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Law School Case Brief

Cafeteria & Rest. Workers Union v. McElroy - 367 U.S. 886, 81 S. Ct. 1743 (1961)


The control of access to a military base is within the constitutional powers granted to both Congress and the President. U.S. Const. art. I, § 8 gives Congress the power to provide and maintain a navy; to make rules for the government and regulation of the land and naval forces; to exercise exclusive legislation over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings; and to make all laws which shall be necessary and proper for carrying into execution the foregoing powers. Const. art. I, § 8. Broad power in this same area is also vested in the President by U.S. Const. art. II, § 2, which makes him the Commander in Chief of the Armed Forces. U.S. Const. art. II, § 2. 


The individual petitioner was a cook at a cafeteria operated by a private concessionaire on the premises of the Naval Gun Factory in Washington, D. C., which was engaged in the development of secret weapons and access to which was limited to persons having badges issued by the Factory's Security Officer. The contract between the Gun Factory and the concessionaire forbade the employment on the premises of any person who failed to meet the security requirements of the Gun Factory, as determined by the Security Officer. On the ground that the cook had failed to meet the security requirements of the Gun Factory, the Security Officer required her to turn in her badge and thereafter she was unable to work at the Gun Factory. After a request for a hearing before officials of the Gun Factory had been denied, the cook sued in a Federal District Court for restoration of her badge, so that she might be permitted to enter the Gun Factory and resume her former employment. The District Court granted defendants' motion for summary judgment and dismissed the action.


Was the civilian cafeteria employee entitled to be advised of the specific grounds for her exclusion on a military base, or to a hearing at which she might refute the charges, under the due process clause of the Fifth Amendment?




Affirming, the Supreme Court of the United States held that respondent commanding officer was authorized to deny civilian petitioner access to the installation under Article 0734 of the Navy Regulations and in light of the historically unquestioned power of a commanding officer summarily to exclude civilian tradesmen from the area of the officer's command. The Court also held that the Due Process Clause of U.S. Const. amend. V was not violated. Due process did not require that the civilian petitioner be advised of the specific grounds for her exclusion and be accorded a hearing, because government employment, in the absence of legislation, could be summarily denied.

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