
An opinion by Attorney General Butler in 1837 discloses that the power of a military commanding officer to exclude at will persons who earned their living by working on military bases was even then of long standing.
This power has been expressly recognized many times. "The power of a military commandant over a reservation is necessarily extensive and practically exclusive, forbidding 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 discretion, exclude all persons other than those belonging to his post from post and reservation grounds." JAGA 1904/ 16272, 6 May 1904. "It is well settled that a Post Commander can, under the authority conferred on him by statutes and regulations, in his discretion, exclude private persons and property therefrom, or admit them under such restrictions as he may prescribe in the interest of good order and military discipline (1918 Dig. Op. J. A. G. 267 and cases cited)." JAGA 1925/680.44, 6 October 1925.
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
II.
The question remains whether Admiral Tyree's action in summarily denying Rachel Brawner access to the site of her former employment violated the requirements of the Due Process Clause of the Fifth 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 constitutional 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. Richmond, 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.
The Fifth Amendment does not require a trial-type hearing in every conceivable case of government impairment of private interest. "For, though `due process of
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. Where it has been possible to characterize that private interest (perhaps in oversimplification)
What, then, was the private interest affected by Admiral Tyree's action in the present case? It most assuredly was not the right to follow a chosen trade or
Moreover, the governmental function operating here was not the power to regulate or license, as lawmaker, an 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 proprietary 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 summarily denied. It has become a settled principle that government employment, in the absence of legislation, can be revoked at the will of the appointing 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
It is argued that this view of Rachel Brawner's interest is inconsistent with our decisions in United Public Workers v. Mitchell, 330 U.S. 75, and Wieman v. Updegraff, 344 U.S. 183. 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 observed that "[n]one 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 "subversive" organizations, regardless of their knowledge concerning 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 sufficient to say that constitutional protection does extend to the public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory." 344 U. S., at 192.
Nothing that was said or decided in United Public Workers or Wieman 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
Finally, it is to be noted that this is not a case where government action has operated to bestow a badge of disloyalty or infamy, with an attendant foreclosure from other employment opportunity. See Wieman v. Updegraff, 344 U.S. 183, 190-191; Joint Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 140-141; cf. Bailey v. Richardson, 86 U. S. App. D. C. 248, 182 F.2d 46, aff'd by an equally divided Court, 341 U.S. 918.
For these reasons, we conclude that the Due Process Clause of the Fifth Amendment was not violated in this case.
Affirmed.
MR. JUSTICE BRENNAN, with whom THE CHIEF JUSTICE, MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS join, dissenting.
I have grave doubts whether the removal of petitioner's identification badge for "security reasons" without notice of charges or opportunity to refute them was authorized by statute or executive order. See Greene v. McElroy, 360 U.S. 474 (1959). But under compulsion of the Court's determination 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 due process of law in violation of the Fifth Amendment.
I read the Court's opinion to acknowledge that petitioner's status as an employee at the Gun Factory was an interest of sufficient definiteness to be protected by the
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
One further circumstance makes this particularly a case where procedural requirements of fairness are essential. Petitioner was not simply excluded from the base summarily, without a notice and chance to defend herself. She was excluded as a "security risk," that designation most odious in our times. The Court consoles itself with the speculation that she may have been merely garrulous, or careless with her identification badge, and indeed she might, although she will never find out. But, in the common understanding of the public with whom petitioner must hereafter live and work, the term "security risk" carries a much more sinister meaning. See Beilan v. Board of Public Education, 357 U.S. 399, 421-423 (1958) (dissenting opinion). It is far more likely to be taken as an accusation of communism or disloyalty than imputation
It may be, of course, that petitioner was justly excluded from the Gun Factory. But, in my view, it is fundamentally unfair, and therefore violative of the Due Process Clause of the Fifth Amendment, to deprive her of a valuable relationship so summarily.
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