*1 spelled requirements out August act of 301(e), appears Section now District of Columbia Title VII).8 Supp. (1951 ed., Code

Reversed. Edgerton,

Fahy, and Wash- Bazelon Judges, ington, dissented. Circuit AND RESTAURANT CAFETERIA UNION, LOCAL WORKERS al., Appellants, AFL-CIO, et Individually McELROY,

Neil H. al., Defense, Secretary et Appellees.

No. Appeals Circuit. of Columbia District

Argued Nov. April

Decided

8. 69 Stat. 610. *2 years.

six and a half cafeteria property, located on Factory. The of the Naval Gun purchased land had been *3 1873. It is in the Dis- located part trict of the Columbia and of became Factory Gun The of the work Factory design, includes, alia, inter planning, production inspection of naval ordnance. by pri- operated The cafeteria was corporation, Restaurants,

vate M M& Inc., under a with the written contract Governors, Board U. of S. Naval Gun Factory of Cafeterias. The Board Gov- gov- composed ernors is of seven civilian Factory employees ernmental appointed by Superintendent. is the M Inc., operates M Restaurants, & numer- ous cafeterias and restaurants in several states, including Delaware, Maryland and Virginia. operates the three main Factory. at the In order cafeterias Gun enter or leave the of the Gun badge Factory, an identification quired. The re- is badge by of issuance Security Factory, Officer Gun of Superintendent, a subordinate of the of both whom are naval officers. The Factory component activity of is a Gun Dunau, Washington, D. Bernard Mr. Naval Command. the Potomac River C., appellants. for The Commandant of Command Yeagley, Atty. Asst. Gen. J. Wattes directly responsible to the Chief Naval Indiana, Court of bar Operations. court, vice, by special pro hac leave have, required Brawner was Rachel Michaloski, J. whom Messrs. Leo badge. have, an identification did Avedon, Rock- and Justin ft. L. Jerome November she was notified On Justice, Dept, well, Attys., were on by supervisor her that he had been told George brief, appellees. B. Mr. badge up pick her “for rea- Atty., Searls, Dept, Justice, also en- badge She surrendered her sons”. appellees. appearance for tered supervisor This action him. Judge, Prettyman, Chief Before phone repre- pursuant to a call from a Bazelon, Edgerton, Miller, K. Wilbur Board of sentative Governors to a Fahy, Washington, Danaher, Bastían Restaurants, representative of M M& Judges. Burger, Circuit caller The stated that Inc. Board by Security notified Officer Judge. PRETTYMAN, Chief Factory, Naval Lieutenant M. Brawner was a short-order Rachel Commander, that Brawner would have to November, cook”. “breakfast cook—a badge and would surrender not be 1S56, worked Her she cafeteria. prepare to enter the permitted breakfast and “until duties lunch, table, is certified the steam wash clearance attend Offi- employed had been so cer.” dishes. She

n Restaurants, M President of & M chosen the American Arbitration As- representative at the Ine., offered Brawner sociation.2 The Skylark nearby Springfield, Motel in Vir- Union was informed the President operated ginia, company supply where a restaurant was could he representative concerning company. taking information Union, Brawner, badge. notified Thereupon Brawner’s behalf dis- pute company interested that she was not was referred ato board of arbitra- accepting composed proffer. Cullen, tors Esquire, of John B. Jaffee, named the company, H. Samuel The Chairman the Board of Gov- *4 Esquire, Union, named the and the request Superin- ernors made the of Cayton, Honorable Nathan named meeting Factory tendent of the that a be the American Arbitration Association. arranged Officer, the for the arbitrators, dissenting, These Mr. Jaffee Governors, representatives Board of of found: “The evidence does not before us agents Restaurants, Inc., M M of & and establish that Rachel was Brawner ever the Union to discuss relative the action discharged by Company. the There Superintendent replied to Brawner. The no evidence from it be said which can agreement that the between Board of the Company any that the ever indicated de- Restaurants, Inc., and M & M Governors sire dispense or intention to or terminate stipulated employ that the latter should with her services.” The arbitrators fur- security require- those who met the pointed grievance there out: “The real ments admission to the employee the and of her Union has never that it was considered that Brawner against Company; the has been security require- not “does these meet against (wrong- who those Superintendent ments”. The added that fully, contends) physical she denied her meeting proposed the necessary. was therefore un- place access to the employment.” her had called meantime Brawner In the In the sum facts are Rachel that agent Brawner, the local of employed the business a short-order cook bargaining rep- operator was the the Union the civilian which concessionaire aof premises of the cafeteria workers. resentative located on cafeteria the representative Factory, the matter discussed This Naval retention was denied badge M of M Restau- President the identification & which had permitted rants, premises The contract between the enter Inc. company provided worked, being by and the that the Union where she the denial discharge suspend employer not or would the naval officer com- good employee any Factory. and sufficient without mand of the reason stated provided that in It further cause.1 she that failed meet re- dispute quirements. should event matter be She was not informed as to to a arbitration of referred board factual for the conclusion. might against parties, charge of whom three one No was made her. agreement clays 1. Clause 6 of the between M & tion two within from the date Ine., Restaurants, parties Agreement con- M the Union shall fail following: Employer agreement “The tained to reach an in connection with suspend discharge agrees dispute, or matter and said Board good employee composed rep- without and sufficient Arbitration shall be of one Employer rep- cause.” resentative of the and one Union, resentative and one disin- agreement provided: 2. Clause party terested chosen said two parties agree they will “The en- members the Board of In Arbitration. adjust dispute deavor parties the event the two fail shall interpretation applica- from the or arise agree party, on a third disinterested period Agreement of this within a tion parties agree that the American Arbitra- hours. the event no accord of 48 requested appoint tion Association be dispute reached, the matter can person capacity to serve in the be referred to a Board of Arbitra- shall impartial third and arbitrator.” missed the of Defense pacities, the Government defendants for a relief, vacation of cials, This After the District Court recovery Mrs. Brawner filed appeal in their individual declaratory judgment, granted summary judgment for Mand & M complaint followed. and other Government foregoing damages. against the arbitration Restaurants, Inc., events to all defendants. a civil action and official ca- The District the Union injunctive Secretary and dis- award, offi- 'X- ticular er ing government territory Congress, square) in all district “To exercise exclusive ^[******] “The -X * to the United * * cases States, Congress ” (not become the *; may, by whatsoever, other exceeding shall States; property cession have the acceptance of seat legislation over such ten * belong- of States, miles pow- par mand of a naval one. from the the briefs ingress It problem power I. concerns the premises. and in and The Problem to be solved egress a naval argument installation The discussion on nature and extent civilians Stated officer in com- has is to control gone narrow to and far *5 er naval ment and The line of “To “The ^[******] “To * * *; forces; provide make regulation authority rules for and maintain * * shall then *.”5 have the proceeds land and govern navy; pow- by afield from problem. The case does statutes. not involve from a debarment chosen oc- Secretary Navy “The of the cupation. discharge * * * It is case. not a charge custody and all The case does not involve Personnel 6 property Department.” of the Security Program, its concomitant with department “The head of each

regulations. regulations, prescribe authorized to * * law, not inconsistent with II. Power to Control Access to custody, preservation use, and Naval Gun * * * property appertaining to 7 Authority. Line it.” We first authority Regulations examine the Navy “United States Navy prescribe rules for the admission by Secretary shall be issued Navy civilians Navy approval installations. The with the 8

authority begins with Constitution. the President.” power “The shall have Next in this line of come dispose make all of and needful Regulations Navy certain United States * * * regulations respecting the pursuant issued to Section 1547 of the IV, 3, 3. Art. § cl. 2. by 619, Cong., terial Pub.L. No. 85th 2d (Aug. 12, 1958), I, 8, 72 Sess. Stat. 547. 4. Art. § cl. 17. (1958). I, 8, 10 6011 § 8. U.S.C. This 13, Art. § cls. 591, § U.S.C. the source of which was 5031(c), 6. 10 U.S.C. § which was 5 U.S.C. R.S. § addition U.S.C. § 413, § which was §R.S. derived from provides: (1958) “The President April 30, 1798, Act of ch. § prescribe regulations carry out his Stat. 554. functions, powers, and duties under appears 7. This section now This “title” of the title.” United 5 U.S.C.A. States (1958). revised, § codified enacted in- was R.S. Code derived Acts, statute, being beginning from a number of to law Pub.L. No. with July 27, Cong., Sess., (Aug. 10, one of 2d ch. ch. 84th 1 Stat. 28. respects 1956), It was amended in 70A not Stat. 1. here ma- ulations, matters They pertaining issued Revised Statutes.9 responsible.”14 Navy, for which he is Honorable Secretary Sullivan, on that approved L. John Operations “The Chief of Naval President, Honora- day same regulations supplement shall these Regula- Harry These ble Truman. S. appropriate publications includ- ** following provisions: tions contain Manual, ing responsibility the com- “The Navy Security Man- manding his command officer for Matter, promulgated ual for Classified ex- absolute, when, to the except following: October contained compe- tent, relieved therefrom vis- “Persons considered who are authority, other- provided tent * * * into are divided itors regulations.” wise in these categories fur- are four basic general, or tradesmen “In dealers ther subdivided as follows: agents admitted shall not be or their “Category United States citizens command, except as author- within a * * * commanding ized officer: One ****** “3. To furnish services sup- ^[******] plies necessary private which are “Baker fa- Personnel of insufficiently, otherwise, [meaning or are cilities under contract personnel (B)] Department available *6 11

command.” Defense.” commanding shall officer “The commanding officer of the “The regula- require and that orders being activity has full discre- visited security tions the pertaining to * * * * * * or visit tion as to whether not the classified * * * permitted.” shall be strictly ob- material Security Navy Physical The U. S. served.” promulgated Manual the Chief “Definitions. April Operations con- Naval “1. matter.’ —Infor- ‘Classified following: tained the any in or mation or material form “Definitions any public nature in the safeguarded must Activity. interest be Naval naval ac- “1. A required manner and to by extent tivity the shall be construed to mean a importance.” Establishment, its unit of the Naval identity, un- distinct and established “Subject and as law an der officer command or Secretary prescribed the charge. Navy, duty shall be Operations Chief of Naval to: ****** Facility. facility, pur- A “3. instruction, Prepare poses of this “12. issue manuals utility building, appropriate shop publications within and other having activity specific containing func- orders, instructions, and conforming reg- tion.” procedures, to these Aug. 10, 1956, 14. Id. 0204. § § 9. 34 U.S.C. codified § U.S.C. 6011. 15. 1502. § Id. Regs. 10. § 0701. Security 1403. § 16. Manual 11. 0734. § Id. 1409. § Id. 12. Id. §0713. Security Physical Manual § 0100. 13. Id. Certainly agency operation Commanding The of an “The Officer. responsible design, Commanding planning production Officer guns property and security naval func- of all other ordnance is a

for the requiring secrecy tion public his inter- command. installations within security Attorney est. measures Manual on The prescribes He General’s when Act cites adopted, coordinates Administrative Procedure to be necessary, meaning adopted as an illustration of measures provision: Department “Thus, remains subordinates, alone he the War but security obviously publish required is not con- responsible overall for the organization military fidential of his command.” matters * * Therefore, operation Normally, Security “The Officer. regulations apply so far as these delegates Commanding Officer Factory, Naval need oper- of the administrative most published in their order to establish security sub- aspects ational validity. We are not concerned ordinate, referred who is validity application. their other Officer. manual as provision Furthermore the of the Act plan- include of this officer functions ning, supervision, excepts which we have referred inspection, coordi- “any relating publication solely recom- nation, matter and submission respect management agency”. to: mendations with internal anof “Specific duties. The “a. ^[*] “(1) Internal Physical ^[*] ^[*] security security ^[*] planning, ^[*] ” tory, they over an so far as installation such relate to the internal these regulations prescribe commanding the Gun manage- officer Fac- mat- supervision Navy. and coordination ment of the effect is relating ters Reports on remote. The Committee command includes: Bill which became the Administrative *7 security matters: Internal “a. point publica- Procedure Act out that the * * Safeguarding “(1) provisions tion intended to make of clas- disclosure the unauthorized general public such ad- available to the matter.” sified operations procedures and ministrative by argued authority that Union public property. It is as are Navy regulations manuals and operations these naval can naval officersover Regis Federal published in the were not public property. hardly classified be requirements of Sec pursuant to the ter Register Act is far as the Federal so Procedure the Administrative tion 3 of Congress required concerned, no act Register Act23 and Federal Act22 Navy regulations publication; The section not valid. thus were designated by the President as not been pro Act Procedure the Administrative general public; applicable to the begins: viding publication for by required not this statute to thus were “Except there to the extent published. be (1) of the function involved secrecy requiring seems clear that therefore naval * * *— interest in command naval installations officers * * authority Every agency ample to control the in- “(a) shall egress Register gress of civilians to and from publish in the Federal premises of the command.24 [etc.].” (1935), 44 23. Stat. U.S.C.A. § 19. 0154. § Id. (a) (2). 20. 0156. § Id. recognized the ex- 24. The 0156.3. § Id. by prescribing of such istence penalties (1946), for the unauthorized 60 Stat. U.S.C.A. entrance tions which cers have technical given applicant required non-Governmental lowed ernmental defendants answered that each the and not denied. this lawsuit fendants Factory to determine whether a Naval M tween The Exercise Agreement, personnel who In answer to an Activity curity to quirements or other Concessionaire Restaurants, obey undertaking by ^[*] “(iii) “ engage, -»* an contained the contract made ** Gun the Board Not all Naval Gun applicable Officer concerning the officials of the identification ^[*] fail to meet the as determined complete Factory * jn for an Inc., identification Authority. ^[*] do operations under this engage, or The execution interrogatory posed in employee no event shall regulations the authority Brawner is plaintiffs following: Cafeterias provided an October Governors r- Activity.” Factory badge, application requirements procedure ^[*] Naval badge continue should to the the Se and M & “I part: civilian, implicit Regula- protect ^[*] agree form work-week, re Gov- offi fol- de- be- ple, gain ployees be informed a week. Moreover we know of law right ployees under the contract employer’s contract, tor in doWe provision subject employee curity requirements of the command. Brawner’s subject trance to the ployment. the other bination cific enter the Gun right is a she such a superior parties same limitations.26 gained by way rights subject Government permission. if a contract right gained by their to demand of entrance respect not see custom to the right upon of a between her limitations, employment. only but no It was derived matter of two Factory to how contract contractor with Factory individual flat, unequivocal which employees permitted contractor-employer right contracts, Brawner’s possessed rights of her contract of em virtue of which civilians. The specifies contract subject requires must meet the employer the terms of the the contract of entrance was Thus, employee of the contrac are employer rights from a one between only right right matter. right a 40-hour or for exam subject respect no rule a civilian they that em contract by spe which hours has a of an com only her. em can are en se to If to privacy clearly naval appears such as Thus it that the com- gun right high manding factory, so is a but the had a do officerat *8 right highest priority right priority in the protect to entrance of think, one, ques Factory interest. No we would and the civilian Brawner had Certainly right right priority. merely or its tion that derived a from a contract specificallyprovided realisms the world situation dic which that must she necessity. hand, security requirements no tate its On the other meet the being situation, in individual citizen has a natural or This fail we officer. right premises. any upon perceive herent to enter such limitation the dis- to commanding And we find no statute which confers cretion of the officer in re- upon See, g., duly designated Superintendent, such naval installations. e. or his cancel, (1948), representative, 62 Stat. 765 18 U.S.C. to revoke or § with- (1958); any (1950), 64 Stat. 50 U.S. same for cause draw the or reason Superintendent, CX.A. 797. § deemed sufficient representative, or his in exercise of 5(b). predecessor contract, 25. Sec. necessity discretion, any without for of December in effect when showing of cause.” employed, provided Brawner was in Art. employment IX(b): “Approval Williston, 364A & § Contracts n. 5 person (3d 1959); the Concessionaire to and cases there collected ed. * * * Factory work in Naval Gun id. upon right shall be conditioned ample, secrecy spect presence his com- within maintenance strict in to civilian imposed respect mand, except limitations to certain matters come which authority. naturally knowledge no higher employee’s to an in We find naval ordinary rights employment member public, or course his upon commonplace suitability restriction thereof, act element of which particular employment. unfettered discretion Trade secrets the otherwise industry,27 business, financial in such a matter. matters naval officers Government,28 official affairs in with are M Restau- M & The contract between scope custom. Further rants, Inc., con- and the Government frequently more the re relating procedure provision tained to no quires qualified, particularly that one be Factory upon the denial of access to private employment: even for for ex employee, contract between but the barber, ample, nurse, to be or an or a representative, (via Brawner her engineer, lawyer. man, young or a A provide a Union) employer did her college, even one out no unrestrict has respect disputes procedure to right practice (1) ed study He must to law. provided for arbitra- that contract. prescribed (2) period for a seen, was afforded As we have she tion. ju qualify sponsored under tests the full procedure. that has had full She dicial branch of the It is Government. rights. procedural her contractual licensed, qualified after one admitted, profession a trade or that to Control Access versus Power to III. rights under contract or statute attach Right Employment at Claimed to occupation and a debarment Naval Gun procedural steps.29 requires certain And argued behalf It is Brawner’s applies the same doctrine where Govern right employment involved in was her ment action is of such nature as be a right daily to be factual debarment of individual from right employment site; that this though profession, his vocation or even protec- right; protected and that this not a formal disbarment or cancellation through protect- create a reached tion license. This is what the right particular site em- ed to be at talking Court was about Greene v. McE applica- principles ployment. think We lroy,30 repeatedly empha as the Court ap- are not as such ble opinion. person sized in its there plicable before us. the case we have engineer involved an aeronautical principles because discuss those training specialized capacity pressed upon they and we think are us that access to classified information was erroneous reflect some engagement profes essential in his duty to indicate. bound we Denial of such access sion. com was a Right. Employment Qualified —a plete debarment. place it is obvious In the first Removal Process. right— unqualified no one has an employed person inherent, statutory or constitutional —to No has an in *9 right right (i. upon employment e., as he choos herent or natural enter such regulation statute, apart Qualification, suitability, re from con or is or es. right. any tract) any process respect in For ex sort striction appointment. prin- Employee Agreements Blake, 27. Not suitable for The same See obviously applies Compete, ciple 625, in 667-674 all branches of To 73 Harv.L.Rev. (1960). the Government. simple example: a law 28. To take a clerk Byse, Gellhorn & Administrative See applicant may legal giant; be a he (1954). Law 768-779 engaging personality; but, have a most judicial 474, 1400, 3 he 30. 360 U.S. 79 S.Ct. L.Ed.2d if cannot entrusted (1959). secrets, judge him no would consider 1377 182 law; job.31 of the case of appears whole fabric his from removal rights throughout parte Ex employee’s an

private employment —from 35 in Seaton discharge the Hennen 1839 to Vitarelli v. from stem respect in classes, special Except al in for 1959.36 employment. This is contract of employees may be removed law; one it is Government summarily ways has established been charges except and, unions. trade without reasons the basic Lloyd-La Fol- employees provisions in rights for the The respect of Government holding Act, employment lette reasons. A without from removal ruling regulations contrary would necessitate or from statute from stem they Lloyd-La and al- Act is Follette adopted which by the ways invalid; hun- has estab been employed. has been This discharged history employees its throughout dreds of this lished law wrong- every procedural country.32 Originally, since student terms 1912 were discharged; fully knows, authori that Government history the Executive of ty life all levels carries plenary remove sum at power to constitutionally employees; inherent, marily tenure, e., i. any and all Executive long invulnerability discharge, protected and fight did so.33 The climax except upon charges, hearings, open con- in civil service witnesses, Lloyd-La Follette frontation tion, cross-examina- the enactment of findings. Act, amended, is conclusions- Such in That Act specifically provides: support law, opinion. no our It still force. nor witnesses examination of “No Situs. hearing except required or shall be trial contract, special Finally, absent officer or em the discretion constituting de or circumstances a total suspen directing ployee the removal 34 employee- occupation, an pay.” barment sion without rights virtually respect to no the discussed That statute has Grocery employment. situs of his courts, many times in the under attack utilities, firms, chains, law and1 intimated a shadow but court has ever no Government, employees- notably move unconstitutionality law it. The place willy-nilly. statutory place express pro about from clear. Absent an tection, seriously propose office, be fantastic to would tenure large employee employer has- that an is not fixed the Constitution of which rights procedural subject statute, at some sort to removal or set respected pleasure. warp This must before can one thread is he be moved Am.Jur., 26, drick, 1865, §§ 31. 35 Master and Servant The United Since pp. (1941) (1934); Hicks, and eases there cited. 99-100 34 Federal (1937); Hart, Union Tenure of Office See, g., parte Hennen, Ex e. 13 Pet. (1930); Under Constitution and see 230, (1839); 230, 259, Shurt 38 U.S. Sageser, generally The First Two Dec States, 311, v. United 189 U.S. leff Study A of the Pendleton Act: ades Myers (1903); S.Ct. L.Ed. (Univ.Studies, Civil Service Reform U. States, 272 v. U.S. United Neb., 1935); Foulke, Fighting (1926); Humphrey’s 71 L.Ed. Execu Spoilsmen (1919); Richardson, Problems States, tor 55 S. in the Removal of Federal Civil Serv (1935). Ct. 79 L.Ed. ants, (1955); 54 Mich.L.Rev. Grund history replete Administration, 33. The texts are Power, with ex stein, Presidential amples. Fish, The Civil Service Law, and Administrative 18 Geo.Wash. 13-14, 20, Patronage 39, 65, seq. 120- (1950). L.Rev. et 121, 125, 130, 160, 164, 166, *10 355, amended, as Stat. 62 37 Stat. (1905); Channing, 252 4 His (1948), 652(a). 5 U.S.C.A. tory of the United 256-257 Channing, op. supra (1935); 5 cit. at 389 230, 38 35. 13 Pet. U.S. 230. Channing, op. supra (1933); 6 cit. at (1930); Schubert, Presidency 302 36. 359 U.S. 3 L.Ed.2d (1957); ch. Courts Hacker & Ken- job by Certainly employer, her the Gov and she re- from same to there. here open many places fused. in decentraliza of moves There are scores ernment’s any every- give to such to heed programs tion no short-order here cooks where. The is her claim that essence notion. of employment the site of cannot her be analogy, lawyer young su- in our changed against charges unless are made right pra, no to has hearing her and she with wit- has full client, to or indeed or person nesses, what- etc. We find no substance all; place of em- And his clients at ever to her claim. engagement in ployment, his continued by any particu- any particular matter or Stigma. entirely his whim of client, lar at the are argued It is further Brawner’s n employers. To take a simple example: behalf that action has the Governmental to retain If the reputation. besmirched course it Of n consultants firm, and the private law outright consistently been held that young lawyers do of its firm sent one employ, dismissals from Government work; some and if a Government of grounds bribery, malfeasance, stated n officercalled a senior firm member of attempted validly seduction, or even are gabby young said, man is “This too accomplished without the traditional send over purposes. Don’t him our trappings process.37 of due And we see lawyer any more”; young would Tiere comparatively greater no defamation in a rights process of procedural have no denial of entrance to a naval installation .any description. kind, or sort security requirements. because of its Again analogy, certainly by way no Nobody has is said that Brawner dis n onewould authority of Su- doubt the loyal slightest suspected or private require print- its preme Court wrongdoing. shadow of intentional “Se operator who, Linotype er to transfer a requirements” curity at such installa wrongful intent, portrayed his without tion, many requirements like such stops in friends at afternoon a conven- many other circumstances, cover matters opinions ient the nature he bar loyalty. Certainly they other than must print. one putting No would con- honesty, garrulity, cover a measure of right tend, think, that the of a Lino- we high judgment, sobriety, sense one’s type operator to work on advance obligations, etc. A naval installation opinions printing Court is such gun factory as a in and such of itself that he not removed could from highest priority, confidential matter hearing pan- premises without a in full many are of its vital features ob oply charges, confrontation wit- anyone premises. on the servable nesses, compulsory disclosures in guns Many physical characteristics of or cronies, cross-examination, and his may machinery be observable trans investigation findings. An sufficient to inexpert mittable most observer. satisfy gar- of the afternoon may presence The mere of certain officers rulity quiet employee and a word important. idle lunchtime The normal printer all would be such situa- operations employees chatter may such entail, tion think. would we could be He comment be saturated with put somewhere else. to work inconsequential well be problem danger pregnant come back but out discharged. regulations not She was to Brawner. it. side places not debarred her chosen to be restricted control She was occupation. copies offered papers a similar limited She access States, States, (1946); Eberlein v. United U.S. Richard Ct.Cl. (1918); son, 66 L.Ed. 140 Gold Removal of S.Ct. Problems Fed States, ing Servants, 78 Ct.Cl. v. United certio eral Civil 54 Mich.L.Rev. denied, seq. (1955). U.S. S.Ct. 240 et rari (1934); Kent 78 L.Ed.

184 night. Security- locking employee right no the regulations at of a safe has an inherent may right particular in such an installation work at a situs. a Such impenetrable well include an silence under some circumstances vis- exist stranger events, matter employment no a-vis tionship. matters and a rela- they may appear review- how to a trivial But under the law of third- ing party-interference employment aat court. Denial of lia- a not is defendant Navy alleged if installation of its ble because interference is more no requirements certainly legal right more of a than equal' is no the exercise of a any stigma discharge greater right than for almost to or is a than the claimed discharge “stig- employee.39 reason. Almost is The Government discharges pro- right right, namely But not such ma”. such are to exclude right people Through Factory. tected to confron- inherent from the Gun tation, cross-examination, rhet- The etc. Board of Governors of the Fac- arguments greater tory than oric these is Cafeterias, the recited Government 5(b) right their substance. Section its contract This, M Restaurants, with right M& Inc. Third-Party Interference. Government,, was exercised now to another We come through appellees, Governmental argued phase of Brawner’s case. It is right enforcement of the This contract. (i. e., us that in this case the Government greater clearly equal to, than, what- appellees) Governmental stands right ever Brawner could to work claim tort-feasor; position third-party of a Furthermore, at situs. is, interfering guilty it was with not appellees did the Governmental employment an contract.38 That contract legal right; exercise performed (via repre was Brawner’s contract legal exercising duty their discre- Union) employer. sentative, the with her regulations. applicable tion under place In the first we note this is not the liability We find no on the Governmental typical third-party case of interference. appellees third-party tort-feasors. Admittedly the action did Governmental constitute an “interference” with Brawn- Liability M IV. M & particu er’s continued at a Restaurants, Inc. question precise lar The is wheth situs. illegal, is, liability er this “interference” was next consider We wrong. argued As we constituted an actionable us concessionaire. seen, already employer, vis-a-vis his agreement M that the between M Res & stating pertinent States, pree (3 38. The the law cases 264 F.2d v. United 140 Annotations, Cir.), denied, 1959, collected tort are certiorari 361 U.S. (1924); 69, 29 532 84 A.L.R. 43 A.L.R. 4 In L.Ed.2d 67. view supplemented, (1933), disposition case, 26 A.L.R.2d 1227 of our we need (1950). (1952); question ap 228 9 A.L.R.2d not reach the whether developed early pellants seeking in this area from law to hold the United right recognition merely States, of action for in and not the Governmental ' appellees, damages. with a man’s busi tentional interference such liable for Taylor, ness, v. Cro.Jac. Garret Vilas, Spalding protec (1621), Eng.Rep. 161 U.S. 39. See to include right livelihood, (1886) (Post- g., to a 40 L.Ed. 780 of one’s e. S.Ct. tion Raich, Truax v. S.Ct. General held not liable in dam- master (1915) (involving ages maliciously); L.Ed. 131 an em if he acted An- even relationship ployment notation, (1924). terminable will at A.L.R. parties); Williams, Ry., Owen v. & P. Donovan v. T. 64 Tex. 519 employee freight hauling (1885), Mass. 77 N.E.2d A.L.R.2d 223 of a position (1948). company must note that the United lost his because railway, by regulation, such cannot be liable dam barred all States as but rail- way employees ages “interference contract access to its ware- employment contracts) railway rights” (including liable, found house. Act, legal right adopt Federal Tort Claims it had a because 2680(h) (1958). regulation. See Du- 28 U.S.C. *12 Union, precise latter The of the interest nature Inc., taurants, affected, adversely employees, con- that has been acting all on behalf done, manner in employees which this was should provision tained that it, doing good the available discharged suffi- reasons for without not be procedure that an- alternatives to the two there are To cient cause. implicit followed, protection was was place, Brawner the first In swers. functionary whose place, if discharged. office the the second not challenged, surely, as the balance discharged, far conduct so she had been good complained ac- hurt complished concerned, the refusal employer was Factory commanding are some of of the officer of the —these considerations into enter approve upon the that must her entrance judicial judgment. good cause and sufficient was a em- employer her from release for the ***##* “ * * * ployment. Finally, summary ad- procedure may sanc- ministrative be McElroy v. Greene Y. by history tioned obvious neces- McElroy, supra, is cited Greene sity.” controlling. not it does We think us as have We discussed the back- historic place problem. first In the treat of our ground pre- present problem, of our only “authoriza- with the dealt Greene affected, cise nature of the interest upon offi- the Government tion” relied quoted other the passage. factors mentioned in the explicit quite about The Court cers. Nothing suggests study in that not have this delimitation. We do respect hearing, witnesses, etc., with case, and the line our authorization place, at a dealing upon with entrance spell where the do not total circumstances installations, we have recit- naval ed, which occupation. debarment from an place, ample. In the next is clear and We hold circum- out, pointed we dealt with as Greene including stances the stat- case— though debarment, in even a total fact regulations, utes, the the nature of the technically, occupation. from a chosen involved, contracts, place the two and the testimony was, The footnote recited rights ap- proceeding arbitration —no opinion: “In view of to the Court’s pellant were violated the lift- Brawner position his the com- [Greene’s] badge ing of her identification for en- pany, no work which could there was he Factory. trance to the have dis- light do in this denial of clearance subjects only other because cussed necessary Navy. result, As way argu- pressed us discharge company him.” We ment must needs discussed. have no such here. In the concur- case judgment The District of the Court is ring opinion in Ref- Joint Anti-Fascist ugee McGrath,40 Affirmed. Committee v. Greene, Court cites Mr. Justice Frank- Judge DANAHER, (concur- emphasizes Circuit furter the historic back- ground procedural requirements ring) . types proceedings. different Jus- dissenting opinion seems to con- part: said in tice majority of the court for the demn de- responded en banc. to rehear the case I am “The Court has cision impelled variety perplexity for I had to comment dissented infinite Edgerton’s government Judge recognizing now an- tasks of Judge Fahy’s present text, unfair in one situation nexed what is * ** original my dissent. in another. fair Id., pages 163, 168, at 40. 71 S.Ct. U.S. L.Ed. pages (1951). 643-646. at *13 186 fittingly August during 21, observed Not until sum- has been 1959 It judges- banc recess, en power a case mer away,

that our rehear most of particu “sparingly,” publicly could a. be known that should larly exercised be part majority sitting of the one division had con- at the instance of the, cluded that self-restraint” instant case was deemed ies.1 “Moderation and by in to Supreme our discretion controlled Court’s- control the exercise of criterion, motions, McElroy. deciding decision in but one When such Greene v. least, opinion errone anof Government counsel saw the at involves the effect rehearing precedent majority, a motion for en- ous set promptly banc was filed. for this Circuit. judges After our had returned for dissenting that observe brothers Our Fall sessions of and had had an the court taken, appeal had been after in this case opportunity majority opinion, to read the parties no member and none of the opposing dissent, with the and to con- assigned the case to hear division motion,, pending sider the Government’s requested of the court no other member argument the case was ordered for be- on en banc. Over- the case heard fore full court on 1959.. November unanimous divi- fact looked is the pri- our What did had decided Greene the record disclose? A sion of this court 1958,2 corporation McElroy the vate April where on had had contract with v. operate- far went the United and the circumstances States Government to situation

beyond Factory,, presented instant in the cafeteria in the those Naval Gun slightest for reason no owned The con- case. There was United States. Restaurants, Inc., any tractor, M counsel M had as- the court & member of employees, oné of parties what its Brawner. to assume course Rachel for ultimately might cook, private, in the As a be followed like other non-Gov- personnel, privileged ernment she was to- Greene case. enter of the United granted Supreme certiorari The only posses- while in McElroy on October v. Greene badge identification, required sion of a a divi case, before 1958.3 The instant regulations. naval differently constituted court sion heard the Board of at the Naval had Greene Governors from that which February 19, Factory argued case, 1959. Gun had notified been the- Navy’s security sitting await the decided to officer that Rachel division Supreme Neither Brawner “would her Court. have to surrender action of badge of the Naval so, other member counsel nor Gun would permitted nor be knew we had done to enter the Naval Fac- court then tory of us know that the could until clearance Se- certified curity added.) (Emphasis would hand down 1959 Court on June Mr. Officer.” Baker, reversing representing M, request- McE M & was decision Greene its lroy.4 badge, ed return Mrs. Brawner’s 3; 1954-1955, may prove 35 such motions but 1. of interest observe that granted none, filed and we 72 while been such motions in the there have year granted preceding year we but 1 of have been current court Thus, motions. of 389 such motions granted. records Our Clerk’s show years, only the last seven court 9 have rehearing banc en motions filed granted. parties: year court one 1958-1959, motions 97 such were filed U.S.App.D.C. 87, 254 2. F.2d 944. 1; granted preceding but we 79 S.Ct. 3 L.Ed.2d 3. 358 U.S. year, 84 such motions were filed court 2; year granted but in the court and we 1956-1957, 4. such U.S. L.Ed.2d motions were filed April none; Argument 1955-1956, granted was had on but we granted motions were filed we ' giving jobs Mrs. grounds, informed similar without Baker lie did so. Mr. badge excluding hearing, by simply picked up them that he Brawner places work.” them from the where reasons.” '“for course, dealing Of here with we were not arbitra- appellant instituted *14 union employee. Again, a even Government extensively conducted proceedings, tion unprotected employees Government in brought that out It then thereafter. may hand. status They of be dismissed out 2,000 who represents members union the rights employment protected have in employed restaurants privately if confers such and when buildings members -Government rights. commercially employed cafe- in who are Thus, judges the rec- area. One our in this as examined and restaurants terias n ofthe ord, Jaffe, is apparent Es- arbitrators, became there H. Samuel Dunau, problem much at first than of more quire, Jaffe to of the firm eye. to award. seems meet the the arbitration (cid:127)dissented from against argued de- dissent He his employer, M, of- Mrs. M Brawner’s & command that termination those fered her other at a differ- re- “basic meet Brawner did not Mrs. operated ent re- installation it. She n quirements pass re- her and thus privately That there are fused. scores “no pointed there is out that voked.” He operated concessions in Government greater very a existence threat buildings knowledge. is is common permit em- organization, than to (cid:127)labor private em- reasonable to assume that in- ployer it has unilateral action ployment may as a cook be available added.) dulged He (Emphasis here.” hundreds hundreds restaurants security further assailed action Washington and cafeterias in the area. n officeras authority or his “in execss “barricading” Mrs. This not a case of validly conferred. authority not against employment, Brawner the Su- as government employee For otherwise no preme happened Court found to had n couldever have challenged successfully Greene. in- it is a union But case of the employment on from his ouster sisting may place keep that it one n government could grounds: private employment its members in a sta- n simply by saying protest his answer particular job, tus in a in a required government to cannot be place property on Government when even building permit it owns him to in a work ac- Government direct that authorities n and from entry could his cess be denied “until clearance certified barred.” Officer.” majority opin- knowledge my will seen had As from Never to there been Judge Edger- challenge sitting division, ion of the to the Government’s such a right urged by adopted position protect Navy Mr. ton its installa- own n Jaffe. Throughout history, order naval officer’s tion. our the au- He found the Navy McElroy thority of had not commandant of Greene invalid terms safeguards questioned he lacking been exercised controls confrontation n cross-examination, seeking privi- “if,” said, claiming “if” over those he lege justify property in regulations purported access to Navy charge. regulations order, “as in his I dissented the ma- thought jority thing, similarly de- For one likewise views. I case" Greene analogy independently adopted pos- offered the Commandant He ficient. might power Again, sessed the he asserted. that the Government Jaffe Mr. sitting employees majority government the extent their that a “deprive personally insanitary interpretation may not seem food Baker’s 5. Mr. handling Mrs. so indicated that become risk. The notice We accurate. subject just prompted further what been told had become Brawner many “Security” mean the further check on Mrs. could Brawner. check. things. might even have Mrs. Brawner Navy regulations, division found that the op- Since the Government had had no might invalid, upon, if portunity arguments relied present have been its sought my- light particularly Judge Edgerton’s I application to “dissociate suggestion invalidity self implicitly majority McElroy, from the Greene v. upon whether, applica- turns whole court decided to hear this ease en tion, provision knowing for ‘con- banc. has been made We have no means of frontation and cross-examination’ whether the Court will take a reports sources whose have led case or not. that, know re- do unless privilege versed, majority revocation of access estab- here precedent Government’s enclave.” lishes If for this Circuit. *15 judges the views of the two were to bind employed privately I believe a judges comprising the other seven worker hired a Government contractor government, court here at the seat of we may property enter Government laying would indeed be rule down a new may privilege as a matter which of law to control ad- the Government’s be accorded or withdrawn as those law property.7 ministration of its fully charged responsibility for we So voted to rehear banc the case en may pre property maintenance argu- and to consider the Government’s hearing no need neces scribe. I believe distinguish- ments. Some of the factors sarily required. illustrate, be To be I ing may this case from Greene be sum- lieve confrontation accusers and a marized : right of cross-examination are not es Here, Greene, unlike there was no “passes” sentials a valid to revocation of showing get that the could not an- cook lawyers permitting Supreme to use the position. contrary, other On the her own library, passes to visitors employer job offered her another which employees House, or White of servicing she declined. and other contractors utilities Here, unlike Greene, it was the Gov- buildings. might seem weapons prop- ernment’s producing own many or, specif that ically indiscretions erty which was involved. habits, personal a food-handler’s Here, unlike Greene where neither prompt could such revocation. Even Congress nor au- Executive Order had though privately employed person has a procedure ap- thorized the no authorized access to a file in a room Greene, plied in we have the Constitution highly gun factory, sensitive naval if providing expressly and the statutes person such a without authorization military control of and naval establish- room, should be observed in that file I ments sponsibility. officers selected for that re- may think officer order a sus Indeed, has made pension privilege pend of access it a criminal offense for an unauthorized ing clearance. I think that officer law person trespass upon property. might fully employer demand that transfer or otherwise ployee Here, deal with the em unlike Greene where an Indus- granting without Program confrontation trial Clearance was right accusers aor challenged, cross-examination suspension we find a mere Even if of them. employee it were Government privilege of access “until clearance is unprotected regulation no status no purported certified”—and hearing kind right whatever would provide to authorize or to to a required.6 hearing. Seaton, 1959, ning See Vitarelli v. 359 U.S. moot court sessions this court 1012; Bailey 79 S.Ct. 3 L.Ed.2d house, essentially grounds of build- Richardson, U.S.App.D.C. security. ing privilege If had in 182 F.2d affirmed granted, fact been would wo have been 669, 95 L.Ed. 1352. precluded revoking it without a hear- We, ourselves, permit ing? charges? refused to mem- and accusers? and con- bers of a bar association conduct eve- frontation and cross examination? Congress support specially position taken where Here, unlike Greene typical majority engineer by a think there was court. I trained aeronautical great en banc potentially be “call for court who would thousands overrule the deprived decision of private [erroneous] work, against we division” I the case. first heard other “barricaded” quite understand dif- there had been concern the Government’s must balance fering approaches exclud- protection in a circumstance terms its own this, problem ing employees of think has been but I possibly undesirable solved, only by 46(c) employ- may but U.S.C. private contractors who case, the Western Railroad Pacific able elsewhere. Corp. Western Pac. R. Pac. R. v. Western judges majority Finally, of our Co.8 majority of well concluded that a sitting Before the had read into Greene Western Railroad division Pacific Judge decided, case had read what Court said late Chief Stephens Rehearing paper or- delivered en banc before out of it. Edger- Judge pointing District Bar Association, we believed our dered because practice furnishing opinion might all ton’s be erroneous. the draft *16 sitting now a considered the case division the other mem heard and Judge bers of it was erroneous. court. He that listed cases9 decide Fahy opinion where the court have us had en would reinstate banc after sat Congress adopted 46(c), had most us believe to be erroneous. 28 U.S.C. § tracing recognition power I that am view its unable to subscribe to the to do so ju- Corp. perpetuate back Textile error sound Securities Mills makes for Com’r, supra note 8.10 dicial administration. Court, Supreme it, the Ju- Circuit the Conference Senior As I see Judges meeting 1, 1938, on of the United October dicial Conference 247, 656, 107, 103, 1953, 73 97 L. D.C. 108 S.Ct. 9. 20 Journal B.A. 345 U.S. 1953-1954, 986; suggesting time, (1953); held those at that Ed. Judge views divisions, page Judge sitting Eahy may up 265 be noted at made Chief assigning judges page recognized U.S., 665 The differ at of 73 S.Ct. whose 345 already might ing viewpoints had stated other be balanced in the Corp. v. of each in Securities Mills case. But since wise Textile consideration 272, inaugurated plan Com’r, thereafter court choosing page U.S., judges by lot, At of 314 86 L.Ed. 249. combinations Doug page judges holding at 62 Justice similar 278 of S.Ct. Mr. two “policy” greater las wrote: views occur with frequency, depending upon a avoid- within will be less the dates “Conflicts circuit Finality assignments. of decision in circuit for their Situa ed. select promoted. appeal majority will be Those have arisen a of the courts tions where especially important par in found itself at odds with considerations court has ju- opinions fact that in in view of the our federal cases as to which sua ticular sponte, system dicial these courts courts the full court or are the has sometimes ordinary rehearings resort in the run en last cases. banc. See footnote dered are, course, Such considerations not weigh Congress in us case following tabulation, system judges 10. The relevant where devised of a 9, discloses prohibited sitting footnote that the court has court are from en banc. sponte rehearings here, sua ordered en banc where, But as case the stat- foreclosed, they tipping follows: ute is not aid in practicable the scales in favor of the Motions more Granted interpretation.” And 1954 see Civil 1 1 Aeronautics Board v. 1953- Am. Transp., 1952, Air 344 1955 9 5 U.S. 73 S. 1954- 4 Ct. 97 L.Ed. 4 where 1955- 1956 4 the Court “may told circuit it now 1957 8 wish to hear 1956- 8 en this case banc to resolve the dead 1957- 1958 8 give lock in indicated certificate and 1958- full review to the entire case.” 1959- Judge although judges, nority of in Hughes presiding, the utmost Chief Justice brought up good faith, represent Eighth that did not Circuit Stone of many determining judgment whole, of the court how question “of given the measure Ju was recommended case.” judges sit will * * “* * * it dicial Conference *.” would asked: Chief Justice provided your point statute if the meet Senate before S. judg of three consist the court shall counterpart House meas- of the majority opinion of the es unless special ure. The Judicial Conference larger court court or a judges circuit January, 1941, session in had recom- judges greater at number of a passage. mended its Administrator Fol desirable?”11 be deemed time shall hearings April present- Chandler at the Judge lowing discussion, moved Wilbur ed the favorable views of the Judicial substance, adopted in and the Conference Conference, quoting, part, a let- asked to proposal reflecting position: ter Conference majority legislate of the circuit that a “Many highly con- cases are of a might more judges provide for a court permit, un- troversial nature opinion judges in their than when three reasonably, diverse views of the law. action make such circumstances unusual We think that if be a contro- there recom The Conference so advisable. majority versial case court year, mended, successive and each in 1938 should not be bound a decision of adopted House H.R. until members, particularly two if the report drew No. 1246 3390. Its other members of the court are Biggs Judge dated Febru a letter from plainly ques- that the reporting ary the recommenda *17 they importance tion is such of that Con Conference tion of the Judicial say regard desire to have their gress favorably on the measure. act 14 to what law think the is.” Judge Biggs the Conference noted that background reported was the Such that all the active (cid:127)deemed advisable judges by judges of should and available the circuit the senior circuit themselves any ground adoption for sus “to avoid ultimate be included the of 28 U.S.C. § court, judges 46(c). cautiously particular picion the of examined light years all, problem many three but less than the more than bring a de to about Conference selected Judicial recommendations 13 pronouncements Supreme “It avoid He was to and cision.” added: be- by codifying 46(c).15 a mi determination of decisions fore section Conference, p. Hearings 360. 14. 11. Minutes of Before the Subcommittee Judiciary, the Senate Committee on the 14, Textile Mills footnote Securities See 1053, Cong., Sess., pp. 77th 1st re S. 15- Com’r, pages Corp. 314 U.S. at 334- (1941). legislative history 16 may Additional 86 L.Ed. 249. The be found Western Pacific Railroad report deemed en tone con- committee case, supra particularly page note at desirable. “It also will ob- sideration page U.S., at 254 of 345 659 of 73 S. where the situation there are sev- viate seq.; Ct. and 8 et and footnotes En see and of the court some- en members Proceedings Banc in the United States happens judges a decision of two times Appeals, 22 Courts Geo.Wash.L.Rev. having dissent) (there sets the (1954). remaining judges.” precedent for the case, supra Pacific Railroad Western file, page on Administrative Office at of 345 13. Letter note U.S. at Congress by S.Ct.; page Hearing Courts. and see August 3, 1949, Rehearing Banc, D.C., In 63 Stat. Cases Act judges Judge added three 96-97 where to this F.R.D. U.S.C. Maris Judges of our Three Circuit re wrote: court. appointments question “A of a controversial recess October decision ceived majority judges of all made obviously court in banc has much may do most often of memoranda as we othenoise we have Of course —and 46(c). sought agreement. to section Reconciliation not to resort —decide altogether. deeply present- may do held so views has sometimes even refuse We certify imponderable problem unre- ed may attempt courts then We Court, Supreme other by questions than here ours. A determination solved rehearing may en banc dismissed.16 and decision seems find them but we may develop highly salutory me divisions course. In that let successive spirit approached very we that result circuit. Is case. conflict within the course, reject I desired? The dissenters here would “reinstate” attempt earnestly should and believe we opinion sitting A division. dif- our own to settle thus to decide majority court, all nine whole by majority action judges voting, ferences— whole deem it erroneous. We precisely what And court. that is thus assert and exert the con- Supreme us to do. told Court has 46(c) precisely ferred U.S.C. § important pur- furtherance of one of the more have but two Circuits “[A] legislation poses of the as recommended Judges. un- This Circuit than three recog- the Judicial Conference and as problems one doubtedly when raises by Congress.18 nized We have acted un- previous panel about doubts grant hearings power der “a to order panel decision another rehearings * * * en banc and to establish primar- It is same court. procedure governing the exercise of Appeals ily task a Court power,” that ognized. as the Court rec- difficulties.”17 its internal reconcile Rehearings pursuant to section banc en pres- condemnation of view 46(c) achieved defini- in most cases majority by colleagues ent two of our de- disposition of controversial tive inapropos. seem I concur regard as do not differences. I cisive Judge Prettyman. Chief spent, particularly time so wasted multiple I am authorized con- state back that Chief when we look Judge exchanges Prettyman Judges the often futile Circuit ferences *18 pointing decision; greater two a route a decision to than and Civil panel judges concurring Transp., of a of three Aeronautics Board v. Am. Air supra judges five note 8. the other which all quite might erroneous. consider court States, 1957, 17. Wisniewski matters could be corrected True 901-902, 633, 634, U.S. 77 S.Ct. 1 L.Ed. Supreme but Court on certiorari 658, see, e.g., 2d and cases cited. And con- not have to resolve should that court States, 1958, Starr v. United 105 U.S. single within a court. of decision flicts App.D.C. 91, 377, 264 F.2d certiorari de procedure banc enables the court in nied, 1959, 936, 652, U.S. S.Ct. authoritatively prob- deal to itself 639; States, L.Ed.2d Brown v. United relieving nature, thus of this lems U.S.App.D.C. 77, 363, 264 F.2d cer Supreme The Cir- Court. burden denied, 1959, 911, tiorari 360 U.S. 79 S. Judges Third Circuit think cuit 1299, 3 L.Ed.2d 1262. Ct. help- very procedure this esprit maintaining very high suppose Supreme ful in to 18. It reasonable tbe they enjoy. corps agree. For which each de It has Court will told us “Our any power supervise in general in case which knows [its] them the ad they seriously justice divided ministration federal * * * opportunity participate an all have will courts regarding does not extend to dis validly applicable which the court decision ultimate a enacted and permitting departure the doctrine make and which is to statute from it * * upon binding City to be them decisis is of stare United States v. Nat. Lines, 1948, cases.” in future 68 S.Ct. 1169, 1178, 92 L.Ed. 1584. Burwell, 1956, g., See, U.S. In re e. 16. case, 539, page supra 522, page Pacific Railroad 521, Western 76 S.Ct. at at page 267, 345 U.S. at note L.Ed. where the Court page case, 656, at Pacific at its hinted Western Burger Miller, Department. Wilbur K. Bastían He authorized to have opinion. my concur in access information, to classified which appellant our was not. The division present appeal which heard the awaited FAHY, Judge, with whom Circuit decision of (dis- EDGERTON, Judge, joins Circuit McElroy, Greene v. which came down senting) . Reversing June court, this according my opinion, due while Supreme Court held that Mr. Greene’s contrary respect view, re- to those of a deprivation employment was unau- hearing banc, matter for this case en thorized. exercise the sound discretion court, membership full should Neither States, appel- the United nor granted lants, decision of have been after the any nor of the nine members of statutory structure court, sought division. The reargument this ap- then any members, pellants’ this three of court of nine case, en banc or otherwise. On designed August court, whom constitute the division which had keep enable us to abreast work of our heard it, holding, this case decided es- years. pecially light it Though increases volume over McElroy, of Greene v. question power to do not I our appellant discharge Brawner’s power to rehear case banc it is a validly en not been accomplished, judge one good sparingly dissenting. be exercised for later, Sep- Five weeks on cause.1 tember rehearing en banc was sought time, by for the first the United Brawner, Appellant Rachel M. States, in order to obtain a reversal of private ap- concerned, individual and the decision, using our thus the full court organization pellant labor she judges of nine appeals as a court of over brought member, was a action in the a division. September 6, 1957, District Court on claiming illegally de- that she had been When the division decided the case Government, prived ripe on became preme consideration the Su- grounds, private of her ás Court. When the United States requested cook which was located rehearing cafeteria nevertheless en banc, approval in the Naval with Government each of the nine members of this Factory. The District Court decid- court ap- was called to consider the against July 21,1958. propriate litigation ed She course for the appealed the Union court on Au- take. Five members voted at this late gust stage appellants, 1958. Neither rehear the en case banc. It was States, accordingly nor the United nor member reargument, set down assigned reargued. of the division court It has now been re-deeid- *19 case, ed, nor other member of hear the the earlier two to one decision of the court, requested being the case division reversed a vote of five accordingly Many heard en banc. The division to four. judicial months and much argument, professional and heard took the case under and labor have been con- February in advisement 1959. There sumed in process, the en banc with final pending Supreme litigation then Court termination still uncer- McElroy, probably v. 360 U.S. S.Ct. tain Greene and far removed. A deci- That case in- 3 L.Ed.2d 1377. also sion is rendered which four of us think discharge, clearly demanded volved principles inconsistent with laid security grounds, Supreme on of a down recently Court in private reversing person employment. Mr. this court in v. Greene Mc- employee company Elroy. Appellant of a Greene Brawner—unless she manufacturing products for the Defense has wearied of the matter —will no doubt Judge Stephens The late Chief stated Ms for the information of the Bar 20 D.C. subject years ago (1953). views some Bar Ass’n Jour. 105-09 theirs, In that use of the Supreme different as review. seek Court faced, power. en will be banc Supreme Court event the faced have been quite well as it could granting the I would vacate the order ago many the decision when months rehearing en reinstate banc and would ques- rendered, with the division was opinion judgment court case. review tion whether or not to first filed. en banc court for this There was no call deprivation add I be- the division to review the decision of injury. security grounds grave on is a cause, of our nature reason public sharp The be- draws no distinction responsibility case, court and of this loyalty. tween Vitarelli Cf. had this court decision at the level of Seaton, v. 359 U.S. 79 S.Ct. fully been me that met. It seems to Supreme L.Ed.2d 1012. As the possibility aof case this the a employ- has said of exclusion from then been different result have should disloyalty ment grounds, view “In the left, left, to the as it is later much now community, deep a the stain is Supreme if the decision Even Court. badge one; indeed, it has become a nothing has been the division doubtful infamy.” Updegraff, Wieman U.S. advanced, everything re- has been 97 L.Ed. tarded, the individual and both Engineer suffer, spirit and cook alike nearly Government, by the substitution reputation. They and in should have eight months later of a decision no less equal protection. doubtful. opinion filed, of this court first importance, Were the local case of dissenting filed at the and therefore a decision one which time, same were as follows: by majority deemed of the full court to be by must at all be corrected if erroneous Edgerton, Fahy, Before and Dan- worthy banc, en court because Judges. Circuit aher, Court, presentation might perhaps then our court en banc Judge. EDGERTON, Circuit have been more warranted in interven- private corporation, A M M Res- & ing. States, Larkin v. United taurants, Inc., under contract with App.D.C. 239, F.2d illustra- government officers,operated a cafe- tive. But even in such a case moderation Factory, teria in Naval Gun order, self-restraint would be property the United States. philosophy underlying the structure corporation employed appellant appellate of this court does not contem- Brawner, civilian, as a cook. plate ordinarily superior appellate hearing any sort, Without Moreover, court within the court itself. Superintendent and the Of- hearing request for en banc of this of the Naval ficer ex- case been made the division before heard cluded her from the it, it, or even before decided the division job. thereby deprived her of her They said she did not meet the “se- might hearing reasonably such a granted because of obvious im- curity requirements”. No one told *20 portance of the case. But en banc inter- corporation her the either employed or vention after the decision of division the security her what the re- merely served has retard ultimate dis- were, quirements why she was position litigation, of the with no coun- not to meet believed ployer The em- them. advantage tervailing to either the hearing asked for “a relative private or the interests involved. denial of to the admittance to the My expressed views thus are not of Naval Gun Rachel request my condemnation brethren Brawner.” The of the ma- was re- only jority, expression opinion, but fused. hearing. giving sued If her labor union without

Brawner and her a Secretary Defense, the the the Secre- conclusion from the followed premise, tary Navy, Superintend- the it likewise follow that would govern- Secretary deprive ent and the Officer could employees jobs Factory, ment and also Brawner’s on sim- their giving job, grounds, ilar employer, loss her them a without for summary excluding hearing, simply appealed have them dismissing judgment complaint. they places from the where work. But nor Presi- neither respect Except em- with thing. dent authorized ployer, erred. the District Court government And it is clear offi- that On This has now become clear. government deprive cials not 1959, the June employees security jobs of their on Secretary De- determined that grounds except as authorized not have fense and his subordinates Congress or the President. Peters deny empowered contrac- ' Hobby, v. 349 U.S. S.Ct. work, employee tor’s access to his 1129; Young, L.Ed. Cole v. thereby job, deprive him of his U.S. S.Ct. L.Ed. grounds, proceed- “in on 1396. ing not in which he was afforded government challenges safeguards of confrontation standing appellant Mc- labor union cross-examination.” Greene v. Elroy, to sue. think the union here had 360 U.S. standing government protect L.Ed.2d What the interests empowered its do in members.1 Cf. Ass’n officers are not Nat’l People proceeding, which includes a of Colored such a Advancement hearing, Alabama, 459-460, are not limited sort 1488; proceeding empowered to do S.Ct. 2 L.Ed.2d hearing Liquors, MacArthur Inc. v. that includes no at all. As Palis Ass’n, ease, U.S.App. ades Citizens Greene if the action government D.C. officers in ac- 265 F.2d Navy regulations, cordance with employer Since Brawner’s could regulations were unauthorized employ not her within the Naval Gun invalid. Factory, place where employ her, immaterial contracted to when the Greene’s government appear appellees working place would does not let been, was, place, respon- on enter the it is not as Brawner’s ceasing government employ property. Ap- sible From the her. pellants’ against premise employer “the claim United States validly alleged persons is for contract, exclude all breach of could impossibility performance to the Naval from access Gun Fac- defeats tory”, appellees judgment the conclusion claim. The draw favor of Restaurants, Secretary Inc., M & M Defense could is there- judgment validly fore exclude Brawner from her affirmed. in fa- government there, “security” grounds, appellees vor work recognized operator repre Restaurants as the The union of the cafe- employees teria, bargaining of M & M the new collective sentative con- Restaurants, provision Inc., whereby bar tract included a collective Im- plant agreement agreed appellant gaining between the union reinstate *21 rights agreement full Restaurants. au should this suit be and the determined participate Fishgold in her the union to favor. Cf. v. thorized dispute Sullivan Drydock Repair arising thereunder, including Corp., & 328 U.S. discharge any employee. dispute over 90 L.Ed. 1230. Foods, Inc., replaced Implant When Particularly myself is remanded reversed and the case do I dissociate proceed- suggestion invalidity to the ings from the implicitly District Court upon whether, ap- consistent herewith. turns plication, provision has been made So ordered. “confrontation cross-exam- reports ination” of Judge. sources whose DANAHER, Circuit may have led to revocation privilege of access to the Govern- specifically I ma- concur jority’s affirming judg- ment’s enclave. ment in of M M Restau- favor & rants, I dissent. Inc. Otherwise WASHINGTON, BAZELON and Cir- may say have To officials that some Judges (dissenting). cuit deny authority abused their is not agree Judges with EDGERTON authority exists. This and FAHY that the case must re- presented in such a situation was versed on the of Greene v. Mc- McElroy, 474, 79 Greene v. Elroy. joined We note also that we them S.Ct. 3 L.Ed.2d 1377. voting against rehearing en banc. property here is owned the Gov- part es- ernment and is of the naval of access tablishment. Control legally

the Naval Gun Superintendent.

been vested in the may

When the and for enter purposes

what what cir- and under may cumstances be determined gov- officer, in accordance with

erning regulations. Congress has offense, un- even made a criminal Martin, E. V. PRESSENTIN and Fred J. circumstances, der some for unau- Estate, Administrator of H. A. Martin personnel upon the thorized to be Appellants (1952). premises. 18 U.S.C. 1382 principle of The basic control SEATON, Secretary Fred A. of the In the Government of its own naval es- terior, Benson, Secretary Ezra Taft paramount, here I tablishment Agriculture, al., Appellees. et drivers, plumbers, think. Truck telephone No. 15581. operators, electricians, ar- Appeals United States every life, tisans in walk in one District of Columbia Circuit. way or other and at one time or oth- Argued May may legitimate er business with base, privilege a naval 30, 1960. but the ac- Decided June cess is to be extended and charged

continued maintaining as those of the Gov- operation may by regula-

ernment’s prescribe. petty If

tion some thief player ped-

or numbers or narcotics person unfit

dler otherwise should previ-

insist continuance of a

ously access, privilege extended regulations I think the authorize the Superintendent bar him. regu-

I am unable conclude that under which the here

lations officials were invalid or unauthorized.

acted