Arthur Goldberg

“ Whatever petitioner's rights are, there can be no doubt they matured and were asserted under the 1955 directive. Not until six months after petitioner formally presented his claim to the Department of Defense did the Secretary of Defense issue a new, and substantially revised, regulation concerning 'monetary restitution.' Thus the Government's argument necessarily requires that the 1960 regulation be given retroactive application. ”

“ In the interim between the security revocation and the District Court order, petitioner had found it necessary to take less remunerative nonsecurity employment. [2] When, after the prolonged litigation, he obtained judicial relief in 1959, his current employmen did not require and he did not seek access authorization. He then sought only to recover compensation for the unauthorized governmental action, and to that end, shortly after entry of the court order, formally requested the Department of Defense to provide monetary restitution for his loss of earnings. ”

“ The directive's language does not reasonably warrant the implication that a claimant, who has sustained the burden of demonstrating that the Government acted without authority i revoking his clearance without fair procedures, must take on the additional burden of showing at a later time that if he had been afforded fair procedures in the first instance he would have been able to demonstrate successfully that he was entitled to access authorization. ”

“ See 28 U.S.C. § 1491.↑ Professor Davis states that 'probably every court requires exhaustion (of administrative remedies) when the question presented is one within the agency's specialization and when the administrative remedy is as likely as the judicial remedy to provide the wanted relief.' 3 Administrative Law 56-57. ”