MEMORANDUM IN REPLY TO PETITIONER'S OPPOSITION TO THE GOVERNMENT'S SUGGESTION OF MOOTNESS INDEX I. Petitioner's incorrect factual statements and assumptions II. Petitioner's clearance as a result of a general change in the Industrial Security Program III. The unlikelihood of further security proceedings against petitioner IV. This Court's jurisprudence on mootness, as applied to petitioner's case Accardi v. Shaughnessy, 347 U.S. 260 Ashwander v. Tennessee Valley Authority, 297 U.S. 288. Bracken v. Securities and Exchange Commission, 299 Bus Employees v. Wisconsin Board, 340 U.S. 416 Cole v. Young, 351 U.S. 536 Commercial Cable Co. v. Burleson, 250 U.S. 360 Gray v. Board of Trustees, 342 U.S. 517 McGrain v. Daugherty, 273 U.S. 135 Montgomery Wara & Co. v. United States, 326 U.S. 690 Cases Continued Panama Refining Co. v. Ryan, 293 U.S. 388 Peters v. Hobby, 349 U.S. 331 Rescue Army v. Municipal Court, 331 U.S. 549 Southern Pacific Co. v. Interstate Commerce Commis- Southern Pacific Terminal Co. v. Interstate Commerce St. Pierre v. United States, 319 U.S. 41 United Public Workers v. Mitchell, 330 U.S. 75 United States v. Amarillo-Borger Express, Inc., 352 United States v. Automobile Workers, 352 U.S. 567 United States v. Johnson, 319 U.S. 302 United States v. W. T. Grant Co., 345 U.S. 629 Defense Department Directive 5220.6: Paragraph 20 Paragraph 20d Paragraph 21b Paragraph 22a Paragraph 22c MEMORANDUM IN REPLY TO PETITIONER'S OPPOSITION TO THE GOVERNMENT'S SUGGESTION OF MOOTNESS In this reply to petitioner's Opposition to our memorandum suggesting that the cause is now moot, we shall (1) correct certain significant errors in petitioner's account of what has transpired in this case with respect to mootness; (2) show that the action recently taken in petitioner's case was the application of a new general rule, and not an arbitrary ad hoc effort to prevent judicial redress; (3) point out that there is no likelihood of petitioner's again being subjected to "secret" clearance proceedings under the Industrial Security Program on the basis of the information now or likely to be known; and (4) discuss the rules as to mootness which this Court has been consistently applying but which petitioner disregards. I. PETITIONER'S INCORRECT FACTUAL STATEMENTS AND ASSUMPTIONS Although petitioner's factual errors have no direct bearing on the legal problem of mootness, it is appropriate to correct the most significant of them at the 1504 outset.' The true facts will help to explain the latest administrative action in this case, as well as to dispel petitioner's exaggerated and unfounded fears of further proceedings. First, contrary to petitioner's surprising but repeated assertion (Opp. 9, 19 (fn. 8), 20), we did not intend to concede and did not concede in our memorandum on mootness that the petitioner may well be subjected again to security clearance proceedings.2 As shown in some detail, infra, pp. 4-15, the contrary is true. There is no likelihood that petitioner will once again be subjected to loss of his "secret" clearance on the basis of the information now available or anticipated. Second, petitioner recites a portion of the detailed amended statement of charges against him, and then implies that the final adverse findings of the Defense Department upheld each of these charges as stated 1 We refer, of course, not to the facts relating to the original adverse determinations or proceedings against petitioner, but to the facts relating to mootness which appear on the open record. We do not deal in this memorandum with petitioner's factual errors relating to the proceedings leading to the adverse rulings. 2 In asserting that the Government has made such a concession, petitioner misreads (Opp. 9) a sentence in our mootness memorandum (p. 7) which was designed to contrast the present case of a formal rescission of an administrative order with the mere cessation by a private party of injurious conduct which might recur. (Opp. 7, 31-32). This is materially inaccurate. The actual findings are set forth with particularity in the Defense Department's letter to petitioner dated October 13, 1958 (R. 120-124). Comparison of those actual findings with the amended charges (R. 68-75) shows that certain of the pertinent charges were not upheld; and the omissions are quite significant. For instance, there are no findings' (a) that petitioner lied when he said that he had never had a sympathetic interest in Communism, or (b) with respect to petitioner's alleged affiliation or association with the Socialist Workers Party (R. 122-123). And there are affirmative findings that in the latter part of petitioner's membership in the Communist Party (19421943) he "became actively and outspokenly opposed to certain Communist Party policies and Communist Party endorsed candidates for union office, and [he] stopped paying Communist Party dues and stopped attending Communist Party meetings", and that he was expelled from the Party in 1943 (R. 121). Further, there are no findings as to Communist membership or associations after 1943, and no findings at all of disloyalty. Third, petitioner repeatedly implies (Opp. 2, 6, 9, 18, 25, 27) that the Defense Department's final findings necessarily rested on acceptance of the information given by all "six secret informants" of whose existence he had been told (R. 102-104). But there is no such finding in the case; and it is commonplace in trials or hearings for the triers of fact to base their 3 The letter of October 13, 1958, makes it clear that, to the extent that affirmative findings were not made, the amended statement of charges was not sustained (R. 120). |