Cafeteria and Restaurant Workers Union, Local 473, Afl-Cio v. Neil H. McElroy Individually and as Secretary of Defense

DANAHER, Circuit Judge

(concurring) .

The dissenting opinion seems to condemn a majority of the court for the decision to rehear the case en banc. I am impelled to comment for I had dissented from Judge Edgerton’s opinion now annexed to Judge Fahy’s present text, as is my original dissent.

*186It has been fittingly observed that our power to rehear a case en banc should be exercised “sparingly,” particularly at the instance of one of the parties.1 “Moderation and self-restraint” control the exercise of our discretion in deciding such motions, but one criterion, at least, involves the effect of an erroneous opinion which may set a precedent for this Circuit.

Our dissenting brothers observe that after appeal in this case had been taken, none of the parties and no member of the division assigned to hear the case and no other member of the court requested that the case be heard en banc. Overlooked is the fact that a unanimous division of this court had decided our Greene v. McElroy on April 17, 1958,2 where the situation and the circumstances went far beyond those presented in the instant case. There was no slightest reason for any member of the court or for counsel for the parties to assume what course ultimately might be followed in the Greene case.

The Supreme Court granted certiorari in Greene v. McElroy on October 27, 1958.3 The instant case, before a division of the court differently constituted from that which had heard the Greene case, was argued February 19, 1959. The sitting division decided to await the action of the Supreme Court. Neither counsel nor any other member of the court then knew that we had done so, nor could any of us know that the Supreme Court on June 29, 1959 would hand down its decision reversing Greene v. McElroy.4

Not until August 21, 1959 during summer recess, with most of the judges-away, could it publicly be known that a. majority of the sitting division had concluded that the, instant case was deemed to be controlled by the Supreme Court’s-decision in Greene v. McElroy. When Government counsel saw the opinion of the majority, a motion for rehearing en-banc was promptly filed.

After our judges had returned for the Fall sessions of the court and had had an opportunity to read the majority opinion, with the opposing dissent, and to consider the Government’s pending motion,, the case was ordered on for argument before the full court on November 9, 1959..

What did the record disclose? A private corporation had had a contract with the United States Government to operate-a cafeteria in the Naval Gun Factory,, owned by the United States. The contractor, M & M Restaurants, Inc., had as-oné of its employees, Rachel Brawner. As a cook, like other private, non-Government personnel, she was privileged to-enter upon the premises of the United States Government only while in possession of a badge of identification, required by naval regulations.

The Board of Governors at the Naval Gun Factory had been notified by the-Navy’s security officer that Rachel Brawner “would have to surrender her Naval Gun Factory badge and would not be permitted to enter the Naval Gun Factory until clearance is certified by the Security Officer.” (Emphasis added.) Mr. Baker, representing M & M, was requested to return Mrs. Brawner’s badge, and *187lie did so. ' Mr. Baker informed Mrs. Brawner that he had picked up her badge '“for security reasons.” 5

The appellant union instituted arbitration proceedings, extensively conducted thereafter. It was then brought out that the union represents 2,000 members who are privately employed by restaurants in -Government buildings and 600 members who are commercially employed in cafeterias and restaurants in this area. One ■of the arbitrators, Samuel H. Jaffe, Esquire, of the firm of Jaffe and Dunau, •dissented from the arbitration award. He argued in his dissent against the determination by those in command that Mrs. Brawner did not meet “basic re■quirements and thus her pass was revoked.” He pointed out that there is “no greater threat to the very existence of a •labor organization, than to permit an employer the unilateral action it has indulged here.” (Emphasis added.) He further assailed the action of the security ■officer as “in execss of his authority or under authority not validly conferred. For otherwise no government employee ■could ever have successfully challenged his ouster from public employment on ■security grounds: the government could ■simply answer his protest by saying that the government cannot be required to permit him to work in a building it owns ■and from which his entry could be barred.”

As will be seen from the majority opinion of the sitting division, Judge Edger-ton adopted the position urged by Mr. ■Jaffe. He found the naval officer’s order invalid in terms of Greene v. McElroy as lacking safeguards of confrontation and ■cross-examination, and “if,” he said, “if” Navy regulations purported to justify the order, the regulations “as in the Greene case" were likewise similarly deficient. He adopted the analogy offered by Mr. Jaffe that the Government might “deprive government employees of their jobs on similar grounds, without giving them a hearing, by simply excluding them from the places where they work.” Of course, we were not dealing here with a Government employee. Again, even Government employees in unprotected status may be dismissed out of hand. They have protected employment rights only if and when Congress confers such rights.

Thus, as our judges examined the record, it became apparent that there is much more to the problem than at first seems to meet the eye.

Mrs. Brawner’s employer, M & M, offered her other employment at a different installation operated by it. She refused. That there are scores of privately operated concessions in Government buildings is common knowledge. It is reasonable to assume that private employment as a cook may be available in hundreds upon hundreds of restaurants and cafeterias in the Washington area. This is not a case of “barricading” Mrs. Brawner against employment, as the Supreme Court found had happened to Greene. But it is a case of the union insisting that it may place and keep one of its members in a private employment status in a particular job, in a particular place on Government property even when Government authorities direct that access be denied “until clearance is certified by the Security Officer.”

Never to my knowledge had there been such a challenge to the Government’s right to protect its own Navy installation. Throughout our history, the authority of a Navy commandant had not been questioned as he exercised controls over those seeking or claiming the privilege of access to Government property in his charge. I dissented from the majority views. For one thing, I thought the Commandant independently possessed the power he asserted. Again, to the extent that a majority of the sitting *188division found that the Navy regulations, if relied upon, might have been invalid, I particularly sought to “dissociate myself from the suggestion that invalidity implicitly turns upon whether, in application, provision has been made for ‘confrontation and cross-examination’ of sources whose reports may have led to revocation of the privilege of access to the Government’s enclave.”

I believe a privately employed worker hired by a Government contractor may enter upon Government property only as a matter of privilege which may be accorded or withdrawn as those lawfully charged with responsibility for maintenance of the property may prescribe. I believe no hearing need necessarily be required. To illustrate, I believe confrontation by accusers and a right of cross-examination are not essentials to a valid revocation of “passes” permitting lawyers to use the Supreme Court library, or passes to visitors to the White House, or to employees of public utilities and other contractors servicing Government buildings. It might seem that any of many indiscretions or, specifically a food-handler’s personal habits, could prompt such revocation. Even though a privately employed person has no authorized access to a file room in a highly sensitive naval gun factory, if such a person without authorization should be observed in that file room, I think the security officer may order a suspension of the privilege of access pending clearance. I think that officer lawfully might demand that the employer transfer or otherwise deal with the employee without granting confrontation by accusers or a right to cross-examination of them. Even if it were a Government employee in an unprotected status no hearing of any kind whatever would be required.6

Since the Government had had no opportunity to present its arguments in the light of Judge Edgerton’s application of Greene v. McElroy, a majority of the whole court decided to hear this ease en banc. We have no means of knowing whether the Supreme Court will take a case or not. We do know that, unless reversed, a majority opinion here establishes a precedent for this Circuit. If the views of the two judges were to bind the other seven judges comprising this court here at the seat of government, we would indeed be laying down a new rule of law to control the Government’s administration of its property.7

So we voted to rehear the case en banc and to consider the Government’s arguments. Some of the factors distinguishing this case from Greene may be summarized :

Here, unlike Greene, there was no showing that the cook could not get another position. On the contrary, her own employer offered her another job which she declined.

Here, unlike Greene, it was the Government’s own weapons producing property which was involved.

Here, unlike Greene where neither Congress nor Executive Order had authorized the particular procedure applied in Greene, we have the Constitution and the statutes expressly providing for control of military and naval establishments by officers selected for that responsibility. Indeed, Congress has made it a criminal offense for an unauthorized person to trespass upon the property.

Here, unlike Greene where an Industrial Security Clearance Program was challenged, we find a mere suspension of privilege of access “until clearance is certified” — and no regulation purported to authorize or to provide a right to a hearing.

*189Here, unlike Greene where a specially trained aeronautical engineer was typical of thousands who would potentially be deprived of private employment and “barricaded” against other work, we must balance the Government’s concern in its own protection in terms of excluding possibly undesirable employees of private contractors who may be employable elsewhere.

Finally, a majority of our judges may well have concluded that a majority of the sitting division had read into Greene what the Supreme Court said it had read out of it. Rehearing en banc was ordered because we believed Judge Edger-ton’s opinion might be erroneous. We all heard and considered the case and now decide that it was erroneous. Judge Fahy would have us reinstate an opinion which most of us believe to be erroneous. I am unable to subscribe to the view that to perpetuate error makes for sound judicial administration.

As I see it, the Supreme Court, the Judicial Conference of the United States and Congress support the position taken by a majority of the court. I think there is great “call for this court en banc to overrule the [erroneous] decision of the division” which first heard the case. I quite understand that there had been differing approaches in a circumstance such as this, but I think the problem has been solved, not only by 28 U.S.C. § 46(c) but by the Western Pacific Railroad case, Western Pac. R. Corp. v. Western Pac. R. Co.8

Before the Western Pacific Railroad case was decided, the late Chief Judge Stephens delivered a paper before the District Bar Association, pointing to our practice of furnishing the draft opinion of a sitting division to the other members of the court. He listed cases9 where the court had sat en banc after Congress had adopted 28 U.S.C. § 46(c), tracing recognition of its power to do so back to Textile Securities Mills Corp. v. Com’r, supra note 8.10

In the Conference of Senior Circuit Judges meeting on October 1, 1938, with *190Chief Justice Hughes presiding, Judge Stone of the Eighth Circuit brought up the question “of determining how many judges will sit in a given case.” The Chief Justice asked: “* * * would it meet your point if the statute provided that the court shall consist of three judges unless in the opinion of the majority of circuit judges a larger court or a court of a greater number of judges at any time shall be deemed desirable?”11 Following discussion, Judge Wilbur moved and the Conference adopted in substance, the proposal that Congress be asked to legislate that a majority of the circuit judges might provide for a court of more than three judges when in their opinion unusual circumstances make such action advisable. The Conference so recommended, in 1938 and each successive year, until in 1941, the House adopted H.R. 3390. Its report No. 1246 12 drew upon a letter from Judge Biggs dated February 14, 1941, reporting the recommendation of the Judicial Conference that Congress act favorably on the measure. Judge Biggs noted that the Conference •deemed it advisable that all the active and available judges of the circuit should be included “to avoid any ground for suspicion that particular judges of the court, more than three but less than all, were selected to bring about a particular decision.” 13 He added: “It was to avoid the determination of decisions by a minority of judges, although in the utmost good faith, that did not represent the judgment of the court as a whole, that the measure was recommended by the Judicial Conference * * *.”

The Senate in 1941 had before it S. 1053, the counterpart of the House measure. The Judicial Conference in special session in January, 1941, had recommended its passage. Administrator Chandler at the April hearings presented the favorable views of the Judicial Conference, quoting, in part, from a letter reflecting the Conference position:

“Many cases are of a highly controversial nature and permit, not unreasonably, diverse views of the law. We think that if there be a controversial case a majority of the court should not be bound by a decision of two members, particularly if the other members of the court are plainly of the opinion that the question is of such importance that they desire to have their say in regard to what they think the law is.” 14

Such was the background as reported by the senior circuit judges themselves for the ultimate adoption of 28 U.S.C. § 46(c). Congress cautiously examined the problem for many years in the light of Judicial Conference recommendations and Supreme Court pronouncements before codifying section 46(c).15

*191Of course we may — and most often do —decide not to resort to section 46(c). We may even refuse to do so altogether. We may then attempt to certify unresolved questions to the Supreme Court, but we may find them dismissed.16 We may let successive divisions develop a conflict within the circuit. Is that result to be desired? I reject any such course, and believe we should earnestly attempt to decide and thus to settle our own differences — by majority action of the whole court. And that is precisely what the Supreme Court has told us to do.

“[A] 11 but two Circuits have more than three Circuit Judges. This undoubtedly raises problems when one panel has doubts about a previous decision by another panel of the same court. * * * It is primarily the task of a Court of Appeals to reconcile its internal difficulties.”17

Rehearings en banc pursuant to section 46(c) in most cases have achieved definitive disposition of controversial and decisive differences. I do not regard as wasted the time so spent, particularly when we look back upon the multiple conferences and the often futile exchanges of memoranda as we othenoise have sought agreement. Reconciliation of deeply held views has sometimes presented an imponderable problem in courts other than ours. A determination here by en banc rehearing and decision seems to me a highly salutory course. In that spirit we approached this very case.

The dissenters here would “reinstate” the opinion of the sitting division. A majority of the whole court, all nine judges voting, deem it erroneous. We thus assert and exert the authority conferred by 28 U.S.C. § 46(c) precisely in furtherance of one of the important purposes of the legislation as recommended by the Judicial Conference and as recognized by Congress.18 We have acted under “a grant of power to order hearings and rehearings en banc and to establish the procedure governing the exercise of that power,” 19 as the Supreme Court recognized.

In that view condemnation of the present majority by two of our colleagues may seem inapropos. I concur in the opinion by Chief Judge Prettyman.

I am authorized to state that Chief Judge Prettyman and Circuit Judges *192Wilbur K. Miller, Bastían and Burger concur in my opinion.

. It may prove of interest to observe that there have been 72 such motions in the current court year and only 2 have been granted. Our Clerk’s records show as to motions for rehearing en banc filed by one of the parties: in the court year 1958-1959, 97 such motions were filed and we granted but 1; in the preceding court year, 84 such motions were filed and we granted but 2; in the court year 1956-1957, 48 such motions were filed but we granted none; in 1955-1956, 32 such motions were filed and we granted but 3; in 1954-1955, 35 such motions were filed and we granted none, while in the preceding year we granted but 1 of 21 motions. Thus, of 389 such motions in the last seven court years, only 9 have been granted.

. 103 U.S.App.D.C. 87, 254 F.2d 944.

. 358 U.S. 872, 79 S.Ct. 110, 3 L.Ed.2d 103.

. 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377. Argument was had on April 1, 1959.

. Mr. Baker’s interpretation may not seem accurate. The notice indicated that Mrs. Brawner had become subject to further check. “Security” could mean many things. Mrs. Brawner might even have been personally insanitary in her food handling and had so become a risk. We have not been told just what prompted the further check on Mrs. Brawner.

. See Vitarelli v. Seaton, 1959, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012; Bailey v. Richardson, 1950, 86 U.S.App.D.C. 248, 182 F.2d 46, affirmed 1951, 341 U.S. 918, 71 S.Ct. 669, 95 L.Ed. 1352.

. We, ourselves, refused to permit members of a bar association to conduct evening moot court sessions in this court house, essentially on grounds of building security. If the privilege had in fact been granted, would wo have been precluded from revoking it without a hearing? and charges? and accusers? and confrontation and cross examination?

. 1953, 345 U.S. 247, 73 S.Ct. 656, 97 L.Ed. 986; views suggesting those held by Judge Eahy may be noted at page 265 of 345 U.S., at page 665 of 73 S.Ct. The Supreme Court already had stated otherwise in Textile Securities Mills Corp. v. Com’r, 1941, 314 U.S. 326, 62 S.Ct. 272, 86 L.Ed. 249. At page 335, of 314 U.S., at page 278 of 62 S.Ct. Mr. Justice Douglas wrote:

“Conflicts within a circuit will be avoided. Finality of decision in the circuit courts of appeal will be promoted. Those considerations are especially important in view of the fact that in our federal judicial system these courts are the courts of last resort in the run of ordinary cases. Such considerations are, of course, not for us to weigh in case Congress has devised a system where the judges of a court are prohibited from sitting en banc. But where, as here, the case on the statute is not foreclosed, they aid in tipping the scales in favor of the more practicable interpretation.”

And see Civil Aeronautics Board v. Am. Air Transp., 1952, 344 U.S. 4, 5, 73 S.Ct. 2, 3, 97 L.Ed. 4 where the Court told this circuit it “may now wish to hear this case en banc to resolve the deadlock indicated in the certificate and give full review to the entire case.”

. 20 Journal D.C. B.A. 103, 107, 108 (1953); at that time, 1953-1954, the Chief Judge made up the sitting divisions, assigning judges whose recognized differing viewpoints might be balanced in the consideration of each case. But since this court thereafter inaugurated the plan of choosing judges by lot, combinations of two particular judges holding similar “policy” views may occur with greater or less frequency, depending upon the dates they select for their assignments. Situations have arisen where a majority of the court has found itself at odds with particular opinions in cases as to which sua sponte, the full court has sometimes ordered rehearings en banc. See footnote 10.

. The following tabulation, relevant to footnote 9, discloses that the court has sua sponte ordered rehearings en banc as follows:

Motions Granted
1953- 1954 1 1
1954- 1955 9 5
1955- 1956 4 4
1956- 1957 8 8
1957- 1958 13 8
1958- 1959 4 4
1959- 1960 7 1

. Minutes of the Conference, p. 360.

. See footnote 14, Textile Securities Mills Corp. v. Com’r, 314 U.S. at pages 334-335, 62 S.Ct. 272, 278, 86 L.Ed. 249. The committee report deemed en tone consideration desirable. “It also will obviate the situation where there are seven members of the court and as sometimes happens a decision of two judges (there having been a dissent) sets the precedent for the remaining judges.”

. Letter on file, Administrative Office of United States Courts. Congress by the Act of August 3, 1949, 63 Stat. 493, 28 U.S.C. § 44, added three judges to this court. Three of our Circuit Judges received recess appointments on October 21, 1949.

. Hearings Before the Subcommittee of the Senate Committee on the Judiciary, 77th Cong., 1st Sess., re S. 1053, pp. 15-16 (1941). Additional legislative history may be found in Western Pacific Railroad case, supra note 8, particularly at page 254 of 345 U.S., at page 659 of 73 S.Ct. and footnotes 8 et seq.; and see En Banc Proceedings in the United States Courts of Appeals, 22 Geo.Wash.L.Rev. 482 (1954).

. Western Pacific Railroad case, supra note 8, at page 253, 254, of 345 U.S. at page 659 of 73 S.Ct.; and see Hearing and Rehearing Cases In Banc, D.C., 14 F.R.D. 91, 96-97 where Judge Maris wrote:

“A decision of a controversial question made by a majority of all the judges of the court in banc obviously has much *191greater authority than a decision by two concurring judges of a panel of three which all the other five judges of the court might consider quite erroneous. True such matters could be corrected by the Supreme Court on certiorari but that court should not have to resolve conflicts of decision within a single court. The procedure in banc enables the court itself to deal authoritatively with problems of this nature, thus relieving the burden of the Supreme Court. The Circuit Judges of the Third Circuit think that this procedure has been very helpful in maintaining the very high esprit de corps which they enjoy. For each of them knows that in any case in which they are seriously divided in opinion they will all have an opportunity to participate in the ultimate decision which the court is to make and which under the doctrine of stare decisis is to be binding upon them in future cases.”

. See, e. g., In re Burwell, 1956, 350 U.S. 521, at page 522, 76 S.Ct. 539, at page 540, 100 L.Ed. 666, where the Court hinted at its Western Pacific case, as pointing a route to decision; and Civil Aeronautics Board v. Am. Air Transp., supra note 8.

. Wisniewski v. United States, 1957, 353 U.S. 901-902, 77 S.Ct. 633, 634, 1 L.Ed.2d 658, and cases cited. And see, e.g., Starr v. United States, 1958, 105 U.S.App.D.C. 91, 264 F.2d 377, certiorari denied, 1959, 359 U.S. 936, 79 S.Ct. 652, 3 L.Ed.2d 639; Brown v. United States, 105 U.S.App.D.C. 77, 264 F.2d 363, certiorari denied, 1959, 360 U.S. 911, 79 S.Ct. 1299, 3 L.Ed.2d 1262.

. It is reasonable to suppose tbe Supreme Court will agree. It has told us “Our [its] general power to supervise the administration of justice in the federal courts * * * does not extend to disregarding a validly enacted and applicable statute or permitting departure from it * * United States v. Nat. City Lines, 1948, 334 U.S. 573, 589, 68 S.Ct. 1169, 1178, 92 L.Ed. 1584.

. Western Pacific Railroad case, supra note 8, 345 U.S. at page 267, 73 S.Ct. 656, at page 666.