Cafeteria and Restaurant Workers Union, Local 473 v. Elroy

• Decision Date: 19 June 1961
• Docket Number: AFL-CIO,No. 97,97
• Citation: 81 S.Ct. 1743,6 L.Ed.2d 1230,367 U.S. 886
• Parties: CAFETERIA AND RESTAURANT WORKERS UNION, LOCAL 473,, et al., Petitioners, v. Neil H. McELROY et al
• Court: U.S. Supreme Court

367 U.S. 886

81 S.Ct. 1743

6 L.Ed.2d 1230

CAFETERIA AND RESTAURANT WORKERS UNION, LOCAL 473, AFL-CIO, et al., Petitioners,

v Neil H. McELROY et al.

No. 97.

Argued Jan. 12, 1961.

Decided June 19, 1961.

Rehearing Denied Oct. 9, 1961.

See 82 S.Ct. 21, 22.

Mr. Bernard Dunau, Washington, D.C., for petitioners.

Mr. John F. Davis, Washington, D.C., for respondents.

Mr. Justice STEWART delivered the opinion of th 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 Factory¹ in the city of Washington. She had worked there for more than six years, and from her employer's point of view her record was entirely satisfactory.

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.

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 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 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 defendants 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.² We granted certiorari because of an alleged conflict between the Court of Appeals' decision and Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377. 364 U.S. 813, 81 S.Ct. 43, 5 L.Ed.2d 44.

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 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 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 the 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), 10 U.S.C.A. § 5031(a, 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, 5 U.S.C.A. § 22. The law explicitly requires that United States Navy Regulations shall be approved by the President, 10 U.S.C. § 6011, 10 U.S.C.A. § 6011, and the pertinent regulations in effect when Rachel Brawner's identification badge was revoked had, in fact, been expressly approved by President Truman on August 9, 1948.

The requirement of presidential approval of Navy regulations is of ancient vintage.³ The significance of such presidential approval has often been recognized by this Court. Smith v. Whitney, 116 U.S. 167, 181, 6 S.Ct. 570, 577, 29 L.Ed. 601; Johnson v. Sayre, 158 U.S. 109, 117, 15 S.Ct. 773, 776, 39 L.Ed. 914; United States Grain Corp. v. Phillips, 261 U.S. 106, 109, 43 S.Ct. 283, 284, 67 L.Ed. 552; Denby v. Berry, 263 U.S. 29, 37, 44 S.Ct. 74, 77, 68 L.Ed. 148.⁴ We may take it as settled that Navy Regulations approved by the President are, in the words of Chief Justice Marshall, endowed with 'the sanction of the law.' United States v. Maurice, 2 Brock. 96, 105, Fed.Cas. No. 15,747.⁵ 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 traditional 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 * * *.'

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:

'1. To conduct public business.

'2. To transact specific private business with individuals 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 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.⁶ 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 installations have exercised throughout our history.⁷

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. Speaking of the Superintendent 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 superintendent, the interests of the academy require it. 'This,' he observes, 'has...