McBride v. Roland

Decision Date23 November 1966
Docket NumberDocket 30331.,No. 54,54
Citation369 F.2d 65
PartiesJoseph Clinton McBRIDE, Plaintiff-Appellant, v. E. J. ROLAND, Commandant, United States Coast Guard, Defendant-Appellee.
CourtU.S. Court of Appeals — Second Circuit

Benjamin S. DuVal, Jr., New York City (Melvin L. Wulf, New York City, on the brief), for plaintiff-appellant.

Robert E. Kushner, Asst. U. S. Atty., for the Southern District of New York (Robert M. Morgenthau, U. S. Atty., and David E. Montgomery, Asst. U. S. Atty., on the brief), for defendant-appellee.

Before SMITH, HAYS and FEINBERG, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

Plaintiff-appellant, desiring to seek maritime employment, applied to appellee for special validation of his mariner's papers.1 Appellee initially, after receiving plaintiff's answers to interrogatories and reference to a Committee, and thereafter, after hearing and recommendation by a Hearing Board and after further hearing and recommendation by an Appeal Board, denied plaintiff's application for special validation endorsement of his U. S. Merchant Mariner's Document, on the ground that appellee was not satisfied that plaintiff's "character and habits of life are such as to authorize or warrant the belief that your presence on board a merchant vessel of the United States would not be inimical to the security of the United States." Plaintiff, having exhausted administrative procedures, sued in the United States District Court for the Southern District of New York, seeking a declaratory judgment that the Commandant's acts were unconstitutional, an injunction against carrying out his decision and interfering with plaintiff's employment, and a court order to the Commandant that the application for validation endorsement be approved. The Court, Sylvester J. Ryan, Judge, found the evidence and procedures sufficient, denied plaintiff's motion for summary judgment, and dismissed the action. 248 F.Supp. 459. From this order, plaintiff appealed. We find no error, and affirm the order of the District Court.

July 19, 1959 appellant, who had been a merchant seaman prior to 1948, filed with his application for a specially validated merchant mariner's document, a questionnaire which called for answers as to membership in certain organizations, including the Communist Party. He disclosed that he had been a member of the International Workers Order. On request for further information he admitted membership in the Communist Party from 1938 through 1950 only. He admitted employment at Communist Party Headquarters in New York from 1948 to 1959, signing a 1939 Communist Party nominating petition, participation in 1951 and 1952 May Day parades, participation in the 1942 Communist Party election campaign, registered affiliation with the American Labor Party 1949-54, signature of a nominating petition for Elizabeth Gurley Flynn for New York City Council in 1957, attendance in 1957 at the New York State Communist Party convention, the National Communist Party convention, and other Party conventions.

The Commandant informed appellant by letter that he was not satisfied appellant's presence on board vessels of the United States would not be inimical to the security of the United States, giving his reasons and notifying appellant of his right to a hearing, which was requested and held pursuant to 33 C.F.R. § 121.13, both sides presenting witnesses and exhibits. There was evidence of employment at Communist Party Headquarters in New York as elevator operator and night watchman from 1948 to 1960, and employment for two months in 1950 in organizing a peace demonstration for May Day 1950 against United States involvement in the Korean War. Appellant admitted that he learned that the Party advocated the overthrow of the present form of government, and that he was uncertain whether he would have joined in revolution.

Appellant's application was denied October 14, 1963. Appeal was taken to the Appeal Board, relying on the record. The Board recommended affirmance and the Commandant on March 3, 1964 adhered to his decision. Complaint was filed in the United States District Court for the Southern District of New York May 15, 1964, dismissed on motion December 17, 1965, and appeal taken January 20, 1966.

Appellant contends that the Commandant's decision deprives him of liberty and property without due process of law, because evidence is lacking that appellant is likely to engage in espionage or sabotage, and absent such evidence deprivation of freedom of association or the right to hold private employment denies him due process of law guaranteed by the Fifth Amendment.

The rights he claims, to freedom of association and freedom to follow a chosen profession free from unreasonable governmental interference, are constitutionally protected. Aptheker v. Secretary of State, 378 U.S. 500, 507, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964); Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959). To succeed, however, he must show not only that the right is one entitled to protection, but that his deprivation of it was without due process, i. e., arbitrarily or without sufficient evidence, or that the governmental interference is unreasonable. Procedurally, there is no lack of due process in the statutory scheme, with opportunity to present evidence and cross examine adverse witnesses before the Boards, determination by the Commandant at each stage, and judicial review of the final determination. Nor were the findings and determination made without sufficient evidence. Here there was evidence, not only of "mere" membership in the Communist Party, but of long time (24 year) membership in and employment by the party, knowledge of the party's aims at overthrow of the government, false statements as to his membership on his original application, his admission that "it's hard to say" if he would have participated in a revolution while he was admittedly a member, proof that he not only performed the regularly assigned membership tasks of picketing, distributing literature, taking part in rallies, parades and demonstrations, but attended Communist schools and summer camps and state and national conventions, and during the Korean War was a paid organizer of peace demonstrations. The evidence amply supports the Commandant's finding:

"that `you were well indoctrinated in and fully realized, accepted, and approved the aims and objectives of the Communist Party, including the overthrow of the present form of Government in the United States by force and violence and Communist domination of the World.\'"

The screening program is not unreasonable. The merchant marine, although involving private employment, is vulnerable to sabotage and espionage, and is obviously a sensitive area of employment of vital importance to the national defense. Compare American Communications Ass'n v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925 (1950).

Appellant relies heavily on Elfbrandt v. Russell, 384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed.2d 321 (1966); Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964); Scales v. United States, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961) and Noto v. United States, 367 U.S. 290, 81 S.Ct. 1517, 6 L.Ed.2d 836 (1961) in attacking the...

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    ...19 L.Ed.2d 799 (1967); Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961); McBride v. Roland, 369 F.2d 65 (2d Cir. 1966), vacated and remanded, 390 U.S. 411, 88 S.Ct. 1111, 19 L.Ed.2d 1271, on remand, 405 F.2d 1057 (1968).2 In re Robert Paul Smith,......
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    ...score; we set these out in the margin.1 After proceedings outlined in McBride v. Roland, 248 F.Supp. 459 (S.D.N.Y. 1965), aff'd, 369 F.2d 65 (2 Cir. 1966), the Commandant denied McBride's application for validation because of the latter's activity and membership in the Communist Party and o......
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