The opinion
Nichols, Judge,
concurring in part, dissenting in part:
While we are not privy to all the thinking of the Maritime Subsidy Board, it has been made to appear that the need to preserve the confidentiality of confidential information is the reason why the Board’s procedures have been altered in a manner so unsatisfactory to the ship owners. It is common knowledge that some foreign governments tend to be hostile to the gathering of economic and financial data by our country’s representatives from within their borders. It is not in Communist countries alone that such inquiries may be frustrated by foreign officials, or if carried on against their wishes may endanger the life or liberty of our agents. Yet the data must be had if the Act of Congress here involved is to be carefully executed. In such circumstances, I am not sure it is prudent for us to give the Board detailed instructions how to proceed, as we do, supposing we have a right to do so. Our position might tend to force the Board to forego *683 data henceforward, and make its determinations on the basis of mere guesswork and speculation. I do not see how this court knows that the Board could comply with our instructions and still protect its informants.
Of course, the Board is not the only agency of our Government to use foreign information in its work. Still other agencies must use information from domestic sources they are not at liberty to reveal, e.y., information from required returns and reports by persons other than the one being dealt with. Generally, when this situation exists, common sense dictates that the agency make its determination with no pressure to compromise about due process, and to let any person aggrieved have his de novo remedy in the courts. It appears to me that 28 U.S.C. § 1491 gives us jurisdiction to try this case and in the course of doing so, to find the facts to the degree necessary. I do not view it as conceptually so difficult, or so far outside our normal mission, to find hypothetically the cost of constructing a foreign ship in some particular foreign country. There could be expert testimony introduced on both sides, I suppose. The Government normally would not have to disclose its confidential information because, as I understand the court’s standard, the plaintiffs could only recover by proving abuse of discretion, that is, that the Board’s cost figures were clearly outside any permissible range. Defendant might end up offering nothing. Whether courts always realize it or not, they are constantly deciding cases after de novo trials, where confidential information used by the agency is never offered in evidence to the court.
I do not suppose my colleagues have any doubt as to our right, in a Tucker Act case of which we have jurisdiction, to conduct a trial de novo when the issue is whether an administrative official has abused discretion assigned to him by statute. We do it all the time and routinely when the subject is one with which we feel at home: as a random example, when it is alleged the Secretary of the Treasury has abused his discretion under § 482, IRC of 1954, to reallocate income between parent and subsidiary companies. Young & Rubicam, Inc. v. United States, 187 Ct. Cl. 635 , 410 F. 2d 1233 (1969); Eli Lilly & Co. v. United States, 178 Ct. Cl. 666 , 372 *684 F. 2d 990 (1967). Here the sticking point is skepticism as to whether we could do a good job in this, to us, novel field of law. Personally, I have more confidence in the resourcefulness of counsel, and of our fine commissioners, to frame issues that are feasibly triable in an adversary proceeding governed by the rules of evidence. Sometimes I think we have too much faith in the adversary system of justice, but here we display too little. If a trial is ultimately found to be necessary, we have discredited it in advance.
However, I have no objection to suspending the case as the court visualizes. As we retain jurisdiction, and as the Board will now know we hold, at a minimum, that they cannot claim finality when they have not afforded even partial due process, they may be able to follow the procedures the court specifies, or they may simply settle. Defense counsel made it clear in oral argument that if they must choose, they would prefer to accord the kind of partial due process most of the plaintiffs say is all they want, as against the trial de now in this court which Moore-McCormack desires. Defendant apparently regards that as the worst of calamities. I would favor, however, letting it be known now that we are able to accord complete due process here if need be, so that the agency will not feel we are attempting to force it to make its determinations under a procedure contrary to its better judgment.
Cowen, Chief Judge, joins in the foregoing opinion concurring in part and dissenting in part.