FAHY, Circuit Judge.
Appellant, a merchant seaman and marine engineer, applied to the Commandant of the United States Coast Guard, the appellee, who was in charge of administering the applicable regulations, for a validated document required to enable him to secure employment on board vessels of the United States Merchant Marine, a private industry.1 The application consisted in part of fourteen questions, to be answered by the applicant in writing under oath. Appellant refused to answer three of the questions, stating they were violative of his constitutional rights, particularly under the First Amendment, and were so vague as to make accurate answers impossible. His application was refused further consideration, thus precluding him from obtaining employment in the Merchant Marine. Appellant then asked for a specific statement of charges and a hearing but was informed that his request was premature. He sued in the District Court for a judgment declaring that he was eligible for such employment, and for related relief. During the pendency of the suit appellee substituted for the original three unanswered questions three others of like but narrower scope. Appellant declined to answer the substituted questions on the same grounds and again requested a statement of reasons and a hearing. Neither was granted.2 Appellee moved for summary judgment. The court ruled that since appellant had refused to answer questions appellee had a right to ask, appellee need proceed no further with the application. Appellant’s complaint was dismissed and he appeals.
The eleven questions appellant answered inquired as to his arrest or conviction of certain offenses, his advocacy of treason, sedition, espionage or sabotage, the giving of aid or comfort to any person involved in such offenses, his association with any person who had committed such acts, his employment by or on behalf of a foreign government, his being subject to or under the influence of a foreign government, whether he had relatives or associates living in certain countries, whether he advocates or supports or ever advocated or supported the overthrow or alteration of the government of the United States by force or by any unconstitutional means, his association with any person who had done so, and whether he had ever disclosed without authority any military or government information to any foreign government or person not authorized to receive it. He answered each of these eleven questions in the negative.
The three unanswered questions, in their substituted form, are:
“12. Are you now subscribing or have you subscribed within the past five years to the ‘Daily Worker,’ ‘Peoples World,’ or to ‘Political Affairs’? Answer ‘Yes,’ or ‘No.’ ............. If your answer is ‘Yes,’ give full particulars.
“13. Are you now or have you been engaged within the past ten years in the sale, gift, publication or distribution of any written or [519] printed matter prepared, produced or published by the Communist Party or by any of its branches or agents, or by Russia, China, Bulgaria, Hungary, East Germany, Poland, Roumania, Lithuania, Latvia, Estonia, or Czechoslovakia? Answer ‘Yes’ or ‘No.’............ If your answer is ‘Yes,’ give full particulars.
“14. Are you now or have you ever been a member of, or affiliated in any way with any of the organizations set forth below? Answer ‘Yes’ or ‘No.’ ............ If your answer is ‘Yes,’ give full particulars.
“Communist Party, United States of America and sub-divisions and branches
Abraham Lincoln Brigade International Workers Order Civil Rights Congress Labor Youth League.”
Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377, involved a Department of Defense security clearance program for employees of a private manufacturer producing goods for the armed services of the United States. The program was held to affect the liberty and property of the employee protected from unreasonable governmental interference by the Due Process Clause of the Fifth Amendment. The hearing procedures applied to Mr. Greene omitted the traditional safeguards of confrontation and cross-examination in the process of fact finding. Concerned as to whether this omission could be reconciled with due process of law, the Court refrained from deciding this grave question and held the program invalid as administered in Mr. Greene’s case because there was no clear authorization by Congress or the Executive for the Department of Defense to have created a security program under which an employee might lose his job through proceedings conducted without the right of confrontation and cross-examination.
In this light we inquire whether the Magnuson Act,3 upon which the Merchant Marine screening program before us ultimately rests, has authorized the appellee to deny appellant private employment in that industry merely because he refused to answer the three questions.
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FAHY, Circuit Judge.
Appellant, a merchant seaman and marine engineer, applied to the Commandant of the United States Coast Guard, the appellee, who was in charge of administering the applicable regulations, for a validated document required to enable him to secure employment on board vessels of the United States Merchant Marine, a private industry.1 The application consisted in part of fourteen questions, to be answered by the applicant in writing under oath. Appellant refused to answer three of the questions, stating they were violative of his constitutional rights, particularly under the First Amendment, and were so vague as to make accurate answers impossible. His application was refused further consideration, thus precluding him from obtaining employment in the Merchant Marine. Appellant then asked for a specific statement of charges and a hearing but was informed that his request was premature. He sued in the District Court for a judgment declaring that he was eligible for such employment, and for related relief. During the pendency of the suit appellee substituted for the original three unanswered questions three others of like but narrower scope. Appellant declined to answer the substituted questions on the same grounds and again requested a statement of reasons and a hearing. Neither was granted.2 Appellee moved for summary judgment. The court ruled that since appellant had refused to answer questions appellee had a right to ask, appellee need proceed no further with the application. Appellant’s complaint was dismissed and he appeals.
The eleven questions appellant answered inquired as to his arrest or conviction of certain offenses, his advocacy of treason, sedition, espionage or sabotage, the giving of aid or comfort to any person involved in such offenses, his association with any person who had committed such acts, his employment by or on behalf of a foreign government, his being subject to or under the influence of a foreign government, whether he had relatives or associates living in certain countries, whether he advocates or supports or ever advocated or supported the overthrow or alteration of the government of the United States by force or by any unconstitutional means, his association with any person who had done so, and whether he had ever disclosed without authority any military or government information to any foreign government or person not authorized to receive it. He answered each of these eleven questions in the negative.
The three unanswered questions, in their substituted form, are:
“12. Are you now subscribing or have you subscribed within the past five years to the ‘Daily Worker,’ ‘Peoples World,’ or to ‘Political Affairs’? Answer ‘Yes,’ or ‘No.’ ............. If your answer is ‘Yes,’ give full particulars.
“13. Are you now or have you been engaged within the past ten years in the sale, gift, publication or distribution of any written or [519] printed matter prepared, produced or published by the Communist Party or by any of its branches or agents, or by Russia, China, Bulgaria, Hungary, East Germany, Poland, Roumania, Lithuania, Latvia, Estonia, or Czechoslovakia? Answer ‘Yes’ or ‘No.’............ If your answer is ‘Yes,’ give full particulars.
“14. Are you now or have you ever been a member of, or affiliated in any way with any of the organizations set forth below? Answer ‘Yes’ or ‘No.’ ............ If your answer is ‘Yes,’ give full particulars.
“Communist Party, United States of America and sub-divisions and branches
Abraham Lincoln Brigade International Workers Order Civil Rights Congress Labor Youth League.”
Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377, involved a Department of Defense security clearance program for employees of a private manufacturer producing goods for the armed services of the United States. The program was held to affect the liberty and property of the employee protected from unreasonable governmental interference by the Due Process Clause of the Fifth Amendment. The hearing procedures applied to Mr. Greene omitted the traditional safeguards of confrontation and cross-examination in the process of fact finding. Concerned as to whether this omission could be reconciled with due process of law, the Court refrained from deciding this grave question and held the program invalid as administered in Mr. Greene’s case because there was no clear authorization by Congress or the Executive for the Department of Defense to have created a security program under which an employee might lose his job through proceedings conducted without the right of confrontation and cross-examination.
In this light we inquire whether the Magnuson Act,3 upon which the Merchant Marine screening program before us ultimately rests, has authorized the appellee to deny appellant private employment in that industry merely because he refused to answer the three questions.
The Act authorizes the President, upon making a certain finding, to institute measures and issue rules and regulations to safeguard vessels, harbors, ports and waterfront facilities against destruction, loss, or injury from sabotage or other subversive acts, accidents, or other causes of similar nature, and to employ such departments, agencies, officers and instrumentalities of the United States as the President may deem necessary. Under this authority the President on October 20, 1950, issued Executive Order No. 10173, by which he approved regulations designed to safeguard against the dangers mentioned in the Act.4 The [520] regulations provide inter alia that employment shall be conditioned upon the applicant receiving a validated document from the Commandant of the Coast Guard, and laid down a standard to guide the Commandant, namely, that the Commandant shall be satisfied that the character and habits of the applicant “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.” The regulations also provide that the form, conditions, and manner of issuance of the validated document shall be as the Commandant prescribes. Pursuant to this Presidential authority the Commandant promulgated regulations. 33 C.F.R. §§ 121.01-121.29 (Supp.1959). One of these is entitled “Standardsset forth in full in the margin.5 Upon receipt of a complete application, (see § 121.05) and such further information as the Commandant may require in case the application as first submitted is deemed insufficient, there are detailed provisions for processing the application {ibid.), in the course of which notice is given the applicant if the Commandant is not satisfied that his character and habits of life are such as to authorize the belief that his presence on board would not be inimical to the security of the United States. (§ 121.07) The notice is to contain a statement of reasons, as specific as the interests of national security shall permit, with pertinent information such as names, dates, and places, in such detail as to permit [521] reasonable answer. (§ 121.11) Written answer may be filed, including statements, affidavits by third parties, or such other documents or evidence as the applicant deems pertinent. (Ibid.) Thereupon a committee shall prepare an analysis of the information and make recommendations for action by the Commandant. If he is still not satisfied under the prescribed standard he is to refer the matter to a board. (§ 121.19) The applicant may appear before the board in person or by counsel or representative of his choice, may present testimonial and documentary evidence, and may cross-examine any witness appearing before the board. The board “shall reach its conclusion and base its determination on information presented at the hearing, together with such other information as may have been developed through investigations and inquiries or made available by the applicant * * (Ibid.) The recommendation of the board, with the complete record, shall be sent to the Commandant. If his decision is adverse he must notify the applicant of his refusal to issue the document and that an appeal may be taken to an appeal board at Coast Guard Headquarters in Washington. (§121.23) If upon receipt of the appeal board’s recommendation the Commandant is still not satisfied under the prescribed standard he shall notify the applicant that his appeal is denied. (§ 121.25) Should the Commandant, during any of these procedures, reach a favorable decision the document necessary for employment shall be issued.6
It will be seen that in these comprehensive regulations of the President and Commandant there is nothing to the effect that refusal to answer any of the questions contained in the questionnaire shall in and of itself cause rejection of an application. Such a result is not even remotely suggested by the Magnuson Act, the Executive Order, or the regulations of the President or of the Commandant. The basic standard for employment clearance, set forth by both President and Commandant, is, as we have shown, that “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.” Yet appellant’s right to employment was never measured by this standard, notwithstanding the absence of any provision relieving the Commandant of the necessity of applying it. Moreover, the regulations make clear that should the Commandant not be satisfied short of a hearing that the standard is met, then a hearing shall be had. As noted earlier, appellant twice requested a hearing but none was granted.
We assume, as was decided in Parker v. Lester, 9 Cir., 1955, 227 F.2d 708, that the Magnuson Act validly authorizes a screening of persons seeking employment in the American Merchant Marine; and we assume also that in the screening process the three unanswered questions are relevant. But what is relevant is not here conclusive. One relevant factor is to be considered with whatever else is relevant.7 As the Commandant’s own brief in this court points out, had the three questions been answered affirmatively appellant would not automatically have been disqualified, since the answers would merely have been taken into consideration by the Commandant in reaching a decision. We think it equally true that a refusal to answer the three questions for the reasons appellant assigned does not automatically disqualify him. It is nowhere so provided in the Act, Executive Order, or regulations. Here the Commandant by regulation has wholly failed to provide for rejection of an [522] application short of a hearing if the Commandant is not satisfied without a hearing as to the security qualifications of the applicant. Since he has not provided that an applicant who refuses to answer certain questions shall be entitled to no further consideration, the applicant was entitled to the processing of the application in the manner which the regulations do provide. Service v. Dulles, 1957, 354 U.S. 363, 386, 387, 77 S.Ct. 1152, 1 L.Ed.2d 1403, teaches us that so long as the regulations remain unchanged and the Commandant has provided for notice of reasons, answer and a hearing in order to permit him to make the determination he is required to make, he is bound by his own regulations. In this processing a critical factor may turn out to be the applicant’s refusal to answer certain questions. But any such factor must be weighed with all other evidence which might tend to satisfy the Commandant that the presence of the applicant on shipboard would not be inimical to the security of the United States. Perhaps the applicant can submit cogent reasons for his failure or refusal to answer the questions. Perhaps the Commandant will find unsatisfactory such reasons or explanations as may be offered. Even though he cannot satisfy the Commandant, “he is entitled to the opportunity to try. * * * [A]t least he will have been afforded that due process required by the regulations in such proceedings.” United States ex rel. Accardi v. Shaughnessy, 1954, 347 U.S. 260, 268, 74 S.Ct. 499, 504, 98 L.Ed. 681. The situation may be analogized to that referred to by Mr. Justice Frankfurter, concurring in part in Vitarelli v. Seaton, 1959, 359 U.S. 535, 547, 79 S.Ct. 968, 976, 3 L.Ed.2d 1012, “if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed.”
Reversed and remanded for further proceedings not inconsistent with this opinion.
“[50 U.S.C. § 191 (1952)]. Whenever the President 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, the President is authorized to institute such measures and issue such rules and regulations—
* * * *
“(b) to safeguard against destruction, loss, or injury from sabotage or other subversive acts, accidents, or other causes of similar nature, vessels, harbors, ports, and waterfront facilities in the United States, the Canal Zone, and all territory and water, continental or insular, subject to the jurisdiction of the United States.”
[50 U.S.C. § 194 (1952)]. “The President may employ such departments, agencies, officers, or instrumentalities of the United States as he may deem necessary to carry out the purpose of this chapter.”
“Subehapter A — General “Part 6 — Protection and Security of Vessels, Harbors, and Waterfront Facilities
* * * * *
“Subpart 6.10 — Identification and Exclusion of Persons From Vessels and Waterfront Facilities
Ҥ 6.10-1 Issuance of documents and employment of persons aboard vessels. No person shall be issued a document required for employment on a merchant vessel of the United States nor shall any person be employed on a merchant vessel of the United States 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: Provided, That the Commandant may designate categories of merchant vessels to which the foregoing shall not apply-
“§ 6.10-3 Special validation of merchant marine documents. The Commandant may require that all licensed officers and certificated men who are employed on othér than the exempted designated categories of merchant vessels of the United States be holders of specially validated documents. The form of such documents, tbe conditions, and tbe manner of tbeir issuance shall be as prescribed by tbe Commandant. Tbe Commandant shall revoke and require tbe surrender of a specially validated document when be is no longer satisfied that the holder is entitled thereto.”
“Standards. Information concerning an applicant for special validation endorsement for emergency service, or a bolder of such endorsement, which may preclude a determination that his character and habits of life 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, shall relate to the following:
“(a) Advocacy of the overthrow or alteration of the Government of the United States by unconstitutional means.
“(b) Commission of, or attempts or preparations to commit, an act of espionage, sabotage, sedition or treason, or conspiring with, or aiding or abetting another to commit such an act.
“(e) Performing, or attempting to perform, duties or otherwise acting so as to serve the interests of another government to the detriment of the United States.
“(d) Deliberate unauthorized disclosure of classified defense information.
“(e) Membership in, or affiliation or sympathetic association with, any foreign or domestic organization, association, movement, group, or combination of persons designated by the Attorney General pursuant to Executive Order [No.) 10450, as amended [5 U.S.C.A. § 631 note].”