Edgar W. Graham v. Alfred C. Richmond, Commandant of the United States Coast Guard

BURGER, Circuit Judge

(dissenting).

In view of the appellant’s original failure and subsequent refusal to answer concededly pertinent questions authorized by the screening process, I cannot see how the majority reaches its result.

The Communist invasion of South Korea, involving as it did and still does the maintenance of supply lines of vast proportions to South Korea, brought about the enactment of the so-called Magnuson Act, which provided that whenever the President finds that the security of the country is in danger by reason of actual or threatened war, or subversive activities, he is authorized to issue rules and regulations to guard the United States Merchant Marine from sabotage or subversion. The President is also authorized to designate officers to carry out the authority of the Act. Under this authority, President Truman signed Executive Order 10173 in 1950 and amended it in 1951 by Executive Order 10277 and in 1952 by Executive Order 10352. In these orders he cited the threatened security by reason of subversive activities and ordered that “No person shall be issued a document required for employment on a merchant vessel of the United States * * * [unless] the Commandant [Coast Guard] is satisfied that the character and habits of life of such person are such * * * that the presence of the individual on board would not be inimical to the security of the United States * * We are bound at the outset by the premise that the emergency declared by President Truman in 1950, 1951, 1952, with respect to this subject, is still operative, valid and pressing.

Acting under this authority, the Coast Guard issued regulations which set up the form of application and procedures for processing applications and provided that applications be signed under oath. Among other questions asked by the Coast Guard questionnaire was the following :

“14. Are you now, or have you ever been, a member of, or affiliated *523 or associated with in any way * * [the] Communist Party, U.S.A., its subdivisions, [etc.] * *

Appellant failed to answer this question and, after being afforded a second opportunity to answer it in substantially the same form, refused to do so, contending that the Coast Guard is without authority-to question him about possible Communist Party membership as a condition of granting him a license as a steam engineer on United States Merchant .Marine vessels. The majority opinion does not question the Government’s authority to question Graham regarding possible Communist affiliations. Indeed, it specifically concedes that the questions are relevant. It is clear therefore, to all of us, that possible membership in the Communist Party is a proper subject of inquiry. The paradox is that in the face of conceding the pertinency of the questions, the majority nonetheless holds that Graham may refuse to answer, and notwithstanding this refusal, the Coast Guard must nevertheless go through the process of a hearing despite Graham’s default.

I confess inability to follow these steps. For if the questions be authorized and pertinent, which is recognition that the information to be gained from their answers is necessary to any decision the Coast Guard may make, why should the Coast Guard be compelled by this court te) take any further action until the questions are answered?

The fallacy in the majority’s position and reasoning is best illustrated when we remember that the Coast Guard did not, and does not, “refuse” Graham his license, nor is it correct to characterize its action as a “rejection.” It simply refuses to act upon an admittedly incomplete application. 1 The regulations clearly indicate that before any license is to issue, the applicant must supply information “sufficiently complete” so that a determination as to his qualifications can be made.1 2 It is only after such data has been submitted that the Coast Guard is authorized to make any determination or take any action. It is simply not accurate to say, as the majority does, that “tho Commandant by regulation has wholly failed to provide for rejection of an application short of a hearing * * The precise opposite is explicitly provided in the regulations :

“Upon receipt of a complete application and such further information as the Commandant may have required in those cases where the application, as first submitted, was not deemed sufficient, a committee * * shall prepare an analysis of the information available to the Commandant and make recommendations for action by the Commandant.” *524 (Emphasis added.) Reg. 121.05(e), 33 C.F.R. § 121.05 (e).

This seems to me explicit authority for the Commandant to refuse to act on anything less than a “complete application,” and to this date the applicant has not submitted a complete application even though afforded a second opportunity to do so. Whatever action the Commandant may later take, or the correctness of any determination he may make as to this applicant, or the constitutionality of the standards prescribed in the Executive Orders, are all questions for the future, but until Graham properly applies for a license there is nothing for the Coast Guard to act upon.

The majority cites Greene v. McElroy, 1959, 360 U.S. 474 , 79 S.Ct. 1400 , 3 L.Ed.2d 1377 , as pertinent. But that case has no application here. There the Supreme Court simply held that in a hearing upon fitness for private employment in the performance of government defense contracts, the courts will not read into the statute or order a congressional or executive intent to deny the employee confrontation and cross examination of sources of adverse information, the Executive Order and the statute being silent on these points. That question never arises here, since Graham did not comply with the preliminary administrative procedures essential to invoke a hearing and the controlling regulations are not silent. Graham has not now been, and never was denied his right to a hearing or to confront anyone who may testify against him. He can have his hearing literally at once by simply answering the questions, and the Coast Guard has so informed him. 3

“Upon receipt of your complete answers to these amended questions and the certification thereof, your application will be reviewed and if the Commandant is unable to satisfy himself at that stage of the administrative process with regard to your eligibility for validation, you will receive a “statement of reasons”, notice and opportunity for hearing pursuant to regulations promulgated for such purpose.” (Emphasis added.)

There is nothing novel or unconstitutional in the refusal by an administrative body to process an incomplete application. It has long been the law, and this court has expressly held, that a person seeking a license or privilege must “establish those qualifications for the license which would make its grant serve the public interest, and this necessarily presupposes a frank, candid, and honest disclosure of the facts as to [his] qualifications deemed by the commission essential to enable the commission to act within its powers.” 4 (Emphasis added.) Thus we have held specifically that an applicant must supply the required data when seeking a license before he has any rights. 5 And in a proceeding for an F.C.C. license, the Eastern District Court (three judges) of New York has said that an applicant must fully supply pertinent data as to character, in the absence of which the F.C.C. can deny a license to a person refusing to so disclose. 6 In the instant case the Coast Guard has not denied anything, but has *525 merely refused to process the application because the applicant refuses to give pertinent data necessary for its determination, and which if given might cause the license to be granted at once. A license may not be affirmatively denied without a hearing, under the regulations.

The courts have uniformly described as long-settled the proposition that where an administrative procedure is authorized, those who seek privileges or licenses under it must exhaust their administrative remedies before the courts are granted judicial review. See National Lawyers Guild v. Brownell, 1955, 96 U.S.App.D.C. 252 , 257, 225 F.2d 552, 557 , certiorari denied, 1956, 351 U.S. 927 , 76 S.Ct. 778 , 100 L.Ed. 1457 . In the recent case of National Council of American-Soviet Friendship, Inc. v. Brownell, 1957, 100 U.S.App.D.C. 116, 119 , 243 F.2d 222, 225 , this court dealt with a situation where the appellant had refused to proceed with the hearing authorized by statutes and regulations, but challenged the action under which they were listed as “subversive.” Pointing out that the designation as “subversive” was not final, (precisely as the action of the Coast Guard is not final here) we said:

“Rather, appellants insist that they may default and still continue to litigate. * * * The plight of the appellants is of their own choice and of their own making.”

Elsewhere in the opinion we point this up, saying:

“it is ‘the long-settled rule of judicial administration that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.’ ” Ibid. (Emphasis added.)

Here the appellant, far from “exhausting” his administrative steps, has not even completed the preliminary step to invoke the proceedings established by the regulations. Under our own pronouncements, Graham should not be permitted “to default and still continue to litigate.”

Appellant is seeking a license for employment on a merchant vessel under conditions which can be fully as important to national security as if he were seeking service in the Navy, and any suggestion that he cannot be asked about his possible Communist affiliation or that he should receive the aid of the courts in the face of two refusals to answer is without precedent in the law governing administrative processes. Similarly, I am unable to understand the concept that the President and the Commandant of the Coast Guard may not require that this question be answered as a preliminary step of the process of applying for a license. How can we say that questions may be asked, as the majority does by conceding pertinency and the authority to ask them, and then hold that no answer be required as a condition to any consideration of the application?

On the tenuous authority of United States ex rel. Accardi v. Shaughnessy, 1954, 347 U.S. 260, 268 , 74 S.Ct. 499 , 7 the majority commands that a hearing be held on appellant’s application, even though it is incomplete, for the sole reason that “[pjerhaps the applicant can submit cogent reasons for his failure or *526 refusal to answer the questions.” I agree with the majority that this can be the only purpose for such a hearing since Graham has already supplied all other pertinent information needed by the Coast Guard. However, a moment’s reflection reveals the futility, as well as the absence of need for, any hearing or any “further processing.” Common experience denies that these unanswered questions lend themselves better to oral than to written answers. Indeed, I suggest the contrary is true.

Moreover, the record is crystal clear that Graham at all times was — and indeed still is — free to submit to the Coast Guard whatever “cogent reasons” he had for his silence on the critical subject of Communist Party connections. The Coast Guard, scrupulously following its own regulations which explicitly give the Commandant discretion to call for additional information “under oath in writing or orally,” afforded Graham an opportunity to remedy his initial refusal to answer, and he refused. Hence there has been no want of opportunity to set forth reasons, cogent or otherwise, for his default.

The truth of the matter is that Graham has already explained his refusal on his first questionnaire. Item 15 of the application stated:

“(Use this space to explain Items 1 through 14. Show item numbers to which answers apply. Attach a separate sheet if there is not enough space here.)”

In this space Graham responded:

“On items 12, 13 & 14 I cannot, in good conscience, submit answers because I am positive that the questions are violative of my rights under the Bill of Rights of the U. S. Constitution, in particular, the First Amendment thereof. Furthermore those questions are so vague as to make accurate answers impossible.”

He refused to avail himself of a second opportunity to give anything more than this explanation. 8 These answers demonstrate that what he wants is not to give reasons and explanations but to make constitutional and legal arguments which only his lawyers can make for him. Indeed appellant’s counsel, who is experienced and sophisticated in the so-called “loyalty” and “security” cases, has acted for appellant in carrying on the correspondence with the Coast Guard in its efforts to get answers to questions 12, 13 and 14. See note 1, supra. We cannot regard his responses as the work of an inarticulate layman who needs a hearing in order to make his position known. For this purpose no hearing is required or even useful unless the majority is prepared to read into the regulations and Executive Order or the statute a proviso that oral argument must be allowed to counsel. We should also bear in mind that Graham has not asked for a hearing but for a license.

For these reasons I am unwilling to exercise judicial power to command the Executive Branch to perform the useless formality of a hearing on a patently incomplete application in the face of an unambiguous regulation which contains exactly what the majority says it omits. In refusing “to submit under oath in writing [as requested by the Commandant] * * * such further information as may be required” Graham has failed to perform a condition precedent to any action by the Coast Guard. In effect the majority opinion would shift to the Coast Guard the burden of fashinoing for itself an investigating agency to dis *527 cover highly pertinent information concerning an applicant which the applicant can and should promptly supply. In the early critical period of any new national emergency which would call for swift expansion of our Merchant Marine, this majority interpretation would place upon the Coast Guard an intolerable if not an impossible burden never intended by Congress and not warranted in the law relating to licensing procedures of any kind.

I suggest that were we confronted with an applicant who, seeking a taxi license, refused to answer an application question as to whether he had ever been convicted of reckless driving or drunken driving, we would summarily admonish the applicant that he was not “entitled to judicial relief * * * until the prescribed administrative remedy has been exhausted.” See National Council of American-Soviet Friendship, Inc. v. Brownell, supra. 9

I would affirm the District Court.

. In a letter of February 19, 1958, tho Coast Guard’s position was made amply clear to Graham’s attorneys. That letter states, in part:

“In view of the fact Mr. Graham had not previously made application for a validated merchant mariner’s document an evaluation of his case is necessary * *. In regard to the evaluation, no further action ean be talcen until such time as Mr. Graham answers Items 12, 18, and Ilf of the questionnaire * * (Emphasis added.)

. Coast Guard Regulations 121.05(a), (b), 33 C.F.R. §§ 121.05 (a), (b) hold that any person seeking a license may make application for it under oath, and “if an application * * * does not contain replies sufficiently complete in his judgment [Commandant’s] for a determination whether the character and habits of life of the applicant are such as to warrant the belief that his presence on board vessels of the United States would not be inimical to the security of the United States, the Commandant, in an effort to avoid additional proceedings through credible explanation or to confine further inquiry to matters tending to prove or disprove unfavorable information, shall notify the applicant to submit under oath in writing or orally such further information as may be required for such determination.” (Emphasis added.) Reg. 121.05(d), 33 O.F.R. § 121.05(d). Under this regulation the Commandant requested Graham to submit “further information” in writing, and appellant refused.

. In a letter to Graham dated June 11, 1958, the Coast Guard slightly amended the questions in issue, and stated:

. Great Western Broadcasting Ass’n v. Federal Communications Commission, 1937, 68 App.D.C. 119, 121 , 94 F.2d 244 , 246 construing applications for a broadcasting license from the F.C.C.

. Briehl v. Dulles, 1957, 101 U.S.App.D.C. 239, 252 , 248 F.2d 561 , 574: “There is nothing new or novel about requiring an applicant for a permit or a license to supply pertinent information under oath. Applicants for radio licenses and air route certificates must do so, and applicants for marriage licenses, voting privileges, and business permits must also. And, failing to supply the required data, the applicant cannot exercise his right.” While this case was subsequently reversed sub. nom. Kent v. Dulles, 1958, 357 U.S. 116 , 78 S.Ct. 1113 , on the grounds that the questions there propounded were not authorized by the applicable statutes and regulations, it must be remembered that the majority here concede the pertinence of the questions before us. In this light, the quoted words of the Briehl case still retain their vitality and are binding on us.

. Mester v. United States, D.C., 70 F.Supp. 118, 122 , affirmed per curiam, 1947, 332 U.S. 749 , 68 S.Ct. 70 , 92 L.Ed. 336.

. The Accardi case is not in point for it contained no issue of failure to utilize or exhaust administrative remedies. The Supreme Court held simply that a habeas corpus petitioner was entitled to a hearing in the District Court to prove his allegations that the Attorney General’s listing of Mm as an undesirable alien he “planned to deport,” constituted a direction by the Attorney General to his own Board of Immigration Appeals, thus foreclosing any exercise of the Board’s discretion. The complete quotation, part of wMeh is relied upon in the majority opinion, is as follows: “Of course, he [petitioner] may be unable to prove his allegation before the District Court; but he is entitled to the opportunity to try.” (Emphasis added.) Thus the Accardi holding has no relation to when and for what purpose an administrative hearing is mandatory. It simply restates familiar law that a habeas corpus petitioner is entitled to a hearing on allegations which, if true, would entitle him to relief.

. In a letter dated June 24, 1958, Graham stated:

“In our view questions 13 and 14 as amended are still subject to the defect of vagueness which I noted in the original questionnaire. Further with respect to each of the three questions, 12, 13 and 14, I am of the opinion expressed by me on November 19, namely:

“ ‘On items 12, 13 and 14 I cannot, in good conscience submit answers because I am positive that the questions are vio-lative of my rights under the Bill of Bights of the United States Constitution, in particular the First Amendment thereof.’ ”

. See also Beard v. State Board, 1931, 111 Cal.App. 559 , 295 P. 1052 ; Carville v. Smith, 1947, 211 Ark. 491 , 201 S.W.2d 33 .