RESPONDENT: United States
LOCATION: Cumberland Hospital
DOCKET NO.: 84
DECIDED BY: Warren Court (1962-1965)
CITATION: 376 US 149 (1964)
ARGUED: Nov 21, 1963
DECIDED: Feb 17, 1964
Facts of the case
Media for Greene v. United StatesAudio Transcription for Oral Argument - November 21, 1963 (Part 1) in Greene v. United States
Audio Transcription for Oral Argument - November 21, 1963 (Part 2) in Greene v. United States
Mr. Doolittle, you may continue your argument.
J. William Doolittle, Jr.:
Thank you Mr. Chief Justice.
Petitioner alternatively argues that the effect of Judge Keech's order on remand expunging the final revocation of its clearance from the records, leaves a prior favorable administrative determination in effect, namely that of January 29, 1952.
This ingenious argument which does have the virtue of recognizing that a final -- that the final paper for determination must be in administrative one, is we think entirely without substance.
For one thing, if what petitioner says is true, there would be outstanding, the subsequent unresolved charges or the statement of reasons which is set forth at pages 484 to 486 of this Court's opinion.
More importantly, however, in no sense may Judge Keech's order be read as reinstating the clearance of petitioner that was revoked from such -- such an argument, it would follow that the petitioners is now entitled to access the classified information which he obviously is not, and Judge Keech plainly never intended such a result.
I might note one other incongruity that would result from this argument.
It is clear from paragraph 26 that it is the final favorable determination that closes the interim period for which an individual is entitle to restitution.
Thus, if the 1952 determination marks the end of this interim, petitioner would be entitled to compensation at most for the two months that he was suspended and which suspension was terminated by the favorable determination in 1952.
In some, the remedy of paragraph 26 in which the petitioner suit is in part at least based, is in administrative remedy and it must be pursued in the Department of Defense before petitioner has any right to recover under it.
Now, I shall, as petitioner does, leave to the brief the discussion of the constitutional questions unless this Court has any question that wishes to ask.
Very well Mr. Doolittle.
Mr. Gress -- Gressman.
Mr. Chief Justice, I only have a few statements to make in concerning this case as to the reasons which we feel compellingly require the interpretation of paragraph 26 in accordance with the way we view that language in there.
First of all, we are concerned here with solely with a past period of time.
If we are right as to our reading of the final favorable determination of a judicial nature, that determination was made in -- at least in 1959.
And we are not concerned with the continuing claim for damages as of today or tomorrow or next week.
We are concerned with a period of time which has elapsed, and during which accrued damages have occurred where there was a cause and infringement of constitutional rights.
And I suggest that we must view the -- the damaged claim in light of that -- of those past events which cannot now be undone or re-written nor can there'd be authority invested to do what this Court held, there was no authority for that period of time.
Now, it seems to me that the -- both orally and in the brief, the Government has made a most significant concession in interpreting and applying paragraph 26.
Mr. Doolittle correctly states the position that is reflected in his brief on page 14 when he says that the critical determination that they suggest to be made as of today, 1963, relates not to whether he would have been entitled to a security clearance between 1953 and at least 1959, but whether he is eligible as of this very moment which has no relationship to whether or not he should have been entitled to a security clearance during the years in question.
Now, if the justification for the Government's conditioning of monetary restitution under being a final favorable determination is that the Government should not be paying off money to a man who was a security risk.
This interpretation that they suggest does not need that consideration at all.
Because as Your Honors have already noted, there is no necessary relationship between a man who is today a security risk but who may not have been a security risk during the years in question.
Indeed, it -- the -- then the only reference that there is in the 1960 regulation to re-examining this past period of time relates to what Mr. Justice Brennan was referring to in the requiring of a finding that the former administrative determination was unjustified.
Now, whatever that word unjustified may mean it completely has dropped out of this case because they state that the Department of Defense has notified it -- the Department of Justice that this kind of a showing will not be required in petitioner's case.
They have amended the 1960 regulation to fit Mr. Greene's case and they are not going to read that and try to determine whether former determinations which incidentally were expunged, were unjustified or not.
They are concentrating entirely upon whether or not he is as of this moment or as of the time when we make a demand for a hearing.
He is then and in the future eligible for access authorization.
Now, we feel this is completely inequitable and completely unrelated to any concerned or interest of the Government with relation to paying out compensation or past injuries as to which there apparently is never going to be a determination now made as to his then security status.