Constitutional Right to a Hearing: the Path to Goldberg v' Kelly

1
Constitutional Right to a Hearingthe Path to
Goldberg v. Kelly

• A Look at the Post World War II Security Cases
• Developments from 1950 to early 1960s.

2
Bailey Richardson, 182 F.2d 46 (D.C. Cir. 1951),
affd by an equally divided Court, 341 U.S. 918
(1951

• Miss Bailey was a government employee, subject
  to dismissal within 18 months if investigation
  revealed disqualification,
• The Regional Loyalty Board of the Civil Service
  Commission stated that it had received
  information that she was a member of the
  Communist Party, had attended Party meetings, and
  had associated with Party members, and requested
  her to answer interrogatories about these maters.
• Miss Bailey denied each item of information,
  except that she admitted having been a member of
  the American League for Peace and Democracy for a
  short time.
• She asserted her loyalty to the United States.

3
Hearing

• At the hearing before the Regional Board, she
  testified as to her loyalty.
• She presented other witnesses who all testified
  to her loyalty.
• She presented affidavits to the same effect.
• No one other than Miss Bailey and her witnesses
  testified.

4
Decision

• Miss Bailey received a letter from the Board
  stating
• It has been found that, on all the evidence,
  reasonable grounds exist for belief that you are
  disloyal to the Government of the United States.

5
Review by U.S. Court of Appeals for the District
of Columbia Circuit

• Due process
• government employment is not property.
• Miss Bailey has not been deprived of her
  liberty.
• On her claim that she has been stigmatized and
  will have difficulty in finding another job, the
  court says that she has been treated unjustly,
  but her loss is counter-balanced by the interests
  of effective government.

6
Greene v. McElroy, 360 U.S. 474 (1959)

• Greene was an aeronautical engineer working on
  advanced aircraft.
• He needed a security clearance to do this work.
• In December, 1951, the Army-Navy-Air Force
  Personnel Security Board informed Green that it
  had tentatively decided to revoke his security
  clearance on the ground that
• access by you to contract work and information
  would be inimical to the best interests of
  the United States.
• Green sought a hearing before the Industrial
  Employment Review Board.
• The hearing was like Miss Baileys. The only
  evidence presented was by Greene.
• After a series of reviews, Greenes security
  clearance was finally revoked by the Eastern
  Industrial Employment Review Board.

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Constitutional Issue avoided decision on clear
statement grounds

• The Court stated that the right to follow ones
  chosen profession is a liberty protected by the
  Fifth Amendment
• Nonetheless, the Court avoided the Constitutional
  questions presented.
• Rather, the Court decided in favor of Greene by
  construing the authority of the Boards to act on
  the basis of secret evidence.
• The Court ruled that it would presume that
  neither Congress nor the President had delegated
  authority to the Boards to employ unfair
  procedures.
• Clear Statement Cannon -- See Kent v. Dulles

8
Cafeteria Workers v. McElroy, 367 U.S. 886 (1961)

• Rachel Brawner was a short-order cook at a
  cafeteria operated by MM Restaurants on the
  Naval Gun Factory in Washington, D.C.
• Her clearance to enter the factors was revoked by
  navy officials for failure to meet base security
  requirements.
• She was given no further explanation and was
  denied a hearing.

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Cafeteria Workers, continued

• Court upholds revocation
• Base commandant has authority over entry to base.
  
• Balance of hardships
• Brawner could get job elsewhere.
• Brawner not stigmatized.
• For all that apears, the Security Officer and
  the Superintendent may have simply thought that
  Rachel Brawner was garrulous or careless with her
  identification badge.