Cafeteria and Restaurant Workers Union, Local 473, Afl-Cio v. Neil H. McElroy Individually and as Secretary of Defense , 284 F.2d 173 ( 1960 )

PRETTYMAN, Chief Judge.

Rachel M. Brawner was a short-order cook — a “breakfast cook”. In November, 1S56, she worked in a cafeteria. Her duties were to prepare breakfast and lunch, attend the steam table, and wash dishes. She had been so employed for six and a half years. The cafeteria is located on Government property, the premises of the Naval Gun Factory. The land had been purchased by the United States in 1873. It is located in the District of Columbia and became part of the Gun Factory in 1945. The work of the Factory includes, inter alia, design, planning, production and inspection of naval ordnance.

The cafeteria was operated by a private corporation, M & M Restaurants, Inc., under a written contract with the Board of Governors, U. S. Naval Gun Factory Cafeterias. The Board of Governors is composed of seven civilian governmental employees of the Factory and is appointed by the Superintendent. M & M Restaurants, Inc., operates numerous cafeterias and restaurants in several states, including Delaware, Maryland and Virginia. It operates the three main cafeterias at the Gun Factory. In order to enter or leave the premises of the Gun Factory, an identification badge is required. The issuance of this badge is by the Security Officer of the Gun Factory, a subordinate of the Superintendent, both of whom are naval officers. The Gun Factory is a component activity of the Potomac River Naval Command. The Commandant of this Command is directly responsible to the Chief of Naval Operations.

Rachel Brawner was required to have, and did have, an identification badge. On November 15, 1956, she was notified by her supervisor that he had been told to pick up her badge “for security reasons”. She surrendered her badge to him. This action of the supervisor was pursuant to a phone call from a representative of the Board of Governors to a representative of M & M Restaurants, Inc. The caller stated that the Board had been notified by the Security Officer of the Naval Gun Factory, a Lieutenant Commander, that Brawner would have to surrender her badge and would not be permitted to enter the Factory “until clearance is certified by the Security Officer.”

■The President of M & M Restaurants, Ine., offered Brawner employment at the Skylark Motel in nearby Springfield, Virginia, where a restaurant was operated by the company. The representative of the Union, on behalf of Brawner, notified the company that she was not interested in accepting the proffer.

The Chairman of the Board of Governors made a request of the Superintendent of the Factory that a meeting be arranged for the Security Officer, the Board of Governors, representatives of M & M Restaurants, Inc., and agents of the Union to discuss the action relative to Brawner. The Superintendent replied that the agreement between the Board of Governors and M & M Restaurants, Inc., stipulated that the latter should employ only those who met the security requirements for admission to the Factory and that it was considered that Brawner “does not meet these security requirements”. The Superintendent added that the proposed meeting was therefore unnecessary.

In the meantime Brawner had called upon the business agent of the local of the Union which was the bargaining representative of the cafeteria workers. This representative discussed the matter with the President of M & M Restaurants, Inc. The contract between the Union and the company provided that the employer would not suspend or discharge any employee without good and sufficient cause.¹ It further provided that in the event of a dispute the matter should be referred to a board of arbitration of three parties, one of whom might be chosen by the American Arbitration Association.² The representative of the Union was informed by the President of the company that he could not supply any information concerning the taking of Brawner’s badge. Thereupon the dispute was referred to a board of arbitrators composed of John B. Cullen, Esquire, named by the company, Samuel H. Jaffee, Esquire, named by the Union, and the Honorable Nathan Cayton, named by the American Arbitration Association. These arbitrators, Mr. Jaffee dissenting, found: “The evidence before us does not establish that Rachel Brawner was ever discharged by the Company. There was no evidence from which it can be said that the Company ever indicated any desire or intention to terminate or dispense with her services.” The arbitrators fur-there pointed out: “The real grievance of the employee and of her Union has never been against the Company; it has been and is against those who have (wrongfully, she contends) denied her physical access to the place of her employment.”

In sum the facts are that Rachel Brawner, a short-order cook employed by the civilian concessionaire operator of a cafeteria located on the premises of the Naval Gun Factory, was denied retention of the identification badge which had permitted her to enter the premises where she worked, the denial being by the authority of the naval officer in command of the Factory. The stated reason was that she failed to meet security requirements. She was not informed as to the factual premises for the conclusion. No charge was made against her.

After the foregoing events the Union and Mrs. Brawner filed a civil action in the District Court against the Secretary of Defense and other Government officials, in their individual and official capacities, and M & M Restaurants, Inc., for a declaratory judgment, injunctive relief, vacation of the arbitration award, and recovery of damages. The District Court granted summary judgment for the Government defendants and dismissed the complaint as to all defendants. This appeal followed.

I. The Problem Stated

The problem to be solved is a narrow one. It concerns the nature and extent of the power of a naval officer in command of a naval installation to control the ingress and egress of civilians to and from the premises. The discussion on the briefs and in argument has gone far afield from this problem. The case does not involve debarment from a chosen occupation. It is not a discharge case. The case does not involve any Personnel Security Program, with its concomitant regulations.

II. Power to Control Access to Naval Gun Factory

Line of Authority.

We first examine the authority of the Navy to prescribe rules for the admission of civilians to Navy installations. The authority begins with the Constitution.

“The Congress shall have power to dispose of and make all needful * * * regulations respecting the territory or other property belonging to the United States; * ³

“The Congress shall have the power * * *;

******

“To exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States, and the acceptance of Congress, become the seat of the government of the United States, 'X- -X * ” ⁴

“The Congress shall have the power * * *;

******

“To provide and maintain a navy;

“To make rules for the government and regulation of the land and naval forces; * * *.”⁵

The line of authority then proceeds by statutes.

“The Secretary of the Navy has custody and charge of all * * * property of the Department.” ⁶

“The head of each department is authorized to prescribe regulations, not inconsistent with law, for * * the custody, use, and preservation of * * * property appertaining to it.”⁷

“United States Navy Regulations shall be issued by the Secretary of the Navy with the approval of the President.” ⁸

Next in this line of authority come certain United States Navy Regulations issued pursuant to Section 1547 of the Revised Statutes.⁹ They were issued by the Secretary of the Navy, the Honorable John L. Sullivan, and approved on that same day by the President, the Honorable Harry S. Truman. These Regulations contain the following provisions:

“The responsibility of the commanding officer for his command is absolute, except when, and to the extent, relieved therefrom by competent authority, or as provided otherwise in these regulations.” ¹⁰

“In general, dealers or tradesmen or their agents shall not be admitted within a command, except as authorized by the commanding officer:

******

“3. To furnish services and supplies which are necessary and are not otherwise, or are insufficiently, available to the personnel of the command.” ¹¹

“The commanding officer shall require that orders and regulations pertaining to the security of * * * classified * * * material * * * are strictly observed.” ¹²

“Definitions.

“1. ‘Classified matter.’ — Information or material in any form or of any nature which in the public interest must be safeguarded in the manner and to the extent required by its importance.” ¹³

“Subject to law and as may be prescribed by the Secretary of the Navy, it shall be the duty of the Chief of Naval Operations to: ******

“12. Prepare and issue manuals and other appropriate publications containing orders, instructions, and procedures, conforming to these regulations, and pertaining to matters for which he is responsible.”¹⁴

“The Chief of Naval Operations shall supplement these regulations with appropriate publications including the Security Manual, * * ¹⁵

The United States Navy Security Manual for Classified Matter, promulgated October 2, 1954, contained the following:

“Persons who are considered visitors * * * are divided into four basic categories which are further subdivided as follows:

“Category United States citizens * * *

One

******

“Baker Personnel of private fa-[meaning cilities under contract

(B)] to the Department of Defense.” ¹⁶

“The commanding officer of the activity being visited has full discretion as to whether or not the visit shall be permitted.” ¹⁷

The U. S. Navy Physical Security Manual promulgated by the Chief of Naval Operations on April 14, 1956, contained the following:

“Definitions

“1. Naval Activity. A naval activity shall be construed to mean a unit of the Naval Establishment, of distinct identity, and established under an officer in command or in charge.

“3. Facility. A facility, for purposes of this instruction, is any building, shop or utility within an activity having a specific function.” ¹⁸

“The Commanding Officer. The Commanding Officer is responsible for the security of all property and installations within his command. He prescribes the security measures to be adopted, and coordinates when necessary, the measures adopted by subordinates, but he alone remains responsible for the overall security of his command.” ¹⁹

“The Security Officer. Normally, the Commanding Officer delegates most of the administrative and operational aspects of security to a subordinate, who is referred to in this manual as the Security Officer. The functions of this officer include planning, supervision, inspection, coordination, and submission of recommendations with respect to:

“a. Physical security

“(1) Internal security * * * * * ” ²⁰

“Specific duties. The planning, supervision and coordination of matters relating to the security of the command includes:

“a. Internal security matters:

“(1) Safeguarding from * * the unauthorized disclosure of classified matter.” ²¹

It is argued by the Union that these Navy regulations and manuals were not published in the Federal Register pursuant to the requirements of Section 3 of the Administrative Procedure Act²² and the Federal Register Act²³ and thus were not valid. The section of the Administrative Procedure Act providing for publication begins:

“Except to the extent that there is involved (1) any function of the United States requiring secrecy in the public interest * * *—

“(a) Every agency shall * * publish in the Federal Register [etc.].”

Certainly the operation of an agency for the design, planning and production of naval guns and other ordnance is a function requiring secrecy in the public interest. The Attorney General’s Manual on the Administrative Procedure Act cites as an illustration of the meaning of the provision: “Thus, the War Department obviously is not required to publish confidential matters of military organization and operation * * Therefore, in so far as these regulations apply to the Naval Gun Factory, they need not be published in order to establish their validity. We are not concerned with their validity in any other application. Furthermore the provision of the Act to which we have referred excepts from publication “any matter relating solely to the internal management of an agency”. In so far as these regulations prescribe the authority of the commanding officer over an installation such as the Gun Factory, they relate to the internal management of the Navy. The public effect is remote. The Committee Reports on the Bill which became the Administrative Procedure Act point out that the publication provisions were intended to make available to the general public such administrative operations and procedures as are public property. The authority of naval officers over naval operations can hardly be classified as public property. In so far as the Federal Register Act is concerned, no act of Congress required publication; the Navy regulations had not been designated by the President as applicable to the general public; and thus were not required by this statute to be published.

It therefore seems clear that naval officers in command of naval installations have ample authority to control the ingress and egress of civilians to and from the premises of the command.²⁴

The Exercise of Authority.

The contract made October 1, 1955, between the Board of Governors of the Naval Gun Factory Cafeterias and M & M Restaurants, Inc., provided in part:

“ * -» * jn no event shall the Concessionaire engage, or continue to engage, for operations under this Agreement, personnel who

* * * r- * *

“(iii) fail to meet the security requirements or other requirements under applicable regulations of the Activity as determined by the Security Officer of the Activity.” ²⁵

In answer to an interrogatory posed in this lawsuit by the plaintiffs to the defendants concerning the procedure followed by the officials of the Naval Gun Factory to determine whether a civilian, non-Governmental employee should be given an identification badge, the Governmental defendants answered that each applicant for an identification badge was required to complete an application form which contained the following: “I agree to obey all Naval Gun Factory Regulations * * The execution of such an undertaking by Brawner is implicit and not denied.

Not only do the Government officers have technical authority to protect the privacy of premises such as a naval gun factory, but the right to do so is a right of the highest priority in the public interest. No one, we think, would question that right or its priority. Certainly the realisms of the world situation dictate its necessity. On the other hand, no individual citizen has a natural or inherent right to enter such premises. And we find no statute which confers such a right upon civilians. The only right of entrance possessed by a civilian is a right gained by contract or by specific permission. Brawner’s only right to enter the Gun Factory was a right which she gained by way of her contract of employment. It was derived from a combination of two contracts, one between the Government and her employer and the other between her employer and her. Brawner’s only right of entrance was subject to the flat, unequivocal contract provision that employees permitted entrance to the Factory must meet the security requirements of the command. We do not see how a contract right of an employee of a contractor with respect to the subject matter of the contract can be superior to the rights of the contractor in respect to that subject matter. If the rights of a contractor-employer are subject to limitations, the rights of employees under the contract are subject to the same limitations.²⁶ Thus, for example, if a contract specifies a 40-hour work-week, no individual employee has a right to demand employment for 60 hours a week. Moreover we know of no rule of law or custom which requires that employees be informed of the terms of the employer’s contract, to which they are not parties but by virtue of which they gain their employment.

Thus it clearly appears that the commanding officer at the Factory had a high priority right to protect entrance to the Factory and the civilian Brawner had merely a right derived from a contract which specifically provided that she must meet the security requirements of the officer. This being the situation, we fail to perceive any limitation upon the discretion of the commanding officer in respect to civilian presence within his command, except limitations imposed by higher naval authority. We find no rights of the public, or of any member thereof, which act as a restriction upon the otherwise unfettered discretion of naval officers in such a matter.

The contract between M & M Restaurants, Inc., and the Government contained no provision relating to procedure upon the denial of access to the Factory by an employee, but the contract between Brawner (via her representative, the Union) and her employer did provide a procedure in respect to disputes under that contract. It provided for arbitration. As we have seen, she was afforded that full procedure. She has had the full of her contractual procedural rights.

III. Power to Control Access versus Claimed Right to Employment at Naval Gun Factory

It is argued in Brawner’s behalf that her right to employment was involved in her right to be daily upon this particular site; that this right to employment was a protected right; and that this protection reached through to create a protected right to be at a particular site of employment. We think principles applicable to employment as such are not applicable to the case we have before us. We discuss those principles only because they are pressed upon us and we think they reflect some erroneous premises which we are in duty bound to indicate. Employment — a Qualified Right.

In the first place it is obvious that no one has an unqualified right— inherent, statutory or constitutional — to enter upon such employment as he chooses. Qualification, or suitability, is a restriction upon any such right. For example, maintenance of strict secrecy in respect to certain matters which come naturally to an employee’s knowledge in the ordinary course of his employment is a commonplace element of suitability for particular employment. Trade secrets in industry,²⁷ financial matters in business, official affairs in Government,²⁸ are within the scope of this custom. Furthermore the Government frequently requires that one be particularly qualified, even for private employment: for example, to be a nurse, or a barber, or an engineer, or a lawyer. A young man, even one out of college, has no unrestricted right to practice law. He must (1) study for a prescribed period and (2) qualify under tests sponsored by the judicial branch of the Government. It is after one has been qualified and licensed, or admitted, to a trade or profession that rights under contract or statute attach and a debarment from that occupation requires certain procedural steps.²⁹ And the same doctrine applies where Government action is of such nature as to be a factual debarment of the individual from his vocation or profession, even though not a formal disbarment or cancellation of license. This is what the Supreme Court was talking about in Greene v. McElroy,³⁰ as the Court repeatedly emphasized in its opinion. The person there involved was an aeronautical engineer of such specialized training and capacity that access to classified information was essential to engagement in his profession. Denial of such access was a complete debarment.

Removal Process.

No employed person has an inherent or natural right (i. e., a right apart from statute, regulation or contract) to any sort of process in respect to removal from his particular job.³¹ In private employment an employee’s rights in respect to discharge stem from the contract of employment. This is and always has been established law; it is one of the basic reasons for trade unions. The rights of Government employees in respect to removal from employment stem from statute or from regulations adopted by the authority by which they were employed. This has been established law throughout the history of this country.³² Originally, as every student of history knows, the Executive authority had plenary power to remove summarily any and all Executive employees; and they did so.³³ The climax of the long fight for security in the civil service was the enactment of the Lloyd-La Follette Act in 1912. That Act, as amended, is still in force. It specifically provides: “No examination of witnesses nor any trial or hearing shall be required except in the discretion of the officer or employee directing the removal or suspension without pay.” ³⁴

That statute has been discussed under attack many times in the courts, but no court has ever intimated a shadow of unconstitutionality in it. The law is clear. Absent an express statutory protection, any Government office, the tenure of which is not fixed by the Constitution or set by statute, is subject to removal at pleasure. This one thread is the warp of the whole fabric of the case law; it appears throughout — from Ex parte Hennen in 1839 ³⁵ to Vitarelli v. Seaton in 1959.³⁶ Except for special classes, Government employees may be removed summarily without charges and, except for the provisions of the Lloyd-La Fol-lette Act, without reasons. A holding to the contrary would necessitate a ruling that the Lloyd-La Follette Act is and always has been invalid; that the hundreds of employees discharged under its procedural terms since 1912 were wrongfully discharged; and that Government employment at all levels carries life tenure, i. e., inherent, constitutionally protected invulnerability to discharge, except upon charges, open hearings, confrontation by witnesses, cross-examination, and findings. Such conclusions-have no support in law, in our opinion.

Situs.

Finally, absent a special contract, or circumstances constituting a total debarment from an occupation, an employee-has virtually no rights in respect to thesitus of his employment. Grocery chains, public utilities, law firms, and1 notably the Government, move employees-about from place to place willy-nilly. It would be fantastic to propose seriously that an employee of a large employer has-some sort of procedural rights which must be respected before he can be moved from here to there. Certainly the Government’s many moves in decentralization programs give no heed to any such notion.

The young lawyer in our analogy, supra, has no right to employment by any particular person or client, or indeed to any clients at all; And his place of employment, his continued engagement in any particular matter or by any particular client, are entirely at the whim of his ■employers. To take a simple example: If the Government were to retain as ■consultants a private law firm, and the firm sent one of its young lawyers to do some of the work; and if a Government ■officer called a senior member of the firm and said, “This young man is too gabby for our purposes. Don’t send him over Tiere any more”; the young lawyer would have no rights of procedural process of .any kind, sort or description.

Again by way of analogy, certainly no ■one would doubt the authority of the Supreme Court to require its private printer to transfer a Linotype operator who, without wrongful intent, portrayed to his friends at afternoon stops in a convenient bar the nature of the opinions he was putting in print. No one would contend, we think, that the right of a Linotype operator to work on the advance printing of opinions of the Court is such that he could not be removed from the premises without a hearing in full panoply of charges, confrontation of witnesses, compulsory disclosures in public by his cronies, cross-examination, and findings. An investigation sufficient to satisfy the Court of the afternoon garrulity of the employee and a quiet word to the printer would be all such a situation would entail, we think. He could be put to work somewhere else.

We come back to the problem as to Brawner. She was not discharged. She was not debarred from her chosen occupation. She was offered a similar job by her same employer, and she refused. There are scores of places open to short-order cooks here and everywhere. The essence of her claim is that the site of her employment cannot be changed unless charges are made against her and she has a full hearing with witnesses, etc. We find no substance whatever to her claim.

Stigma.

It is further argued in Brawner’s behalf that the Governmental action has besmirched her reputation. Of course it has consistently been held that outright dismissals from Government employ, on stated grounds of malfeasance, bribery, or even attempted seduction, are validly accomplished without the traditional trappings of due process.³⁷ And we see no comparatively greater defamation in a denial of entrance to a naval installation because of its security requirements. Nobody has said that Brawner is disloyal or is suspected of the slightest shadow of intentional wrongdoing. “Security requirements” at such an installation, like such requirements under many other circumstances, cover many matters other than loyalty. Certainly they must cover garrulity, honesty, a measure of judgment, sobriety, a high sense of one’s obligations, etc. A naval installation such as a gun factory is in and of itself a confidential matter of highest priority, and many of its vital features are observable by anyone on the premises. Many physical characteristics of guns or machinery may be observable and transmittable by the most inexpert observer. The mere presence of certain officers may be important. The normal idle lunchtime chatter of employees in such operations may be saturated with comment which may well be inconsequential upon the premises but pregnant with danger outside it. Security regulations for such places are not to be restricted to control of access to copies of papers or limited to the locking of a safe at night. Security-regulations in such an installation may well include an impenetrable silence on Factory matters and events, no matter how trivial they may appear to a reviewing court. Denial of employment at a Navy installation because of its security requirements is certainly no more of a stigma than is a discharge for almost any reason. Almost any discharge is a “stigma”. But such discharges are not protected by any inherent right to confrontation, cross-examination, etc. The rhetoric in these arguments is greater than their substance.

Third-Party Interference.

We come now to another phase of Brawner’s case. It is argued to us that in this case the Government (i. e., the Governmental appellees) stands in the position of a third-party tort-feasor; that is, it was guilty of interfering with an employment contract.³⁸ That contract was Brawner’s contract (via her representative, the Union) with her employer. In the first place we note this is not the typical case of third-party interference. Admittedly the Governmental action did constitute an “interference” with Brawn-er’s continued employment at a particular situs. The precise question is whether this “interference” was illegal, that is, constituted an actionable wrong. As we have already seen, vis-a-vis his employer, no employee has an inherent right to work at a particular situs. Such a right may under some circumstances exist visa-vis a stranger to the employment relationship. But under the law of third-party-interference a defendant is not liable if the alleged interference is no more than the exercise of a legal right equal' to or greater than the right claimed by the employee.³⁹ The Government had such a right, namely the right to exclude people from the Gun Factory. Through the Board of Governors of the Gun Factory Cafeterias, the Government recited this right in Section 5(b) of its contract with M & M Restaurants, Inc. This, right was exercised by the Government,, through the Governmental appellees, by enforcement of the contract. This right is clearly equal to, or greater than, whatever right Brawner could claim to work at the particular situs. Furthermore, not only did the Governmental appellees exercise a legal right; they performed the legal duty of exercising their discretion under the applicable regulations. We find no liability on the Governmental appellees as third-party tort-feasors.

IV. Liability of M & M Restaurants, Inc.

We next consider the liability of the concessionaire. It is argued to us that the agreement between M & M Restaurants, Inc., and the Union, the latter acting on behalf of all employees, contained a provision that employees should not be discharged without good and sufficient cause. To this there are two answers. In the first place, Brawner was not discharged. In the second place, if she had been discharged, surely, so far as her employer was concerned, the refusal of the commanding officer of the Factory to approve her entrance upon the Factory premises was a good and sufficient cause for the employer to release her from employment.

Y. Greene v. McElroy

Greene v. McElroy, supra, is cited to us as controlling. We think it does not treat of our problem. In the first place Greene dealt only with the “authorization” relied upon by the Government officers. The Court was quite explicit about this delimitation. We do not have that line of authorization in our case, and the authority dealing with entrance upon naval installations, which we have recited, is clear and ample. In the next place, as we have pointed out, Greene dealt with a total debarment, in fact even though not technically, from a chosen occupation. The testimony was, as recited in footnote 11 to the Court’s opinion: “In view of his [Greene’s] position with the company, there was no work which he could do in light of this denial of clearance by the Navy. As a result, it was necessary for the company to discharge him.” We have no such case here. In the concurring opinion in Joint Anti-Fascist Refugee Committee v. McGrath,⁴⁰ which the Court cites in Greene, Mr. Justice Frankfurter emphasizes the historic background of the procedural requirements in different types of proceedings. The Justice said in part:

“The Court has responded to the infinite variety and perplexity of the tasks of government by recognizing that what is unfair in one situation may be fair in another. * * * The precise nature of the interest that has been adversely affected, the manner in which this was done, the reasons for doing it, the available alternatives to the procedure that was followed, the protection implicit in the office of the functionary whose conduct is challenged, the balance of hurt complained of and good accomplished — these are some of the considerations that must enter into the judicial judgment.

***##*

“ * * * Finally, summary administrative procedure may be sanctioned by history or obvious necessity.” ⁴¹

We have discussed the historic background of our present problem, the precise nature of the interest affected, and the other factors mentioned in the quoted passage. Nothing in that study suggests a hearing, with witnesses, etc., in respect to employment at a particular place, where the circumstances do not spell total debarment from an occupation.

We hold only that under the circumstances of this case — including the statutes, the regulations, the nature of the place involved, the two contracts, and the arbitration proceeding — no rights of appellant Brawner were violated by the lifting of her identification badge for entrance to the Gun Factory. We have discussed other subjects only because they were pressed upon us by way of argument and must needs be discussed.

The judgment of the District Court is Affirmed.

1 . Clause 6 of the agreement between M & M Restaurants, Ine., and the Union contained the following: “The Employer agrees not to suspend or discharge any employee without good and sufficient cause.”

2 . Clause 24 of the agreement provided: “The parties agree that they will endeavor to adjust any dispute that may arise from the interpretation or application of this Agreement within a period of 48 hours. In the event that no accord can be reached, the matter in dispute shall be referred to a Board of Arbitration within two clays from the date which the parties to the Agreement shall fail to reach an agreement in connection with the matter in dispute, and said Board of Arbitration shall be composed of one representative of the Employer and one representative of the Union, and one disinterested party chosen by the two said members of the Board of Arbitration. In the event the two parties shall fail to agree on a third disinterested party, the parties agree that the American Arbitration Association be requested to appoint a person to serve in the capacity of the third and impartial arbitrator.”

3 . Art. IV, § 3, cl. 2.

4 . Art. I, § 8, cl. 17.

5 . Art. I, § 8, cls. 13, 14.

6 . 10 U.S.C. § 5031(c), which was 5 U.S.C. § 413, which was R.S. § 418, derived from an Act of April 30, 1798, ch. 35, § 3, 1 Stat. 554.

7 . This section now appears as 5 U.S.C.A. § 22 (1958). It was R.S. § 161, derived from a number of Acts, beginning with one of July 27, 1789, ch. 4, 1 Stat. 28. It was amended in respects not here material by Pub.L. No. 619, 85th Cong., 2d Sess. (Aug. 12, 1958), 72 Stat. 547.

8 . 10 U.S.C. § 6011 (1958). This was 34 U.S.C. § 591, the source of which was R.S. § 1547. In addition 10 U.S.C. § 121 (1958) provides: “The President may prescribe regulations to carry out his functions, powers, and duties under this title.” This “title” of the United States Code was revised, codified and enacted into law by statute, being Pub.L. No. 1028, 84th Cong., 2d Sess., ch. 1041 (Aug. 10, 1956), 70A Stat. 1.

9 . 34 U.S.C. § 591, codified Aug. 10, 1956, as 10 U.S.C. § 6011.

10 . Regs. § 0701.

11 . Id. § 0734.

12 . Id. §0713.

13 . Id. § 1501.

14 . Id. § 0204.

15 . Id. § 1502.

16 . Security Manual § 1403.

17 . Id. § 1409.

18 . Physical Security Manual § 0100.

19 . Id. § 0154.

20 . Id. § 0156.

21 . Id. § 0156.3.

22 . 60 Stat. 238 (1946), 5 U.S.C.A. § 1002.

23 . 49 Stat. 501 (1935), 44 U.S.C.A. § 305 (a) (2).

24 . The Congress has recognized the existence of such authority by prescribing penalties for the unauthorized entrance upon such naval installations. See, e. g., 62 Stat. 765 (1948), 18 U.S.C. § 1382 (1958); 64 Stat. 1005 (1950), 50 U.S.CX.A. § 797.

25 . Sec. 5(b). The predecessor contract, of December 1, 1949, in effect when Brawner was employed, provided in Art. IX(b): “Approval for the employment of any person by the Concessionaire to work in the Naval Gun Factory * * * shall be conditioned upon the right of the Superintendent, or his duly designated representative, to cancel, revoke or withdraw the same for any cause or reason deemed sufficient by the Superintendent, or his representative, in the exercise of discretion, without the necessity for any showing of cause.”

26 . 2 Williston, Contracts § 364A & n. 5 and cases there collected (3d ed. 1959); id. § 394.

27 . See Blake, Employee Agreements Not To Compete, 73 Harv.L.Rev. 625, 667-674 (1960).

28 . To take a simple example: a law clerk applicant may be a legal giant; he may have a most engaging personality; but, if he cannot be entrusted with judicial secrets, no judge would consider him suitable for appointment. The same principle obviously applies in all branches of the Government.

29 . See Gellhorn & Byse, Administrative Law 768-779 (1954).

30 . 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959).

31 . 35 Am.Jur., Master and Servant §§ 26, 34 (1941) and eases there cited.

32 . See, e. g., Ex parte Hennen, 13 Pet. 230, 259, 38 U.S. 230, 259 (1839); Shurtleff v. United States, 189 U.S. 311, 23 S.Ct. 535, 47 L.Ed. 828 (1903); Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926); Humphrey’s Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935).

33 . The history texts are replete with examples. Fish, The Civil Service and the Patronage 13-14, 20, 26, 28, 39, 65, 120-121, 125, 130, 147, 153, 155, 160, 164, 166, 168, 170, 252 (1905); 4 Channing, History of the United States 256-257 (1935); 5 Channing, op. cit. supra at 389 (1933); 6 Channing, op. cit. supra at 302 (1930); Schubert, The Presidency in the Courts ch. 2 (1957); Hacker & Kendrick, The United States Since 1865, pp. 99-100 (1934); Hicks, The Federal Union 397 (1937); Hart, Tenure of Office Under the Constitution (1930); and see generally Sageser, The First Two Decades of the Pendleton Act: A Study of Civil Service Reform (Univ.Studies, U. of Neb., 1935); Foulke, Fighting the Spoilsmen (1919); Richardson, Problems in the Removal of Federal Civil Servants, 54 Mich.L.Rev. 219 (1955); Grundstein, Presidential Power, Administration, and Administrative Law, 18 Geo.Wash.L.Rev. 285, 296 et seq. (1950).

34 . 37 Stat. 555, as amended, 62 Stat. 355, (1948), 5 U.S.C.A. § 652(a).

35 . 13 Pet. 230, 38 U.S. 230.

36 . 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012.

37 . Eberlein v. United States, 257 U.S. 82, 42 S.Ct. 12, 66 L.Ed. 140 (1918); Golding v. United States, 78 Ct.Cl. 682, certiorari denied, 292 U.S. 643, 54 S.Ct. 776, 78 L.Ed. 1494 (1934); Kent v. United States, 105 Ct.Cl. 280 (1946); Richardson, Problems in the Removal of Federal Civil Servants, 54 Mich.L.Rev. 219, 240 et seq. (1955).

38 . The cases stating the law pertinent to this tort are collected in Annotations, 29 A.L.R. 532 (1924); 84 A.L.R. 43 (1933), supplemented, 26 A.L.R.2d 1227 (1952); 9 A.L.R.2d 228 (1950). The law in this area developed from early recognition of a right of action for intentional interference with a man’s business, Garret v. Taylor, Cro.Jac. 567, 79 Eng.Rep. 485 (1621), to include protection of one’s right to a livelihood, e. g., Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1915) (involving an employment relationship terminable at will by the parties); Owen v. Williams, 322 Mass. 356, 77 N.E.2d 318, 9 A.L.R.2d 223 (1948). We must note that the United States as such cannot be liable in damages for “interference with contract rights” (including employment contracts) under the Federal Tort Claims Act, 28 U.S.C. § 2680(h) (1958). See Du-pree v. United States, 264 F.2d 140 (3 Cir.), certiorari denied, 1959, 361 U.S. 823, 80 S.Ct. 69, 4 L.Ed.2d 67. In view of our disposition of the case, we need not reach the question whether the appellants are seeking to hold the United States, and not merely the Governmental appellees, liable for such damages. '

39 . See Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780 (1886) (Postmaster General held not liable in damages even if he acted maliciously); Annotation, 29 A.L.R. 532, 533 (1924). In Donovan v. T. & P. Ry., 64 Tex. 519 (1885), an employee of a freight hauling company lost his position because the railway, by regulation, barred all but railway employees from access to its warehouse. The railway was found not liable, because it had a legal right to adopt such a regulation.

40 . 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817 (1951).

41 . Id., 341 U.S. at pages 163, 168, 71 S.Ct. at pages 643-646.