Joseph Curran, Individually and on Behalf of All the Members of the National Maritime Union of America, Afl-Cio v. Melvin R. Laird

signs off, disregard compelling contributory neg- danger,

immediate was

ligence judgment for the thus the must

plaintiff-appellee

Reversed. CURRAN, Individually Be-

Joseph and on the Nation- of all the Members half America, AFL- Union of Maritime

al CIO, Appellant, Appellees. al., R. LAIRD et

Melvin

No. 21040. Appeals Court of

United States

District of Columbia Circuit.

Reargued June

Decided Nov. Skelly Wright, Judge,

J. Circuit

Bazelon, Judge, Spottswood Chief W. Robinson, III, Judge, Circuit dissented part.' Vigderman, Mr. Martin J. Philadel-

phia, Pa., with whom Mr. Abraham E. Freedman, Philadelphia, Pa., was on the brief, appellant. Stephen for Mr. C. Sussman, Pa., Philadelphia, also entered appearance appellant. Rosenthal, Attorney, Mr. Alan S. De- partment Justice, whom Mr. Atty., Bress, David G. U. at the time S. filed, brief, the brief was was on the appellees. Messrs. Richard S. Salzman Knopf, Attys., Department and Norman Justice, appearances also entered appellees.

ON EN BANC. REHEARING Judge, BAZELON, Before Chief McGOWAN, TAMM, WRIGHT, LEV- ENTHAL, ROBINSON, MacKINNON ROBB, Judges, sitting en Circuit banc. Judge:

LEVENTHAL, Circuit brought an action case involves Mari- National President Union, time of all members behalf against union, offi- United States shipment responsible cials for the cargo. Appellant Cargo Prefer- enforcement of the seeks statute, passed Act. This ence codification law reenacted in the Secretary follows, require- Defense. A August 10, see provides as Secretary (1964): ment use American 10 U.S.C. § flag op- expand employment vessels will Only United States NMU, portunities for the members of the may be belonging the United who man vessels.1 those transportation sea used Navy, Army, bought supplies for Aggrievement presents in fact However, Corps. Force, or Marine Air concrete, adversary of interest kind freight that the finds if the President underlying rejecting recent decisions charged is excessive vessels those objections standing, especially in unreasonable, contracts or otherwise sphere.2 constitutional It establishes as transportation be made personal “such a stake in the outcome * * provided law. otherwise controversy assure con that Military undisputed Sea that It is sharpens crete adverseness which (MSTS) used Transportation has Service presentation upon of issues foreign transport flag ships largely depends court so for illumina military cargo The Govern- to Vietnam. far-reaching ques tion” of difficult and replies vessels ment that Carr, 204, 186, tions. Baker v. 369 U.S. operating American bot- used while 691, 82 (1962). S.Ct. L.Ed.2d 7 663 It It also defends toms were available. significant is also determining in grounds. legal action various standing existence of to seek a mandate receiving statutory provision, depositions and enforcement of affi- a After though granted agree we with sum- the District Court Government davits agree appellees. mary judgment is not We decisive.3 Section 10 standing, in appellant Administrative Procedure Act4 Curran makes legislative cross-reference to the National behalf of the members trend enacting bring standing (NMU), provide statutes that Maritime Union persons reject appellant’s aggrieved However, g., we fact. FCC action. E. Bros., 470, v. Ac- Sanders contentions on the merits. 309 several UvS. 60 S.Ct. 693, (1940). cordingly 84 L.Ed. 869 affirm. Under approach developed liberal by the Su preme Court, ability person’s to vindi I. STANDING statutory rights cate permits his ac argues neither The Government attacking tion regulation broad claimed standing nor NMU its members have statute, inconsistent with the complain of a violation of the though complainant or immi now Cargo Preference Act. nently engaged proposing in or activities representing Plainly NMU, the in- regulation, interdicted provided members, aggrieved . terests of its ability cogent his planning undertake allegedly unlawful action present his operations or future statutory provision The relevant is dis- 415, 328, 371 U.S. S.Ct. 9 83 405 L.Ed.2d below, cussed 11 text note thereto. complaint alleges (par. 14) The that use City Light 3. Kansas & Power v. Mc Co. operates flag Kay, U.S.App.D.C. 273, 924, 96 225 F.2d prejudice of American seamen. The Gov- denied, 884, 137, cert. U.S. 350 76 S.Ct. summary judgment ernment’s motion for (1955) ; Tours, 100 L.Ed. 780 Arnold Inc. deny prejudice fact, up- does not but Camp, (1st ; 1969) v. 408 F.2d 1147 Cir. legality holds the official actions and Jaffe, Judicial Control of Administrative complain illegality. standing denies Action, 528-530 Compare Frothingham Mellon, (1964) “Right v. 262 U. 4. 5 : U.S.C. review. 447, 597, (1923) person suffering legal wrong S. 43 S.Ct. L.Ed. because of Cohen, 83, agency adversely with action, Flast v. U.S. S.Ct. affected 1942, (1968) ; aggrieved by agency 20 L.Ed.2d Tileston action within the Ullman, 44, meaning statute, 318 U.S. 63 S.Ct. of a relevant is entitled (1943) Button, judicial L.Ed. 603 with NAACP v. review thereof.” spectrum of ac administrative broad Broad- Storer United States hibited. this Court has echoed Co., 76 S.Ct. tions casting 351 U.S. noting Legis- the Administra theme 100 L.Ed. “generous any tive review provision, Procedure Act’s additional lature’s given provisions” “hospita legal wrong must suffering because person * * * Again interpretation. judicial ble” is entitled action Cort, strengthens the doc- view, Rusk v. confirms and 379-380, supra, at stand- whereby found courts have trine L.Ed.2d legally protected ing Court held on the basis ju- showing expansion of “clear con statute’s interest. legis vincing contrary and reen- evidence” of intermeshes dicial review liberalizing judicial the courts restrict stand- intent should lative forces a trend through protected Jaf See also ing access review. discernment fe, general develop- of Control of Administrative line Judicial interest. The by Action 336-359 [Footnote the observation is underscored ment Laboratories omitted.] in Abbott of Justice Harlan 140-141, Gardner, 136, 87 U.S. 387 v. judicial area where the liberaliza- The (1967): 1507, 1511, 681 18 L.Ed.2d S.Ct. headway standing tion least of has made competitor by survey relates to one com- of our cases shows actions [A] agency plaining authority. judicial a lack of of final ac of another’s review aggrieved person will not be this context courts have been tion an standing persuasive rea luctant to find of off there “because cut unless policy encouraging compe- pur open that such son to believe was free * * Congress. Early policy competition pose tition —a of favors 5 judicial place, type of market not in the courts.” this cases which entertained, g. Yet v. even here there been was e. Shields have decisions review standing Co., upholding competitor upon R. 305 in a Idaho Central U.S. Utah 111; Congressional intent, 160, “an of Stark indication 177, 59 83 L.Ed. S.Ct. 559, explicit Wickard, 288, implicit, or U.S. 64 S.Ct. in the relevant sub- grant 733, protection reinforced stantive acts to 88 L.Ed. been * * competitive of the Administrative interest the enactment Act, which Procedure embodies In the recent case of Hardin v. Ken- presumption of basic review tucky 1, Co., Utilities 390 U.S. “suffering legal wrong one because 651, (1968), 19 L.Ed.2d 787 the Court agency adversely or affected action upheld utility standing private of a aggrieved by agency within action challenge legality activi- TYA’s statute,” meaning of a relevant expanding ties in its area sales. 702, long pre statute so as no U.S.C. § general Court restated the rule “that is not cludes such relief the action injury economic results which from law- agency one law to discre committed competition itself, cannot, ful in and of 701(a). tion, The Adminis 5 U.S.C. § standing injured confer on the business spe provides trative Procedure Act question legality any aspect cifically “Agen review competitor’s operations.” its But cy statute” made reviewable action rule, Court stressed estab- that another “final but also for review of Chicago lished at least Junction since the no other ade action for there is Case, 264 U.S. 68 L.Ed. S.Ct. court,” quate remedy in a 5 U.S.C. plain made it that even legislative eluci 704. The material competitor standing complain of had dating statutory provision seminal manifests act non-observance legislative purpose congressional reflected “a intention that cover Tours, Camp, Camp, 6. See Arnold Tours, Inc 408 F.2d Inc. v. 408 F.2d 5. See Arnold 1969). (1st Cir. (390 competitive gained protect a interest.” U. There is little to be 654.) precedents detail. S. S.Ct. at examination simple Obviously no can be touchstone legislative pur- reference to “a provided standing determination pose” requirement is not a this be questions. Each case turns on na legislature. purpose principal parties, grievances ture of the analysis Chicago is also the statutory provisions How involved. presented by Professor Junction Case ever, approach clear that it is with the noted, Jaffe,7 approach, whose it will be Laboratories, per in Abbott charted approval cited with Har- was Justice aggrieved may properly son in in Abbott Laboraories. lan only the voke not letter of the Adminis precedents number have been “generous” trative Procedure Act and its to us. The es cited Government relies provisions, conception review but a broad Light pecially City on Kansas Power & “hospitable” McKay, U.S.App.D.C. 273, 225 Co. v. against complaints offi maintenance denied, F.2d cert. charged disregarding sub cials its (1955), and 100 L.Ed. 780 appear stantive mandate. And it does igre-Hardin precedents other contrary the absence of indica denying standing.8 tion the courts will an ac entertain even competitor brought by aggrieved tion Supreme In Hardin the limited Court fairly if there can to Con be attributed significance McKay of our decision. gress, expressly impliedly, purpose view, “long that the doc- Our established protecting competitive like interests concerning by competitors trine” actions complainants. those of statutory explicit provi- that an meant necessary standing on sion was to confer light In of these doctrines competitor, wholly inapplica- was held we 7and criteria conclude that American by competitors actions to ble to enforce standing complain sailors have to statutory requirements with concerned illegally \the executive officials have protecting competitive interests. See arbitrarily disregarded statutory /and 7, 390 U.S. 88 S.Ct. 651. / ships mandate use American mili- to on ; tary cargo. sup- That conclusion is post ap- opinions The -Hardin ported by the nature of the substantive peared part for \ the most in cases involv- statutory provisions involved, and issues ing competitors protesting broadened protections contemplated land the Con- activities national banks. While the gress. uniform, results are no means there recognition to seems be trend toward turn to We now the we statutes that standing accompanied by of dif- avowals consider for reflect sufficient concern ficulty.9 against protection American crews and 7. Professor Jaffe all concludes that 9. National Assoc. of Securities Dealers v. required is that “an SEC, interest intended U.S.App.D.C.-, 420 F.2d 83 protected (July 1969) ; Wingate the statute to be Corp. denied has been In v. protection.” Standing Jaffe, Bank, See to dustrial National 408 F.2d 1147 Actions, (1st 1969) Secure Judicial (standing Review: Private proces Cir. of data 255, 263, ; Harv.L.Rev. sors) Georgia Saxon v. Ins. Assn. of In Hardin the Agents, Court also noted that (5th 1968) F.2d Cir. protection private (insurance agents). contrary from TVA utilities A decision competition primary Wingate was “one of was rendered in of Data Assn. purposes” provision, of an area Processing limitation Organizations, Services Inc. see 390 U.S. at Camp, (8th 1969), 88 S.Ct. 651. v. F.2d 837 Cir. granted, cert. 395 U.S. 89 S.Ct. g., Pennsylvania Dillon, 8. E. (June R. R. 23, 1969). C. 23 L.Ed.2d In U.S.App.D.C. 257, Tours, 335 F.2d Camp, cert. Arnold Inc. v. 408 F.2d sub denied nom. (1st 1969), jointly American-Hawaiian S.S. Cir. decided Dillon, standing Co. Wingate, was denied as to 13 L.Ed.2d 543 agents. travel signify does not determination competition Our to avoid dismissal necessarily standing. tendered are The issues for lack their action Cargo scrutiny. appropriate In- history legislative of the 1904 deed, appear of this III purpose to use as will Part Act reveals Preference opinion, ques- freightage in that certain conclude we preference on Government by appellants to mat- vitality relate emer- tions raised promote order Con- and ters that have been committed availability gency of American disadvantage gress officials to the discretion offset crews being subject foreign competi- judi- meeting involved without incurred But reexamination. our conclusion cial on American tion.10 Crews standing dismissal seamen does serve avoid American not confined nega- of the law, of the action because nature that did a matter but bring parties us merits of prospect seamen American tive the any the case. In from the law. would benefit event, of 1936 Marine Act Merchant assuring requirement legal did contain II. THE NOT MERITS ON ISSUES the Car- Both use of American crews.11 INVOLVING THE RESERVE Ma- go Merchant and the Preference Law FLEET parts of a wide- rine Act interrelated reinstate On the merits we statutory foster ranging scheme banc, en attach shipping. appropriate It B,A, Appendix opinion, II to this Parts considering them in refer to both of Judge opinion C, D the written seamen intended that whether Wright opinion panel, which by illegal aggrieved left official action be issued on December was protection. protection legal without rulings: summary hold these brief cer- for American crews was intended Cargo Act, A. Preference diminished, anything tainly if was prohibits the use of strengthened, by the reenactment cargo, transport military American cargo legislation preference in subject exception implied an that for- H.R.Rep. Cong., 2d 10. See No. 58th chanics, developing instead of the sea (1904) at 5: Sess. strength and of industries our national depend on It is never safe or wise to possible rivals enemies. national foreigners for our own the defense of always country. dependence must Our provides, 1 1. The see § statute 46 U.S.C. ships uphold be own on our men 1132(a) (1964): flag dignity the honor and of our All licensed officers of vessels docu- extremity. time of under the laws of the United mented This can not be unless such men required by States, law, as now shall ready ships hand, are at and accus- States, of citizens the United native- on the sea. completely tomed service naturalized; born or $ departure sje )}: each from the United respect disadvantage cargo offset of our of a vessel To of ships competing operating with of which a construction or those sub- sidy granted has been all nations United States Government crew (crew including employees all can afford at least assistance of ship) employing its and its own shall citizens of the United own vessels completely freightage. States, native-born or nat- citizens for its own part cargoes would uralized. This insure keep ships moving require least across While law American did employment ships such, flag Ameri- ocean. The crews on American as ships ships substantially given can instead had that effect greatly key aid our vessels now of em- context the use of subsidies as ployment, engineers officers, ships continue inducement build in the United operate and seamen on the ocean instead of States and them under the Amer- equal foreign- employing flag, cargoes number of ican and the context leav- ers, bring ing accounting and re- the construction the United States for the pairs shipyards to our own and me- bulk of traffic involved. eign ships may interplay be used when American The case of two .involves legisla- ships cargo preference are not available. statutes—-the legislation. tion and the It reserve fleet implied exception B. does not they is axiomatic that should be con- finding by require him- the President harmonize, strued so as to and to the than self rather other officials in effectuate, respective maximum extent Department. Executive underlying policies. For this court to genuine no fac- C. The record shows require laid-up to be reactivated relating dispute appellant’s tual con- satisfy cargo preference provi- order to shipped in fact tention that MSTS has negate Congressional sions would cargo foreign ships when purpose maintaining fleet reserve operating vessels American were availa- emergency stockpile, as an and would ble for use. turn a into for flexible asset a millstone flag finding D. The that American transporta- those who must coordinate nega- ships are not not to be available is today’s military cargoes tion of ships subject treating requi- tived long-range requirements. defense sition the United States under cargo the, In our view 1242(a) (1964) preference__]egis- U.S.C. as “available” § lation does not contain mandate that meaning exception within judgment. oyerrides Cargo cdLthe-executive ..the. Preference Act. _the d§MÍÍI?lS3^.KheüierJq.,_^aw.. III. mothball emergencies. STATUS OF RESERVE mairitained_for use_in

FLEET VESSELS argues Appellant that the Government- mandate, being overriding no There transport owned the na- within statute, of another or the Consti- either tional defense reserve fleet “available legislation tution, pro- hold that ships,” which must be used viding for a reserve available military cargo pursuant Cargo to the emergencies span use authorizes a Act, Preference before resort is had pertaining executive actions— foreign vessels. establishment, expansion, curtail- fleet’s legislation, reserve fleet enacted ment, maintenance and use—that Ship part of the Merchant Act Sales “committed within discretion” App. provides, 50 U.S.C. (2) now meaning 10(a) the Ad- § “* ** 1744(a) (1964): Act,12 Unless and are ministrative Procedure provided law, otherwise all vessels surveillance and placed in reserve shall [national defense] in the correction for error exercise by preserved and maintained be [Sec- discretion. retary purpose for Commerce] not set aside conclusion does Our placed national such defense. vessel general rule that official administrative any reserve shall in no case be used for when a in courts action is reviewable any purpose except that such whatsoever injury person from an act taken claims any may vessel used for account of be by government of his in excess a official department or of the United powers. during any period in which recog- requisitioned doctrine, under [46 U.S.C. is sound While ** approved in such We have been and 1242] nized scholars,14 decisions13 16, 1950, precept period December a universal since it is not rule, proclamation general widespread Truman’s date of President but exeep- emergency. subject exceptions. These national rule (1964). Davis, 12. Law See 4 Administrative § U.S.C. K. Jaffe, (1958); 28.05, at 25 L. Treatise Magnetic See Heal- American Sch. of Action Administrative Judicial Control ing McAnnulty, 187 U.S. 23 S.Ct. L.Ed. 90 reports define, gence neither violate, services whose they rather tions do not ought published nor reviewability. are rule of intolerable It would be world. us for con- matter before That courts, informa- the relevant without special zones in the lies sideration nullify tion, perhaps should review and ordinary exceptions, than rather on actions taken Executive reviewability, judicial is estab- area Nor properly secret. formation held aspects of the cardinal lished several in order to be in camera can courts sit re- decisions case involves issues. The But taken into executive confidences. defense; lating national to the conduct of require full dis- if courts could key role; na- has the President very closure, of executive nature requires contemplates and interest tional foreign policy politi- decisions as to management flexibility of defense are cal, judicial. not decisions Such sources;' particular call issues and wholly our Constitution confided lie outside sound determinations gov- departments political aptitude, judicial in terms domain Legislative. ernment, Executive and facilities, responsibility. and They delicate, complex, and involve are legislative history The reenforces large They prophecy. are elements view the nature of the reserve only by those undertaken should be contemplated law executive actions directly people responsible significance of under the law.15 The they imperil. whose welfare advance highlighted features mentioned above They kind for are decisions of a by court to which we turn. decisions aptitude, Judiciary has neither Chicago Lines, Air Inc. & Southern responsibility and which nor facilities Steamship Corp., v. Waterman 333 U.S. belong long held has been 92 L.Ed. 568 subject political power not domain of held, dissent, the Court without inquiry. judicial intrusion or applica- Presidential determination determining action President’s authority engage tions in over- appointment person deserves whether foreign transport seas and air not commission, any military other to a subject judicial review. See 333 U.S. honor, is likewise position of-trust 108, 111, 68 S.Ct. at 436: scrutiny. Orloff not Willoughby, That navigation aerial routes is a also So bases 97 L.Ed. 842 prudently should be correlated assignment decision plans over facilities and for our own national service. Ibid. defenses prob- and raise new rulings lems in relations, conduct of Supreme These Court * * * knowledge. of common the matter dispositive themselves of President, up they the rele- point both as us. But Commander-in- before Chief Perhaps organ as the closer Nation’s considerations. vant though affairs, issues, particular available intelli- terms S.Rept. Navy 15. See (79th Cong. No. and the 807 at 5 Commission The Maritime Sess., 1945) 1st Department : considera- have under active determining The problem Bill establishes a reserve mer- of of tion the provides composition chant vessels merchant and the ves- size and placed may properly sels meet reserve not fleet to be used reserve vessel operations except strategic for commercial It is believed possible needs. * * * emergency unnecessary to -which would it authorize requisition authority express vessels under the Mer- reference make Act, premises chant Marine in the President placed serve provision are to be is suf- those for the necessary fully ef- ficiently for the made national de- flexible fense as determined after consultation fective. Secretary both with the of War and the * * Secretary Navy. 130

identical, rulings. judgment commanding are circuit court Our officer. noted, in yea nay own court has dictum: In contrast to the' char- acter of entitlement to the conscien- Ex It is—and must —be true objection exemption, tious administra- ecutive should be accorded wide and exemption tion hardship neces- normally unassailable discretion with sarily balancing involves the in- respect conduct of to the the national against dividual’s claims the nation’s prosecution defense and the of na needs, and the balance differ objectives through military tional place from time to time from power means. The of the armed serv place beyond in a manner the com- dispositions ices to make their of men petence of a court to decide. While materiel, and to take measures reasonably no one could assert safeguarding does not each country perish if Schonbrun fragmentation. admit (Emphasis 16 company, delay did not serve with his added.) call-up reservist, of a even dur- In United States ex rel. Schonbrun v. ing period necessary Commanding Officer, (2d 403 F.2d 371 consideraion his claim to discretion- 1968), Cir. cert. denied 394 U.S. ary exemption, inevitably means either (March 24, 89 L.Ed.2d gap in the unit or the call another 1969), court, through Judge Friend might reservist who otherwise ly, held that it must decline review have been reached. military’s grant refusal hard every While turn case must on its own ship exemption ready or reservist issues,17 analysis people we think this report duty. pp. dered for active See meaningful parallel “reserves” is a 374-375: issue of vessel “reserves” before us. very purpose “ready of a reserve” turning Before to more detailed consid- is that ready. the reserve shall be legislation eration of reserve fleet regulations, Under delay or ex- us, volved in the case before think emption duty from hardship active appropriate identify certain strands cases is required. authorized but not of doctrine that are not in our involved hardship “extreme,” must be ['decision. regulations expressly We note that our wisely give while more jj specific rights criterion, content personal does to this ¡decision involve good necessarily deal liberties,18 left does not involve constitu- \and Corp. McNamara, Overseas legislative Media history as well as"1its text U.S.App.D.C. 48, 385 F.2d deciding are to be considered whether (1967). justiciable The court held that a provide the courts were intended to re publisher claim was made aggrieved by who lief for those administra military, acting claimed that without tive action.” criteria, newspaper general had barred his For a discussion of nonreview- post exchanges, sale at ability, newsstands Davis, supra see 4 K. note admitting Leigh while 28.01-28.21, others. See 1-113; Saferstein, also Non- Exchange ton v. reviewability: Securities Analysis Commis A Functional sion, U.S.App.D.C. 217, Agency Discretion,” F.2d “Committed cert. denied 350 U.S. Harv.L.Bev. For a differ- (1955) (SEC’s 100 L.Ed. ing approach, refusal Berger, see Administrative jurisdiction assume over sale of Synthesis, Arbitrariness: 78 Yale L.J. Express travelers checks is action com mitted law discretion and Estep States, 18. See v. United therefore removed from the APA’s review S.Ct. 423, 90 L.Ed. 567 (cid:127) provisions.) We cannot believe that in 17. Barber, See 229, Heikkila v. 345 U.S. tended that criminal sanctions 233, 603, 605, 73 applied S.Ct. 97 L.Ed. 972 to orders issued local (1953) : flagrantly they no boards matter how question [E]ach in statute regulations must be ex violated the rules and which individually; purpose amined jurisdiction. its define their We are deal-

131 involve, remotely right not claims, This case does not involve and does tional seeking, the kind quali- there is no claim granted that expressly statute may justify judicial exception be non-review- otherwise fies what even as in instances review certain discretion.19 able generally to the final committed matters Furthermore, not does our decision excep judgment These of an official. principle where that even contradict case where to a tional instances relate gen type which is of official action merely contention has there been erally discretion the exercise of involves discretion, also but of error abuse of inquire power into a support of a claim in facts adduced discretion, or use of claim of abuse fraud, or con faith, the kind of bad proeedurally unfair and unauthorized wrongdoing in under effect scious injury inflicting private techniques, on personnel assumption cuts point is of our decision citizens.20 acting genuinely have been involved of matters is a narrow band there government officials.21 wholly dis committed to official that are of our conclusion The soundness cretion, inappropriateness and that when, and whether, how decisions appraising mischief involved even to or from the reserve fleet add detract of discre a claim of error or of abuse emergency, committed to in time of evidentiary tion, testing it in an by the official discretion established hearing, conclusion leads inextricably that these ju decisions from the there has been withdrawn permeated by as intertwined any of wheth dicial ambit consideration sumptions of national and conclusions “arbitrary” 01 action the official er strategy.22 defense constitutes an abuse discretion. Wunderlich, personal 21. See v. 342 question United States ing here with a 154, 98, 113 liberty. 96 L.Ed. added.) U.S. 72 S.Ct. (Emphasis 327 U.S. (1951). 121, at 66 at S.Ot. 427. remotely Similarly this ease cannot important though to note that It is exception set forth volve the kind of Estep permitted decision review of g- nn by th,e statute, “final” an order deemed (1964), (a) where 41 321 U.S.C. it did so a context that would not dis judicial for a review statutory inserted rupt operations of grossly “so errone- “final” action that was still scheme. The courts refuse to inter imply necessarily bad faith.” ous as fere with decisions affect 188, 184, (b) Kyne, v. 358 U.S. Leedom ing who registrants_ have been inducted. 180, 184, 210 L.Ed.2d S.Ct. 3 79 Willoughby, 83, See Orloff v. 345 U.S. exception out an where the Court carved 92-95, 534, (1953); 73 S.Ct. L.Ed. 842 97 orders Noyd to the doctrine that certification McNamara, (10th F.2d 538 Relations Board are the National Labor Cir.), cert. denied 389 U.S. “an review for (1967) ; Mc S.Ct. 19 L.Ed.2d 667 its made in excess of of the Board Martinez, (D.Md. order F.Supp. Abee v. contrary powers delegated to a 1968), where the court held nonreviewable specific prohibition Act.” the decision to send a soldier to Viet Nam exception extend also kind of protest he inade over a had been to, g., situations. conflict-of-interest e. quately trained for combat. See also Mississippi Valley Commandant, supra; See States v. Schonbrun v. cf. 520, 549, 559, Generating Co., 364 U.S. U.S.App. States, Carter v. United L.Ed.2d 268 (1968) (“clog D.C. 407 F.2d 1238 purpose” requiring “singleness (Statute ging government”). of the wheels agents government “directed not System 19. Oestereich v. Selective Service dishonor, at conduct but also Board, Local dishonor.”) tempts 414, 21 L.Ed.2d 402 deposi- Corp. McNamara, Media 22. This fact is underscored Overseas testimony Donaho, 56-58, U.S.App.D.C. 48, Com- F.2d of Admiral tion deposi- MSTS, ; (1967) who testified Free- Gonzalez v. mander 316-318 any U.S.App.D.C. man, break decision to F.2d 570 tion that actual fleet is made from the reserve when, cargo emergency where, our how much will and and time stress In only to act. have military be in the future —not moved officials need freedom cargoes. but also gave such freedom aid the Executive judgment require statute The also fleet. The decisions reserve lation upon feasibility providing re- of the call sustained empowering officials employment during national for reactivated vessel.25 a declared fleet serve emergency they are not mean does judgment This court cannot sit in obligated this resource to draw review a determination which involves emergency. posi- every Yet declared appraisals The those outlined. like by appellant points to this adopted tion manifest difficulties cannot by construing obviated be result. requiring the statute as long it of how Even determination the authorities “consider” laid-up into put feasibility take vessel will employing reserve carriage cargo military for military cargoes. service ships transporting computation. At a mere satisfactory ju- mechanical There is no exit once very questions of will the judgment there be diciary least enters crosses the threshold and efficiency the level of as to our domain of these matters. Unless sought reliability is to when and be merely preca- determinations tory, be emer- are reactivated Military reserve vessels Trans- a decision that Sea gency use. portation Department of or the Service using must moth- Defense “consider” The administration of commercial ships necessarily future invites balled cargo preference provisions23 involves litigation concerning first questions “judgment requiring close non, vel then such consideration and analysis issues and nice choices.” The whether consideration has sufficient heightened judgment on a dimen- take rationality escape as an deliverability condemnation when as sion such issues range delay formality. empty of tolerable relate supplies necessary for ef- prob- requires Even restricted review fort. going beyond ing mere the surface and range judgments setting conclusory of executive forth affidavits ap- likely department’s Any as volved involve estimates other reasons. Secretary 1241(b) Defense. the Office of the law 46 U.S.O. testimony concerning S.-flag requires privately earlier the stra- use owned U. tegic per shipments decisions what nature of bottoms for cent of all military cargoes, directly foreign governments he should used that are indirectly sponsored said: the American Government. contingency plan out is to be carried cognizant of, I am the Joint Douglas 24. These are the words of Justice they something have cleared Chiefs writing majority in for the Panama Canal Secretary De- with the President Line, Inc., v. Grace Co. U.S. they my capa- fense, know what 2 L.Ed.2d 788 bility is, they, carrying Na- out availability Determining reasonable say Policy, will there has to tional ships involves, Flag S. com- of U. as one force lifted somewhere an additional noted, “a both mentator has function of they from So three months now. shipments price frequently time, since project I think whether I tonnage wait until cannot additional shipping capability three available the reserves broken or diverted don’t, presume months, I I and if Lawrence, from other use.” S. get shipping I will be told to Shipping Policies States Merchant source, only other some other and the C., (Brookings, Washington, Politics D. source, other than active 1966) also, See Administration Defense Fleet. National Reserve Act, H.Rept. Cargo No. Preference JA. 136-37. Cong., 1st 84th Sess. cargo preference supra pro- Lawrence, 24, at 23. The commercial 25. See S. note visions were codified Stat. 88-89. gory these mat- of proach the notion that available vessels that a belies necessarily may not in fact mandate us are executive officials to ters before agency shipping military sup- consider before discretion. Settled to committed accept plies foreign permit us bottoms. does not doctrine administrative determinations face value Affirmed. surveying a record.26 at least without APPENDIX are officials who do not deal with We statutory operating discernible under Wright’s Excerpt Judge opinion from develop standards, stand- a mandate 27, 1968, issued sub December mm. Cur- justice. even-handed to assure ards et ran v. Clifford al. likely on called They to be are rather freely, judgments to make and revise II heavily perhaps information on to draw Coming ap- then to the merits of or in the domain from sources abroad peal summary judgment, from must we making global guessti- military in genuine no government determine whether “there operations of all mates. Not any issue as material fact” and wheth- review, are appellees judgment er a are “entitled to may profound effect though they have 56(c), as a matter of law.” Rule Fed. on our lives.27 R.Civ.P. misunderstanding note To avoid we outset, reject appel- A. At how to we that whether and decision may lant’s contention that abso- out the reserve fleet 1956 Act let vessels lutely prohibits by. the use of desire to use well be influenced transport cargo. crews, American ships, these and American unavailable, military supplies, American carrying Where American suppose cannot taken out of the awareness that when military supplies, perhaps they tended certain have a the reserve urgently needed, guaranty employment arising sit must the docks out of availability legislation. despite cargo preference ves- carry sels to them. It would be absurd legislative is no mandate But there from a de- derive such result statute judicially enforceable which re- signed security the national further quires of the mothball fleet use Í, through healthy development of a given due consideration as condition marine. merchant When, as, foreign flag use vessels. exception implied if, must be Thus an executive officials reactivate condition, operating into the 1956 when serve vessels into read Act: foreign ships fully available, they “available” for the are not become legislation. may purpose cargo preference This has indeed been be used. stockpile interpretation then, they part consistent administrative Until years, dating emergencies op- of the Act for over 60 but now held Attorney opinion they issued the cate- eration, and are outside General’s noting 17,' Saferstein, supra remain free to administer their note will 26. See creatively. underlying programs premise Even well- like that impossible find it abuses of dis- intentioned court [s] dissent “assume agency pleadings leap without some- to review actions from the cretion constricting remedy what valid discre- an abuse all a court need do any summarily.” tion, given vagaries standard The author is to reverse review, including points review for abuse review of limited also necessarily discretion. that are in fact discre- matters policies tionary may of the ad- subvert analysis Davis, Compare program: “Judi- ministrative Action,” scope cial Control of Administrative Nor can it be assumed that Review, agencies 66 Colum.L.Rev. review can be so limited day. guidelines Particularly policy used as the determination today.10 availability primarily Department simple of such That Defense the fact, suppose approved. interpretation matter of we cannot here Congress meant it to the to be entrusted any urges implied Appellant B. President. exception to the literal command read, explicit like statute must the be Appellant’s C. third contention is statutory exception “excessive or for military cargo shipped MSTS charged rates unreasonable” otherwise foreign ships operating in when Ameri- shippers, require presi- American to can in vessels for use. were fact available finding it dential is invoked. before true, If this were it raise would indeed rejected. This contention too must be questions serious under the 1956 Act. Congress in 1904 doubtless feared genuine dispute factual about this con- might the low-level administrators evade summary tention would serve to defeat by manipulation command Act’s judgment. However, find such no vague or of other- standard “excessive dispute. wise In the absence of unreasonable.” Appellant’s point conjoins case on this an to the administrative suited an procedures attack used to purpose, interposed the President as allega- shipping solicit American with interpreter of this standard. of tions two instances in which available availability The determination of the ignored American favor shipping, of unlike the de- American foreign flag of vessels. There is no of termination the “reasonableness” of dispute concerning proce- of fact rates, shippers’ American does not leave requests dures. The MSTS sends out for leeway too much or evasion abuse. proposals large pool brokers, of Further, primarily the determination is agents flag and of owners States- logistic, politi- technical than and rather ships. shipping If insufficient meet legal, type cal or hence more military offered, current needs is MSTS likely to be entrusted to line officials. proposals request sends a further foreign flag from ships. United States or (in Moreover, rates set conference pays MSTS the market rate current at liners) the case of scheduled remain rea- ship- the time of charter for American sonably stable over time. Their reason- ping, shipping and when such is not suitably ableness thus can assessed be pays forthcoming, lower market rate top without too Executive level foreign charters. much burden on the office of the Presi- Appellant procedure as in- attacks this availability hand, dent. On the other diligent satisfy sufficiently terms shipping transport American for the cargo military policy day appel- from fluctuates Act. opinion states, pertinent part: flag 9. The U. S. unless suitable U. S. “ * ** * * * my opinion flag ships [I]n are not or will available pro- priority when no American vessels can be not meet deadline dates on cured, cargo. payment exists, of unrea- condition When charges, employed foreign shipping flag sonable exorbitant there is be right employ necessary the same other means extent MSTS transportation expressly urgent military requirements. which is meet An granted pro- urgent requirement when such vessels can be is deemed delivery loading cured but at an excessive cost to exist when the or cargo arrangements the Government.” incident Ops.Atty.Gen. 415, risk thereto cannot deferred without cargo efficiency, main- Department policy regard 10. Defense Department tenance, or morale of to the use vessels was set out in personnel over- Defense activities August 31, Instruction MSTS dated seas, or such deferment will ad- when 1965: versely affect, Policy. de- Cargo to an unwarranted “3. under moved cognizance gree, port facilities.” MSTS shall carried in the utilization of foreign ships em- to reveal left idle while procedure fails lant’s view hiring ployed. ordi- When vessels shipping American all the business, argues nary the Government course Appellant fact available. flag can do more than make known little American owners of both industry shipping its needs and its flag of convenience willingness price. pay In- the market the Govern- the former withhold deed, held MSTS Commander to allow charter ment in order meetings lower, shipowners, and with American latter, costs are for which the by telephone, higher. exhorted them further perhaps profits and the shipping. effort to elicit American privately- support of claim that In its powers Apart its ships exercise of idle while are left owned American private military requisition ships break foreign ships transport and our part af- reserve cargoes, appellant Government introduced has —powers below—it which we discuss In of these instances. both fidavit two timely MSTS, instances, receiving of- difficult what more could see MSTS no sea trans- shipping, done to obtain American chartered of fers American cargo cargo port military carry if it had foreign ships its Vietnam. lay ships ships idle been shown that American of the two The crews Greek no proceed. Accordingly, we find both unoffered. both refused volved concerning the instances, ships issue of material then were American availability cargo. operating American ves- carry used to stranded sels, Court was and hence the District view, undisputed facts In our judgment justified granting summary support not lend incidents do these two as this issue.11 conelusory allegation appellant’s argues ships Appellant foreign ships used D. next were affidavit flag requisition were “United States vessels while (1964) 1242(a) reasonable States under 46 rates which were U.S.C. § available at meaning of Appellant are shown “available” within the excessive.” foreign chartering ships into two only Act.12 Such fall the 1956 after classes, separate- vessels, perform on treated failure to which must be and their ly. ships American were found. charter, day-to-day fluctuations in the Given First American are American-owned way availability goes shipping, no urges flag ships. Appellant such ships showing that American toward foreign ships are while idle available request for were idle when MSTS cargo, ships transport American proposals circulated or when was must override and that the Government charter was made. unwillingness offer shipowners’ procedures requisi- market, Nor do them- the MSTS them on the and must give any inference that selves rise to seamen tion them so American cargo. operating transport available American vessels American point ruling not, Secretary on this does Our for the of Commerce be lawful course, any requisition purchase suits under the 1956 bar future vessel parties involving Act the same and the citizens watercraft owned other brought issue, States, if same evidence can or under construction the United any operat- indicating States, suitable or for forward within the United requi- ing being during emergency, period American left idle such ships any foreign carry mili- such while tary cargo. American or charter the use sition ” * * property. provides, pertinent part: 1242(a) President The statute 46 U.S.C. § emergency pro- proclaimed shall a national “Whenever the President Truman security 16, 1950, App.U.S.C.A. claim that of the national on December during p. proclamation still advisable or and this defense makes it any emergency national declared in effect. President, proclamation it shall foreign rejecting appellant’s requisition flag vessels before found As we any challenging procedures it on the mar- the MSTS chartered such vessels claim vessels, requisition, hiring made no factual ket. Yet the im- he has decision to pinging sovereignty showing privately-owned American does nation, political ships the Government another is a decision idle when involving complex questions Act Yet the hired vessels. only the Govern- when relations. can violated leaving thereby foreign ships, ment uses Further, to fulfill the American sea- sea- the American through preference policy requisi- man In the them idle. man men who would tion, only the Government would not availability showing of the absence of foreign flag ships, have to take but to vessels, operating of idle American take them under some forms duty to question of the Government’s congressional very available. A clear ripe for requisition such vessels required mandate courts would be before in this case. decision contemplate order the could Executive to appel- discretionary po- such a series of The second class requisition in- appellees litical actions. lant would have flying ships for- American-owned cludes lacking a mandate is here. The Such convenience, eign flags and requires 1956 Act that American mili- subject flag ships to “effective which tary cargo transported in American be ships are These American control.”13 ships. limited its command to We have subject requisition. to American indeed ships, “American available.” The where however, requisition, would not Such nationality traditional criterion of the necessarily appellant the and benefit By ship flag of a is the it flies. represents. he American seamen whom criterion, privately-owned Ameri- both the United States The statute allows flag ships can and the vessels of the re- by purchase ships by requisition Foreign flag serve fleet are American. by purchase Requisition charter. ships, by Americans or whether owned bring ships the the under course subject control,” to “effective American flag, the stat- and hence under are not. requiring ute the of American crews. use congressional intent or Where clear requisition However, is under- where policy compelling indi- even reasons shortages temporary taken to overcome flag might cate, “pierce and the veil” likely it is charter. much more be ships find such to be “American” (with If it were time charter purposes. no Here there is such certain manning victualling owner the ves- compulsion of intent clear and no such foreign flag might sel) well be foreign flag policy. Hence we hold tained; no benefit would accrue hence requisition ships subject to American appellant. If it were bareboat purposes are not “American” (with chartering party charter man- of the 1956 Act. ning opin- victualling) we have ion of the Administrator Maritime Judge MacKINNON, (concur- Circuit flag either could flown.14 ring result): satisfy appellant’s To claim on this is- sue, require I concur in sum- the affirmance of the we would have Execu- injunction mary judgment denying seriously the tive at least to consider category ; foreign flag flag 1242(a) 13. which includes ves- § formerly operated provided sels under the United Marine Risk Insur- War approval flag, ance, where the 1281-1294 §§ 46 U.S.C. nationality, agreement. transfer of 46 U.S.C. similar §§ (Supp. 1965-66), II was conditioned agreement subsequent Deposition Gulick, that under all October J. W. ownership the vessel would be treated as requisition under 46 U.S.C. majority points there can out, theAs National Defense respect with but Maritime agree that the National be no doubt with do not Act I Fleet Reserve representing the in- America, opinion Union that Curran majority members, aggrieved in is portion of its of the ac- terests bring standing allegedly action unlawful fact majority opinion finds with tion. The Secretary For Defense. Act Fleet respect to the Reserve though in 1904 United States injunction he obtain cannot Curran required manned to not is committed matter because the seeks they seamen, as date of 1936 to say mat- States To discretion.1 aggrieve- argues appellee agency, are.1 But discretionary with the is ter my an insufficient recognition merely of ment fact alone opinion, standing to predicate sue. Act does Fleet the Reserve fact that right any legally protected not confer contended that least Some have for. persons he sues on Curran and passage since Administrative does that Curran conclude I thus gives Act, in Section 10 Procedure standing necessary to attack possess the “right “[any] person suf- a fering review” to Fleet of the Reserve the administration ** * wrong legal or ad- Act. * * versely aggrieved affected or meaning [any] relevant within the WRIGHT, Judge, Circuit statute,” J. SKELLY (Supp. IY 1965- 5 U.S.C. 702 Judge BAZELON whom Chief 1968), aggrievement all that is Judge W. ROB- SPOTTSWOOD standing Circuit challenge required to confer dissenting part join, con- legislative INSON curring administrative action. history part: in A.P.A., though conflict- ing, support interpretation, tends to this particularly in and House the Senate I. STANDING Reports, of which state Committee both majority’s tracing of careful con- that subsection “[t]his [Section 10] upon any person developments in the law of stand- recent right fers a adversely of review thorough ing, analysis its fact affected in ac- Act of Merchant Marine 1936 meaning aggrieved tion or within the Cargo Preference Law indicate Doe.No.248, any statute.” Senate 79th granted a American seamen been Cong., Sess., (1946). 212, 2d Pro- 276 “legally protected interest” af- which Davis, espouses fessor who this construc- standing required to fords them the tion,2 Supreme a number recent cites bring this our court. How- case before which, though they do decisions Court ever, it to me that court has seems expressly, seem discuss A.P.A. grant standing power to these standing simply find the basis plaintiffs find- even in the absence a plaintiff “palpable ing has create such suffered a intended to “legally protected injury.” Sullivan, interest.” Books, Bantam Inc. v. 701(a) (2), States, completely 1. §§ 5 U.S.C.A. or natu- native-born ralized.” provides : 1. The statute (1964). 1132(a) 46 U.S.C. § “All licensed of vessels docu- officers Davis, 'under the laws the United mented K. Law C. Administrative 3 required by law, States, (1958). as now shall be 22.02 Professor Davis Treatise § States, passage apparently of the United citizens native- feels even before naturalized; completely ag born or Act of the Administrative Procedure departure grievement each from the United fact in was sufficient to confer cargo respect law, standing States of vessel in and that under common simply wrong operating Supreme in a construction or Court was sub- sidy granted A., been of the crew has all Electric v. T. V. Tennessee Power Co. (crew employees 118, 366, including all 306 59 83 L.Ed. 543 U.S. ship) of the United Id. § shall citizens 22.04. 138 58, 631, City, points way.

372 U.S. 83 S.Ct. 9 L.Ed.2d Kansas that case (1963); Cramp opt In standing, v. Board of Public We should for a test of struction, 278, 275, challenging least 82 S.Ct. in cases administrative City (1961); Chicago action, v. L.Ed.2d 285 that would leave it in the discre- Atchison, Topeka Co., grant deny tion & Fe R. Santa court to stand- 77, ing plaintiff U.S. 2 L.Ed.2d 1174 where the 78 S.Ct. can no in- claim fringement (1958).3 legal right, of a but has fact suffering palpable, suffered or is court, however, major This de injury. aggrievement concrete This discussing question, ap cision has required is all to constitute ag rejected parently the notion controversy a case or in the constitution- grievement in fact is alone sufficient al sense.4 Thus the court where standing un confer under the A.P.A. or jurisdiction matter in such situa- City der the common law. Kansas Power tions, case, it can hear the but need not. McKay, Light U.S.App.D.C. & Co. v. hand, On plaintiff the other where denied, U.S. 225 F.2d cert. infringement legal does right claim of a 76 S.Ct. L.Ed. 780 granted statutory right has been Pennsylvania See also Railroad Co. review, plaintiff, assuming U.S.App.D.C. Dillon, 118 335 F.2d injury right fact, threshold has the City In Kansas we followed prosecute court, his case in Supreme teaching Court’s Tennes deny within the discretion of the court to T.V.A., see Co. Electric Power standing. him U.S. L.Ed. 543 decision, approach pre-A.P.A. held secures the court ade- 10(b), (Supp. quate control Section U.S.C. over its docket without un- duly restricting 1965-1968), people’s IV not effect funda did access to changes essentially judi provides mental the courts. It a mechanism standing. cially pre-A.P.A. made law which the can weed those cases Unless, therefore, plaintiff bring sharply which do not had the issue into right” “legally grant focus, sufficiently or was and it enforceable flexible right expand particular ed a to sue under a stat and contract our ideas of who ute, Ag standing. challenge he not should would have be allowed to different grievement fact, governmental perhaps a in while kinds of action evolve and necessary standing, not, grow. Cohen, 83, See condition of was Flast v. 392 U.S. held, 1942, we one 88 have made a self-sufficient S.Ct. 20 L.Ed.2d 947 n Flast the Supreme emphasized the A.P.A. Court the discretionary standing character the Nevertheless, City in Kansas were aggrievement doctrine and indicated that point careful out that “we would cer- in require- fact was the sole threshold tainly prepared appro- to hold in an ment. There the Court said: priate complains case that who one “ ** remedy administrative action find aspect The fundamental beyond scope the under Act the strict standing is focuses on the judicial recognized prior review to its party seeking get complaint his be- ** adoption Though *.” this is a fore federal court and not on the precisely majority in what the meant adjudicated. issues lie wishes to have 22.04, Davis, supra 2, 3. 3 public generally. See K. C. Note §§ that suffered the See Part). (1965 Pocket Cohen, 22.17 83, 116-133, Flast v. 392 U.S. 88 1942, (1968) (dis- S.Ct. 20 L.Ed.2d 947 say opinion is there must be senting not to an Harlan) ; of Mr. Justice injury Jaffe, in in there be case Standing fact order a to Secure Judicial Re- controversy in sense. the institutional Actions, view : Public 74 Harv.L.Rev. by “private can authorize suits go 1265 Professor Jaffe would attorneys general” public the permit “public to vindicate further actions” private party the has interest even where some situations even in the absence of any injury specific statutory not suffered different authorization.

139 standing’ doing, the down certain so Court laid ‘gist question suits, made seeking restrictions on such clear party relief whether is ‘alleged not, by taxpayer of that virtue that a did personal a stake such always standing to controversy alone, status as as to outcome challenge any expenditure. But which federal adverseness that concrete sure such suits limitations on presentation Court’s of issues sharpens the assuring “that largely de all at so directed the court upon which questions framed the neces- con will be with of difficult pends illumination Carr, specificity, sary will be v. issues questions.’ Baker stitutional necessary 691, 7 adverseness 186, L.Ed. contested with 204 S.Ct. U.S. [82 words, litigation pursued will be when and (1962). In other 2d 663] ease, necessary vigor to assure that standing placed in a with the in issue is challenge person will be made the constitutional question is whether traditionally thought challenged prop standing is in a form is whose adjudication capable party request resolution.”5 er Where, at at particular and not whether 88 S.Ct. issue U.S. * * * here, injury justiciable. palpable as there is a itself is issue requisite fed is as- party adverseness proper so demanded discretion, should, sured, its asked to decide court not be eral courts will grant standing. Ap- empowered over consti be controversies “ill-defined plying issues,’ sort to the case Workers test this Public tutional United Mitchell, hand, I conclude v. U.S. America] [of should, can, case and on the facts L.Ed. 754] S.Ct. [67 hypothetical standing as matter of discre- of ‘a confer or a ease character,’ Life Insur tion. Aetna abstract Hartford, Ha Conn.] ance Co. [of A combination of several reasons worth, S.Ct. [57 standing grant impel should tous stated, So L.Ed. 617] First, given the union seamen’s now. closely standing requirement re legislation requiring that United current than, to, although general lated more be manned United States bottoms courts will the rule that federal suffering crews, are the seamen States Chicago friendly suits, & entertain par- palpable, concrete, definite and Wellman, [143 Co. v. Grand Trunk R. injury Secre- result ticular L.Ed. U.S. Second, allegedly tary’s unlawful action. feigned or (1892)], or those which they perhaps party suf- nature, collusive challenge the Defense ficient interest Johnson, [63 U.S. allegedly admin- Department’s unlawful (1943); Lord v. Vea 87 L.Ed. 1413] thereby practice to vindi- istrative zie, 1067] How. L.Ed. [12 8 251 adequate public in an interest cate (1850).” fleet. For American war time merchant 99-100, 392 88 at 1952- ap- U.S. S.Ct. superficially who would shipowners, omitted.) (Footnotes strong pear economic interest to have a bottoms, also own of American use standing granted In Flast the Court foreign flags sailing under alleging taxpayer ato that certain Gov- by foreign, low-paid, manned non-union expenditures ernment the First violated owners, therefore, may be Amendment’s Establishment In Clause. crews. These Flast, standing. any- While and in its if fact, Court irrelevant In Baker, thing, standing il- be more quotation speaks of the should conferred of constitutional ultra vires rather issues, readily lumination than un- where standing, charged actions question constitutionality is is since course, charging raise as limited to such issues. Whether chal- do not only former lenged alleged governmental action is considera- separation powers serious illegal be simply unconstitutional tions. 140 Depart- prime

perfectly one satisfied if the Defense such statute. For func- essentially judicially the reserve fleet tions of the ment does reactivate created standing “flags require of convenience” law is to assure that fly plaintiff their true the court is one whose American control before under require likely colors, to do so would interests such that is most because he prosecute vigorously higher-paid United sea- his and to the use of cause bring clearly shipping American the controverted men when issues supplies. the attention of the court. See Flast v. Cohen, supra. say This is not to likely quite That the union is always plaintiff “best” challenge Secretary’s party will who standing. granted some instances weighs grant heavily toward the actions sufficiently af- that no one is standing. This sort consideration allegedly fected unlawful action highly de was relevant landmark give right him maintain a law- F. cision of C. v. Bros. Radio C. Sanders Here, however, suit. the seamen suf- 470, 477, Stations, 309 60 U.S. S.Ct. injury clear, fer a concrete and severe (1940), L.Ed. 869 where the Su of a sort which is not suffered preme reason Court indicated one population generally. They are doubtless permitting standing station radio footing plaintiffs on the best challenge the Federal Communications will ever have before this court. grant a com Commission’s of a license to petitor likely “that was one to be finan II. RESERVE cially FLEET injured VESSELS of a license issue only person having would be the a suf today majority holds that the re- bring ficient interest to the attention legislation span serve fleet authorizes “a appellate court errors of law [judicially unreviewable] executive * the action of the Commission * * * actions that are ‘committed to heavily We relied on this notion in Office agency meaning discretion’ within the of Communication Church of 10(a) (2) of the Pro- Administrative C., U.S.App.D.C. 328, Christ F.v. C. * * respectfully cedure Act I dis- granted 359 F.2d 994 where we sent. standing to group of “listeners” to challenge According the license renewal of tele to both the Administrative serving vision station their Procedure area. See Act and the “common law of Scripps C., judicial also Howard Radio F. founded, C. review” which it was U.S. S.Ct. Executive L.Ed. action (1942); (KDA), C. B. F. C. v. N. C. review unless “committed to dis frequent U.S. cretion 87 L.Ed. law.” In the cases where statutes their terms neither make nor reviewable shield from review Though these all cases chal- involved action, presump Executive there' exists lenges by plaintiffs claiming standing reviewability. tion of American School granting right under a statute Magnetic Healing McAnnulty, * * “persons aggrieved view to (1902); U.S. 47 L.Ed. 90 adversely by action, agency affected” Davis, C.K. Administrative Law Trea the plaintiff fact that the the before (1958); Jaffe, tise likely 28.05 L. only § is Judicial be the with one challenge sufficient interest Control of the ac- Administrative Action tion is relevant also where there is no (Supp. 1965-1968).

6. 5 Ü.S.C. § IV cretion law” are reviewable the statutory exception The reach of this courts whenever there has been an abuse general discretion, gee reviewability the rule of not Berger, is of that Admin- respectable authority sup- clear. There is Synthesis, istrative Arbitrariness: A porting proposition the that ac- those Yale L.J. tions which are “committed to dis- vessels, requisition reviewability” cally authorized “presumption of general proclaimed nation- had he for certain when regarded reversed as often is emergency. re- al Actions actions. types of Executive foreign or mili- lating to the conduct policies by the declared One the normally that; tary been have affairs Ship Act is Sales exceptional courts, absent the viewed necessary “It is national se- the Davis, supra, K. § C. circumstances. curity development and mainte- and Thus Jaffe, supra, 28.16; 363-369. L. export the of the domestic and nance normally the failure review we would import of the commerce emergency to exercise of the Executive United United the States States granted purpose of powers it for the adequate an efficient and Amer- military meeting nation. needs of the the * * ican-owned merchant marine (4) composed best-equipped, However, con- are not in this case we safest, types most of ves- granting suitable such fronted statute sels, constructed the emergency powers. permissive haveWe Act, with trained and manned com- the 1956 before us also effi- * * personnel cient *.” citizen face on their absolute mands terms cargo shipped that American 1735(a). (Emphasis App. U.S.C. statute, vessels. With in American added.) policy indi- This declaration Congress wide confined the otherwise has Act, Ship me cates to the Sales mili- to hire of the Executive discretion concerning cluding provisions its the re- tary transport; has the made fleet, with the 1956 serve has common shipment of American decision as to the Act and the Merchant Marine Act of military cargo itself. favoring purpose of sea- American men. already majority read into exception to its 1956 Act an words grant- purpose statute Thus Foreign may transport ships command. ing power fleet to break out reserve military cargo Ameri- American where cognate the “seamen benefit” agree. ships I can are not “available.” purpose of the 1956 and 1936 Acts. goes majority to hold on But ships power made available under has absolute unreviewable Executive principle must then be considered in as American to rule that discretion given Act, available under the 1956 not “available” reserve policies provi- two similar behind exception. within the terms sions. go prepared I I am not so far. holding can be reserve fleet policy would hold purposes matter of law available as it —that Ameri- Act as we have construed Act, Exe- I would leave the of the 1956 shipment in the can be favored seamen to determine cutive with wide discretion military cargo taken availability —must of mothballed power into account exercise ships. review, if indeed review Limited to break fleet. reserve permitted, any is inherent kind to be touching national defense. in matters The national defense reserve fleet was Certainly might consider Exe- what Ship established the Merchant Sales judgment,” distinguished cutive “bad 1946, App. ofAct 1735-1746 U.S.C. §§ action, arbitrary not a basis provided That Act for the sale heavy must review. burden rest part large surplus of Govern- anyone impugn the act of the who transports cargo ment-owned area, Executive in the national defense during II, built World and the re- War emergen- particularly in time of national part nec- tention of other as deemed such cy. security essary . for the national in a re- Moreover, imply be serve fleet. reserve could such a decision would speci- requirement either the President had no used when the entire reserve single fleet must be activated before a carry mili- ship American can

tary may large cargo. be that numbers It or reserve one reason particular transport

another unsuited slowness,

work. cost inconven- breaking may ience out that fleet practical

such as to much of it in render I unavailable. would leave such terms judgments

particular expert Exe- to the

cutive, subject review abuse requirement of discretion. Such require the Executive to undertake

possibly burdensome, detailed evaluation competing mil- interests each time

itary goods shipped. to be avoid To making specific findings

the need for

particular cases, the de- Executive could general publish

cide to formulate and

policy respect to the accommodation

between the use fleet and reserve

the 1956 Act. permit I would not the Executive to ignore the command of “[o]nly vessels of United States

belonging transportation by sup- used sea

plies bought Navy, Army, for the Air Force, Corps.” or Marine 10 U.S.C. § require I would fleet,

Executive look to the reserve passing it, have reason for over before it foreign ships

uses transport military cargo.

UNITED STATES of America HAYWARD,Appellant.

Milton L.

No. 22749. Appeals

United States Court of

District Columbia Circuit.

Argued Sept. 18, 1969.

Decided Nov.

Case Details

Case Name: Joseph Curran, Individually and on Behalf of All the Members of the National Maritime Union of America, Afl-Cio v. Melvin R. Laird

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Nov 12, 1969

Citation: 420 F.2d 122

Docket Number: 21040

Court Abbreviation: D.C. Cir.