U.S. 308, 314; cf. Eccles v. People's Bank, 333 U.S. 426, 431-432.

CONCLUSION

We have been at pains to set forth our position in detail, because petitioner's Opposition reveals a gross misunderstanding of both the facts and our legal position on mootness. Petitioner has sought to create a strawman out of a congeries of bits and pieces. We believe that the Court should be informed of what has actually happened in this case. In addition, petitioner plainly desires to compel after-theevent adjudication of his case because he hopes that it will lead, for others, to the general legal rule he sponsors. But this approach is directly opposed to the whole federal judicial tradition. And we are frank to say that in any event we do not believe it a desirable practice, unless necessary to protect the claimant's own legal rights, for the Government to be forced to defend the legality of past administrative action which the administrators, on proper reconsideration of their administrative powers and discretion, have decided should be rescinded and changed and no longer kept in effect.

Respectfully submitted,

J. LEE RANKIN,
Solicitor General.

FEBRUARY 1959.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR PETITIONER

I. This Court Has Consistently Held Confrontation to Be a Minimum Requirement of the Procedural Due Process Imposed on All Governmental Action Affecting Substantial Interests

II. Security Hearings Without Confrontation Are at Once Inevitably Unfair and Wholly Unjustified by Any Tangible Governmental Interest

A. Without Confrontation Security Hearings and Determinations Are Inevitably Unfair and Wholly Arbitrary

(i) Lapse of time

(ii) Nature of charges

(iii) Danger of false accusation

(iv) Burden of proof

(v) Informants hidden from Hearing Boards

B. No Governmental Interest Is Served by Denial of Confrontation in Security Proceedings

1. Unmasking of Casual Informants.. 2. Unmasking of Professional Undercover Agents

III. This Court Need Not Resolve the Ultimate Constitutional Issue Since Congress Has Never Authorized the Unfair Hearing Procedure Prescribed by the Contested Regulation

IV. Petitioner's Case Presents a Justiciable Controversy
Which This Court Should Resolve

Conclusion

Appendix A

Appendix B

Cases

Allgeyer v. Louisiana, 165 U.S. 578

American Communications Ass'n v. Douds, 339 U.S. 382
American Power & Light Co. v. S.E.C., 329 U.S. 90

Anniston Mfg. Co. v. Davis, 301 U.S. 337
Bailey v. Richardson, 341 U.S. 918

Carter v. Kubler, 320 U.S. 243

Chicago, M. & St. P. R. Co. v. Polt, 232 U.S. 165
Coe v. Armour Fertilizer Works, 237 U.S. 413

Cole v. Young, 351 U.S. 536

Communist Party v. Subversive Activities Control Board, 351 U.S. 115

Cox v. New Hampshire, 312 U.S. 569
Cummings v. Missouri, 71 U.S. 277

Dennis v. United States, 341 U.S. 494
Ex parte Endo, 323 U.S. 283

Greene v. McElroy, No. 180, October Term, 1958, 254 F. 2d 944

Hagar v. Reclamation District, 111 U.S. 701
Hannegan v. Esquire, Inc., 327 U.S. 146

Harmon v. Brucker, 355 U.S. 579

In re Murchison, 349 U.S. 133

In re Oliver, 333 U.S. 257

Interstate Commerce Commission v. Louisville & Nashville R. Co., 227 U.S. 88

Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S.

123

Kent v. Dulles, 357 U.S. 116

Knights Templars' and M. Life Indem. Co. v. Jarman, 187 U.S. 197

Mesarosh v. United States, 352 U.S. 1

Meyer v. Nebraska, 262 U.S. 390

Mora v. Mejias, 206 F. 2d 377 (C. A. 1)
Morgan v. United States, 304 U.S. 1

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