Opinion of FRANKFURTER, J. 359 U.S. I now dismiss you, and I dismiss you retroactively, effective September 1954." The Court disallows this significance to the second notice of discharge because it finds controlling meaning in the suggestion of the Government that the expunging from the record of any adverse comment, and the second notice of discharge, signified a reassertion of the effectiveness of the first attempt at dismissal. And so, the Court concludes, no intention of severance from service in 1956 could legally be found since the Secretary expressed no doubt that the first dismissal had been effective. But this document of 1956 was not a mere piece of paper in a dialectic. The paper was a record of a process, a manifestation of purpose and action. The intendment of the second notice, to be sure, was to discharge Vitarelli retroactively, resting this attempted dismissal on valid authority-the summary power to dismiss without reason. Though the second notice could not pre-date the summary discharge because the Secretary rested his 1954 discharge on an unsustainable ground, and Vitarelli could not be deprived of rights accrued during two years of unlawful discharge, the prior wrongful action did not deprive the Secretary of the power in him to fire Vitarelli prospectively. And if the intent of the Secretary be manifested in fact by what he did, however that intent be expressed-here, the intent to be rid of Vitarelli-the Court should not frustrate the Secretary's rightful exercise of this power as of October 1956. The fact that he wished to accomplish more does not mean he accomplished nothing. To construe the second notice to mean administratively nothing is to attribute to the Secretary the purpose of a mere diarist, the corrector of entries in the Department's archives. This wholly disregards the actualities in the conduct of a Department concerned with terminating the services of an undesired employee as completely and by 535 Opinion of FRANKFURTER, J. whatever means that may legally be accomplished. If an employer summons before him an employee over whom he has unfettered power of dismissal and says to him: "You are no longer employed here because I fired you last week," can one reasonably escape the conclusion that though the employer was in error and had not effectively carried out his purpose to fire the employee last week, the employer's statement clearly manifests a present belief that the employee is dismissed and an intention that he be foreverafter dismissed? Certainly the employee would have no doubt his employment was now at an end. Of course if some special formal document were required to bring about a severance of a relationship, cf. Felter v. Southern Pacific Co., 359 U. S. 326, because of non-compliance with the formality the severance would not come into being. But no such formality was requisite to Vitarelli's dismissal. This is the common sense of it: In 1956 the Secretary said to Vitarelli: "This document tells you without any ifs, ands, or buts, you have been fired right along and of course that means you are not presently employed by this Department." Since he had not been fired successfully in 1954, the Court concludes he must still be employed. I cannot join in an unreal interpretation which attributes to governmental action the empty meaning of confetti throwing. REGULATIONS OF THE ATOMIC ENERGY COMMISSION ATOMIC ENERGY COMMISSION SECURITY CLEARANCE PROCEDURES (10 CFR, Part 4) which there are questions of eligibility for AEC security clearance, involving: (a) Employees (including consultants) of, and applicants for employment with, the Atomic Energy Commission; (b) Those employees (including consultants) of, and those applicants for employment with, contractors and agents of the Atomic Energy Commission; (c) Access permittees and licenses of the AEC and their employees (including consultants) and applicants for employment; and (d) Those other persons designated by the General Manager of the Atomic Energy Coimmission. Sec. 4.3 Reference. The pertinent sections of the Atomic Energy Act of 1954 are as follows: Bec 141. Policy. It shall be the policy of the Commission to control the dissemination and disclosure of Bestricted Data in such a manner as to assure the common defense and security ・・・ Sec. 145. Restriction. (a) No arrangement shall be made under section 31, no contract shall be made or continued in effect under section 41, and no license shall be issued under section 103 or 104, unless the person with whom such arrangement is made, the contractor or prospective contractor, or the prospective licensee agrees in writing not to permit any individual to have access to Restricted Data until the Civil Service Commission shall have made an investigation and report to the Commission on the character, associations, and loyalty of such individual, and the Commission shall have determined that permitting such person to have access to Restricted Data will not endanger the common defense and security. (b) Except as authorized by the Commission or the General Manager upon a determination by the Commission or General Manager that such action is clearly consistent with the national interest, no individual shall be employed by the Commission nor shall the Commission permit any individual to have access to Restricted Data until the Civil Service Commission shall have made an investigation and report to the Commission on the character, associations, and loyalty of such individual, and the Commission shall have determined that permitting such person to have access to Restricted Data will not endanger the common defense and security. (c) In the event an investigation made pursuant to subsections (a) and (b) of this section develops any data reflecting that the individual who is the subject of the investigation is of questionable loyalty, the Civil Service Commission shall refer the matter to the Federal Bureau of Investigation for the conduct of a full field investiga tion, the results of which shall be furnished to the Civil Service Commission for its information and appropriate action. (d) If the President deems it to be in the national interest, he may from time to time cause investigations of any group or class which are required by subsections (a) and (b) of this section to be made by the Federal Bureau of Investigation instead of by the Civil Service Commission. (0) Notwithstanding the provisions of absections (a) and (b) of this section, a majority of the members of the Commission shall certify those speciße positions which are of a high degree of importance or sensitivity and upon such cartileation the investigation and reports required by such provisions shall be made by the Federal Bureau of Investigation instead of by the Civil Service Commis (f) The Commission shall establish standards and cifications in writing as to the scope and extent of Investigations to be made by the Civil Bervice Commiselen parsuant to subsections (a) and (b) of this section. Such standards and specifications shall be based on the location and class or kind of work to be dose, and shall, among other considerations, take into account the degres of importance to the common defense and security of the Bestricted Data to which access will be permitted; Bee. 161. General provisions. In the performance of its functions the Commission is authorized to: (a) Establish advisory boards to advise with and make recommendations to the Commission on the legialation, policies, administration, research and other matters: Provided, That the Commission issues regulations setting forth the scope, procedure, and limitations of the authority of each such board. (b) Make such studies and investigations, obtain such information, and hold such meetings or hearings as the Commission may deem necessary or proper to assist it in the administration or enforcement of this act, or any regulations or orders issued thereunder. For such purpose the Commission is authorized to administer oathe and afirmation, and by subpoena to require any person to appear and testify, or to appear and produce documents, or both, at any designated place. No person shall be excused from complying with any requirements under this paragraph because of his privilege against selfincrimination, but the immunity provisions of the Compulsory Testimony Act of February 11, 1893, shall apply with respect to any individual who specifically claims such privilege. Witnesses subpoenaed under this subsection shall be paid the same fees and mileage as are paid witnesses in the district courts of the United States. Bee. 4.4 Policy. It is the policy of the Atomie Energy Commission to carry out its responsibility for the security of the atomic energy program in a manner consistent with traditional American eoncepts of justice. To this end, the Commission has established criteria for determining eligibility for security clearance and will afford those individuals described in Section 4.2 the opportunity for administrative review of questions concerning their eligibility for security clearance. Criteria for Determining Eligibility for Sec. 4.10 Application of the criteria. (a) The decision as to security clearance is a comprehensive, commonsense judgment, made after consideration of all the relevant information, favorable er unfavorable, as to whether or not the granting of security clearance would endanger the common defense and security. If it is determined that the common defense and security will not be endangered, security clearance will be granted; otherwise, security clearance will be denied. (b) To assist in making these determinations, on the basis of all the information in a particular case, there are set forth in this part a number of specific types of derogatory information. These eriteria are not exhaustive but contain the prin cipal types of derogatory information which create a question as to the individual's eligibility for security clearance. While there must neem sarily be adherence to such criteria, the Com mission is not limited thereto, nor precluded from exercising its judgment that information or facta in a case under its cognizance are derogatory although at variance with, or outside the scope of, the stated categories. These criteria are subject to continuing review and may be revised from time to time as experience and circumstances may make desirable. (c) When the reports of investigation of an individual contain information reasonably tending to establish the truth of one or more of the items in the criteria, such information shall be regarded as substantially derogatory and shall create a question as to his eligibility for security clearance. However, when such information involves association with organizations or individ uals, which is the result of, and is limited to, normal business or professional activity or chance or casual meetings, Managers of Operations may determine whether such information is substantially derogatory. Managers of Operations shall refer cases involving substantially derogatory information to the Director, Division of Security AEC. The Director, Division of Security, AEC, may authorize the granting of security clear. ance on the basis of the existing record, or may authorize the conduct of an interview with the individual and, on the basis of such interview and such other investigations as he deems appropriate, may authorize the granting of security clearance. Otherwise, a question concerning the eligibility of an individual for security clearance shall be resolved in accordance with the procedures set forth in sections 4.20 et seq. of this part. (d) In resolving a question concerning the eligibility of an individual for security clearance, the following principles shall be applied by Personnel Security Boards: (1) Where there are grounds sufficient to es tablish a reasonable belief as to the truth of one or more of the items in Category "A," this shall create a presumption of security risk which, if not satisfactorily rebutted by the individual, shall result in an adverse recommendation. (2) Where there are grounds suficient to etablish a reasonable belief as to the truth of one or more of the items in Category "B," the extent of activities, the period in which such activities occurred, the length of time which has since elapsed, and the attitudes and convictions of the individual shall be considered in determining whether the recommendation will be adverse or favorable. Bec. 4.11 Derogatory information-(a) Category "A" derogatory information. Category "A” includes those cases in which the individual or his spouse has: (1) Committed or attempted to commit, or aided, or abetted another who committed or attempted to commit, any act of sabotage, espionage, treason or sedition; (2) Knowingly established an association with espionage or sabotage agents of a foreign nation; with individuals reliably reported as suspected of espionage or sabotage; with representatives of foreign nations whose interests may be inimical to the interests of the United States, with traitors, seditionists, anarchists, or revolutionists; (3) Held membership in any organization or group designated by the Attorney General pursuant to Executive Order 10450, as amended, provided the individual did not withdraw from such membership when the organization was so identified, or did not otherwise establish his rejection of its subversive aims; or, prior to the declaration by the Attorney General, participated in the activi ties of such an organization in a capacity where he should reasonably have had knowledge as to the subversive aims of the organization and did not establish his rejection of its subversive aims. (If an organization has been removed from the Attorney General's list, membership in the organization after such removal shall not be considered as Category "A" derogatory information but may be considered as Category "B" derogatory information.) (4) Publicly or privately advocated revolution by force or violence to overthrow the Government of the United States or the alteration of the form of Government of the United States by unconstitutional means; Category "A" also includes those cases in which the individual has: (5) Deliberately omitted significant information from or falsified his Personnel Security Questionnaire or Personal History Statement concerning a significant matter; (6) Wilfully violated or disregarded security regulations to a degree which would endanger the common defense and security; or intentionally disclosed classified information to any person not authorized to receive it; (7) Any mental illness of a nature which in the opinion of competent medical authority may cause significant defect in the judgment or reliability of the individual; (8) Been convicted of crimes indicating habitual criminal tendencies; (9) Been, or is, a user of drugs habitually, without adequate evidence of rehabilitation. (b) Category "B" derogatory information. In evaluating items under this category, the extent of the activities, the period in which such activities occurred, the length of time which has since elapsed, and the attitudes and convictions of the individual shall be considered. Category "B" includes those cases in which the individual or his spouse has: (1) Advocated Totalitarian, Facist, Communist or other subversive political ideologies and has not subsequently established his rejection of them. (2) Associated with persons falling within the provisions of Category "B"-1, subparagraph (1) of this paragraph, when the individual himself did not establish his rejection of such ideologies. (Ordinarily this will not include chance or casual meetings nor contacts limited to normal business or official relations.) (3) Affiliated with any organization or group designated in Category "A," paragraph (a) 3, of this section, provided the individual did not discontinue such affiliation when the organization was so identified or did not otherwise establish his rejection of its subversive aims; (4) Associated with any person falling within the provisions of Category "A," paragraph (a) 3, of this section, provided the individual did not discontinue such association when the organization was so identified or did not otherwise establish his rejection of its subversive aims. (Ordinarily this will not include chance or casual meetings nor contacts limited to normal business or official relations.) (5) Parent(s), brother(s), sister(s), spouse, or offspring residing in a nation whose interests may be inimical to the interests of the United States, or in satellites or occupied areas thereof (to be evaluated in the light of the risk that pressure applied through such close relatives could force the individual to reveal sensitive information or perform an act of sabotage); Category "B" also includes those cases in which the individual: (6) Refuses to serve in the Armed Forces when such refusal cannot be clearly shown to be due to religious convictions; (7) Has been grossly careless in failing to protect or safeguard any Restricted Data or other classified information; (8) Has abused trust, has been dishonest, or has engaged in infamous, immoral, or notoriously disgraceful conduct; (9) Is a sexual pervert or homosexual; (10) Is a user of alcohol habitually and to excess, or has been such without adequate evidence of rehabilitation; (11) Refuses, upon the ground of constitutional privilege against self-incrimination, to testify be |