Parker v. Lester

Decision Date01 June 1951
Docket NumberNo. 30484.,30484.
Citation98 F. Supp. 300
PartiesPARKER et al. v. LESTER et al.
CourtU.S. District Court — Northern District of California

COPYRIGHT MATERIAL OMITTED

Richard Gladstein, San Francisco, Cal., for petitioners.

Edgar Bonsall, Asst. U. S. Atty., San Francisco, Cal., and Marvin Taylor, Department of Justice, Washington, D. C., for respondents.

MURPHY, District Judge.

This is an action by seven merchant seamen and three longshoremen seeking to enjoin the defendants, officers of the United States Army and Coast Guard, stationed in the San Francisco area, from enforcing the provisions of 33 CFR Chapter 1, Subchapters (K) and (L) (regulations of the United States Coast Guard Commandant for the Security of Vessels and Waterfront Facilities, promulgated pursuant to Executive Order 10173, Oct. 18, 1950, 15 F.R. 7005-7008 and Public Law 679, 81st Cong., 2d Sess., known as the Magnuson Act 50 U.S.C.A. §§ 191, 192, 194), and for a declaration of rights. The complaint was framed alternatively as either a class or individual suit.

The grounds asserted for the injunction are that the regulations of the Commandant and the actions taken pursuant thereto are illegal and unauthorized by the statute. Pending a final hearing, plaintiffs now apply for a preliminary injunction restraining the named officials, or persons unknown to them who act under the direction or in concert with the named defendants, from enforcing the regulations. Defendants have asserted certain jurisdictional defenses and, without waiving them, have filed in opposition to the application for a preliminary injunction the affidavits of Vice-Admiral Merlin O'Neill, Commandant of the United States Coast Guard not named as a party hereto, and of Major General J. A. Lester, United States Army, named as a defendant herein.

Statutory Background.

Briefly the background of the statute, executive order and regulations giving rise to this controversy may be outlined as follows:

Because of activities within and without the United States which constitute a serious threat to the security and safety of this country, the need for the protection of merchant vessels of the United States, as well as the waters and harbors and harbor facilities of the United States, became of grave public importance to the Congress and the President. Security in this field is essential to our national defense, to the implementation of the North Atlantic Pact, Economic Cooperation Administration, and to the prosecution of hostilities in Korea. The availability of the merchant vessels of the United States, the integrity of the Merchant Marine, as well as the security of the waters and harbors of the United States in time of war, are particularly vital to the safety of the United States.

These considerations, among others, led to the introduction in Congress of the bill which later became the so-called Magnuson Act, which is an amendment of Title II of the Act of June 15, 1917, 50 U.S.C.A. §§ 191, 194. With the approval of the President on August 9, 1950, this amendment became law. The amendment authorizes the President "Whenever he finds that the security of the United States is endangered by reason of actual or threatened war, or invasion, or insurrection, or subversive activity, or of disturbances or threatened disturbances of the international relations of the United States" to institute measures and institute rules and regulations, and to employ such departments, agencies, offices and instrumentalities of the United States as he may deem necessary, (a) to control foreign flag vessels within the United States territorial waters in order to secure them from damage or injury, or to prevent damage or injury to the harbors or waters of the United States, or to secure the observance of rights and obligations of the United States, and also (b) to safeguard vessels, harbors and waterfront facilities of the United States against destruction, loss or injury from sabotage, or other subversive acts, accidents, or other causes of a similar nature.

As stated in the affidavit of the Commandant, "There were believed to be present among workers on vessels and on the waterfronts persons who were prepared or inclined — especially if war should occur with certain foreign powers — to engage in acts of sabotage such as sinking vessels in harbors or channels or at sea, causing fires, explosions or other damage to structures, implements, machinery and supplies, inducing unrest, strikes and work slowdowns, or to engage in acts of espionage in aid of sabotage or in aid of the enemy."

In order to effectuate the essential safeguards required for our national security and safety, the President, pursuant to the authority lodged in him by the Magnuson Act, on October 18, 1950 promulgated Executive Order 10173 (supra). In the executive order the President stated: "I hereby find that the security of the United States is endangered by reason of subversive activity, and I hereby prescribe the following regulations relating to the safeguarding against destruction, loss, or injury from sabotage or other subversive acts, accidents, or other causes of similar nature, of vessels, harbors, ports, and waterfront facilities in the United States * * and the said regulations shall constitute Part 6, Subchapter A, Chapter I, Title 33 of the Code of Federal Regulations; and all agencies and authorities of the Government of the United States shall, and all state and local authorities and all persons are urged to, support, conform to, and assist in the enforcement of these regulations and all supplemental regulations issued pursuant thereto".

In the language of the Presidential regulations "no person shall be issued a document required for employment on a merchant vessel of the United States" (except such categories of vessels as may be exempted by the Commandant), "nor shall any licensed officer or certificated man be employed on a merchant vessel of the Unites States" (subject to the same exception) "if the Commandant is satisfied that the character and habits of life of such person are such as to authorize the belief that the presence of the individual on board would be inimical to the security of the United States."

In his regulations the President authorized the Commandant to require specifically validated documents or identification credentials "issued by or otherwise satisfactory to the Commandant". The identification credential to be issued by the Commandant shall be known as a "Coast Guard Port Security Card". "The conditions and manner of its issuance shall be as prescribed by the Commandant after consultation with the Secretary of Labor".

The executive order prohibits the issuance by the Commandant of a Coast Guard Port Security Card "if he is satisfied that the character and habits of life of the applicant therefor are such as to authorize the belief that the presence of such individual on board a vessel or within a waterfront facility would be inimical to the security of the United States", and authorize the revocation of Coast Guard Port Security Cards when the Commandant "is no longer satisfied that the holder is entitled thereto." The Commandant is authorized to recognize for the same purpose such other credentials as he may designate in lieu of the Coast Guard Port Security Card.

The Commandant is further authorized to designate categories of merchant vessels which shall be exempt from this requirement. The Commandant is also authorized to designate certain waterfront facilities, access to which requires the presentation of identification credentials acceptable to the Commandant.

The executive order further provides that persons who are refused employment or documents shall have the right of appeal to boards appointed by the Commandant. The appeal boards are directed to "consider each appeal brought before it and, in recommending final action to the Commandant, shall insure the applicant of fairness consistent with the safeguarding of the national security".

Following the promulgation by the President of this executive order and regulations, and in compliance with the congressional and executive mandate, after extended conferences with the Secretary of Labor and following a public hearing attended by representatives of labor, management, the press, interested Government agencies and public organizations, which were given an opportunity to express their views and criticisms, the Commandant issued regulations for the security of vessels and waterfront facilities effective on and after December 27, 1950.

As outlined in his affidavit, the regulations of the Commandant in substance provide that no person may be employed on a merchant vessel of the United States unless he has in his possession a document indicating his "security clearance" following a "security check". "Security check" is defined as "the processes or actions taken by the Commandant" to determine whether the employee "is a safe and suitable person to be employed" on the vessel. "A safe and suitable person is one whose character and habits of life are such as to authorize the belief that his presence aboard vessels of the United States is not inimical to the security of the United States." "Security clearance" is defined to be the approval by the Commandant for employment on such vessels. The document evidencing security clearance is in the form of a Merchant Mariner's Document endorsed to show the clearance. No document indicating security clearance "shall be issued except upon prior approval of the Commandant".

The provisions of the regulations as to the basis for rejecting applications for security clearance are as follows:

"(d) Basis for rejection. The Commandant will deny a security clearance to any person if, upon full consideration, he is satisfied that the applicant's character and habits of life are such as to authorize the belief that the presence of the person aboard vessels of the United States would be inimical to the security of...

To continue reading

Request your trial
5 cases
  • Parker v. Lester
    • United States
    • U.S. District Court — Northern District of California
    • April 21, 1953
    ...has been made, this action is moot as to them. An application for a preliminary restraining order was denied in Parker v. Lester, D.C.Cal.1951, 98 F.Supp. 300. Statutory Briefly, the background of the statute, executive order and regulations giving rise to this controversy may be outlined a......
  • Siminoff v. Murff
    • United States
    • U.S. District Court — Southern District of New York
    • July 13, 1958
    ...94, 205 F.2d 700. See, also, Jameson & Co. v. Morgenthau, 1939, 307 U.S. 171, 59 S.Ct. 804, 83 L.Ed. 1189; Parker v. Lester, D.C.N.D.Cal. 1951, 98 F.Supp. 300, 307, appeal dismissed 9 Cir., 191 F.2d 1020. The application to convene a Three-Judge Court is So ordered. 1 The Immigration and Na......
  • Kwong Hai Chew v. Colding the Sir John Franklin
    • United States
    • U.S. Supreme Court
    • February 9, 1953
    ...effective December 27, 1950, published, as amended, in 33 CFR, 1951 Cum. Pocket Supp., §§ 121.01—125.37. See also, Parker v. Lester, D.C., 98 F.Supp. 300, Id., 9 Cir., 191 F.2d 1020. Section 6.10—1, as it existed at the date of petitioner's clearance, provided: 'Issuance of documents and em......
  • Wylie v. Zimmer, Civ. No. 11237
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • June 21, 1951
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT