Greene v. United States – Oral Argument – November 21, 1963 (Part 1)

Media for Greene v. United States

Audio Transcription for Oral Argument – November 21, 1963 (Part 2) in Greene v. United States

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Earl Warren:

Number 84, William L. Greene, Petitioner versus United States.

Mr. Gressman.

Eugene Gressman:

Mr. Chief Justice, may it please the Court.

This is a suit for monetary restitution and just compensation, which comes here on a writ of certiorari to the United States Court of Claims.

The case is essentially an aftermath and indeed is the result of the decision of this Court in 1959 in the case known as Greene versus McElroy, involving the same petitioner as is now before this Court.

The opinion of the majority of this Court in Greene versus McElroy sets forth in great detail, the facts and the background which have led to this litigation.

Your Honors are therefore quite familiar and most of you having participated in that decision with the basic facts in this case, thereby making it unnecessary to relate at this time in detail the facts which have led to the present controversy.

I think it will be necessary only to highlight the more significant facts as they’re now pertinent to the present litigation and to relate to you briefly, the events that have occurred subsequent to Your Honors’ decision in Greene versus McElroy.

Now, you will recall that the petitioner, William L. Greene, was an eminent aeronautical engineer, who was employed between the years of 1937 to 1953 at a defense plant known, shorthandedly, as ERCO.

And in that employment, he produced notable achievements in the field in which the Government was interested in and actually rose to become vice president and general manager of the corporation.

The security problem which has given rise to this prolonged litigation really had its beginning in 1951, 12 years ago.

Previous to that, he had had three security clearances from the Government, up to Top Secret clearances.

Now, as stated in more detail in the opinion of this Court in the prior decision, in 1951, it was determined by one of the then security boards that were serious questions concerning Mr. Greene’s security status.

As a result of which, he asked for a hearing and a resolution of these charges before a board called the Industrial Employment Review Board, the IERB.

As a result of that hearing, despite the lack of confrontation or cross-examination of witnesses, the original determination or charges were wiped-out.

Mr. Greene was found to be a good security risk and that his continued employment was found to be consistent with the National Security, and both he and ERCO were informed that he was authorized to work on secret contract work in connection with Government classified information at the plant.

Now, this —

Earl Warren:

What year was that, Mr. Gressman?

Eugene Gressman:

January of 1952.

Earl Warren:

1952.

Eugene Gressman:

And this becomes important in this present litigation, because as I shall show briefly, in a few moments.

This, at the present time, is the last piece of paper in petitioner’s security file.

This clearance — this determination in 1952 by the IERB, by judicial action is now at the last piece of paper, which appears in petitioner’s file.

Now, another year elapses in 1953, whereas Your Honors will recall, the — without any notice, warning or hearing, the Secretary of the Navy, based upon his own examination of the case file, summarily reversed this determination of the IERB and notified ERCO to exclude Mr. Greene from its plant facilities because his employment, he said, was not consistent with the National Security — continued access to classified information was inconsistent to the National Security.

ERCO had no alternative but to discharge the petitioner.

And he was discharged shortly thereafter, precisely April 23, 1953.

Now, that date is now important because that is the date upon which the monetary damages began to accrue, which is the subject matter of the present litigation.

But from April 23, 1953, his loss of income began.

Now, you will also recall that the petitioner made strenuous efforts to overcome the determination of the Secretary of Navy and he was given at least two hearings before the various security boards.

In 1954, he had a so-called hearing before one of the review boards which resulted in a reaffirmation of the Secretary’s determination.

Eugene Gressman:

He followed that with another hearing both then — with the same result in 1956.

So that there were — in that — in fact, three adverse determinations made as to petitioner’s security status.

Now, the — in the — before the end of this round of security hearings between 1953 and 1956, the petitioner had filed in the District Court for the District of Columbia an equitable action seeking both equitable and declaratory relief against these proceedings, challenging the constitutionality of the hearings and the procedures on the basis that they violated his constitutional rights to confrontation and cross-examination.

And that suit was expressly grounded upon the fact, among others, that petitioner was then suffering substantial and irreparable economic interim.

He set forth — now I think, the precise dollar amount which he was then suffering computed from that date of April 23, 1953.

Now, this action, as you know, came up through the court system and to this Court and resulted in the decision in 1959, which very narrowly but very significantly held, that, “in the absence of explicit authorization from either the President or Congress, the respondents,” that is the Government officials, “were not empowered to deprive petitioner of his job.”

And I repeat, “Were not empowered to deprive petitioner of his job in a proceeding in which he was not afforded the safeguards of confrontation and cross-examination.”

Now, this decision and its implications, I believe, are evident and I believe they are controlling of the present for litigation because that holding, while it did not pretend or did not extend to a determination of the petitioner’s right to access to classified information or did it — or the merits of his security status, nevertheless, it did recognize certain fundamental elements which are significant in his present back pay suit.

It reflected in — in its holding that petitioner’s right to a job and his right to pursue his chosen profession, free from unwarranted government interference, was a right or was a property or liberty protected by the Fifth Amendment so that it is and under — it is — the decision reflects a recognition that the Government, by depriving this petitioner of his job, had in effect infringed upon constitutionally protected rights.

More than that, there was expressed recognition given in the majority and the dissenting opinions of this Court that this petitioner was in fact suffering substantial economic monetary loss as a result of this governmental action.

I call Your Honors’ attention to Footnote 21, in the majority opinion of this Court, where the Court quoted the opinion of the Court of Appeals for the District of Columbia which said, “That we have no doubt that Greene has in fact been injured.”

He was forced out of a job that paid him $18,000 per year.

He has since been reduced, so far as this record shows, to working as an architectural draftsman at a salary of some $4400 per year.

Even more expressly was the statement of Mr. Justice Clark, in his dissenting opinion on page 513, where, in referring to the action of the Court, he said that Greene will now claim as — as literally, reimbursement for his loss of wages, and a reference is there made to the companion case decided that day of Taylor versus McElroy.

This claim, Mr. Justice Clark said, will date back to 1953.

His salary at that time was $18,000 a year.

Now, the facts that he states are entirely accurate and his prediction has come true.

This is exactly the nature and the — the basis of the present monetary claim filed by this petitioner.

So that there was a general recognition and an understanding by this Court that, as a result of this unauthorized action of the Government, this petitioner was suffering substantial and serious economic injury.

Now, the reference which Mr. Justice Clark had made to the Taylor case is also interesting because here, you will recall that, in that companion case of Taylor, the — or the — shortly before the case came on for argument, the Secretary of Defense had granted Mr. Taylor a security clearance.

And the Government then moved and this Court eventually held that the case was thereby mooted.

And Mr. Taylor, up until that point, had been in the same situation with Mr. Greene.

Upon the representation of the Solicitor General that Mr. Taylor, as a result of this action of the Secretary, would be eligible under the then applicable regulations for rest — compensation or reinstitution for his lost wages.

This Court dismissed the case as mooted.

Now, the only applicable regulation, then in effect, which — under which Mr. Taylor could have been and was in fact paid, is monetary compensation, was Paragraph 26 of the 1955 Department of Defense regulations or direct duty, then in effect.

That is precisely the same regulation, the same paragraph under which this petitioner, Mr. Greene, has filed his claim for monetary damages.

And the Government concedes, there is no dispute, but that our claim was in fact filed under Paragraph 26 and must ultimately and exclusively be judged by the provisions of that paragraph of the 1955 regulation.

The sum total, in other words, of the opinion and the judgment of this Court in Greene versus McElroy, I submit, contains all the essential ingredients necessary to examine, to understand and to pass upon the right of this petitioner to his monetary relief under Paragraph 26 of the 1955 directive.

Now, following the decision of this Court in the Greene case, the matter was remanded to the District Court for the injury of an appropriate order and that order becomes very significant at this point.

It was drafted by the Government attorney, consented to by both parties, signed by the District Judge.

Eugene Gressman:

And the order says that in light of this Court’s opinion in Greene versus McElroy, it is ordered that the action of the Secretary of Defense and his subordinates, in finally revoking plaintiff’s security clearance, was and is hereby declared to be not validly authorized.

And now comes a significant sense, further ordered that any and all rulings, orders or determinations, wherein or whereby plaintiff’s security clearance was revoked are hereby annulled and expunged from all records of the Government of the United States.

Now, let us see what this does to — to the prior determinations.

This means, in effect, that there has been judicial expungement from the — all the records of the Government, the order of the Secretary of the Navy in 1953 and the two subsequent reaffirmations of that determination by the various review or appeals of the boards.

Leaving in effect, as I said previously, the 1952 favorable administrative determination of the IERB, which is the last and the only determination which can now be said to be in existence and which I submit is the only determination that has any relevance or meaning as to the years in question covering — covered by this monetary claim.

Byron R. White:

Mr. Gressman, what happens when or did it happen in this case that this man was suspended first?

Eugene Gressman:

As I recall, there was originally in 1951, a statement by the — the original board which said that there were serious questions about his security status as a result of which he was voluntarily put on favorable by the ERCO and —

Byron R. White:

Then won’t pay — he was paid or not?

Eugene Gressman:

I’m not certain about that but in any event, he was fully restored by the action of the — the EISB — EIRB in 19 — in January of 1952.

Now, there is nothing more that happens —

Byron R. White:

Assume that — let’s assume for the moment that — that preparatory to suspending clearance or having a hearing to revoke a clearance, the employee is suspended, pending this determination.

And the determination is made but it’s reversed by a court for a procedural error per se.

Eugene Gressman:

Well —

Byron R. White:

Then automatically, is the — is the employee entitled to pay until and unless the clearance is properly revoked in a proper proceeding?

Eugene Gressman:

Well, this will depend upon whether there has of course been a — a final determination favorable to that employee.

In — in response to your — to the precise question here, I am not aware that there is any outstanding unresolved charge or suspension against this petitioner by the sequence of the events which appeared quite fully in — in the prior opinion.

But you will note there that there was this far so-called “final clearance” in 1952.

The next thing that occurs, a year later, is the summary action of the Secretary of — of Navy without any additional or new charge or suspension ever having been established.

Byron R. White:

But you’re — you don’t suggest that the Government couldn’t proceed to revoke the clearance.

Would you say it — it was left in existence by — by the Court’s action?

Eugene Gressman:

No, I — as far as the proceeding —

Byron R. White:

Well, under that — based on the same facts as — as the attempted revocation would appeal —

Eugene Gressman:

You mean as of 1953 or now?

Byron R. White:

Well, I suppose that the clearance had said that — let’s assume the man didn’t have another job or that he wanted his — he wanted his clearance and wanted to work for the — for the Government.

Eugene Gressman:

No.

Byron R. White:

Following this decision, I suppose the Government could, nevertheless, have proceeded to revoke his clearance and — and take it, through the facts of which — proceed to revoke it in a proper proceeding.

Eugene Gressman:

Of course, Your Honor.

There is no question but that the — there is full power, admitted power in the Government and the Defense Department to institute a — a new proceeding to determine his present security eligibility if he is in the position where he now wants to work on — in defense work or for the Government or for any other purpose in which requires a security clearance.

What we are concerned with in this case is looking backwards to a period, when judicial action has resulted in revoking, annulling and expunging certain determinations, reinstating in effect for past period only, not for the present but for a past period of time for which we claim damages and claim that these damages are irreparable have accrued.

We now look back to see what the impact is of these judicial determinations and actions.

Eugene Gressman:

Now, what a — we — we cannot now rewrite the history between 1953 and 1959 or 1960, which is the only period of which we’re now concerned with, but there’s no question about what they could at 1963.

If you are eligible and — and or needed as security access eligibility, the Government could make a — a full scale hearing and determination of this point.

But my point is that there — on the historic record, as amended by judicial action between 1953 and 1960 at least, there is no outstanding suspension or charge by which anything can now be resolved for that period.

The — there was a letter, I think I pointed this out in one of the footnotes in my reply brief, there was a letter which was contained in the — which reiterated the same little charges which had been the subject to the original proceeding which lead to this hearing and determination by the — one of these Appeal Boards following the Secretary of Navy’s determination.

Now, that was precisely the type of hearing, the type of determination which this Court ruled, could not, was not authorized and the — it seems to me the — the entire action including the or the letter setting up the hearing, setting forth the charges, had been wiped off the records of the Government.

Arthur J. Goldberg:

(Inaudible)

Eugene Gressman:

I will, Your Honor.

Now, we filed, as a result of the situation, as it existed then following the expungement order, a claim for restitution, under Paragraph 26 with the Department of Defense.

And we were asked and did supply to them the appropriate financial data under oath and this was filed in December of 1959, seven months prior to the promulgation of the 1960 regulation.

This matter was kept under consideration by the Department of Defense for a period of a year and a half intersperse with various respondents between counsel and the Department.

And finally, in June of 1961, the Department of Defense finally rejected petitioner’s claim under Paragraph 26 of the 1955 regulation, stating that, “It has been determined by the Department of Defense that Mr. Greene does not qualify for a monetary restitution under the provisions of Paragraph 26.”

Now, I submit that that is the true, the only exhaustion of administrative remedy principle that is applicable in this case.

We pursued, we exhausted, we obtained a final administrative denial of our claim under Paragraph 26, after a year and a half of consideration by the Department.

Now, that denial of the claim was coupled immediately with an offer to, if we would request it, an offer to hold a new security clearance hearing under the provisions of the 1960 regulation which, as I said, was adopted subsequent, seven months after we had originally filed the Paragraph 26 claim.

We took the position then, we took — take the position now that we were not compelled to follow such an administrative possibility, a new hearing, reopening it up again, the same charges, the same matters that had been going in to over the past 12 years.

We said that we have complied with Paragraph 26 at this point.

And the 1960 regulation has no pertinence, no bearing upon a claim which has matured under Paragraph 26.

And as a result of the Defense Department’s denial, we are forced to file this suit in the Court of Claims, alleging that we had complied with the regulation and adding to it a claim under the Just Compensation Clause.

Your — your position would mean that — that you would be entitled to a monetary restitution without there ever having been a determination on the administrative determination on the merits under correct procedures.

Eugene Gressman:

That is true, Your Honor, within the precise language of Paragraph 26 as I shall show it.

Arthur J. Goldberg:

That’s in fact what we held in the Silver case.

That’s why I thought it would —

Eugene Gressman:

Yes.

It seems to me, Your Honor, that the — there’s been a — a misunderstanding in the Court of Claims as to what is a real meaning and impact of the exhaustion doctrine here.

Because if we are right in our interpretation of Paragraph 26, and I submit there can be no question about it, but if — if we are right, there is an — we have complied with Paragraph 26, there is nothing more to exhaust under the 1960 regulation or any other — any other regulation.

If we have not complied with Paragraph 26, it seems to me we’re — we simply have not stated the cause of action in the Court of Claims.

We can come in there and sue under an administrative or executive regulation, only if we can show that we have complied with it.

And we have complied with it, I submit so clearly that there is nothing more to exhaust.

This seems to me a circular reasoning which seeks to impose upon us an entirely different kind of a hearing under another regulation which has no relation, particularly if we are right in our contention that we have fully complied with Paragraph 26.

The element question I suppose for us is whether the Court of Claims had jurisdiction.

Eugene Gressman:

I suppose that’s one way of saying it, Your Honor, whether or not we stated a claim or cause of action or in the reverse side whether there was jurisdiction or should have been exercised there.

But it seems to me that you can understand whether or not we should go back to the night for another hearing only after you interpret Paragraph 26.

You can’t determine whether we have to go back for a new security hearing without first reading Paragraph 26 and deciding whether or not we have complied with it.

But I say that making that kind of a decision as to whether we have complied or not is an end of the matter, and you’ll really never get to a real exhaustion of administrative remedy doctrine here.

Now, as I say, it is conceded here and properly so that the only basis of our claim which — or the proper basis of our administrative claim here is Paragraph 26 and that we are judged and must be — the issue must be resolved under Paragraph 26.

Now, that it seemed as I have said, I think, is clearly established in terms of our compliance.

Paragraph 26 is very simple in its critical language.

It says that we are entitled to monetary restitution in cases where a final determination is favorable to a contractor employee.

Byron R. White:

(Inaudible)

Eugene Gressman:

Yes, that’s —

Byron R. White:

(Inaudible) of — of whether he’s entitled to clearance or not?

Eugene Gressman:

Well, this — this is precisely what I want to address myself to because I think this is the critical issue in the case as to — on compliance.

I submit, Your Honor, that we have satisfied that requirement of final determination in one or two sentences.

In the first place, this decision in Greene versus McElroy is in and of itself a final determination favorable to the employee.

Now, I — of course, it was not a determination in terms of the merits of his security status, it was a final —

Byron R. White:

It was a final judgment.

Eugene Gressman:

— a final determination —

Byron R. White:

Final judgment but then —

Eugene Gressman:

— favorable to him in terms of the lack of authority of the Government to do what it did to this petitioner.

Byron R. White:

In that particular kind of a proceeding.

Eugene Gressman:

In that particular kind of a proceeding.

Byron R. White:

But it didn’t — it didn’t indicate that the Government was not entitled to revoke his clearance.

Eugene Gressman:

That’s right, Your Honor.

But that isn’t — but I submit, that a determination in terms of lack of authority is just as meaningful, just as final, just as favorable as a — a determination in terms of the merits.

Certainly, procedure is not to be distinguished from merits in terms of the nature or the — the ultimate impact, the conclusiveness of a determination.

If a court is — if this Supreme Court holds that a lower court lacks jurisdiction to convict the defendant of a crime, that is certainly a final determination even though a favorable determination, even though it does not decide that question in terms of his innocence or guilt.

Now, a second thing comes into play here in terms of a final favorable determination and this goes exactly to the administrative determination.

Again, I emphasize that we’re dealing with a past period of time upon which judicial action has — has made an impact.

As a result of the expungement order of the District Court on remand, as I have pointed out, there has been — wiped off the Government records, the three adverse determinations on the merits of this petitioner’s security status.

Reinstating, I say, for the period involved, the last, the only determination on his — on the merits, the determination of January 1952 of the IERB which authorized him to work on secret contract work.

Eugene Gressman:

Now, I submit that by the judicial action, working backwards on this period of time, there has been a final — a reinstatement of a final favorable administrative determination.

Now, I suggest further that Paragraph 26, as it was explained to Congress by the Department of Defense officials, was said to be designed to achieve equity and justice for those employees who were relieved of their jobs at the suggestion of Government officials.

Well, I suggest that the reading that I have suggested at Paragraph 26 is compelled by any standards of equity and justice which were said to be the underlying concepts of Paragraph 26.

To refuse to acknowledge the loss and sufferings, to refuse to acknowledge that there was not — that there was a final determination by this Supreme Court and by the District Court favorable to this contractor employee, I think would be the height of inequity and injustice which Paragraph 26 was designed to avoid, because as I repeat, the decision of this Court demonstrates that the Government here was infringing upon constitutionally protected property rights.

And there was irreparable injury caused to this petitioner which can never be wiped out, can never be — can never be made whole unless Paragraph 26 is read in the matter in which I suggest.

And I think it is also inequitable and unjust to condition his right to relieve that this junction, upon any new proceeding, any new security determination which is unrelated, I suggest, to the satisfaction of Paragraph 26.

Arthur J. Goldberg:

(Inaudible)

Eugene Gressman:

I — exactly right, Your Honor.

I don’t see all — there can be any equity or justice in — in reopening the same old charges, the same questions which have been plaguing this petitioner, which have been in effect expunge in a note or because of the complete lack of authority to do what the Government did to this petitioner during the years in question.

Again, I reiterate, repeating what I said to Mr. Justice White that there’s no question but if what — the Government is wholly protected at this point if the petitioner were in a position to seek or need security clearance, they could reopen this point.

They can make a new determination.

But we’re —

Byron R. White:

Well, in effect, I suppose in — under — when they denied your — your request for compensation under — under 26, I suppose, in effect, they redetermined it, didn’t they?

Eugene Gressman:

No, there — there was —

Byron R. White:

Whether — whether you were or had been entitled to a security clearance?

Eugene Gressman:

No, there was no indication that that point was ever raised.

It was strictly, as I understand it, a legal position, a legal interpretation of Paragraph 26 in terms of did we have a final determination favorable to the employee.

The only thing we were ever asked during the course of — of this negotiation or discussion with the Department was “Please present your legal position, your legal interpretation of Paragraph 26.”

There was never any question raised about his security status or the merits of — of the original charges.

Byron R. White:

But I — but they must have determined within Section 26 that there was no final determination favorable to the context.

Eugene Gressman:

Well, that’s on a legal basis, yes, they must have done that.

Now, the position of the Government, it seems to me on this question of interpreting Paragraph 26, is, in my judgment, somewhat confused.

I’ve tried to point that out in some detail in the reply brief and I will not go into it in any detail here.

Except to say that basically, it ignores the settled rule that an executive agency is rigorously bound by the regulation which it has promulgated.

And that having promulgated Paragraph 26, it seems to me, it is bound by the language of Paragraph 26 as it is, as it was written.

The Chenery and the Vitarelli line of cases fully established that general principle.

But instead, the Government here, in its brief and throughout this case, has completely intermixed the 1955 regulation and the 1960 regulation taking from the 1960 regulation, what it does not find in the 1955 and amending or changing the 1960 regulation right before our eyes here, exciting out.

Byron R. White:

(Inaudible)Section 26 said expressly when there has been a final determination of the contractor’s eligibility for clearance.

Eugene Gressman:

That is —

Byron R. White:

I presume that — they said that expressly and there wasn’t any argument about what it meant.

Eugene Gressman:

I think that would be controlling, Your Honor, yes.

Now, this is what they tried to say but it — then this is, in effect, is what the 1960 regulation says.

Byron R. White:

Let’s assume that Section 26 did say that and you were — wanted to get compensation so you had to go through another argument about whether you were entitled to clearance or not, would you prefer to go through it under the 1955 or the 1961 regulations?

Eugene Gressman:

Well, I don’t know — in — in — on your premise, I don’t believe there’d be any distinction there and if we — in either cases, I understand your question.

We would be going through a new security hearing as a condition through us — to getting back pay.

Now, I don’t know if there’d be any — any real difference between the kinds of hearing then involved.

But the — in — in addition of course, the 1960 regulation has established new procedures which in and of themselves may have constitutional questions attached to them.

They tried, they say, to — to comply with certain of the comments and — and reservations of this Court regarding confrontation and cross-examination but there still would be a possibility of questions being raised as to whether there has been complete, adequate compliance even there.

But in any event, as I read the Government’s position now, they apparently say that Paragraph 26 incorporates at the very least, the expressed requirement of the 1960 regulation that there’d be a final administrative determination on the merits subsequent to the original suspension or revocation.

Now, I submit that the language of Paragraph 26 simply does not say that and that it is completely impermissible to read it into it by implication and certainly impermissible by reading into it from Paragraph 5 (c) of the 1960 directive.

It’s five years later.

Eugene Gressman:

It’s five years later, exactly.

19 — in 1955 they say, in cases where a final determination is favorable to — to a contractor employee, but in 1965, years later, they become very precise and expand upon this and say, “If an applicant suffers a loss of earnings, resulting directly from a suspension or revocation, and at a later date, a final administrative determination was made in his favor, then you may get monetary restitution.”

Now, I submit there’s a significant and a meaningful difference between those two standards that it is a recognition here by the drafters that they omitted the term “administrative” in the 1955 regulation.

They pull a gap (Inaudible) hole and they require also that it — that there’d be a determination at a later date after the revocation — the revocation has occurred.

Now, I submit that there must be a presumption here that they meant to make a change and did make a change in the nature of the regulation.

But we come back to the admitted fact, the concession that our claim was filed under the 1955 regulation and that we are bound by that interpretation — that language.

And our claim is to be resolved in light of the — the rule as it was originally written.

And we get back again back of that to the rule that I stated a little earlier that an administrative agency, an executive agency must be rigorously bound by the language that it has itself promulgated.

Now, on that basis, it seems to me completely impermissible and unwarrantable to read in to the 1955 regulation what did not appear until the 1960 regulation was adapted, after this claim was — was filed.

And as an addendum even to that, I submit, that we do have, by judicial action, a reinstatement of a prior administrative determination on the merits.

If you want to say that — that that regulation — that determination of the IERB is the only thing that covers petitioner’s security status for the years in question.

Now, I submit that there is nothing in the purpose of the regulation.

There’s certainly no overwriting public interest or governmental interest which would justify this truncated resolution or determination or reading of the Paragraph 26.

As I’ve said, the Government is fully protected that this petitioner ever wants to work in an — a defense contract and need to security clearance.

But all they’re offering him now is an access eligibility determination which he does not need, he does not want, he is not working now in a defense industry.

And under the Government’s own regulation, the defense manual, he would not be entitled to seek such an access clearance until and — and unless he is employed by a defense contractor.

This is, in a sense, nothing but an advisory opinion that they are asking us to go through to achieve monetary restitution.

And if they were to find that he presently is not eligible to access eligi — access to classified information, then they would presumably deny his monetary claim despite the fact that that is a finding only in terms of his present eligibility, ignoring completely the fact that we’re dealing with a period long since passed between 1953 and 1960.

And there is no inconsistency between, if you will, present ineligibility and eligibility under Paragraph 26 for a period of time that is long gone by.

Potter Stewart:

Mr. Gressman, you said you’re dealing with a period from 1953 to 1960, the — your damages began April 23, 1953 and when is the — when do they stop from this (Voice Overlap) —

Eugene Gressman:

Well, that, of course, has not been determined.

It had not — not had the chance yet to take — make a position or — or determination of that in the Court of Claims.

I would think that that would — the earliest possible date would either be this Court’s decision in June of 1959 or the expungement order of the District Court in December of 1959.

Now, we made the claim, I think, in the district — in the Court of Claims riding on — into the entry of its judgment or determination by the Court of Claims.

But I think that is — would be subject to argument as to when the precise cutoff date would be but I — it certainly could not be before either this Court’s judgment or — or the District Court’s order.

Potter Stewart:

You’ve told us that Mr. Greene doesn’t need and doesn’t want to get his job back, the one that he had, what’s the — what’s the measure — what’s he doing now and what’s the measure of his job?

Eugene Gressman:

Well, he was forced to change entirely his profession.

I mean, as aeronautical engineer, he could not pursue that profession because any position in that profession would require a — a security clearance which he could not — could not get.

Potter Stewart:

Well, he could get it after 1959 presumably if he tried to get it.

Eugene Gressman:

Well, and he tried if he want to go back and tried it again —

Potter Stewart:

And then he is not —

Eugene Gressman:

— even though it’s free but as a result of this, he was forced into an entirely different line of construction engineering and he built himself up to — in — in that area which is entirely unnecessary in which position or profession, in which to obtain security clearance because most of the entire — all of the construction work on which he is engaged now is non-contractual or at least, as far as the Government is concerned, requires no security clearance.

So he’s built up an entirely new life and entirely new profession.

But during the period which we are speaking of, when he was struggling and suffered great economic loss during that period, losses which are acknowledged, that it — that is the period which is — is critical here and which Paragraph 26 was designed and does provide a means for making him whole.

Arthur J. Goldberg:

(Inaudible)

Eugene Gressman:

Yes.

Arthur J. Goldberg:

(Inaudible)

Eugene Gressman:

Yes.

Well, I think that would be subject to recapitulation and determination in the Court of Claims on the —

Do you — do your (Inaudible) Court of Claims could that stand before on your position that you’ve been arguing if you have other basis of your issue?

Eugene Gressman:

Well, we do have the — the just compensation —

(Voice Overlap)

Eugene Gressman:

— claim under the Constitution, I —

I am —

Eugene Gressman:

— think —

— pressing that very (Inaudible).

Eugene Gressman:

We — well, we’re not — I don’t want to be in the position of abandonment —

(Voice Overlap)

Eugene Gressman:

— I don’t have the means.

Eugene Gressman:

I think it — at the very least, as I have pointed out, it — it bolsters the reason for interpreting Paragraph 26 to make him whole.

Now, it’s rather interesting, Your Honor, that in the last paragraph of the 1960 regulation which provides for monetary restitution on this different basis, it says that any recovery under that regulation shall be completely — on the entire means of recovery against the United States.

It says here, “Payments under this provision shall be in full satisfaction of any or all claims of whatever nature they maybe which the applicant has or may assert against the United States as well as against the Department of Defense and other agencies.”

Well, I think if that is true, if that is proper to make that limitation, I don’t — I’m not sure at the moment whether that is also on the 1955 regulation but assuming that it is, I still think that if you have another basis on the Constitution that is — is forbidden to you by a virtue of such a provision, I think that at very least it indicates a strong reason why these paragraphs should be interpreted to give you the restitution to which you might otherwise be entitled.

Earl Warren:

Mr. Doolittle.

J. William Doolittle, Jr.:

Mr. Chief Justice.

We believe that the central position — central question in this case is, whether it was within the Court of Claims’ discretion to order the suspension of this proceeding in order for petitioner to pursue his administrative remedy before the Department of Defense.

Now, our — our basic position as it’s quite clear in our brief is that not only was it proper for the Court to do so but that this is a classic case in which it should undertake that procedure where there is an adequate administrative remedy available to the petitioner.

It is capable of providing complete relief to him and the constitutional questions can thereby be avoided.

Now, in — with respect to Mr. Justice Harlan’s question on whether or not this is a jurisdictional problem or one of exhaustion, it seems to me that what we can, in essence, regard the Court of Claims as having done is that they determine the question that petitioner now, which is to litigate favorably to the Government, that is, that it read the regulation as we read the regulation and that it — then send it to the Pentagon for action accordingly.

And of course, if — if that is wrong that that question can always be litigated although it may not have to be litigated if complete restitution is given by the Pentagon which — which is still a possibility.

Now, I think it’s important for us first to take a very careful look at the administrative remedy that we believe is applicable and that is, as petitioner points out Paragraph 26 of the 1955 regulation, the essence of that paragraph is contained in its first sense.

In cases where a final determination is favorable to a contractor employee, the Department whose activity originally forwarded the case to the Director, and that’s the Director of the Office of Personnel Security, will reimburse the contractor employee in an equitable amount for any loss of earnings during the interim resulting directly from a suspension of clearance.

Now, of course, the 1955 regulation has been superseded by the 1960 regulation, which was promulgated as the result of this Court’s 1959 decision in Greene against McElroy.

However, because petitioner did apply for restitution before the 1960 regulation went into effect and because the 1955 procedure regulation does provide an easier standard for peti — for petitioner to meet, the Department of Defense has agreed to process petitioner’s claim under Paragraph 26 of the 1955 regulation.

Potter Stewart:

I don’t —

J. William Doolittle, Jr.:

I might —

I’m sorry.

Potter Stewart:

You — you’ve find this case right down at Paragraph 26, it seems to me the very sentence at which you read that disposes of the case say — Greene didn’t lose the case here in the — in this Court.

J. William Doolittle, Jr.:

That’s certainly true.

Potter Stewart:

And there was a final determination favorable to him —

J. William Doolittle, Jr.:

I’ll —

Potter Stewart:

— there have been —

J. William Doolittle, Jr.:

I’ll go into that in quite a bit of detail —

Potter Stewart:

I hope you will.

J. William Doolittle, Jr.:

— Your Honor, just a moment.

I might advert just for a moment to a question asked by Mr. Justice White and that is the effects of the Department’s letter concerning Paragraph 26.

Now, I agree with Mr. Gressman that that did not constitute a determination on the merits.

Either on the merits of he’s entitled to a clearance or his — his ultimate entitlement —

Byron R. White:

(Inaudible)

J. William Doolittle, Jr.:

Well, my — my only point as far as — as his — his claim under paragraph —

Byron R. White:

(Inaudible)

J. William Doolittle, Jr.:

The reason that — the reason that he was told that he did not qualify under Paragraph 26 is that —

Byron R. White:

(Inaudible)

J. William Doolittle, Jr.:

— is that he had not submitted to the procedure required by section — by Paragraph 26 and I will explain why — why we believe that there is something that he has to do in essence what he was told that — that your claim is premature, that there’s something that you have to do before you’re entitled to — to — and before you’re eligible to restitution under Paragraph 26.

Byron R. White:

(Inaudible)

J. William Doolittle, Jr.:

That’s right.

Byron R. White:

(Inaudible)

J. William Doolittle, Jr.:

That’s right.

Now, as I shall spell out in more detail, we think it is clear that the final favorable determination referred to in Paragraph 26 is a determination that the individual is eligible for access to classified defense information and that such a determination can be arrive at only by the Department of Defense.

Arthur J. Goldberg:

(Inaudible)

J. William Doolittle, Jr.:

If the Court determined that it was wrong on the merits, that is to say if the Court took it upon itself to rule that petitioner was entitled to a clearance, I — I couldn’t argue that that wasn’t exactly what the regulation called for.

But I don’t believe the Court would do that and it’s clear that the Court never has done that.

Arthur J. Goldberg:

(Inaudible)

J. William Doolittle, Jr.:

Well, he — the Court did hold that the revocation of his clearance was unauthorized, that’ right.

Arthur J. Goldberg:

(Inaudible)

J. William Doolittle, Jr.:

Well, we — I’ll — I’ll go into this again a little more detail.

But we — we do not believe that that was a holding that he was entitled to a clearance.

In fact, Mr. Justice Harlan at least specifically pointed out that it was not.

If I may — I may go on for just a moment as to what remedy we have in mind, I — this is decidedly preliminary but I do want to point out that the procedure that the Department would employ in arriving at this final favorable determination or final unfavorable determination as the case maybe, in the procedure that we believe that Mr. Greene must go through, would apply the more liberal procedures of the 1960 regulation which was issued under the authority of the President.

Now, provision is made in that regulation, the 1960 regulation, for a proceeding in which the individual has rights of confrontation and cross-examination and in which the use of information that cannot be disclosed to him for national security reasons is very sharply and very closely restricted.

Thus, petitioner is being offered the best of both regulations, the easier standard for restitution of the 1955 regulation and the more liberal procedures of the 1960 regulation.

However, petitioner refuses to proceed in the Department of Defense under either regulation or any combination of the two.

And the central contention is that he has already satisfied the requirements of Paragraph 26 and that it is therefore unnecessary to remit his case to the Department.

He argues first that this Court’s decision in Greene against McElroy, coupled with the order of Judge Keech on remand constituted a final favorable determination for purposes of Paragraph 26.

Now, the fundamental defect in this argument, as we see it, is that the final favorable determination contemplated by Paragraph 26 is a determination that the individual is eligible to access to classified defense information.

Now, a fair-minded examination of the context of the regulation, we believe conclusively, conclusively demonstrates that that it so.

Arthur J. Goldberg:

Could you — would you tell us what the (Inaudible) the Department will necessary would have to make a determination (Inaudible) whether he’s eligible now?

J. William Doolittle, Jr.:

Yes sir, that’s exactly what they would do.

Arthur J. Goldberg:

And what does make (Inaudible) there’s nothing more many times the National Security upon 1953 to 1959 and does something more in 1959 (Inaudible).

J. William Doolittle, Jr.:

If he is — if he is not eligible as of the time that the determination is made, we would say that he is not — he — he cannot recover under — under the restitution provision.

Now, let — let me point out one thing, and I — I say this without wanting to bind Department of — of Defense or the Department of Justice in its future action.

It’s not altogether clear that 1959 would be the cutoff date because we are — we, in the Department of Justice, are talking about a determination yet to be made and Paragraph 26 indicates that that determination is the end of the right to restitution.

Now, of course, it maybe that other circumstances would come into play such as the fact that he — maybe he’s now earning more than he was back in 1953 or maybe it could be said that he unreasonably delayed in — in seeking relief.

But other — those factors apart, it’s not obvious to me at any rate that that — that the cutoff date has yet arrived such that it wouldn’t necessarily be a determination in 1964, let us say, of his situation back in 1959.

It would — it would be currently relevant.

Now, I will — Mr. Justice touch on your point with respect to Silver in — in a few moments.

As I say, we believe that the context of the regulation at the very least requires the reading that we have indicated.

The opening sentence of the entire regulation of which section — of which Paragraph 26 is a part, makes it clear what kind of determination the regulation is talking about.

That sentence is this, “This part describes the uniform standard in criteria for determining the eligibility of contractors, contractor employees and certain other individuals, as set forth in this part, to have access to classify defense information.”

And thereon — from thereon, it sets forth detailed procedures by which determinations are to be reached and that each level, the screening board level, hearing board level and finally the review board level, the regulation clearly sets forth the kind of determination of access eligibility that is to be involved.

Significantly, the regulation makes the review board’s determination final subject only to reconsideration by the review board itself, by the Secretary of Defense or by the three service secretaries jointly.

Thus, it was not contemplated that there would be any judicial review of this finding of access eligibility such that the only final favorable determination that the drafters of the regulation could possibly have had in mind was an administrative determination of access eligibility.

Now, further confirmation —

Potter Stewart:

Wouldn’t that — wasn’t it the fact that the determination in Greene case was made by the Secretary of the Navy, individually?

J. William Doolittle, Jr.:

Well, the Secretary of the Navy in a sense preferred charges and then it preceded through these various boards or the — the equivalence of them under a prior regulation.

But the final determination that was set aside eventually by this Court or actually by Judge Keech’s order was a review board determination.

Potter Stewart:

Review board.

J. William Doolittle, Jr.:

Yes, Your Honor.

Earl Warren:

Are there any charges pending against him now?

J. William Doolittle, Jr.:

We believe that there are, Your Honor.

Earl Warren:

What are they?

J. William Doolittle, Jr.:

Now, I’ll touch upon that in just a moment.

But — well, if — if — what they are?

They — they are the charges that are set forth in this Court’s opinion in — in considerable detail, one lengthy footnote.

Earl Warren:

But what do you do with the — what do you do with the 1952 order of the board which holds that they were — those charges were unjustified and that he is entitled to clearance and —

J. William Doolittle, Jr.:

Well, these charges —

Earl Warren:

— everything subsequent to that has been wiped out but what —

J. William Doolittle, Jr.:

These charges, Your Honor, we — we certainly don’t believe that these charges have been wiped out.

The — the final revocation of his clearance was wiped out.

J. William Doolittle, Jr.:

But so far as we are concerned with the charges and no order has ever said anything about those charges.

In short, we don’t feel that Mr. Greene is now entitled to a clearance just because he had that 1952 ruling that he was subsequently charged for a cause.

Earl Warren:

Or because of the order of the District Court subsequent to our decision?

J. William Doolittle, Jr.:

That’s right.

Now, that wiped out a final revocation and I have no doubt at all that Mr. Greene, if he wish to contest these charges, could have them process through the authorized procedures and perhaps they would come out with a — with a final favorable determination.

But the fact is that on the books now are those charges which no court decision has ever touched.

Earl Warren:

Well, in — do you consider in — in the Government service as if or in Government action if — if an employee is cleared by one of your — your boards that — that in — and the — and no further action that is legal under those charges that he’s still under charges?

J. William Doolittle, Jr.:

Yes, I would say so Your Honor —

Earl Warren:

(Voice Overlap) —

J. William Doolittle, Jr.:

— because they — they just haven’t been pressed to a conclusion which it is his and has been his privilege to do it anytime but because the — because the subsequent determinations have been wiped out, as they clearly have been by this Court’s decision in — in Judge Keech’s order on remand, in a —

Earl Warren:

But may I ask you this question.

Suppose — suppose that he did find now under your 1960 regulation and the matter was decided against him and he was obliged to go to court and it took him another 10 years and this Court finally found that you would short circuit with your circuit, your — your procedure on that occasion too and wrote to the effect that we did in Greene, would you then contend that he’s still did not have a final judgment that he’d have to go back again and go through the procedure in order to get his relief?

J. William Doolittle, Jr.:

If the regulation is still read the way it does now under either 1955 or 1960 regulations, he has to be with you.

Now, we believe that further on very strong confirmation that restitution under the — under Paragraph 26 is to be based on a clearance determination that comes from this Court’s decision in Greene against McElroy.

There, this Court, as counsel has pointed out in its brief, discussed Paragraph 26 and it described Paragraph 26 in the following terms.

A program under which reimbursement for lost wages would be made to employees of government contractors who were temporarily denied but later granted security clearance.

And in Taylor against McElroy which petitioner makes so much as demonstrating that this Court was aware of Paragraph 26, the Court’s — the Court’s opinion makes it very clear that Taylor had received a final favorable determination of his clearance eligibility by the administrative authorities which of course was the reason why Paragraph 26 was applicable.

Earl Warren:

And what was that authority?

J. William Doolittle, Jr.:

Pardon?

Earl Warren:

What was that authority, administrative authority in the —

J. William Doolittle, Jr.:

The Department of Defense —

Earl Warren:

I beg your pardon.

J. William Doolittle, Jr.:

The Department of Defense had — had a rule that he was entitled to access authorization.

That’s at page 710 of 360 U.S., the Court sets forth those facts.

Finally, it has been the consistent position of the Department of Defense in implementing the 1955 regulation that the final favorable determination of Paragraph 26 is a determination of clearance eligibility in this consistent and long-standing interpretation of a regulation by the agency responsible for its drafting as we submit entitled to great way.

Now, petitioner contends however, that he should not be — that he should be accepted from the necessity of a determination of clearance eligibility because he does not need a clearance in his present work.

One cannot help wondering whether that circumstance should justify according petitioner preferential treatment over other whose cases have been processed under Paragraph 26.

More than that however, we feel that there is a perfectly valid reason for the Department’s insisting on a determination of clearance eligibility as a condition precedent to a restitution for the suspension or revocation of a clearance.

Suppose that because of activities or associations, the individual would under no circumstance, have been judged under any kind of procedure, reasonable or otherwise, would have been deemed and titled to a security clearance.

Suppose, for example, that he was an admitted espionage agent for a foreign power, how has he been hurt by the unauthorized suspension or revocation of his clearance?

J. William Doolittle, Jr.:

He was never entitled to a clearance.

He never could have gotten one under any kind of procedure.

He has not been hurt.

The purpose of this requirement is simply to — to determine whether the individual was actually injured by the act complained of, whether he was —

Arthur J. Goldberg:

Suppose —

J. William Doolittle, Jr.:

— actually entitled to a clearance.

Arthur J. Goldberg:

(Inaudible)

J. William Doolittle, Jr.:

Well, I may say that that — that is certainly one of the factors that would have to be taken into account in arriving at the determination.

And I should suppose that if he contended import that that was the facts and it was clear that the Department of Defense had not taken adequate account of that fact, that would certainly be a ground for reversal of the administrative determination.

I don’t doubt that for a moment.

Now, you’ve asked, Mr. Justice Goldberg, about what you’ve said in the Silver case.

There really are two important distinctions between the situation there and the situation here.

First, of course, we’re talking about a determination of present eligibility at least under the 1955 regulation or the 1960 regulation, does require not only a finding of present eligibility but a finding that the revocation was unjustified, which we take to be a finding of past eligibility in effect.

But not so under the 1955 regulation and that is the one we’re applying here.

Therefore, some of the considerations that you adverted to there, do not seem to us to be present and we do feel that — that a — a determination now is really very different from a determination then.

If for — it — there — it may have been that — that there were circumstances that would’ve substantively justified the denial of a clearance back, say in 1952 or 1953, but if it appears that the individual involved has — has done nothing of this general character in — in the meantime, thus, adding some — some kind of color to the — to the prior activities, this is certainly a fact that would have to be taken into account in a — in a present adjudication.

The same standards just — just don’t apply when there’s a significant difference in time of course.

Now, secondly, and really I think critically as far as what you’ve said in Silver is concerned, I assume from reading what you said that that was a — a construction of the legislation that was before the Court at that time.

And what we have here is a regulation that in or judgment as clearly as a regulation could set forth the fact that this kind of determination is to be made and unless if it said that what you’ve said in Silver is a constitutional requirement, we believe that the plain language of the regulation must control.

Arthur J. Goldberg:

(Inaudible)

J. William Doolittle, Jr.:

I realize that.

Arthur J. Goldberg:

(Inaudible)

J. William Doolittle, Jr.:

Right.

Given the fact that the final favorable determination referred — referred to in Paragraph 26 is a determination of eligibility for clearance and that seems indisputable to us.

It follows that that determination is one that only the Department of Defense can make.

Certainly, this Court in Greene against McElroy did not purport to determine that petitioner was entitled to a clearance as I pointed out, Mr. Justice Harlan in his concurring opinion was it taints to emphasize that and I quote, “There is nothing in the Court’s opinion which suggest the petitioner must be given access to classify the material.

Nor is there any intimation in Judge Keech’s order on remand that he intended to declare petitioner’s entitlement to a clearance.”

And as I have said, the regulation itself clearly contemplates that the determination will be made by an administrative board or official.

The short of our argument is that it is clear beyond doubt that the final favorable determination of Paragraph 26 is a determination of clearance eligibility that can be passed on only by the Department of Defense.

By ceasing final favorable determination and taking it entirely out of context, petitioner has been able to make this argument which is in essence that any final favorable determination that he lay his hands on will do.

J. William Doolittle, Jr.:

As far as we are concerned, in relation to this regulation, the final favorable determination of this Court and of Judge Keech on remand is — is no more relevant than any other determination that petitioner might be able to find.

I should think the Government will have the standard law under (Inaudible) — regulation (Inaudible)

J. William Doolittle, Jr.:

We do.

We do, Your Honor.

But why is it (Inaudible)

J. William Doolittle, Jr.:

Well, the — the relevance of the 1960 regulation is, as I say, it means, if the regulation is now in effect, 1955 regulation strictly speaking is no longer in effect.

And we believe that petitioner is entitled with more liberal procedures under the 1960 regulation.

We would or we couldn’t — we couldn’t process his claim under the 1955 regulation or we’d be right back in this Court because the 1955 regulation —

(Inaudible)

J. William Doolittle, Jr.:

— has procedures that were held to be unauthorized but —

You can’t — you can’t if you don’t find what the — the argument (Inaudible) regulation, 1955 regulation, you certainly can’t supply that 1960 regulation.

J. William Doolittle, Jr.:

I agree, Your Honor.

Now I —

Can’t you seem to (Inaudible)?

J. William Doolittle, Jr.:

Well, Mr. — Mr. Gressman has argued that, the way he put it the first time was that, some of the language used in the 1960 regulation was to plug a loophole and they said that there must have been an intention to change.

But we don’t think that’s all true.

The 1960 regulation much more clearly expresses what was in — in the minds of the drafters of the 1955 regulation.

But beyond that, I — I can’t disagree with you, the 1960 regulation —

Could you — you do, I — I don’t misunderstand what you were saying in the Court or I correctly misunderstand you, did you stand squarely on the 1955 regulation supplemented only by the procedural requirements of the 1960 regulation designed to produce (Inaudible).

J. William Doolittle, Jr.:

That’s completely right, Your Honor.

Byron R. White:

Since — you do rely on the 1955 regulation and insist that a final determination is necessary, that final determination has to take place under some — under the 1960 regulation or the 1955 regulation is no longer an existing fact.

J. William Doolittle, Jr.:

Well, the 1955 regulation is —

Byron R. White:

Well, there —

J. William Doolittle, Jr.:

— it has —

Byron R. White:

— furthermore it is invalid.

J. William Doolittle, Jr.:

— it has sort of existence and it has enough existence that —

Byron R. White:

But they’re invalid anyway.

J. William Doolittle, Jr.:

Well —

Byron R. White:

They did that to proceed —

J. William Doolittle, Jr.:

Yes, we — we don’t assume the nine — that — that Paragraph 26 is invalid as result of this Court’s decision.

Byron R. White:

Yes.

Which are — but — but the procedures by which you would draw about to make the final determination and it had to take place under a different set of regulation.

J. William Doolittle, Jr.:

Exactly, Your Honor.

And as I say, it’s — it’s beyond question, a more liberal procedure.

William J. Brennan, Jr.:

Mr. Doolittle, what — (Inaudible) as of the context today under 1961 or the context of time dispersed (Inaudible)

J. William Doolittle, Jr.:

I’m sorry; I don’t understand your question.

William J. Brennan, Jr.:

Well, I — what I’m trying to get is, what is this final determination?

J. William Doolittle, Jr.:

The final —

William J. Brennan, Jr.:

Favorable to and when, as of when.

J. William Doolittle, Jr.:

The final determination that we think is critical under Paragraph 26 would be a determination made if and when petitioner submits himself to —

William J. Brennan, Jr.:

I appreciate that.

But as of —

J. William Doolittle, Jr.:

As of the date on which it’s made.

William J. Brennan, Jr.:

So that this — in other words, this would be a — a determination whether he’s entitled of clearance today.

J. William Doolittle, Jr.:

That is right, Your Honor.

William J. Brennan, Jr.:

(Voice Overlap) —

J. William Doolittle, Jr.:

Not today.

The day on which it was made, that’s right.

Some time in —

William J. Brennan, Jr.:

Alright, the day it was made.

And it’s not — whether or not, he’s been entitled to a clearance back in 1952.

J. William Doolittle, Jr.:

That’s right, Your Honor.

William J. Brennan, Jr.:

Well, is that — is that what the 1961 —

J. William Doolittle, Jr.:

1960 regulation.

The 1960 regulation would require both a finding of present eligibility present as of the time it’s made and a finding which we consider to be the rough equivalent of that, as of the time the clearance was revoked.

In other words —

William J. Brennan, Jr.:

Now, the language of the 1960 is something about unjustified.

J. William Doolittle, Jr.:

That’s right.

William J. Brennan, Jr.:

What’s the — what’s that mean?

J. William Doolittle, Jr.:

Well —

William J. Brennan, Jr.:

That —

J. William Doolittle, Jr.:

— as i say —

William J. Brennan, Jr.:

So, that they might reasonably have thought whether they were right or wrong that whether —

J. William Doolittle, Jr.:

No.

William J. Brennan, Jr.:

— he is entitled?

J. William Doolittle, Jr.:

No.

Our — our construction of that is, whether or not he would have been entitled to —

William J. Brennan, Jr.:

A fact.

J. William Doolittle, Jr.:

a clearance — judged under a reasonable procedure, under an authorized fully legal procedure.

Byron R. White:

The same standards as I — in short of that 1955 regulation would have established.

J. William Doolittle, Jr.:

No, 1955 regulation is concerned.

We submit, only with present eligibility, eligibility as of the time the proceeding for restitution takes place.

That’s the only finding that is required.

William J. Brennan, Jr.:

Well, I’m — I’m just a little uncertain still.

He was stripped of a clearance back in 1952 and there was a reason for it.

There was — now, do I understand that unjustified under the 1960 procedure would mean that had he been given back in 1952 procedure that (Voice Overlap) —

J. William Doolittle, Jr.:

The right of confrontation and cross-examination, that’s right.

William J. Brennan, Jr.:

But (Inaudible) given that back in 1952, would he have had a determination that’s favorable to him, is that —

J. William Doolittle, Jr.:

That’s right, Your Honor.

William J. Brennan, Jr.:

— what you mean?

Now we’re — we’re what 12 years, 10 years, seven years later.

J. William Doolittle, Jr.:

That’s right.

William J. Brennan, Jr.:

(Inaudible)

J. William Doolittle, Jr.:

Well —

William J. Brennan, Jr.:

(Inaudible)

J. William Doolittle, Jr.:

It is.

I — I would point out that this is rather the exceptional case and I think I would also point out that to the extent that it is difficult or impossible to make an accurate determination under the 1960 regulation certainly, the individual ought to be given some benefit of the doubt.

Finally, I would point out that that isn’t what is before the case here the Court hears.

William J. Brennan, Jr.:

Well, the thing that bothers me Mr. Doolittle, seems to me all you’re doing is telling us (Inaudible) the same case back there four to five years more, we still have to avoid —

J. William Doolittle, Jr.:

Well, you’re — you are assuming, Mr. Justice that if he goes back to the Department of Defense —

William J. Brennan, Jr.:

I’m assuming that they —

J. William Doolittle, Jr.:

— assuming that he found —

William J. Brennan, Jr.:

Yes.

J. William Doolittle, Jr.:

— presently ineligible for a clearance —

William J. Brennan, Jr.:

Yes.

J. William Doolittle, Jr.:

— which I don’t assume nor — nor do the officials of the Department of Defense.

Hugo L. Black:

I don’t quite understand.

I — I think I must misunderstand you.

Do I understand that this man was discharged in 1950 and now declared in 1952?

J. William Doolittle, Jr.:

Once in 1952 and once in 1953, I think.

Hugo L. Black:

Once in 1952 and once in 1953.

And he wanted — he wants to get money because it was wrong for him — for him to be discharged, loose his job because of that lack of clearance.

Do I understand that?

I think I must not.

You’re saying that if they now have a hearing in 1963 and determined that as of today, he could not be given a clearance.

Nevertheless, that would somehow purify the — one in 1952 and 1953 so that he could not recover any — get into restitution even though 1952 or 1953, he could’ve — that he was wrong, is that right?

J. William Doolittle, Jr.:

Well, if I may say, we — we don’t really look upon it as — as a matter of purification.

Hugo L. Black:

Or I’ll forget the purification.

Do I understand that you are saying that whether it was right or wrong to do this in 1952 and 1953, do you think you have it here in 1963 or find out in some way that in the intervening years, he has become somehow wrong, so evil that he shouldn’t have a clearance.

If that would be enough to answer so that he could not recover for the wrongful clearance that was damaging or — or —

J. William Doolittle, Jr.:

That’s right, Your Honor, although I would point out —

Hugo L. Black:

That is correct?

J. William Doolittle, Jr.:

That is correct.

Hugo L. Black:

That’s the — that the Government is taking the position that if it will — wants to decline the pay him in back wages restitution because if — it wants a chance to find out 13 years after something happened that at this time, he — he couldn’t get a clearance from the Government.

J. William Doolittle, Jr.:

Well, Mr. Justice Black, if I may point out, the claim is for restitution starting then and continuing until now.

Hugo L. Black:

I’ve done —

J. William Doolittle, Jr.:

He is —

Hugo L. Black:

— all the restitution in that time.

J. William Doolittle, Jr.:

— he still say — he’s still saying, “I’m still being hurt”, right up until the day that he asked for restitution.

So his clearability as of that date is highly relevant because he’s saying, “I’m still being hurt.

J. William Doolittle, Jr.:

I’m still earning less than I did before.”

Hugo L. Black:

Well alright, let’s forget of today and next week and next month.

You might say that he’s still — that he can’t get any damages from that?

Are you saying that he can’t get restitution for damages he has actually suffered within 10 years because you can show that he couldn’t get any damages now if they discharge him — examine the clearance since he couldn’t get the clearance?

J. William Doolittle, Jr.:

The regulation so provided.

Hugo L. Black:

That’s what — and that’s what you’re defending.

J. William Doolittle, Jr.:

Yes, sir.

And I think it’s here.

J. William Doolittle, Jr.:

No, Your Honor, it isn’t.

Earl Warren:

We’ll recess now.