Cafeteria and Restaurant Workers Union, Local 473 v. McElroy/Dissent Brennan

Mr. Justice BRENNAN, with whom The CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice DOUGLAS join, dissenting.

I have grave doubts whether the removal of petitioner's identification badge for 'security reasons' without notice of charges or opportunity to refute them was authorized by statute or executive order. See Greene. McElroy, 1959, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377. But under compulsion of the Court's determination that there was authority, I pass to a consideration of the more important constitutional issue, whether petitioner has been deprived of liberty or property without due process of law in violation of the Fifth Amendment.

I read the Court's opinion to acknowledge that petitioner's status as an employee at the Gun Factory was an interest of sufficient definiteness to be protected by the Federal Constitution from some kinds of governmental injury. Indeed, this acknowledgment seems compelled by our cases. Wieman v. Updegraff, 1952, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216; United Public Workers of America (C.I.O.) v. Mitchell, 1947, 330 U.S. 75, 100, 67 S.Ct. 556, 569, 91 L.Ed. 754 (dictum); Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982. In other words, if petitioner Brawner's badge had been lifted avowedly on grounds of her race, religion, or political opinions, the Court would concede that some constitutionally protected interest whether 'liberty' or 'property' it is unnecessary to state-had been injured. But, as the Court says, there has been no such open discrimination here. The expressed ground of exclusion was the obscuring formulation that petitioner failed to meet the 'security requirements' of the naval installation where she worked. I assume for present purposes that separation as a 'security risk,' if the charge is properly established, is not unconstitutional. But the Court goes beyond that. It holds that the mere assertion by government that exclusion is for a valid reason forecloses further inquiry. That is, unless the government official is foolish enough to admit what he is doing-and few will be so foolish after today's decision-he may employ 'security requirements' as a blind behind which to dismiss at will for the most discriminatory of causes.

Such a result in effect nullifies the substantive right-not to be arbitrarily injured by Government-which the Court purports to recognize. What sort of right is it which enjoys absolutely no procedural protection? I do not mean to imply that petitioner could not have been excluded from the installation without the full procedural panoply of first having been subjected to a trial, with cross-examination and confrontation of accusers, and proof of guilt beyond a reasonable doubt. I need not go so far in this case. For under today's holding petitioner is entitled to no process at all. She is not told what she did wrong; she is not given a chance to defend herself. She may be the victim of the basest calumny, perhaps even the caprice of the government officials in whose power her status rested completely. In such a case, I cannot believe that she is not entitled to some procedures. '(T)he right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society.' Joint Anti-Fascist Refugee Committee v. McGrath, 1951, 341 U.S. 123, 168, 71 S.Ct. 624, 646, 95 L.Ed. 817 (concurring opinion). See also Homer v. Richmond, 1961, 110 U.S.App.D.C. 226, 292 F.2d 719. Parker v. Lester, 9 Cir., 1955, 227 F.2d 708. In sum, the Court holds that petitioner has a right not to have her identification badge taken away for an 'arbitrary' reason, but no right to be told in detail what the reason is, or to defend her own innocence, in order to show, perhaps, that the true reason for deprivation was one forbidden by the Constitution. That is an internal contradiction to which I cannot subscribe.

One further circumstance makes this particularly a case where procedural requirements of fairness are essential. Petitioner was not simply excluded from the base summarily, without a notice and chance to defend herself. She was excluded as a 'security risk,' that designation most odious in our times. The Court consoles itself with the speculation that she may have been merely a rrulous, or careless with her identification badge, and indeed she might, although she will never find out. But, in the common understanding of the public with whom petitioner must hereafter live and work, the term 'security risk' carries a much more sinister meaning. See Beilan v. Board of Public Education, 1958, 357 U.S. 399, 421-423, 78 S.Ct. 1317, 1325, 1330-1331, 2 L.Ed.2d 1414 (dissenting opinion). It is far more likely to be taken as an accusation of communism or disloyalty than imputation of some small personal fault. Perhaps the Government has reasons for lumping such a multitude of sins under a misleading term. But it ought not to affix a 'badge of infamy,' Wieman v. Updegraff, supra, 344 U.S. at page 191, 73 S.Ct. at page 218, to a person without some statement of charges, and some opportunity to speak in reply.

It may be, of course, that petitioner was justly excluded from the Gun Factory. But, in my view, it is fundamentally unfair, and therefore violative of the Due Process Clause of the Fifth Amendment, to deprive her of a valuable relationship so summarily.