367 U.S. 886 (1961), 97, Cafeteria Workers v. McElroy

Docket Nº:No. 97
Citation:367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230
Party Name:Cafeteria Workers v. McElroy
Case Date:June 19, 1961
Court:United States Supreme Court

Page 886

367 U.S. 886 (1961)

81 S.Ct. 1743, 6 L.Ed.2d 1230

Cafeteria Workers



No. 97

United States Supreme Court

June 19, 1961

Argued January 12, 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

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STEWART, J., lead opinion

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 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 [81 S.Ct. 1745] 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.

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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

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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. 364 U.S. 813.

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?


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 [81 S.Ct. 1746] 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

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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, dockyards, 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. 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

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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; Johnson v. Sayre, 158 U.S. 109, 117; United States Grain Corp. v. Phillips, 261 U.S. 106, 109; Denby v. Berry, 263 U.S. 29, 37.4 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, 105.5 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 [81 S.Ct. 1747] 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. . . .

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Article 0734 of the Regulations...

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