Parker v. Lester

• Decision Date: 21 April 1953
• Docket Number: No. 30484.,30484.
• Citation: 112 F. Supp. 433
• Parties: PARKER et al. v. LESTER et al.
• Court: U.S. District Court — Northern District of California

112 F. Supp. 433

PARKER et al. v. LESTER et al.

No. 30484.

United States District Court N. D. California, S. D.

April 21, 1953.

COPYRIGHT MATERIAL OMITTED

Gladstein, Andersen & Leonard, San Francisco, Cal., for petitioners.

Donald B. MacGuineas, Department of Justice, Washington, D. C., Chauncey Tramutolo, U. S. Atty., San Francisco, Cal., for government respondents.

Brobeck, Phleger & Harrison, by Benjamin B. Law, San Francisco, Cal., for respondent Steamship Companies.

MURPHY, District Judge.

This is an action by six merchant seamen seeking to enjoin the enforcement of 33 CFR, Chapter 1, Subchapters (A) and (K) (regulations of the United States Coast Guard Commandant for the Security of Vessels and Waterfront Facilities promulgated pursuant to Executive Order 10173, October 18, 1950, 15 F.R. 7005-8, U.S.Code Cong.Service 1950, p. 1661, as amended by Executive Order 10277, August 1, 1951, 16 F.R. 7537, 8, U.S.Code Congressional and Administrative Service 1951, p. 1073 and Executive Order 10352, May 19, 1952, 17 F.R. 4607, U.S.Code Congressional and Administrative News 1952, p. 1056 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 defendants are certain officers of the United States Coast Guard, stationed in the San Francisco area, who are charged with enforcing the above regulations, as well as 31 Steamship Companies operating out of San Francisco which are by order of the Coast Guard prevented from employing seamen who have not received "clearance" under the regulations. In addition, certain United States Army Officers are named as parties respondent. Their responsibility is to administer the above regulations under direction of the Coast Guard Commandant with regard to longshoremen and similar shore side workers. Three such longshoremen originally joined as petitioners in this action; however, their petitions, as well as that of one of the seamen petitioners, were dismissed on their own motion prior to trial. Although no motion to dismiss the Army defendants 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 Background

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

In a national program designed to secure the country from internal and external dangers, serious attention must be given to protecting waters, harbor facilities and merchant vessels. Awareness of the importance and vulnerability to attack of maritime activities and areas 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 issue 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 sesure 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.

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, promulgated Executive Order 10173 on October 18, 1950. 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" (expect 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 United States" (subject to the same exception) "unless 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 not be inimical to the security of the United States".

Pursuant to the Congressional and executive mandate, the Commandant issued regulations for the security of vessels and waterfront facilities effective December 27, 1950. Such action was preceded by extended conferences with the Secretary of Labor and by a public hearing at which representatives of labor, management, the press, interested Government agencies and public organizations attended and expressed their views and criticisms.

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". 33 C.F.R. 121.02, .05, .07, .09, .15.

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 the United States; and the basis of rejection as above will be if, on all the evidence and information available, reasonable grounds exist for the belief that the individual:

"(1) Has committed acts of treason or sedition, or has engaged in acts of espionage or sabotage; has actively advocated or aided the commission of such acts by others; or has knowingly associated with persons committing such acts; or,

"(2) Is employed by, or subject to the influence of, a foreign government under circumstances which may jeopardize the security interests of the United States; or,

"(3) Has actively advocated or supported the overthrow of the government of the United States by the use of force or violence; or,

"(4) Has intentionally disclosed military information classified confidential or higher without authority and with reasonable knowledge or belief that it may be transmitted to a foreign government, or has intentionally disclosed such information to persons not authorized to receive it; or,

"(5) Is or recently has been a member of, or affiliated, or sympathetically associated with, any foreign or domestic organization, association, movement, group, or combination of persons (i) which is, or which has been designated by the Attorney General as being, totalitarian, fascist, communist, or subversive, (ii) which has adopted, or which has been designated by the Attorney General as having adopted, a policy of advocating or approving the commission of acts of force or violence to deny other persons their rights under the Constitution of the United States, or (iii) which seeks, or which has been designated by the Attorney General as seeking, to alter the form of the Government of the United States by unconstitutional means: Provided, That access may be granted, notwithstanding such membership, affiliation, or association, if it is demonstrated, by more than a mere denial, that the security interests of the United States will not thereby be jeopardized."

Persons initially denied clearance or who are required to surrender their validated documents are so notified in writing and have the right to appeal to a local appeal board and thence to a national appeal board, both composed, as far as practicable, of one Coast Guard member as chairman, one member from Management and one from Labor. 33 C.F.R. 6.10-9. While such tripartite boards have by now been established, interim boards composed of one Coast Guard official locally and five Coast Guard officials at...