Greene v. United States

Mr. Justice Harlan,

whom

Mr. Justice White joins, dissenting.

Once unraveled, this case presents a single simple issue, the answer to which is in my opinion very clear.

Whatever the Government’s position earlier, it has now conceded that the petitioner’s claim arises under and is to be settled in accordance with the 1955 regulation. In particular, the Government’s brief states that “in light of the fact that petitioner’s claim was initially filed under the 1955 regulation,” the Department of Defense would *165not require him to show that the -revocation of his clearance was substantively unjustified when ordered. Brief, page 14.

All that is left in this case, therefore, is a question concerning the proper construction of the 1955 regulation, which authorizes monetary restitution only “in cases where a final determination is favorable to a contractor employee . . . .” Department of Defense Directive 5220.6, 20 Fed. Reg. 1553, 1559. The Government’s position is that the quoted language conditions restitution on “a restoration of eligibility for access to classified information.” Combined with the disclaimer above, this evidently means that the Government does intend to insist that petitioner show his present eligibility for clearance but not that he show his eligibility at the time clearance was revoked. The petitioner contends that this Court’s decision in 1959, 360 U. S. 474, invalidating the revocation of his clearance for procedural defects, constitutes the favorable “final determination” required under the 1955 regulation.

It is evident that most of the Court’s opinion has nothing to do with this issue. There is no reason to consider whether the petitioner could properly be remitted “to further administrative proceedings under the 1960 regulation” (ante, p. 153), or whether the 1960 regulation provides “a reasonable basis for reviewing petitioner’s rights under the 1955 regulation” (ante, p. 163). Nor is it necessary to consider what the Department of Defense would require were it applying the 1960 regulation. Finally, the propriety of requiring the petitioner to show his acceptability for clearance in 1953 is not in issue, since no one is seeking to impose that requirement.

On the relevant issue, both of the Court’s distinct explanations for its conclusion are unsatisfying. The first explanation is that the order of the District Court which expunged all adverse determinations left the peti*166tioner’s prior clearance as “the only legally cognizable administrative determination” (ante, pp. 160-161). Therefore, the Court concludes, the District Court’s order “must” be regarded as a “final” and “favorable” determination. But the conclusion is hardly compelled by the premises. Quite obviously, the order of neither this Court nor the District Court constituted a security clearance, which one would have thought to be the kind of final, favorable determination contemplated by the regulation.1 There is certainly no inevitable logic which compels one to regard an order wiping out previously unfavorable rulings and leaving temporarily intact an initial favorable ruling as a final favorable determination; with at least equal logic, the situation could be regarded as one in which there has been no final determination.

The other explanation offered by the Court is even less satisfactory. The fact that the petitioner is not interested in present clearance does not ipso facto make his present eligibility “wholly irrelevant to a determination of his damages under the 1955 regulation” (ante, p. 163). The question is what the 1955 regulation requires, and the petitioner’s needs and desires have little relevance to that question, if indeed they have any relevance at all.

The nub of this case is that the 1955 regulation almost certainly was not framed with the present situation in mind. The difficulties of applying a regulation meant to apply to situations involving a limited number of procedural steps to an administrative action taken in 1953 which evoked an unfavorable judicial response in 1959 and has led to further administrative and judicial pro*167ceedings still not terminated in 1964, have not unnaturally led both sides to take positions which are not clearly justified by the regulation. It may well be that the Department of Defense should, and perhaps could, not reasonably apply the requirement of present eligibility, sensible and certainly contemplated in the ordinary situation, to this case, where the present is so far removed from the relevant past and where current eligibility is no longer an issue. On the other hand, it is by no means obvious that a procedural default in the revocation of clearance automatically entitles the petitioner to restitution. The Government’s liability depends on the infliction of actual harm and not simply on the commission of an error of law.2

The controlling point in the present posture of these proceedings is that the petitioner has not brought himself under the governing regulation as it is now construed by the department charged with its application. Well-accepted rules governing judicial review of administrative decisions require that the courts not intervene at this stage.3 See Myers v. Bethlehem Shipbuilding Corp., 303 U. S. 41; Aircraft & Diesel Equipment Corp. v. Hirsch, *168331 U. S. 752, 767-768.4 It may be that if the petitioner followed the administrative path still open to him, he would be found entitled to all that he demands under the department’s construction of the regulation. Or it may be that in the context of actual proceedings the department would modify its interpretation of the regulation. This might obviate the need for an interpretation by this Court and would in any event give assurance that those most concerned and informed about the regulation had been afforded an opportunity to adjust the various interests involved in this case.

The Court’s short-circuiting of controlling principles is needless and unwise. I would remit the petitioner to his administrative remedy.

As was pointed out in my opinion concurring in the 1959 decision, there was “nothing in the Court’s opinion which suggests that petitioner must be given access to classified material.” 360 U. S., at 510.

Silver v. New York Stock Exchange, 373 U. S. 341, cited, ante, p. 162, but apparently not relied on by the Court, is, of course, far afield. That case decided that the Stock Exchange had committed acts which were violative of the antitrust laws and which were not insulated from illegality by the Securities Exchange Act. The plaintiff was suing a private defendant under the antitrust laws to recover actual damages.

Since the majority holds that the petitioner was entitled to present his claim in the Court of Claims and that the claim is valid, it would be inappropriate for me to consider whether under my view of the case the proper course would have been direct dismissal for want of jurisdiction; an answer to that question would require a consideration of the petitioner’s constitutional claims, not reached by the majority. See 28 U. S. C. § 1491.

Professor Davis states that “probably every court requires exhaustion [of administrative remedies] when the question presented is one within the agency’s specialization and when the administrative remedy is as likely as the judicial remedy to provide the wanted relief.” 3 Administrative Law 56-57. Those conditions are met in this case.