120 WHITE, J., dissenting. I think Costello's is another case in which Congress could not have intended the unavailability of § 241 (b) procedures to bar deportation. Under the Court's view no denaturalized alien can be deported for the commission of two or more crimes while a citizen. Congress intended no such result. It intended, as § 241 (b) expressly says, to bar deportation only when there was a judicial determination of nondeportability. There is none here. In Costello's case, and those like it, the judge has no opportunity to exercise his power under § 241 (b) because the convicted defendant, actually an alien under the law, appears before him with a certificate of citizenship, obtained by his own fraud, and prefers to continue the masquerade and to claim the protections of citizenship. In these circumstances, the lack of judicial consideration of Costello's deportability should not be equated to a judge's determination of nondeportability. This is especially true here since Costello knew of the denaturalization proceedings which had been instituted against him prior to his two convictions for tax fraud." directed if the court, or judge thereof, sentencing such alien for such crime shall, at the time of imposing judgment or passing sentence... make a recommendation . . . that such alien shall not be deported." 17 The petitioner and the majority suggest that if petitioner had been an alien at the time of his trial he could have offered to plead guilty to one count of income tax evasion in return for a nolle prosequi on the remaining counts, thereby avoiding the possibility of being convicted for two crimes. This is unrealistic for two reasons. At the time of the trial, denaturalization proceedings were pending against petitioner. United States v. Costello, 145 F. Supp. 892, reversed, 247 F. 2d 384 (C. A. 2d Cir.), reversed, 356 U. S. 256. He was therefore aware of the deportation implications flowing from conviction on dual counts, and was in a position to bargain as he felt most advantageous to himself. And even more speculative than the question of what the petitioner might have done had conditions been different is whether the Government, with denaturalization proceedings pending against Frank Costello, would have agreed to a nolle prose qui which would foreclose the possibility of later deportation proceedings. WHITE, J., dissenting. 376 U.S. Since I find no inconsistency between the language, background and purpose of § 241 (a)(4) on the one hand, and implications from § 241 (b) on the other, I regard the Court's reliance on Fong Haw Tan v. Phelan, 333 U. S. 6, as misplaced. I have no quarrel with the doctrine that where the Court is unable to discern the intent of Congress, ambiguities should be resolved in favor of the deportee, but here there is a clear expression of congressional purpose. I would carry it out. Syllabus. GREENE v. UNITED STATES. CERTIORARI TO THE UNITED STATES COURT OF CLAIMS. No. 84. Argued November 21, 1963. Decided February 17, 1964. Following petitioner's successful challenge in Greene v. McElroy, 360 U. S. 474, of the revocation of his Government security clearance, he sought to recover for loss of earnings resulting from such revocation. Petitioner's claim was based in part upon a 1955 Department of Defense regulation providing for monetary restitution in cases where a "final determination" is favorable to a contractor employee. The Department took the position that petitioner did not qualify for monetary restitution under that regulation but offered to process his case under a 1960 regulation-issued while petitioner's claim was being processed-under which, before reimbursement would be allowed, an administrative determination had to be made that petitioner "would be" currently entitled to a security clearance. Petitioner neither required nor sought access authorization for classified information in his current employment. He then brought this action for restitution in the Court of Claims, but that court refused to pass on the merits pending petitioner's pursuit of his administrative remedies. Held: 1. Petitioner was entitled to compensation under the 1955 Department of Defense regulation. Pp. 160-162. (a) Petitioner's rights matured under the 1955 regulation. P. 160. (b) It would be unjustifiable to give the 1960 regulation retroactive effect, since that regulation had been issued after petitioner's claim had been asserted. P. 160. (c) The District Court's order on remand voiding all determinations adverse to petitioner had the effect of reinstating petitioner's security clearance between the time of his discharge and the District Court's expungement order, which constituted a "final" and "favorable" determination within the meaning of the 1955 regulation. Pp. 160-161. (d) Petitioner, having established the Government's improper denial of clearance by failure to provide fair procedures, can recover under the 1955 regulation “in an equitable amount for any loss of earnings during the interim resulting directly from a suspension of clearance" without assuming the additional burden of showing at 720-509 O-65-14 Opinion of the Court. 376 U.S. a later time, that if he had been afforded fair procedures he would have been able to demonstrate that he was entitled to access authorization to classified information. P. 161. 2. Since the right of petitioner to recover under the applicable regulation does not require a determination of his present eligibility, administrative remedies under the subsequent regulation, which would require such a determination, must be regarded as inappropriate and inadequate and therefore need not be exhausted. Pp. 162-164. Reversed and remanded. Eugene Gressman argued the cause for petitioner. With him on the briefs was George Kaufmann. J. William Doolittle argued the cause for the United States. With him on the brief were Solicitor General Cox, Assistant Attorney General Douglas, Louis F. Claiborne, Alan S. Rosenthal and Kathryn H. Baldwin. MR. JUSTICE GOLDBERG delivered the opinion of the Court. Petitioner, the prevailing party in Greene v. McElroy, 360 U. S. 474, comes to this Court for a second time. Prior to April 23, 1953, petitioner was employed by a private corporation producing mechanical and electrical parts for military agencies of the United States. On that date the corporation discharged him because of the revocation of his security clearance by the Department of the Navy. Following his challenge of this revocation, this Court held in 1959 in Greene v. McElroy, supra, that "in the absence of explicit authorization from either the President or Congress the respondents were not empowered to deprive petitioner of his job in a proceeding in which he was not afforded the safeguards of confrontation and cross-examination." Id., at 508. On remand the District Court, declaring that revocation of petitioner's security clearance was "not validly authorized," ordered that all rulings denying petitioner's security clearance be 149 Opinion of the Court. "expunged from all records of the Government of the United States." 1 In the interim between the security revocation and the District Court order, petitioner had found it necessary to take less remunerative nonsecurity employment. When, after the prolonged litigation, he obtained judicial relief in 1959, his current employment did not require and he did not seek access authorization. He then sought only to recover compensation for the unauthorized govern 1 The text of the District Court order, dated December 14, 1959, is as follows: "Upon the decision of the United States Supreme Court in this case (Greene v. McElroy, 360 U. S. 474) and the copy of the judgment and opinion of the Supreme Court heretofore filed with the clerk of this Court; and "It appearing that counsel for the respective parties have consented hereto, it is hereby "ORDERED that the action of the Secretary of Defense and his subordinates in finally revoking plaintiff's security clearance was and the same is hereby declared to be not validly authorized; and it is further "ORDERED that any or all rulings, orders, or determinations wherein or whereby plaintiff's security clearance was revoked are hereby annulled and expunged from all records of the Government of the United States." 2 In the prior litigation this Court noted that the Court of Appeals had concluded: "We have no doubt that Greene has in fact been injured. He was forced out of a job that paid him $18,000 per year. He has since been reduced, so far as this record shows, to working as an architectural draftsman at a salary of some $4,400 per year. Further, as an aeronautical engineer of considerable experience he says (without real contradiction) that he is effectively barred from pursuit of many aspects of his profession, given the current dependence of most phases of the aircraft industry on Defense Department contracts not only for production but for research and development work as well. . . . Nor do we doubt that, following the Government's action, some stigma, in greater or less degree, has attached to Greene." 360 U. S. 474, 491, n. 21, quoting 103 U. S. App. D. C. 87, 95-96, 254 F. 2d 944, 952-953. |