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    Walter Clifton McNEILL, Appellant, v. Earl L. BUTZ, Secretary of Agriculture, et al., Appellees. Delores S. CANADY, Appellant, v. Earl L. BUTZ, Secretary of Agriculture, et al., Appellees.
    Nos. 72-2319, 72-2320.
    United States Court of Appeals, Fourth Circuit.
    Argued Feb. 6, 1973.
    Decided June 11, 1973.

      Charles B. Winberry, Rocky Mount, N. C., and Stephen H. Nimocks, Fayetteville, N. C. (Biggs, Meadows & Batts, Rocky Mount, N. C., and Anderson, Nimocks & Broadfoot, Fayetteville, N. C., on brief), for appellants.
    Jack B. Crawley, Jr., Asst. U. S. Atty. (Thomas P. McNamara, U. S. Atty., on brief), for appellees.
    Before WINTER and CRAVEN, Circuit Judges and BRYAN, District Judge.

       Sitting by, designation.

   WINTER, Circuit Judge:

Walter Clifton McNeill and Delores S. Canady, each of whom was a discharged employee of the Department of Agriculture, sued to effect their reinstatement to their prior federal employment and to recover back pay. In each case, the claim for relief was predicated upon the contention that the Department of Agriculture had violated plaintiff’s right to procedural due process in discharging him without permitting him the opportunity to confront and cross-examine his accusers. The district court granted summary judgment for the government in both cases because, (1) in McNeill’s case, the record indisputedly showed, by his own admission, that he engaged in illegal activities which justified his discharge, and (2) in Canady’s case, she had no right to a hearing at which she could confront and cross-examine her accusers, or in the alternative, that the government’s interest in her prompt and orderly discharge outweighed her right to this aspect of procedural due process.

We agree with respect to McNeill, and we therefore affirm in No. 72-2319. We disagree with respect to Canady and, hence, we reverse in No. 72-2320, and remand with directions to order her reinstatement and to assess damages.

I.

A. McNeill’s Case: McNeill was employed as a Compliance Supervisor for the Cumberland County, North Carolina office of the Agricultural Stabilization and Conservation Service (ASCS). He had held this position full-time for ten years and part-time for the four preceding years. He was a non-civil service employee who had no employment contract.

In 1969, an audit report prepared by the Inspector General of the Department of Agriculture disclosed certain irregularities in the Cumberland County ASCS office. The Inspector General conducted a further investigation and assembled his findings in two reports. These investigative reports named McNeill and Canady as malefactors.

On February 16, 1970, the North Carolina State ASCS Committee advised McNeill by letter that he was suspended as of February 17 for “impeding the effectiveness of ASCS program operations . and for failure to perform the duties of your employment.” 7 C.F.R. 7.29(b). The letter further specified the alleged acts which supported the charges: (1) that he improperly obtained the benefits of a tobacco lease without the agreement of the owner, one McDowell, in contravention of Department of Agriculture regulations which require agreement of the owner and approval by the ASCS county committee; and (2) that he “caused to be prepared” a CAP (Cropland Adjustment Program) agreement which entitled him to annual payments as the operator of a farm he had purchased six months earlier, in contravention of Agriculture regulations which extend CAP benefits only to those who had owned a farm for three years.

On February 25, McNeill requested a hearing, copies of the records pertaining to the investigation, and the right to examine his accusers. On April 8, 1970, the State Committee Office held a hearing at which McNeill made a personal appearance accompanied by counsel. At the hearing, McNeill’s counsel denied the allegations. McNeill submitted an affidavit from McDowell which stated that McDowell had agreed to and signed the tobacco lease. McNeill testified and admitted knowledge of the CAP agreement and receipt of a payment pursuant to it, but denied that he had caused its preparation. He stated that he would have terminated the CAP agreement had he known it was improper. It does not appear that the government proffered any evidence at the hearing. On April 29, the State Committee upheld McNeill’s dismissal.

In May, McNeill appealed his suspension to the Deputy Administrator of the ASCS in Washington, D. C. On July 9, four days before the appeal hearing, the government for the first time furnished McNeill’s counsel with selected excerpts of the audit and investigatory reports. These excerpts contained only government-prepared recapitulations of incriminating evidence, but included no affidavits or sworn statements or the identity of McNeill’s accusers. At the same time, the government advised McNeill’s counsel that he could not examine the government’s witnesses. At the hearing, McNeill’s renewed requests to examine the government’s witnesses and the complete investigative files were denied. McNeill presented four affidavits which tended to confirm his story. Again, it does not appear that the government proffered any evidence. In November, the Deputy Administrator affirmed McNeill’s suspension.

Thereafter, the State Committee discharged McNeill and permanently disqualified him from future employment as an ASCS committeeman or employee of the ASCS county committee. 7 C.F.R. 7.29(c). McNeill appealed his discharge to the Deputy Administrator, who affirmed it. McNeill, then brought this suit.

B. Canady’s Case: Canady was employed as a Production Adjustment Clerk for the Cumberland County ASCS. She had held the position for four years. She, too, was a non-civil service employee who had no employment contract.

After the audit and investigation, the State Committee advised her by letter that she was suspended for “failure to perform the duties of your employment and impeding the effectiveness of the tobacco program.” The letter alleged that Canady had mutilated two filed lease agreements, replacing them with agreements which contained erroneous information. On February 25, and again on March 27, Canady requested a hearing, copies of the records pertaining to the investigation, and an opportunity to confront her accusers. On April 1, the government advised that it would not make the investigative report available to her. On April 2, Canady again requested an opportunity to confront the witnesses against her, but the request was denied.

At the April 8 State Committee hearing, Canady testified, denying the specific allegations. Her renewed request to confront the government’s witnesses was again rejected. It does not appear that the government presented any sworn or other evidence. At no time did it disclose the identity of her accusers.

The State Committee upheld Canady’s dismissal. She appealed to the Deputy Administrator and again requested both confrontation and copies of the investigation and audit reports. On July 9, the government for the first time furnished her with selected excerpts of the reports, but denied her request for confrontation. Like those furnished McNeill, the excerpts contained only secondhand recapitulations of incriminating evidence, but not the identity of any government witnesses.

At the July 13 appeal before the Deputy Administrator, Canady placed in evidence her affidavit denying the specific allegations. The government proffered those excerpts from its investigative report which it had made available to Canady. On November 12, her appeal was denied. Thereafter, the State Committee discharged her and disqualified her from future employment as an ASCS committeewoman or as an employee of an ASCS county committee. The Deputy Administrator denied Canady’s subsequent appeal of her discharge. She then commenced this action.

II.

The fifth amendment enjoins the federal government from depriving any person of “life, liberty, or property, without due process of law.” McNeill and Canady urge that their discharge and permanent disqualification deprived them of liberty and/or property that the fifth amendment’s guarantee of procedural due process therefore applied, and that due process required that they be afforded an opportunity to confront and cross-examine their accusers.

The first issue presented is whether in these circumstances notions of procedural due process rights are applicable to the dismissal of a non-civil service federal employee who has no employment contract. Procedural due process rights attach where state action condemns a person to “suffer grievous loss of any kind.” Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 647, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring); Goldberg v. Kelly, 397 U.S. 254, 262-263, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Cf. Hannah v. Larche, 363 U.S. 420, 441-442, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960). The Supreme Court has recently addressed the question of procedural due process rights for untenured state employees in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). See Chitwood v. Feaster, 468 F.2d 359 (4 Cir.' 1972); Johnson v. Fraley, 470 F.2d 179 (4 Cir. 1972). Roth is controlling in this case. Sindermann is only of collateral interest, since it dealt primarily with the question of when a teacher, not having formal tenure, may claim quasi-tenure. No such claim is made in either of the instant cases.

In Roth, supra, the Court held that a non-tenured teacher who had been employed for one year had no due process right to a statement of reasons or a hearing on a state university’s decision not to renew his one-year contract, because non-renewal deprived him of neither “liberty” nor “property.”

Although the Court held that an ordinary dismissal or failure to reemploy does not infringe the broad guarantee of “liberty,” it explained that “[t]here might be cases in which a State refused to re-employ a person under such circumstances that interests in liberty would be implicated.” 408 U.S. at 573, 92 S.Ct. at 2707. The Court suggested that liberty might be implicated if the state made charges against the employee which “might seriously damage his standing and associations in his community,” as, for example, accusations of dishonesty, disloyalty, or immorality. Ibid. Thus, “liberty” is implicated and procedural due process is required when government action threatens an employee’s good name, reputation, honor, or integrity. Ibid. See Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971); Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952). Secondly, the Court explained that government dismissal may abridge liberty if it imposes a “stigma or other disability” which forecloses a discharged employee’s freedom to take advantage of other employment opportunities. 408 U.S. at 573, 92 S.Ct. 2701.

Applying these standards, we conclude that both McNeill and Canady had a right to some form of procedural due process because the government’s discharge for cause deprived them of “liberty” in the constitutional sense. The government accused McNeill of improperly obtaining the benefits of a lease and improperly procuring annual CAP payments. Neither averment states merely a technical violation of Agriculture Department regulations. On the contrary, the charges imply that McNeill defrauded a farm owner and the government. Similarly, the government accused Canady of substituting erroneous or fraudulent documents for ones she had mutilated. Again, the charges smack of deliberate fraud. These relatively serious accusations in effect allege dishonesty and thereby impugn plaintiff’s good name, reputation, honor, and integrity. Roth teaches that the fifth amendment would enjoin the government from so stigmatizing a dismissed employee without providing at least rudimentary due process, unless, of course, as we hereafter discuss with regard to McNeill, the dismissed employee admits his guilt. 408 U.S. at 573, 92 S.Ct. 2701. See Peters v. Hobby, 349 U.S. 331, 351, 75 S.Ct. 790, 99 L.Ed. 1129 (1955) (Douglas, J., concurring); Johnson, 470 F.2d at 185 (Boreman, J., concurring) .

The State Committee permanently disqualified both plaintiffs from future ASCS employment. Roth advised that if the state university in that case had barred the teacher from “all other public employment in state universities ., this . . . would be a different case. For ‘[t]o be deprived not only of present government employment but of future opportunity for it is no small injury.’ ” 408 U.S. at 573, 92 S. Ct. at 2707, quoting Joint Anti-Fascist Refugee Committee, 341 U.S. at 185, 71 S.Ct. 624 (Jackson, J., concurring). No proof was adduced at trial regarding the plaintiffs’ future employment prospects. Although disqualification from ASCS may be a rather narrow disability, we can safely surmise that the stigma attached to such disqualification will effectively foreclose other government employment opportunities. We think it fair to assume that plaintiffs’ private employment prospects will also be prejudiced. Roth cautions that “[m]ere proof, for example, that his record of nonretention in one job, taken alone, might make him somewhat less attractive to some other employers would hardly establish the kind of foreclosure of opportunities amounting to a deprivation of ‘liberty.’ ” 408 U.S. at 574 n. 13, 92 S.Ct. at 2707. But that warning was written in the context of a facially neutral failure to re-employ. Therefore, ASCS disqualification may present the type of stigma or disability which Roth contemplated would deprive a discharged untenured employee of liberty. See Snead v. New York City Dept. of Social Services, 355 F.Supp. 764 (S.D.N.Y. 1973). However, since the undeveloped state of the record compels us to base our analysis more on supposition than on established facts, we decline to rest our decision that procedural due process rights attach solely on the ground of loss of future employment opportunities. Nevertheless, it seems certain that more than loss of good name, reputation, hon- or, and integrity is at stake.

Although we agree with the plaintiffs’ contention that their dismissal deprived them of constitutionally protected “liberty,” we reject their contention that they were deprived of “property” in the constitutional sense. Neither had an employment contract. Neither had any form of tenure. Although McNeill had served fulltime for ten years and Canady for four, longevity alone does not establish tenure. Sindermann, 408 U.S. at 601-602, 92 S.Ct. 2694; Johnson, 470 F.2d at 181; id., at 184 (Boreman, J., concurring). Neither plaintiff presented a scintilla of evidence demonstrating the requisite mutually explicit understanding with ASCS which might have supported a claim of entitlement to reemployment. Roth, 408 U.S. at 576-578, 92 S.Ct. 2701; Sindermann, 408 U.S. at 602-603, 92 S.Ct. 2694; Chitwood, 468 F.2d at 360.

In short, we conclude that in dismissing plaintiffs for the acts charged, the government deprived them of “liberty” by stigmatizing their standing and associations in the community. Therefore both had a fifth amendment right to procedural due process in some form, absent which the government could not discharge and disqualify them from ASCS service.

III.

Since we decide that plaintiffs had a right to procedural due process, we turn to the issues of the scope of the right, what it encompasses, and how it was denied. Both plaintiffs received notice, a hearing, and two appeals, but neither had an opportunity to learn the identity of, to confront, and to cross-examine his accusers. The government did supply them with excerpts from its investigative and audit reports, but did so only after the hearings before the State Committee..

Procedural due process is a necessary concomitant of a democratic government’s obligation to practice fairness. Joint Anti-Fascist Refugee Committee, 341 U.S. at 170, 71 S.Ct. 624 (Frankfurter, J., concurring); Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971). However, the requirements of procedural due process may flexibly be adapted to the demands of particular contexts. Joint Anti-Fascist Refugee Committee, 341 U.S. at 162-163, 71 S.Ct. 624; Morrissey v. Brewer, 408 U.S. at 481, 92 S.Ct. 2593. “[ Consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.” Cafeteria Workers, 367 U.S. at 895, 81 S.Ct. at 1748. Goldberg v. Kelly, 397 U.S. at 263, 90 S.Ct. 1011.

In various civil settings, the Supreme Court has stressed the critical nature of the right to confront and cross-examine adverse witnesses. In Goldberg v. Kelly, supra, the Court held that due process requires a state to permit a welfare recipient to confront and cross-examine adverse witnesses before it can terminate his welfare benefits. Id., at 267-268, 269, 90 S.Ct. 1011. The Court outlined the rudiments of due process, emphasizing the crucial function of confrontation : “In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.” Id., at 269, 90 S.Ct. at 1021. Goldberg quoted at length from Greene v. McElroy, 360 U.S. 474, 496-497, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959), a case which held that cross-ex-animation was required before a security clearance was revoked and the employee discharged:

Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination . . . This Court has been zealous to protect these rights from erosion. It has spoken out ... in all types of cases where administrative ... actions were under scrutiny.

The Court reaffirmed these principles in Morrissey v. Brewer, supra, which defined the scope of due process for parole revocations. The government must first hold a preliminary hearing soon after the parolee is taken into custody, and then hold a final revocation hearing within a reasonable period. At both hearings, the minimal requirements of due process mandate that the parolee have an opportunity to confront and cross-examine adverse witnesses “unless the hearing officer specifically finds good cause for not allowing confrontation.” Id., at 489, 92 S.Ct. at 2604. Thus, Goldberg and Morrissey, the Court’s most recent major elaborations of the minimum requirements of procedural due process, both signal the importance of confrontation where factual allegations are in dispute.

In Caulder v. Durham Housing Authority, 433 F.2d 998 (4 Cir. 1970), cert. denied 401 U.S. 1003, 91 S.Ct. 1228, 28 L.Ed.2d 539 (1971), we held that procedural due process required a public housing project to grant at least an informal hearing before it could evict a tenant. We further held that the hearing must include “an opportunity on the part of the tenant to confront and cross-examine adverse witnesses.” 433 F.2d at 1004. See Escalera v. New York City Housing Authority, 425 F.2d 853 (2 Cir.) cert. denied 400 U.S. 853, 91 S.Ct. 54, 27 L.Ed.2d 91 (1970).

In applying these governing principles to the circumstances before us, we conclude that the relative natures of the government function and the private interest do not permit the government to discharge these employees without providing notice and a hearing at which the employees can confront and cross-examine the government’s informers. In both cases, the propriety of dismissal hinged strictly on factual determination, and the evidence consisted primarily of individual testimony. Thus, these dismissals arise in a context where confrontation and cross-examination are paradigmatically useful in discovering the truth. See Snead, supra, 355 F. Supp. at 772.

We do not dispute that the government has a substantial interest in the efficient and orderly discharge of unsatisfactory employees. But this interest does not outweigh the employee’s interest in having an effective opportunity to challenge damning evidence and in preserving his job and reputation. As was said in Stanley v. Illinois, 405 U.S. 645, 656, 92 S.Ct. 1208, 1215, 31 L.Ed.2d 551 (1972):

The establishment of prompt efficacious procedures to achieve legitimate state ends is a proper state interest worthy of cognizance in constitutional adjudication. But the Constitution recognizes higher values than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy which may characterize praiseworthy government officials.

See Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). Cf. Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971).

Despite its concern for the efficient discharge of derelict employees, the Department of Agriculture has created considerable procedural burdens for itself, even in cases such as these which involve non-eivil service employees. See 7 C.F.R. 7.28-7.29. The government expends significant effort to provide a semblance of due process: notice, hearing, appeal. It is evident that this system already occasions considerable governmental inconvenience. The incremental physical burden of presenting the accusing witnesses for cross-examination upon the employee’s timely and good faith request would neither be crippling nor add a significant additional burden. We cannot accept the government’s contention that efficiency justifies its denial of the very legal device that a wronged employee requires most to preserve his position and good name. Without the right of confrontation, the process provided by the government here is mere “sound and fury, signifying nothing.”

The government further urges its interest in protecting and encouraging clandestine informers who will report employee misdeeds. Whatever the wisdom of fostering secret unchallengeable accusations in the government employee context, the cases do recognize this general governmental interest in other contexts. But see Hannah v. Larehe, 363 U.S. at 489, 80 S.Ct. 1502 (Frankfurter, J., concurring). Although Morrissey v. Brewer credits the government’s interest in protecting informers, it requires a specific finding of “good cause” as a condition to dispensing with confrontation. 408 U.S. at 489, 92 S.Ct. 2593. No such finding was made below. Moreover, if, as the concurring opinion of Justices Brennan and Marshall indicates, see n. 7, supra, the finding of good cause must be based on some degree of danger to the informer, we doubt that it could be made in these circumstances. Morrissey’s insistence on a specific finding in each case precludes reliance on a general government interest in fostering and protecting secret informers.

Finally, the government relies on Cafeteria Workers v. McElroy, 367 U.S. at 896, 81 S.Ct. 1743, where, in holding that a concession employee could be barred from a military installation for “security” reasons without a hearing, the majority stated: “The Court has consistently recognized that the interest of a government employee in retaining his job, can be summarily denied. It has become a settled principle that government employment, in the absence of legislation, can be revoked at the will of the appointing officer.” 367 U.S. at 896, 81 S.Ct. at 1749. We are not persuaded that this principle is now as firmly embedded in our jurisprudence as it may have been in 1961, or that the holding in Cafeteria Workers necessarily controls our decision.

First, Cafeteria Workers appears to rest to some extent on the supposed dichotomy between privileges and rights. Compare id., at 894 with id., at 895-896, 81 S.Ct. 1743. See A. Bickel, The Supreme Court 1960 Term, Foreword: The Passive Virtues, 75 Harv.L.Rev. 40, 73 (1961). The privilege/right dichotomy has since been discredited. Graham v. Richardson, 403 U.S. 365, 374, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); Morrissey, 408 U.S. at 481, 92 S.Ct. 2593.

Secondly, the cases which Cafeteria Workers cited support the quoted proposition, but did not squarely address the issue of procedural due process rights. Although these cases establish the government’s power to remove employees, none presented the Court with any opportunity to discuss the restraints which procedural due process might impose on the government.

In Vitarelli v. Seaton, supra, the Court did affirm the government’s power to discharge summarily a non-civil service employee without giving a reason. Id., 359 U.S. at 539, 79 S.Ct. 968. But the Court expressly reserved the “question of the constitutional permissibility of an administrative adjudication based on ‘confidential information’ not disclosed to the employee.” Id., at 540 n. 2, 79 S.Ct. at 973. See Greene v. McElroy, supra; Williams v. Zuckert, 371 U.S. 531, 83 S.Ct. 403, 9 L.Ed.2d 486, vacated 372 U.S. 765, 83 S.Ct. 1102, 10 L.Ed.2d 136 (1963). The Court’s disposition of Vitarelli highlights the distinction between the government’s unquestioned power to remove employees and restraints which due process may nevertheless impose on how that power may be exercised.

Thirdly, Cafeteria Workers was based in part on the Court’s perception that the employee’s injury was minimal. Id., 367 U.S. at 895-896, 81 S.Ct. 1743. See Willner, 373 U.S. at 103 n. 2, 83 S.Ct. 1175; Bickel, supra, at 73. There, the employee was merely barred from working at her employer’s concession at one particular military installation. She did not lose her job, and she remained free to work for her employer at other locations. The Court further explicated that the ban for “security reasons” did not “bestow a badge of disloyalty or infamy, with an attendant foreclosure from other employment opportunity . . . . For all that appears, the Security Officer . . . may have simply thought that [the employee] was garrulous, or careless with her identification badge.” Id., 367 U.S. at 898-899, 81 S.Ct. at 1750-1751. Although the Court’s estimate of the injury differed from the employee’s in Cafeteria Workers, there can be no dispute but that the instant plaintiffs were seriously aggrieved by their dismissals. The government branded them as dishonest, discharged them, and permanently disqualified them from ASCS employment.

Fourthly, the government interest advanced in Cafeteria Workers, the maintenance of national security at a Navy ordnance factory, exceeds that advanced here, and more clearly supervenes the competing interests of the employee. See Goldberg v. Kelly, 397 U.S. at 263 n. 10, 90 S.Ct. 1011.

Fifth, Cafeteria Workers may be read as holding only that the employee was not entitled to a hearing prior to being barred from the installation: “But to acknowledge that there exist constitutional restraints upon state and federal governments in dealing with their employees is not to say that all such employees have a constitutional right to notice and a hearing before they can be removed.” Id., 367 U.S. at 898, 81 S.Ct. at 1750 (emphasis added). Subsequent cases appear to put this gloss on Cafeteria Workers, placing it in that established line of cases which hold that in certain “extraordinary situations” the government can take summary action pending a later hearing. Boddie v. Connecticut, 401 U.S. at 378-379, 91 S.Ct. 780, n. 6; Goldberg v. Kelly, 397 U. S. at 263 n. 10, 264, 90 S.Ct. 1011.

Finally, the insular position of Cafeteria Workers, sandwiched chronologically between prior and subsequent cases which strained to avoid the constitutional due process issue, see, e. g., Greene v. McElroy, supra; Peters v. Hobby, supra; Vitarelli v. Seaton, supra; and Williams v. Zuckert, supra, enforces the impression that it is an exceptional case decided on its particular facts. See Bickel, supra, at 72. The Court’s subsequent development of the law of procedural due process confirms this impression. See Goldberg v. Kelly, supra; Boddie v. Connecticut, supra; Morrissey v. Brewer, supra; Board of Regents v. Roth, supra. See also Williams v. Zuckert, 371 U.S. at 533-536, 83 S.Ct. 403, 9 L.Ed.2d 486 (Douglas, J., dissenting).

We therefore conclude that in these circumstances, where untenured federal non-civil service employees are dismissed and permanently disqualified from future employment on the basis of secret charges which impugn their honesty and integrity, and where they have made timely and good faith requests to confront their nameless accusers, procedural due process requires that the government provide an opportunity to refute the charges by confronting and cross-examining such adverse witnesses, absent a specific finding that the government has “good cause” to protect its confidential informant with a cloak of absolute secrecy. See Peters v. Hobby, 349 U.S. at 350-353, 75 S.Ct. 790 (Douglas, J., concurring). As Justice Frankfurter so eloquently put it:

The heart of the matter is that democracy implies respect for the elementary rights of men, however suspect or unworthy; a democratic government must therefore practice fairness; and fairness can rarely be obtained by secret, one-sided determination of facts decisive of rights.

Joint Anti-Fascist Refugee Committee, 341 U.S. at 170, 71 S.Ct. at 647 (concurring opinion).

IV.

Both McNeill and Canady requested an opportunity to confront and cross-examine their accusers, but the government rejected their requests. It supplied only selected excerpts from its investigative and audit reports, at best anonymous double hearsay. Even these were supplied some time after the plaintiffs’ hearings before the State Committee.

McNeill, however, admitted, with respect to the second allegation against him, that he knew that the erroneous CAP agreement had been prepared, and that he received payment pursuant to it. He denied that he caused it to be prepared. With respect to this allegation, McNeill’s admission was sufficient to provide a basis for his dismissal. Thus, an opportunity to confront his accusers would have availed him nothing; he had become his own accuser. Since the ASCS could with perfect justification have discharged him for the admitted dereliction alone, we affirm McNeill’s dismissal.

Canady, on the other hand, stoutly denied the allegations against her. The government’s case was based on the investigative reports, which related the hearsay statements of nameless informers whom Canady could not confront or cross-examine. We cannot affirm a dismissal which took place under these circumstances, and accordingly we reverse with respect to Canady and remand for further proceedings consistent with this opinion. The district court should order her reinstatement and award her back pay with interest, except for any period that, in accordance with applicable regulations, she may have been suspended without pay awaiting a proper disposition of the charges against her. See Horton v. Orange County Board of Education, 464 F.2d 536 (4 Cir. 1972). Any award shall be reduced by any interim earnings she may have derived from other employment. Our reversal and remand are without prejudice to the right of the government to seek her discharge anew provided that it proceeds with full adherence to her right to procedural due process.

No. 72-2319 affirmed.

No. 72-2320 reversed and remanded.

      . This rule may have the ironic effect of encouraging the government to dismiss employees without articulating reasons, thereby increasing the opportunity for official arbitrariness or caprice, which is anathema to the due process clause. See Vitarelli v. Seaton, 359 U.S. 535, 538, 79 S.Ct. '968, 3 L.Ed.2d 1012 (1959), where the Interior Department first dismissed an employee for security reasons, and then, in order to avoid the more rigorous procedural requirements applicable to dismissals for security reasons, withdrew this notification and replaced it with one that omitted any reference to the reasons for dismissal. Cf. Cafeteria Workers v. McElroy, 367 U.S. 886, 899-901, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961) (Brennan, J., dissenting). But at least if it does, the opportunities of a discharged employee to obtain future employment will be less embarrassed than if he were discharged for reasons impugning his good name, reputation, honor or integrity.

      . Similarly, the Court did not foreclose the possibility that government dismissal of a non-tenured employee may infringe his protected “property” rights. For procedural due process rights to attach, the non-tenured employee must have more than an abstract need, desire, or unilateral expectation of future employment, he must have “a legitimate claim to entitlement to it.” 408 U.S. at 577, 92 S.Ct. at 2709.
      The companion case, Perry v. Sindermann, supra, held that the absence of a contractual or tenure right to reemployment does not necessarily defeat a teacher’s claim to procedural duo process. In so holding, the Court further refined the constitutional concept of property:
      “A person’s interest in a benefit is a ‘property’ interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing.” 408 U.S. at 601, 92 S.Ct. at 2699. But the employee must prove more than his “subjective ‘expectancy’ ” to establish the requisite understandings. Id., at 603, 92 S.Ct. 2694.

      . Cafeteria Workers, supra, is not contrary. It held that in certain circumstances the government need not provide notice and hearing before barring for security reasons an employee, who had no contract, from a concession which her employer operated on a sensitive military installation. Although this holding circumscribed the form of process due an employee in these circumstances, the majority implicitly assumed that procedural due process rights did at least in theory attach. Id., 367 U.S. at 899-900, 81 S.Ct. 1743 (Brennan, J., dissenting) . See infra pp. 323-325.

      . Indeed, we were advised in oral argument that the government is the major employer in Cumberland County, plaintiffs’ community of residence. Hence, disqualification from ASCS may effectively foreclose a significant percentage of the job opportunities available in their community.

      . For two centuries past, the policy of the Anglo-American system of Evidence has been to regard the necessity of cross-examination as a vital feature of the law. The belief that no safeguard for testing the value of human statements is comparable to that furnished by cross-examination, and the conviction that no statement (unless by special exception) should be used as testimony until it has been probed and sublimated by that test, has found increasing strength in lengthening experience.
      5 Wigmore on Evidence (3d ed. 1940) § 1367. Wigmore heralds cross-examination as the “greatest legal engine ever invented for the discovery of truth.” Ibid.

      . The Court did not reach the constitutional issue in Greene, but held only that neither the Executive nor Congress had authorized the Department of Defense to revoke the security clearance of an aeronautical engineer employed by a private firm at a private plant without affording him the procedural safeguards of confrontation and cross-examination. The Court employed the quoted language to explain why it would not lightly find such authorization.

      . In their concurring opinion, Justices Brennan and Marshall rephrased the test: “unless it is specifically found that the witness would therefore be exposed to a significant risk of harm.” 408 U.S. at 491, 92 S.Ct. at 2605.

      . See Willner v. Committee on Character & Fitness, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963), holding that one seeking admission to the bar to practice law has a due process right to confront witnesses adverse to his admission.

      . W. Shakespeare, MacBeth, Act V, so. 5, line 19.

      . Compare McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967) with Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). But cf. Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972).

      . Ex Parte Hennon, 13 Pet. 230, 10 L.Ed. 138 (1839), in effect approving the political spoils system, held that the judicial branch had the power to remove a district court clerk. The only issue was the power to remove an inferior officer without cause; there was no issue raised concerning procedural due process. Similarly, Crenshaw v. United States, 134 U.S. 99, 10 S.Ct. 431, 33 L.Ed. 825 (1890), merely upheld the power of the executive branch to decommission a Xavy officer without cause when the country’s need for officers diminished. Parsons v. United States, 167 U.S. 324, 17 S.Ct. 880, 42 L.Ed. 185 (1S97), upheld the President’s power to remove a United States Attorney prior to the expiration of his statutory term. In Keim v. United States, 177 U.S. 290, 20 S.Ct. 574, 44 L.Ed. 774 (1900), the Interior Department had dismissed a veterans preference civil service employee for inefficiency. The employee petitioned the court to review the substantive grounds of his dismissal, not any constitutional defects in process. The Court held only that federal courts would not review the executive’s exercise of discretion in dismissing the employee for the indicated substantive cause. Finally, in Taylor v. Beckham, 178 U.S. 548, 20 S.Ct. 890, 44 L.Ed. 1187 (1900), the Court held, in the context of a state election contest, that since public office was not property in the constitutional sense, the state election committee did not deprive a candidate of property when it awarded the election to his opponent.

      . See, e. g., Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088 (1950).


source: Caselaw Access Project

author: MULLIGAN, Circuit Judge: OAKES, Circuit Judge

license: Public Domain

text:
    The FIFTH AVENUE PEACE PARADE COMMITTEE, an unincorporated association, et al., Plaintiffs-Appellants, v. L. Patrick GRAY 3rd, Acting Director of the Federal Bureau of Investigation, et al., Defendants-Appellees.
    No. 546, Docket 72-1439.
    United States Court of Appeals, Second Circuit.
    Argued March 14, 1973.
    Decided June 12, 1973.
    Oakes, Circuit Judge, dissented and filed opinion.

      Arthur M. Handler, New York City (Donald D. Shack, Richard M. Resnik, Barry H. Mandel, New York City, and Burt Neuborne, New York Civil Liberties Union, New York City, of counsel), for plaintiffs-appellants.
    Daniel Riesel, Asst. U. S. Atty, New York City (Whitney North SeymourJr., U. S. Atty., S. D. N. Y., and Dennison Young, Jr., Asst. U. S. Atty., New York City, of counsel), for defendantsappellees Gray and Malone.
    Alan G. Blumberg, New York City (Szold, Brandwen, Meyers & Altman, New York City, of counsel), for defendant-appellee Amalgamated Bank.
    Before HAYS, MULLIGAN and OAKES, Circuit Judges.
   MULLIGAN, Circuit Judge:

This is an appeal by the Fifth Avenue Peace Parade Committee, Deborah D. Weisburd and Robert H. Silk, from a judgment of the United States District Court for the Southern District of New York, entered on February 16, 1972, after a non-jury trial before Hon. Harold R. Tyler, Jr., dismissing their complaint on' the merits. Essentially plaintiffs complained that an FBI investigation conducted immediately prior to the November 14-16, 1969 Moratorium Demonstration in Washington, D.C. and the dissemination of the FBI reports of this investigation to various other Government agencies, has and will continue to have a chilling effect upon the exercise of their constitutional rights and further constituted an illegal search and an invasion of privacy. Judge Tyler dictated his findings of fact and conclusions of law into the record at the conclusion of the trial. We affirm.

The Fifth Avenue Peace Parade Committee functioned as an umbrella organization for some one to two hundred anti-war groups in the New York metropolitan area. Its purpose was to organize meetings and demonstrations protesting the American military involvement in Southeast Asia. The Committee publicized its program widely in the press and through the distribution of flyers and leaflets. The work of the Committee was supported by contributions generally in the range of $1 to $10.

The Committee was deeply involved in the preparations for the November, 1969 Moratorium Demonstration in Washington, the purpose of which, as explained by the Committee’s Coordinator, Norma Becker, was “to make visible public opposition to the war in Vietnam and to dramatize public desire for withdrawal of American troops from Vietnam.” Several hundred “marshals” were recruited and trained to keep the demonstration safe and orderly. To provide transportation to Washington, the Committee hired some six hundred busses and three or four trains, and sold tickets to members of its various affiliated organizations and to the general public. The receipts from the ticket sales were deposited in a special account with the defendant Amalgamated Bank of New York (the “Washington Transportation Fund”).

In Washington another “umbrella” organization, the New Mobilization Committee, with which the Fifth Avenue Peace Parade Committee was affiliated, was conferring with Government officials about the logistics for the planned demonstration. The New Mobilization Committee attempted to keep the Government accurately apprised of the number of people expected to participate in the demonstration. It did this by soliciting frequent reports of the number of busses and trains chartered by the various anti-war organizations around the country. As might be expected the preliminary estimates continuously varied and eventually proved somewhat inaccurate.

The Washington Headquarters of the FBI initiated its own investigation, the purpose of which according to' the Special !Agent in charge, Philip H. Wilson, was “to know who was coming, how many were coming, mode of transportation, arrival, when they expected to leave Washington, any individuals that had a potential record of violence, or who might threaten the President’s life, or a Cabinet member, or anything of that nature.” The Bureau’s New York office was directed to determine the size, nature and scope of the local Moratorium activities. Special Agent Robert Casper, the coordinator of this local investigation, assigned Agent Constantinoto check the Washington Transportation Fund account to get an early estimation of how many buses and trains could possibly be hired by the Committee.. On November 6, Constantino visited the defendant Amalgamated Bank and was allowed to inspect the Fund’s new account sheet and signature cards and was advised the account’s opening balance. Although he did not request it, Constantino was orally given similar information about an account opened by the “Labor Committee to Support Washington Action” whose coordinator, Deborah D. Weisburd, is a named plaintiff in this class action.

Agent Constantino reported orally to his supervisor, Casper, that he had located the account, the amount of money it contained and the names of the individuals listed on the signature cards. The District Judge found that Constantino’s information was transmitted to the FBI’s Washington Headquarters. Constantino subsequently dictated a report of his findings on November 13; this report was transcribed on an FD-302 form on November 19. No agent attempted to examine or to copy any cheeks deposited in the Washington Transportation Fund’s account nor was any attempt made to compile a list of the checks’ drawers.

Casper had also assigned Agent Albert Faller to find out the number of busses reserved by the Fifth Avenue Peace Parade Committee and their departure points. Faller’s only inquiry was to the Allied Bus Company which gave him this information. On the morning of November 15, some fifty-six agents observed the bus departures, from 57 locations in New York City. Their “surveillance” consisted in counting the busses and the passengers leaving the city. The FBI made no attempt to photograph or to compile a list of the passengers. The information provided by the agents was immediately forwarded to Agent Wilson in Washington. Prior to and during the demonstration, the FBI’s Washington office disseminated the information its agents had gathered to various local and Federal governmental agencies in the Washington area. The Bureau’s New York office maintained a file for all the information it had collected on the Moratorium. In January 1970, a classified 200 page summary of that voluminous file was prepared and subsequently disseminated to various governmental agencies.

Plaintiffs learned of Agent Constantino’s visit to the Amalgamated Bank sometime after the Moratorium Demonstration when an official of the Allied Bus Company, who was attempting to have one of the Committee’s cheeks certified, was told that the FBI had investigated the Washington Transportation Fund account. He relayed this information to the Secretary of the Fifth Avenue Peace Parade Committee and its attorneys. These facts, in turn, were transmitted to various individuals who were involved in the Moratorium activities. On June 22, 1970 plaintiffs commenced this litigation by filing a complaint alleging, upon information and belief, that the FBI had examined and photocopied the bank records of the Washington Transportation Fund as well as checks deposited in that account; had compiled a list of persons who had paid for their transportation tickets by check; had examined and copied the records of the Allied Bus Company and had also learned the departure points of the busses from the New York area and photographed passengers as they boarded the buses. Finally they alleged that the FBI had these data, photocopies and photographs in its possession. By stipulation in the pre-trial order, the parties agreed to try the question of whether the dissemination of the information was justified in view of the purpose of the investigation, and the complaint was deemed so amended. See Fed.R.Civ.P. 15(b). Plaintiffs claimed that these actions by the Bureau (aided and abetted by the Amalgamated Bank) were an invasion of their constitutional right of privacy and constituted an unlawful search and seizure. They further claimed that these “acts . . . has [sic] and will restrict and inhibit the Individual Plaintiffs and the members of the Class from the lawful exercise of such rights, has and will place them in fear of repression and retaliatory acts by agencies of the United States Government and has and will intimidate, harass and have a chilling effect upon the Individual Plaintiffs and the members of the Class in the lawful exercise of such rights.” Plaintiffs sought both a declaration that the defendants’ conduct violated their constitutional rights, and an injunction directing the defendants to surrender or to destroy the data, photocopies and photographs allegedly obtained by the Bureau and enjoining the defendants from using these items “in any manner whatever.” Plaintiffs promptly called a press conference to announce the suit and reports of the litigation were contained in the N'ew York Times and eventually in the New York Post. Judge Tyler subsequently granted plaintiffs’ motion to allow the suit to proceed as a class action. After a five day trial in the middle of January and one day in February, Judge Tyler dismissed the complaint on the merits.

The plaintiffs’ position both at trial and on this appeal is that the FBI’s investigation was overbroad, unauthorized and illegal and that the dissemination of the information it had collected was unlawful. They further complain, inter alia, that the trial judge improperly refused to let them depose Agent John Malone of the FBI and to inspect either the previously mentioned file compiled by the Bureau’s New York office or the classified summary subsequently prepared.

We believe that this case is governed by Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972), and accordingly we affirm the judgment below on the ground that plaintiffs failed to present a justiciable controversy. In Tatum, the several plaintiffs, four individuals and nine unincorporated associations, sued on their own behalf and on behalf of all other individuals and organizations who wish to exercise their First Amendment rights “without fear of harassment, intimidation and injury resulting from investigation, surveillance and record keeping by military authority.” (Plaintiffs’ Complaint 5, Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972)). The complaint alleged that the intelligence agencies of the United States Armed Forces were continually engaged in the surveillance of lawful and peaceful civilian activity, that the information collected concerning the plaintiffs served no legitimate military purpose, was widely and indiscriminately disseminated and was stored in computerized data banks. It further alleged that a “blacklist” of potential troublemakers had been compiled. The plaintiffs claimed that the defendants’ activities inhibited and curtailed their free exercise of First Amendment rights and deprived them of their constitutionally guaranteed right of privacy. Since the Supreme Court was reviewing a motion to dismiss on the pleadings, the allegations of the complaint and of the supporting affidavits had to be accepted as true. Gardner v. Toilet Goods Ass’n, 387 U.S. 167, 172, 87 S.Ct. 1526, 18 L.Ed.2d 704 (1967); see 5 C. Wright and A. Miller, Federal Practice and Procedure § 1363 (1969).

The Court rejected the plaintiffs’ claim that the intelligence activities had a “chilling effect” upon the exercise of their First Amendment rights, for they were unable to point to any resulting direct injury or immediate threat of harm. “Allegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm; ‘the federal courts established pursuant to Article III of the Constitution do not render advisory opinions.’ United Public Workers v. Mitchell, 330 U.S. 75, 89, [67 S.Ct. 556, 91 L.Ed. 754] (1947).” Laird v. Tatum, supra, 408 U.S. at 13-14, 92 S.Ct. at 2325.

Appellants seek to distinguish Tatum but we are not persuaded that the proffered distinctions do anything more than establish that their case is considerably weaker than that of the plaintiffs in Tatum. Appellants here urge that in Tatum there was a general challenge to an existing system of military surveillance of civilian activities which created a chilling and inhibiting effect on the full expression of First Amendment rights. In the case at hand they claim that the intrusion was specific since it related to particular acts of specific Government agents. We fail to see what solace appellants find in making the distinction. The ongoing and pervasive military surveillance of civilian activity alleged in Tatum would seemingly create a more understandable apprehension of inhibition of First Amendment rights, than the ad hoc response of a civilian agency here to a major and massive demonstration in Washington, D.C. The historic revulsion of the American civilian for military intrusion in fact was a principal theme of Mr. Justice Douglas’s dissent in Tatum.

The danger of injury to person and property here was not only obvious to the Attorney General who the District Court judicially noticed, had the responsibility for coordinating Federal Government activities relating to civil disturbances and who relied principally upon the FBI, but it was also fully comprehended by the New Mobilization Committee which was exchanging information on a regular basis with the Department of Justice. The Committee moreover was in the process of recruiting and training 500 to 600 “marshals” to maintain safety and to avoid confrontations created by “hot-headed elements within the ranks of demonstrators

Beyond any reasonable doubt the FBI had a legitimate interest in and responsibility for the maintenance of public safety and order during the gigantic demonstration planned for Washington, D.C. In fact, had it been ignored the agency would be properly chargeable with neglect of duty. The suggestion that since the Committee was supplying the Department of Justice with information, total reliance should have been placed on it and law enforcement agencies should be content to sit back and only react to actual violence, is not persuasive. Cf. Anderson v. Sills, 56 N.J. 210, 265 A.2d 678, 684-685 (1970). No matter how peaceful the intent of its organizers, the assemblage of the vast throng planning to protest the Vietnamese action and to express their sincere and conscientious outrage, presented an obvious potential for violence and the reaction of the Government was entirely justifiable. That reaction was not to deter, not to crush constitutional liberties but to assure and to facilitate that expression and to minimize catastrophe which in the end would harm the cause of the plaintiffs more than the disruption or violence would injure the Nation. Hence we reject the argument that the specific intelligence operation complained of, presents a legal distinction from Tatum which benefits the appellants here. Our conclusion is to the contrary.

In Tatum as we have indicated, the Court found mere speculative apprehension of future misuse of information and hence no objective harm and no justiciable issue. This case is no different. There is no showing of any misuse of information and the plaintiffs’ allegations on information and belief with respect to photographs, check duplication and list compilation were not established and in fact disproved. The shivering here was self-induced. See Laird v. Tatum, supra, 408 U.S. at 13-14, 92 S.Ct. 2318, 33 L.Ed.2d 154; Finley v. Hampton, 473 F.2d 180 (D.C. Cir. 1972); Donohoe v. Duling, 465 F.2d 196, 201-202 (4th Cir. 1972); compare Handschu v. Special Serv. Div., 349 F.Supp. 766 (S. D.N.Y.1972). The specific activity of Agent Constantino by no means rose to the level of a constitutional invasion of privacy. “Thus far only the most intimate phases of personal life have been held to be thus constitutionally protected.” Rosenberg v. Martin, 478 F.2d 520, 524 (2d Cir. 1973). Nor do the appellants have a right to complain about the defendant bank’s voluntarily surrendering its own limited records to a government agency. See Donaldson v. United States, 400 U.S. 517, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971) ; Application of Cole, 342 F.2d 5 (2d Cir.), cert. denied, 381 U.S. 950, 85 S.Ct. 1803, 14 L.Ed.2d 723 (1965). Since the plaintiffs admittedly represented a broad political spectrum united only in a vigorous opposition to American troops in Vietnam, it is indeed difficult to imagine in the light of subsequent historic events, what misuse intelligence agencies might possibly make of whatever data was collected which might harm the plaintiffs.

The appellants argue further that in Tatum the Army intelligence network gleaned its information principally from public sources in contrast to the specific examination of bank records by Agent Constantino. Actually, the eleven volume collection here summarized in 200 pages, could not have been based on Constantino’s meager contribution. The Moratorium Demonstration was not clandestine, its very success depended upon the widest possible publicity. Bus departure points and availability of rail and other transportation facilities were broadly publicized and anonymity was never sought by its sponsors. The concern of the FBI was with numbers and transportation and the Bank inquiry was clearly related to that concern. The financial ability to charter busses to transport thousands of demonstrators was germane if any realistic appraisal of manpower was to be made. The argument that the FBI only ascertained the initial financial support of the group and that this information was not helpful or pertinent to make this estimate only emphasizes how minor the intrusion in fact was.

The argument is raised that there was no improper use of the data collected in Tatum but that there was widespread dissemination of the information collected here. This is not the fact. As previously noted, the Tatum plaintiffs alleged widespread dissemination, and Mr. Justice Douglas stated in his dissenting opinion: “the intelligence reports were regularly and widely circulated and were exchanged with reports of the FBI, state and municipal police departments, and the CIA.” Laird v. Tatum, supra, 408 U.S. at 26, 92 S.Ct. at 2332; see ACLU v. Laird, 463 F.2d 499, 502 (7th Cir. 1972), cert. denied, 409 U.S. 1116, 93 S. Ct. 902, 34 L.Ed.2d 699 (U.S.1973).

While the argument is made that the Army destroyed its records in the Tatum ease, there was no showing there that its distributees followed a similar course. The distribution here (see footnotes 3 and 4 supra) was appropriate in view of the responsibility of the various official agencies made privy to the reports. The only question raised as to the propriety of distribution is the inclusion of “Internal Revenue Service” which conjures up the spectre of tax audits and investigations. In fact there has been no claim that in the almost four years since the investigation there has been any taxpayer harassment or threat thereof. Moreover the concern of the demonstrators for the expenditure of tax revenues to support the military presence in Vietnam, justified the fear of IRS that its facilities in Washington would be a natural target of the wrath of those assembled.

In sum, although the plaintiffs here have singled out a particular and specific investigative incident, they have, as the court below found, failed to establish any specific harm, real or threatened. In our view they have failed to present a justiciable controversy and under Tatum we find no jurisdiction in the federal courts to entertain their action.

Neither do we find any reason to hold that Judge Tyler abused his discretion in limiting plaintiffs’ discovery. “It is the unusual and exceptional case where the determination of the trial court (in discovery of Government documents) is set aside.” Brown v. Thompson, 430 F.2d 1214, 1216 (5th Cir. 1970); Swanner v. United States, 406 F.2d 716 (5th Cir. 1969). In a declaratory judgment action, “the complaint must stand or fall on its own merits and cannot be used as a vehicle for searching out and discovering a right of action.” 5 C. Wright and A. Miller, Federal Practice and Procedure § 1238, at 204 (1969) (footnote omitted); Laird v. Tatum, supra, 408 U.S. at 14, 92 S.Ct. 2318.

Affirmed.

OAKES, Circuit Judge

(dissenting):

I

There has been detected a tendency in recent times to justify invasion of constitutional rights on the baf&is of national security. See Sullivan v. Murphy, 478 F.2d 938 (D.C. Cir., 1973) (participants and bystanders arrested in 1972 Washington May Day demonstration entitled to order expunging or restricting use of arrest records compiled during unlawful detention). The tendency has not been wholly recent, of course. See generally Developments in the Law — The National Security Interest and Civil Liberties, 85 Harv.L.Rev. 1130, 1133 (1972). Big Government has commenced from time to time with the objective of protecting the public’s security but in the process has infringed upon or invaded or jeopardized the only real security of the individual, the security provided by the Bill of Rights. Listed in the Great Bill as belonging to the public is “the righ[t] to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . . ,” under the express terms of the fourth amendment; implied is a “guarantee of certain areas or zones of privacy” under the first, or the fourth and fifth, or the ninth amendments, or the “penumbra” of the Bill of Rights. See Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (U.S., Jan.22, 1973). Included also among these precious rights of the “people” which have been threatened from time to time historically by ill-advised or, occasionally perhaps, malevolent governmental officials in the purported interests of “security” are rights set forth in the first amendment, not just of “the freedom of speech” but also the “right . peaceably to assemble, and to petition the Government for a redress of grievances.” From these rights expressly protected has been wisely and necessarily implied a right to freedom in political associations. See, e. g., Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293, 81 S.Ct. 1333, 6 L.Ed.2d 301 (1961); Bates v. City of Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960). These are the rights surrounding the basic freedom of thought, which carries with it in a democracy the right to protest the conduct of Government. That right o.f protest is one which has had some of its greatest challenges in the recent span of years during which this country has been involved in the most unpopular war of its history. See New York Times Co. v. United States, 403 U.S. 713, 717, 91 S.Ct. 2140/29 L.Ed.2d 822 (1971) (opinion of Black, J.). See also United States v. National Committee for Impeachment, 469 F.2d 1135 (2d Cir. 1972); Cortright v. Resor, 447 F.2d 245, 255 (2d Cir. 1971) (dissenting opinion), cert. denied sub nom. Cortright v. Froehlke, 405 U.S. 965, 92 S.Ct. 1172, 31 L.Ed.2d 240 (1972).

In the light of the above, I start with the premise — and I suspect the majority would not disagree with the premise, though the majority opinion commences at the other end of the rights-security spectrum — that a group, even a huge group, of people who want to go to the seat of government to protest a war and who do so peaceably have the right not to have their name (and hence their views against the administration or the Congress or the courts or the policies of any in relation to the war) listed in some dossier or table or catalog of protesters and disseminated throughout all the major branches of the “security system” of the United States. To this end, subsidiarily, they also have the right — or individual members of the group have the right — not to have their personal “papers and effects” unreasonably searched or examined.

More specifically, there is a constitutional guarantee absent some compelling state interest against compulsory disclosure of membership in or affiliation with a group — particularly a dissident group — that is exercising first amendment freedoms. As Mr. Justice Stewart said for the Court in Bates v. City of Little Rock, supra, 361 U.S. at 523, 80 S.Ct. at 416, “Freedoms such as these are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference.” As Mr. Justice Harlan said for the Court in NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462, 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488 (1958):

It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute [an] effective ... restraint on freedom of association. This Court has recognized the vital relationship between freedom to associate and privacy in one’s associations. . . . Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.

Bates, Patterson and Louisiana ex rel. Gremillion v. NAACP, supra, are the staunchest of authorities for the right of the members of the Fifth Avenue Peace Parade Committee to have remained anonymous and not to have had —for whatever purposes Big Government might wish to make further use of them — their names listed and kept in “security” agency files.

II.

At the other end of what I have called the rights-security spectrum is the duty of law enforcement agencies in the United States to make certain that the persons of government officials and the property of Government are protected against violence in any form. See Anderson v. Sills, 56 N.J. 210, 265 A.2d 678, 689 (1970). In this respect I agree wholly with the majority view that “Beyond any reasonable doubt the FBI had a legitimate interest in and responsibility for the maintenance of public safety and order during the gigantic demonstration planned for Washington, D.C.” I also agree completely with the Special Agent in charge, Phillip H. Wilson, that that duty included the duty “to know who was coming, how many were coming, mode of transportation, arrival, when they expected to leave Washington, any individuals that had a potential record of violence, or who might threaten the President’s life, or a Cabinet member, or anything of that nature.” In this respect the Bureau here was acting properly in attempting to determine the size, nature and scope of New York Moratorium activities and in attempting to obtain an estimate of the number of buses and trains that the Peace Parade Committee could hire. The Bureau was acting perfectly properly in observing the bus departures, counting the buses and the passengers leaving the city of New York, as well, of course, in making inquiry of the Allied Bus Company.

The court below found and, while there was a considerable absence of discovery below, I have no reason to doubt found properly, that the FBI made no attempt (A) to photograph the departing passengers; (B) to compile a list of the departing passengers; (C) to examine any checks deposited in the account of the “Washington Transportation Fund”; or (D) to compile a list of the persons who signed checks payable to that fund.

While the case would have been different if movies had been taken of the departing protesters, or if lists of passengers or contributors had been compiled, the FBI’s overall “surveillance” of the Moratorium activities in New York was perfectly proper and a legitimate exercise of governmental duty to ascertain how big the demonstration was likely to be and to observe whether there were any indications that violence might be in the offing. The fact of the surveillance, thus limited in methodology, was no infringement of rights.

III.

Thus this case boils down to two questions. The first is whether the listing by the agent who talked to the bank of the names of the individuals listed on the signature cards for the Washington Transportation Fund was improper, particularly if it was subsequently disseminated to other governmental, agencies, including the IRS. The second question is whether the subsequent dissemination by the FBI of a summary of its huge investigation to other agencies of government, including the IRS, operated as an infringement of protected rights. I answer both questions in the affirmative.

Concerning the first question, it is totally immaterial to the ascertainment of the number of protesters going to Washington to know or list the names of the people authorized to sign cheeks on the Washington Transportation Fund. In my view, it was perfectly proper for the FBI to inquire of the bank the amount of money in that account, since this was relevant to the number of buses that might be expected to be hired. To gather the names of the authorized signatoríes, however, is no different from ascertaining membership (or leadership) in a “group espous[ing] dissident .beliefs” struck down in Bates, Patterson and Gremillion, supra. If there were dissemination of such a list beyond the FBI, which we do not know (although we do know that the names remain in the FBI files), so much the worse. It is no answer to my mind to suggest as the majority seems to imply that the Committee wanted to publicize its program in the press and through flyers and leaflets or “to make visible” public opposition to the war; publicizing the Committee’s efforts and involuntarily listing the members are two different things. Cf. United States v. National Committee for Impeachment, supra. Nor is it any answer to say that this is a very small infringement or a very little interference with constitutional guarantees. As I have said in another context, “[e]ven a very little chill on a very big right is too much.” Cortright v. Resor, supra, 447 F.2d at 258 (dissenting opinion).

Concerning the second or dissemination question, the demonstration having ended peaceably, the protesters having gone home, the persons of government officials and the property of the Government having been secured, I can see no earthly reason why it was necessary for the FBI to disseminate its summary report to the IRS and assorted other intelligence agencies of the Government. It is said that this was done as “routine.” That may be so, but then it seems to me that the “routine” should be changed by order of the court, at least to the extent that the summary report included names of peaceable individuals involved in the demonstration; name listing was unnecessary to what is supposedly a routine intelligence report from one law enforcement agency of Government to another on how a given demonstration was handled. I would except from this, of course, any names of persons who engaged in or were thought to have engaged in any violence whatsoever. I include within it, however, the names of any persons who confined their Moratorium activity to the peaceful exercise of the constitutional rights above set forth. To the extent that the summary report sets forth the names of peaceable demonstrators, I would require that they be expunged. While the war in Vietnam is over, and some might suggest that this whole case is therefore moot, bombing in Southeast Asia proceeds and it may be yet that there will be another demonstration against governmental participation. The injunction that I would require be issued would prevent the infringement of constitutional rights in such event.

IV.

On the issue of justiciability, I distinguish Laird v. Tatum, 408 U.S. 1, 92 S. Ct. 2318, 33 L.Ed.2d 154 (1972), on the basis that the majority opinion there construed the complaint narrowly as containing no allegations of any specific misuse of data gathered by the Army Intelligence network, irrespective of the statements in the dissent to Tatum or how another court might have construed the allegations of the complaint. I cannot believe that Tatum validated clandestine electronic or photographic surveillance, see Donohoe v. Duling, 465 F.2d 196, 201 (4th Cir. 1972); rather I think the holding was “narrow [ly] ” limited to general surveillance without specific misuse of data. See Handschu v. Special Services Division, 349 F.Supp. 766, 769 (S.D.N.Y.1972) (Weinfeld, J.). See also The Supreme Court, 1971 Term, 86 Harv.L.Rev. 1, 131 (1972). Cf. United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972) (warrantless domestic security wiretap unlawful). Moreover, in the light of recent reports of Watergate-allied events, and the Senate Report, S.Rep. No. 524, 92d Cong.,' 2d Sess. (1972), by Senator Ervin’s Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, indicating that the Tatum majority seriously underestimated the size and scope of Army intelligence activities which included gathering public and private information on hundreds of thousands of “politically suspect” persons, one wonders also whether the Tatum case might not be qualified today. Thus I would decide the question of justiciability in the plaintiffs’ favor and also would give them standing. See National Student Association v. Hershey, 134 U.S.App.D.C. 56, 412 F.2d 1103, 1115 (1969); 83 Harv.L.Rev. 935, 938-939 (1970). The district judge has inspected the FBI’s “summary report” in camera and himself found nothing in it, with one exception, that demonstrates any underlying need for secrecy in respect to it. I would therefore order its disclosure on the basis that it does not come within the “investigatory files” exception to the Freedom of Information Act, 5 U.S.C. § 552, Frankel v. SEC, 460 F.2d 813 (2d Cir.), cert. denied, 409 U.S. 889, 93 S.Ct. 125, 34 L.Ed.2d 146 (1972), because here it is the governmental agency itself which is challenged as having engaged in unlawful conduct, and there is probable cause to believe that at least to a slight extent it did so.

I accordingly dissent.

      . The counsel to the New Mobilization Committee testified that just prior to the Moratorium weekend he told the Government personnel that his reports indicated some 250,000 people were expected to participate. At trial he estimated that between 500,000 and 750,000 were present on Saturday, November 15. Undoubtedly part of this discrepancy was due to the fact that not all demonstrators chose to use the transportation facilities provided by the various anti-war organizations.

      . The FD-302 contained the names of the officers of the Peace Parade Committee and of the Labor Committee to Support Washington Action who were authorized to sign cheeks for their respective organization’s account. The opening balance of each account was also listed. Both accounts were opened on October 29, 1969 — a few weeks before the Moratorium Demonstration.

      . The following agencies received information from FBI Headquarters prior to and during the demonstration: the Department of Justice, whose Attorney General oversees preparations for potential civil disturbances; the D.C. Metropolitan Police, who were charged with controlling traffic; Police Departments in various counties surrounding Washington, through whose jurisdictions the demonstrators were expected to pass; the Army’s 116th Military Intelligence Group, whose responsibility is to keep order during civil disturbances; the United States Secret Service, whose responsibility is to protect the President and the White House; the United States Park Service, which is charged with protecting parks and streets; the General Services Administration which has a general responsibility to protect Government buildings ; the State Department which has been 'the target of previous demonstrations and which has its own security force; the Navy and Air Force which protect their own installations and recruiting stations, and the Internal Revenue Service whose Security Division had inquired whether the Service would be a target of the demonstrators.

      . The summary report was disseminated by FBI Headquarters to the Secret Service, the Department of Justice, the Internal Revenue Service and the Office of Special Investigation of the Air Force. The Bureau’s New York office further disseminated the report to the Secret Service in New York City, the 108th Military Intelligence Group and the Naval Investigative Service in New York City.

      . Judge Tyler originally defined the class as
      All persons who purchased “Moratorium Day” tickets (as described in the complaint) and paid for same with their personal checks upon which their names and addresses were imprinted, and which checks were deposited in the so called “Washington Transportation Fund” account maintained at the Amalgamated Bank of New York.
      Plaintiffs Weisburd and Silk had purchased their transportation tickets with personal checks deposited in the Washington Transportation Fund account. Pursuant to Fed.R.Civ.P. 23 Judge Tyler subsequently redefined the class to include all individuals who were acting on behalf of the Fifth Avenue Peace Parade Committee or any of its affiliated organizations.
      In an opinion reported at 327 F.Supp. 238 (S.D.N.Y.1971), Judge Tyler ruled, inter alia, that the claimed deprivations of constitutional rights satisfied the amount in controversy requirement of 28 U.S.C. § 1331(a). In view of our disposition of this case, we need not pass on that issue. See Aguayo v. Richardson, 473 F.2d 1090, 1101-1102 (2d Cir. 1973).

      . The Tatum decision was announced on June 26, 1972, over four months after Judge Tyler directed entry of judgment dismissing the complaint on the merits.

      . The Tatum plaintiffs alleged:
      The information collected by the defendants’ agents is regularly, widely and indiscriminately circulated via military teletype maintained by defendants. This network provides every major Army troop command in the continental United States and military headquarters in Europe, Alaska, Hawaii and Panama with daily and weekly reports on virtually all political protest occurring anywhere within the United States.
      They further alleged:
      Defendants plan to make the information contained in the data bank, mentioned in the preceding paragraph, available to numerous federal and state agencies upon request.
      (Plaintiffs’ Complaint ¶¶ 9 & 13, Laird v. Tatum, supra.)

      . Cases such as Hentoff v. Ichord, 318 F.Supp. 1175 (D.D.C.1970), involving threats to generally publicize the information gathered, are not germane to the present case. As plaintiffs’ unsuccessful efforts to secure access to the FBI files indicate, the Bureau does not intend to make the information available for public inspection.


author: MARIS, Circuit Judge.

text:
    Sammy HARTHMAN, Appellant, v. Arthur WITTY (dba Arthur Witty Fort Mylner Shopping Center).
    No. 72-1711.
    United States Court of Appeals, Third Circuit.
    Argued Jan. 30, 1973.
    Decided June 19, 1973.

      Thomas W. Finucan, Bornn, McLaughlin & Finucan, Charlotte Amalie, St. Thomas, V. I., for appellant.
    Roger L. Campbell, Loud & Campbell, Charlotte Amalie, St. Thomas, V. I., for appellee.
    Before MARIS, VAN DUSEN and HUNTER, Circuit Judges.
   OPINION OF THE COURT

MARIS, Circuit Judge.

The plaintiff, Sammy Harthman, appeals from an order entered in the District Court of the Virgin Islands denying his motion for an assessment of damages at the rate of $50.00 per day against the defendant, Arthur Witty, for allegedly, in violation of an injunction, continuing to pollute a stream known as Turpentine Run. The controversy arises out of the following facts:

The plaintiff is the owner of land in Estate Charlotte Amalie in St. Thomas which he uses for the raising and pasturing of cattle. A stream, Turpentine Run, runs through the plaintiff’s land and he uses it to water his cattle. The defendant has a long-term leasehold interest in premises near Turpentine Run on which is a complex known as the Fort Mylner Shopping Center. The defendant owns and operates a sewage treatment plant to treat the sewage of the shopping center, the effluent from which flows into Turpentine Run above the plaintiff’s land. Alleging that the defendant was causing to be discharged into Turpentine Run sewage and poisonous, putrescent and noxious materials which polluted the stream and prevented the use of it to water his cattle, the plaintiff on September 24, 1969 brought suit against the defendant in the district court for an injunction and damages. Following a trial the court found that the defendant had been grossly negligent in knowingly operating an inadequate sewage treatment plant, which was designed to process 3,000 gallons of sewage per day but which was actually receiving from the occupants of the complex about 13,000 gallons per day. The discharge into Turpentine Run of the insufficiently processed effluent from the treatment plant, the court found, was polluting the stream and rendering its water unfit for consumption by the livestock of the plaintiff, thus interfering with his right as a lower riparian owner to receive the water in its natural purity and causing him damage. Accordingly, on May 13, 1971, the district court entered a judgment awarding damages, costs and attorney’s fees to the plaintiff and permanently enjoining the defendant “from further polluting or continuing to pollute the stream or water course known as ‘Turpentine Run’.” The judgment further provided that “Plaintiff shall be entitled to recover from Defendant the sum of $50.00 for each and every day that the pollution is allowed to continue from the date” of the judgment. The defendant thereupon paid the damages, costs and attorney’s fees thus assessed against him.

On July 1, 1971, less than two months after the entry of the judgment granting a permanent injunction against further pollution of Turpentine Run by the defendant, the plaintiff filed a motion for an award of damages at the rate of $50.00 per day, asserting that pollution of the stream was continuing. After a hearing on the motion the court on November 10, 1971 entered an order denying it and on June 16, 1972 denied a motion for reconsideration of that order. The appeal now before us followed.

The court’s action in denying the motion for damages was predicated on the following grounds. The court found that in the interim between the granting of the injunction and the filing of the plaintiff’s motion, the defendant had rectified the situation about which the plaintiff had initially complained by adding a new treatment plant for the disposal of the additional waste from the defendant’s property. Assuming, as the plaintiff alleged, that there was some current pollution caused by the improper operation of the new plant, the court did not view this as a continuation of the pollution previously enjoined, or think that the defendant was currently wantonly polluting the stream with full knowledge thereof and without making any attempt to correct the situation. Thus, the court held, the basis on which it had imposed the $50.00 per day penalty no longer obtained.

At the hearing on the motion it appeared that because a certain line had clogged at the new plant, water was being discharged into the stream from that plant containing more soapy waste than was within tolerable limits. It further appeared that this line had subsequently been unclogged and that the plant should thereafter be operating with the expected degree of efficiency. The court concluded that if that should be the case there was no need to consider whether a second injunction was needed, but that if the malfunction of the new plant should continue, it would be necessary for the plaintiff to institute a new and different action to restrain that pollution. The plaintiff could not rely, concluded the court, on a judgment based on one set of facts on which the court made certain findings and drew certain conclusions and exact the same damages and penalties in this new situation.

Thus the district court’s action was based on its conclusion (1) that the permanent injunction which it had entered applied only to the pollution originally complained of by the plaintiff and that if new and different pollution should, take place a new injunction would have to be sought by the plaintiff, and (2) on its view that in any event the penalty of $50.00 per day which it had provided for in the original judgment was applicable only to a continuance of the original pollution and did not apply to a new situation.

We think that the district court took too narrow a view in reaching its conclusion that the permanent injunction which was outstanding in this case applied only to the pollution of which the plaintiff originally complained. For the injunction was a permanent one and was drawn in the broadest terms. The defendant was “permanently enjoined from further polluting or continuing to pollute the stream or water course known as ‘Turpentine Run’.” While it is perfectly clear that a court of equity retains jurisdiction of a cause in which it enters a permanent preventive injunction and may at any later time modify or vacate the injunction if it is just and equitable to do so, even though that right has not been expressly reserved in the judgment, it follows as a necessary corollary that until thus modified or vacated a permanent injunction continues to be binding in accordance with its terms upon those to whom it is directed and must be obeyed in spirit as well as in letter. Here, as we have seen, the injunction was in the broadest terms. The defendant was permanently enjoined by it from further polluting or continuing to pollute. This clearly prohibited the defendant from causing any and all pollution of Turpentine Run of any kind and from whatever source, so long as the injunction remained in force, as it has continued to do, in unmodified form. Under these circumstances a second injunction was unnecessary and it would have been the duty of the court to refuse to grant it. We «conclude, therefore, that the court erred in holding that the existing injunction did not prohibit the new type of pollution of which the plaintiff complained in his motion of July 1, 1971 and that a new suit would have been required to secure relief with respect to it.

This is not to say, however, that the court was required, if it found such pollution to have continued in violation of the injunction, to impose, without more, the penalty of $50.00 per day provided by the original judgment. The court stated that this penalty had been fashioned in the light of the gravity of the defendant’s original pollution and was intended to be imposed only if that particular pollution continued. We are satisfied that the court did not err in holding that this per diem penalty was not necessarily applicable to a new and different pollution such as that alleged by the plaintiff in his motion of July 1, 1971. For the fashioning by a court of equity of the remedy for the violation of an injunction, whether by way of imposition of a penalty for contempt or otherwise, is a matter peculiarly within the discretion of the court to be determined in the light of the gravity and wilfulness of the particular violation complained of and the resulting injury to the property and right of the plaintiff, and is not to be determined absolutely by a penalty which may have been prescribed in the original judgment for its violation.

We conclude that the order denying the plaintiff’s motion for the imposition of damages for the defendant’s alleged subsequent pollution should be vacated and the cause remanded to the district court to determine after hearing whether the defendant continued to pollute Turpentine Run after May 13, 1971 the date of the permanent injunction banning further pollution of the stream by him and, if so, to determine and apply such remedy for the violation as it may deem appropriate and just under all the circumstances.

The order of the district court entered November 10, 1971 will be vacated and the cause remanded for further proceedings not inconsistent with the opinion of this court.

      . Ladner v. Siegel, 1930, 298 Pa. 487, 494-497, 148 A. 699, 701-702; United States v. Swift & Co., 1932, 286 U.S. 106, 114-115, 52 S.Ct. 460, 76 L.Ed. 999; System Federation v. Wright, 1961, 364 2d 349; Annotations 68 A.L.R. 1180, 136 A.L.R. 765; 42 Am.Jur.2d, Injunctions § 334.

      . United States v. Swift & Co., 1932, 286 U.S. 106, 114, 52 S.Ct. 460, 76 L.Ed. 999; U.S. 642, 647-648, 81 S.Ct. 368, 5 L.Ed. Humble Oil & Refining Company v. American Oil Co., 8 Cir. 1969, 405 F.2d 803, 812.

      . Howat v. Kansas, 1922, 258 U.S. 181, 190, 42 S.Ct. 277, 66 L.Ed. 550; 42 Am.Jur.2d, Injunctions § 336; 43 C.J.S. Injunctions § 215.

      . Howard v. St. Louis-San Francisco Railway Company, 8 Cir. 1966, 361 F.2d 905, cert. den. 385 U.S. 986, 87 S.Ct. 598, 17 L.Ed.2d 448 ; 42 Am.Jur.2d Injunctions § 321; 43 C.J.S. Injunctions § 27b.

      . Yanish v. Barber, 9 Cir. 1956, 232 F.2d 939, 944; 43 C.J.S. Injunctions § 276.

      . Lawton v. Herrick, 1910, 83 Conn. 417, 76 A. 986.