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MCBRIDE v. ROLAND

December 15, 1965

Joseph Clinton McBRIDE, Plaintiff,
v.
E. J. ROLAND, Commandant, United States Coast Guard, Defendant



The opinion of the court was delivered by: RYAN

RYAN, Chief Judge.

 Plaintiff moves for summary judgment on the pleadings and the administrative record; defendant concedes that there is no question of fact and in turn seeks summary judgment in its favor (although it has not so moved).

 Plaintiff is a merchant seaman who was denied by the Commandant of the Coast Guard special validation endorsement of his Mariner's documents and thus foreclosed from shipping on vessels of 100 gross tons and over.

 The action of the Commandant was taken under the Magnuson Act of August 9, 1950, 64 Stat. 427, 50 U.S.C. § 191, Executive Order No. 10173, October 18, 1950 (15 F.R. 7005, 1950 U.S.Code Cong.Service, p. 1661), and the regulations issued by the Coast Guard pursuant thereto (33 C.F.R. Parts 6, 121).

 This suit is filed under the first, fifth and sixth Amendments and the Magnuson Act (28 U.S.C.A. §§ 1331, 2201). The complaint is not concise or clear; and is overburdened with lengthy recitals of what appears in the administrative record, disputes the evidence and protests plaintiff's loyalty and patriotism. Getting down to specific allegations, it does allege that the acts of the Commandant of the Coast Guard are illegal, arbitrary and void because (a) the executive orders and regulations on which they are based are unconstitutional, illegal and void in that they deprive plaintiff of liberty and property without due process of law, that they are vague and uncertain, that they punish membership in undefined organizations, and deny plaintiff his rights of freedom of speech, press and assembly, and his right to an impartial hearing, (b) there is no evidence to support the Commandant's conclusion and it therefore arbitrarily punishes plaintiff, and (c) the practice contained in the executive orders and regulations is not authorized by statute. Plaintiff's damages are alleged to be in excess of $50,000., and claimed to be irreparable. The relief sought is a declaration that the defendant's acts are unconstitutional and an injunction against defendant's carrying out his decision and interfering with plaintiff's employment; affirmatively plaintiff asks that the Commandant be directed to approve his application for a validation endorsement.

 All the evidence is contained in the administrative record which has been submitted to the Court. The record discloses the following undisputed facts:

 On July 19, 1959 plaintiff seaman applied to the Commandant for validation of his mariner's document. With the application plaintiff returned a printed questionnaire furnished him by the Coast Guard which called for disclosures of past and present membership in several organizations including the Communist Party. The questionnaire as filled in by plaintiff revealed membership in the IWO but not in the Communist Party.

 By letter of October 15, 1959 the Commandant informed plaintiff that additional information was required in order to determine his eligibility for a specially validated document, and requested answers to further detailed interrogatories; plaintiff returned the answers on March 30, 1960. At this point plaintiff admitted membership in the Communist Party from 1938 through 1950, but denied membership for other years. He also admitted employment at Communist Party Headquarters from 1948 to 1959; signing a 1939 Communist Party nominating petition; participation in the 1951 and 1952 May Day Parades in New York City and in the 1942 Communist Party election campaign; registered affiliation with the American Labor Party from 1949 through 1954; signature of a nominating petition for Elizabeth Gurley Flynn in her 1957 campaign for the New York City Council; attendance in 1957 at the New York State Communist Party Convention, the National Communist Party Convention, and other Communist Party Conventions. What plaintiff did not answer (on the ground that he did not remember or did not understand) were questions concerning attendance at a Communist Party School in 1939, employment at the Communist Party Headquarters, open expressions of adherence to or admiration of Communist Party policies, association with or employment by people he believed were Communists, or his presence at the offices of the Daily Worker in 1958.

 By letter of November 23, 1960, the Commandant notified plaintiff that he was not satisfied that plaintiff's presence on board vessels of the United States would not be inimical to the security of the United States. The Commandant listed 25 reasons for his conclusion, beginning with plaintiff's membership in the Communist Party up to and including 1959 and ending with his employment at Communist Party Headquarters from about 1944 through 1959 and attendance at the Daily Worker's offices as late as 1958 and including numerous designated activities of plaintiff in behalf of the Communist Party within that time. The Commandant's letter informed plaintiff of his right to file an answer and to request a hearing. Plaintiff filed an answer disputing the accuracy of the statements and conclusions in the Commandant's letter and requested a hearing.

 Subsequently, on November 28, 1962 and May 14, 1963, hearings were held. The Hearing Board consisted of a civilian hearing examiner in the employ of the Coast Guard, and a labor representative and a management representative selected from a panel named by the Secretary of Labor. Both plaintiff and the Government presented witnesses and exhibits and had opportunity of cross-examination. The record evidence showed:

 Plaintiff was born in Florida on May 31, 1911; during his childhood he had three years formal education at a Bible school; he came to New York in 1932. After he joined the Communist Party in 1936, plaintiff was taught to read and write by a Party member. In the late 1930's, plaintiff attended the Daily Worker School (the "Jefferson School") for four or five weeks. Here, he was taught the theories of Marxism and Leninism, particularly as to "how to bring about a solution to the Negro question"; he attended lectures by lecturers in the Party, and was given Communist publications to study.

 From 1948 through August 4, 1960, plaintiff was employed as an elevator operator and night watchman at Communist Party Headquarters, a position which required membership in the Party. Although plaintiff claimed that he had left the Party in 1957, he explained the fact that the Party continued to employ him beyond 1957 at its Headquarters by stating that only his group branch knew that he had ceased being a Party member.

 Although plaintiff testified that he joined the Party and remained in the Party solely because the Communists "were supposed to help the cause of the Negro", the evidence discloses that his activities in behalf of the Party were extensive. He attended Communist Party Club meetings during the late 1940's and early 1950's; sometime subsequent to 1941 he became a member of the Waterfront Section of the Party; he attended Communist Party state and national conventions as late as 1957; he followed the Party line against United States involvement in the Korean war, and was employed by the Party for two months in 1950 in organizing a peace demonstration for May Day 1950, and participated in these demonstrations in 1951 and 1952. In addition, plaintiff signed various nominating petitions for Communist Party members, attended Communist Party camps where lectures were regularly given in Communist doctrine, and did general political work: picketed, passed out leaflets, sold the Daily Worker and worked at rallies.

 Plaintiff testified that he left the Communist Party in 1957 because "the Communist Party was not alert and on the ball on the Negro question," in spite of the fact that he testified that he had first become dissatisfied with it for this reason during World War II, and again in 1951. He also testified that when he did leave, he did not change his ideas about the Party, but only left because it was not interested in the "Negro question".

 While a Party member, plaintiff learned that the Communist Party advocated the overthrow of the present form of government in this country, and while he was not sure that he would have participated in such a revolution, he testified that if the Communists did start a revolution he would "go on the side of the Americans" and "fight against the Communists."

 At the hearing, plaintiff presented two character witnesses. The first, Patricia Mae Buitoni, stated that she knew plaintiff well since 1947; that she attended May Day Parades frequently and had visited Communist Party Headquarters, but denied membership in the Party. The second witness, Ed Woodhead, testified to having first met plaintiff late in 1959 or early 1960 in a neighborhood bar, but his knowledge of plaintiff was apparently confined to conversations with him during occasional meetings at the bar and a few meals at plaintiff's home.

 The Commandant's Decision

 The Commandant having "reviewed the record of the hearing and considered the recommendations of the Hearing Board", by decision dated October 14, 1963, denied plaintiff's application for special validation endorsement of his U.S. Merchant Mariner's Document, on the ground that he 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." He based this conclusion on a finding that "[for] more than twenty years, beginning in 1936 when you joined the Communist Party, you were knowingly and sympathetically associated and affiliated with the Communist Party as demonstrated by your active participation in the Communist Party and in Communist Party-inspired organizations and activities." The Commandant found further that plaintiff's conduct indicated that "he was well ...


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