source: Caselaw Access Project

author: MeGOWAN, Circuit Judge:

license: Public Domain

text:
    TRANSAMERICAN TRAILER TRANSPORT, INC., Petitioner, v. FEDERAL MARITIME COMMISSION and United States of America, Respondents, New York Shipping Association, Inc., and Walleniusrederiena, United Fruit Company, Intervenors. COMMONWEALTH OF PUERTO RICO, Petitioner, v. FEDERAL MARITIME COMMISSION and United States of America, Respondents, New York Shipping Association, Inc., Intervenor. WOLFSBURGER TRANSPORTGESELLSCHAFT, m.b.H., Petitioner v. FEDERAL MARITIME COMMISSION and United States of America, Respondents Walleniusrederiena (“Wallenius Line”) et al., Intervenors. NEW YORK SHIPPING ASSOCIATION, Petitioner, v. FEDERAL MARITIME COMMISSION and United States of America, Respondents, Commonwealth of Puerto Rico et al., Intervenors. SEATRAIN LINES, INC., Petitioner, v. FEDERAL MARITIME COMMISSION and United States of America, Respondents, New York Shipping Association, Inc., Intervenor. SEA-LAND SERVICE, INC., Petitioner, V. FEDERAL MARITIME COMMISSION and United States of America, Respondents, New York Shipping Association, Inc., Intervenor. DANIELS & KENNEDY, INC., and the Madden Corporation, Petitioners, v. FEDERAL MARITIME COMMISSION and United States of America, Respondents, New York Shipping Association, Inc., Intervenor.
    Nos. 24019, 24044, 24831, 72-1714, 72-1740, 72-1763, 72-1766.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Oct. 3, 1973.
    Decided Jan. 28, 1974.
    Rehearing Denied Feb. 14, 1974.

      Ronald A. Capone, Washington, D. C., with whom Stuart S. Dye, Washington, D. C., was on the brief for petitioner in No. 24,019, also argued for petitioners in Nos. 72-1740 and 72-1763. Russell T. Weil, Washington, D. C., and John Williams entered appearances for petitioner in No. 24,019 and intervenor Transamerican Trailer Transport Inc., in Nos. 24,831 and 72-1714. Ronald A. Capone, Washington, D. C., also entered an appearance for intervenor Transamerican Trailer Transport, Inc.

      Mario F. Escudero, Washington, D. C., for petitioner in No. 24,044 also entered an appearance for intervenor, The Commonwealth of Puerto Rico, in Nos. 24,831 and 72-1714.
    Philip Elman, Washington, D. C., for petitioner in No. 24,831 also entered an appearance for intervenor Wolfsburger Transport-Gesellschaft, m.b.H. in No. 72-1714.
    C. P. Lambos, New York City, for petitioner in No. 72-1714. Wayne S. Bishop, Washington, D. C., entered an appearance for intervenor, New York Shipping Assn., Inc., in Nos. 24-019, 24,044, 72-1740, 72-1763 and 72-1766. Richard Brook, New York City, also entered an appearance for intervenor New York Shipping Assn., Inc., in No. 24,831.
    Joseph F. Kelly, Jr., New York City, for petitioners in No. 72-1766 also entered an appearance for intervenors Daniels & Kennedy and The Madden Corp. in No. 72-1714. James A. Trean- or, Washington, D. C., entered an appearance for petitioner in No. 72-1766.
    Carl D. Lawson, Atty., Dept. of Justice, for respondents. James L. Pimper, Gen. Counsel, Federal Maritime Commission, Edward G. Gruis, Deputy Gen. Counsel, Paul J. Fitzpatrick, Atty., Federal Maritime Commission, and Irwin A. Seibel, Atty., Dept. of Justice, were on the brief, for respondent.
    Marvin J. Coles and Neal M. Mayer, Washington, D. C., were on the brief for petitioner in No. 72-1740. Neal M. Mayer, Washington, D. C., also entered an appearance for intervenor Seatrain Lines, Inc., in Nos. 24,831 and 72-1714.
    Gerald A. Malia, Washington, D. C., was on the brief for petitioner in No. 72-1763.
    Alan F. Wohlstetter, Washington, D. C., was on the brief for intervenor Wal-leniusrederiena in Nos. 24,019, 24,831 and 72-1714 and also entered an appearance for intervenor United Fruit Company in No. 24,019 and intervenor United Brands Company in No. 72-1714.
    Before WRIGHT, McGOWAN and WILKEY, Circuit Judges.
   MeGOWAN, Circuit Judge:

These consolidated petitions to review orders of the Federal Maritime Commission, 28 U.S.C. § 2342 (1966), have their origins in the modernization of shipping and loading facilities in the Port of New York. At issue here is the propriety of the Commission’s approval, as modified by it, of the New York Shipping Association’s assessment agreement T-2390. That agreement was designed to allocate some of the costs of a labor accord reached between the International Longshoremen’s Association and NYSA, the latter acting on behalf of both member and non-member employers in the Port of New York.

NYSA is a multi-employer bargaining unit, comprised of ocean carriers, operators of vessels calling at the Port of New York, and contracting stevedores and other employer groups generally associated with loading, unloading, and handling of oceangoing ships and their cargoes. Some of the petitioners before this court are not members of NYSA. They are nonetheless directly affected by the allocation agreement because the cost of the membership assessment is reflected in their loading costs in the Port. They participated in the proceedings before the Commission, and clearly have standing to seek review in this court.

The diverse and contradictory positions advanced by petitioners reveal the difficulty of allocating the labor costs of a modernizing industry in a manner that satisfies all parties. The increased fringe benefit costs, in part a reflection of the union’s concern that port modernization will lead to excessive job displacement, must be divided among a group of employers whose labor productivity varies significantly. In this context, precise calculations are elusive, and absolute equity is beyond concrete demonstration. At best, the assessment agreement must represent a compromise of sorts. Cf. Volkswagenwerk Aktiengesellschaft v. Federal Maritime Commission, 390 U.S. 261, 293, 88 S.Ct. 929, 19 L.Ed.2d 1090 (1968) (Harlan, J., concurring). The Commission, itself a recent initiate to the complex problems presented by agreements of this kind, must exercise its statutory authority to assure that the agreements do not violate the mandates of the Shipping Act, 46 U.S.C. § 801 et seq. (1964). This court must in turn determine whether the Commission has operated within its proper statutory powers and by rational reference to substantial evidence in the record before it. In this instance we are persuaded that it has; and we affirm.

I

The assessment agreement is an attempt to allocate the costs of the modernization of port loading facilities. This so-called “containerization revolution” is characterized by the increasing use of more efficient methods of cargo handling in the maritime industry. Containerization has aroused the concern of the union, which looks upon these methods of cargo handling as a threat to job security. Thus, the rise of containerization was paralleled by a rise of labor unrest. Containerization began to affect Port of New York labor relations in the late fifties, and labor strife infested the Port throughout the decade of 1958-1968. The labor agreement with the union, which gave rise to T-2390, covered the years 1968-1971. It came at the end of a lengthy strike, and was itself but one more step in the battle over this issue.

1. The Evolution of T-2390

The NYSA membership unanimously ratified the labor contract with ILA which underlay T-2390, but with a general understanding among themselves that the Association would develop a formula that would cause a reallocation of the- fringe benefit assessment to transfer some of the costs of the concessions from the less efficient breakbulk operators to the innovative carriers. At that point, however, unanimity ended; and the creation of an allocational formula that satisfies all parties has been a continuing source of dispute. T-2390, itself a compromise solution that was the product of repeated NYSA efforts, was finally adopted by the NYSA membership by a vote of 58-3.

The purpose of T-2390 was to provide a means of financing the cost of fringe benefit concessions contained in the ILA agreement. NYSA had previously allocated these kinds of costs by a formula that charged members on the basis of man-hours of labor employed. But the same modernization process that prompted the concession of new fringe benefits in the underlying ILA contract also necessitated the creation of a new method of assessing NYSA members. Although the previous alloeational formula had worked fairly when most of the - members utilized similar loading methods and had similar labor produc-tivities, the man-hours formula began to impose an increasingly disproportionate burden on the traditional breakb.ulk cargo handlers as more employers turned to more innovative methods of cargo handling. NYSA therefore resolved to discontinue the old system. An assessment committee was created for the purpose of devising a new method of allocating these costs, and, after two previous attempts to reach an acceptable solution, swpra note 3, the committee proposed T-2390.

Agreement T-2390 established a combined man-hour and tonnage formula for raising funds to pay for certain fringe benefit costs of the ILA contract. One part of the assessment, based exclusively on man-hours of labor employed, was designed to cover expenses remaining from the previous labor contract which expired in 1968. The second component of the formula levied assessments on the basis of a specified amount per ton of cargo. As the amount of total liability under the labor contract was only a prediction, allowance was made for the establishment of greater tonnage assessment if that became necessary to cover all costs.

2. Commission Modification of T-2390.

Prior to Volkswagenwerk Aktiengesellschaft v. Federal Maritime Commission, 390 U.S. 261, 88 S.Ct. 929, 19 L.Ed.2d 1090 (1968), it was widely believed that the Commission's jurisdiction did not extend to these assessment agreements. In Volkswagen the Court announced that Section 15 of the Shipping Act did confer jurisdiction over these agreements, and spoke in broad terms concerning the Commission’s statutory responsibility to evaluate these pacts by reference to Sections 16 and 17 of the Act.

In this case, the Commission’s role has been pervasive. T-2390 was twice considered by a Hearing Examiner and twice by the Commission. The former’s initial consideration led him to conclude that T-2390 should be modified in two respects. First, he determined to grant “excepted cargo” status to all northbound cargo from Puerto Rico. Second, he lowered the NYSA assessment ratio on automobiles from the established level of 20% of cubic measurement to 18%.

The Commission, while accepting the Examiner’s findings of fact, modified his conclusions on these issues by extending the “excepted” status to include all Puerto Rican cargo, both north and southbound, and by restoring the initial NYSA assessment ratio of 20% for automobiles. Following proceedings prompted by NYSA’s motion for reconsideration, the Hearing Examiner altered his conclusions and determined that T-2390 should be approved as originally submitted, thereby denying “excepted” status to any Puerto Rican cargo and approving the NYSA automobile assessment of 20% that the Commission had endorsed in its first decision. Additionally, the Hearing Examiner considered for the first time the claims of the newsprint interests, and concluded that that cargo did not merit the special treatment afforded the “excepted” cargoes.

In its second consideration of the questions, the Commission had before it both the Examiner’s proceedings, findings, and conclusions, and the submitted proposals of the parties and of the Commission Hearing Counsel. Again, the Commission adopted the Examiner’s basic findings of fact but disagreed with his ultimate conclusions on the specific issues here in question. The Commission made three modifications of T-2390, each of which is challenged here. Two of the modifications relate respectively to the treatment of Puerto Rican cargo and newsprint. In each ease, the Commission adopted an assessment formula that granted “excepted” status as to some expenses but charged the cargoes for certain other expenses on a tonnage basis. Additionally, the Commission adopted a new method for assessing automobiles which resulted in a charge equivalent to approximately 10-12% of cubic measurement under the previous assessment formula.

3. The Contentions in this Court.

At the outer extremes are NYSA, which asserts that the original agreement was proper and should not have been altered in any way; and the Government, which defends the Commission’s modifications. On the single issue of the assessment of automobiles, petitioners Wolfsburger Transport Ge-sellsehaft, m. b. H., and Walleniusred-eriena support the final modification. The ultimate relief sought by the newsprint interests and the parties representing the Puerto Rican trade is the same, that is to say, each claims that the Commission erred in failing to grant its cargo full “excepted” status for all expenses. '

II

Any evaluation of the Commission’s actions must begin with Volkswagen, supra, — the case which both launched the Commission into the business of passing upon these allocational agreements and defined the dimensions of its role in that process. Section 15 of the Shipping Act requires that certain agreements must be filed with the Commission, and makes it unlawful to carry out any part of those agreements in advance of Commission approval. Once approved, Section 15 immunizes the parties from antitrust liability. 46 U.S.C. § 814. See generally Volkswagen, supra, at 271, 88 S.Ct. 929; American Union Transport v. United States, 103 U.S.App.D.C. 229, 257 F.2d 607, 610-611, cert. denied, 358 U.S. 828, 79 S.Ct. 46, 3 L.Ed.2d 67 (1958).

In granting antitrust immunity under Section 15, the Commission is charged with the responsibility of assuring that the agreements conform to the standards of Sections 16 and 17, which respectively prohibit subjecting “any particular person, locality, or description of traffic . to any undue or unreasonable prejudice or disadvantage . . . ,” 46 U.S.C. § 815, and forbid any unjust or unreasonable regulation or practice relating to or connected with the receiving, handling, storing, or delivering of property, 46 U.S.C. § 816. When the Commission finds that an agreement fails to satisfy the statutory standards, Section 15 authorizes the Commission to modify it in order to make it conform.

The record before us speaks eloquently of the difficulties of the task entrusted to the Commission, at least in relation to cost allocation agreements of this kind. As Justice Harlan observed in Volkswagen, supra, 390 U.S. at 293, 88 S.Ct. at 946:

[T]here [is] no “perfect” way to apportion the costs. An analysis of the present problem must leave room for the implementation of some uniform, practical, general rule of assessment even though it have some features that are less desirable than some alternative imperfect rule.

The Supreme Court’s recognition of the imprecise nature of the Commission’s inquiry did not, however, prompt it to read narrowly the Commission’s powers in this area. On the contrary, the Court indicated that the Commission’s powers under Sections 16 and 17 are to be read expansively. In examining agreements under Section 16, Justice Harlan invited the Commission to inquire “whether special treatment for this class of goods was necessary under the circumstances and, if so, whether the special rule adopted was the fairest that could he devised." Id., at 294, 88 S.Ct. at 946 (emphasis added). And, under Section 17, the Commission should relate the benefits received to the charges imposed with an eye toward determining “whether the charge levied is reasonably related to the service rendered.”

The nature and breadth of the Commission’s inquiry suggests the appropriateness of the relatively detached standard of review that courts should afford the Commission when it is clear that the Commission is acting within the proper parameters of its statutory responsibility. As this court emphasized some time ago:

[T]he [Commission] . . . [is] an expert in the field and this court should not pit its view against [it]. The great complexity of our economy induced Congress to place the regulation of businesses like foreign shipments in specialized agencies with broad powers. The courts are slow to interfere with the conclusions of such agencies when reconcilable with statutory directions.

American Union Transport v. United States, supra, 103 U.S.App.D.C. at 234, 257 F.2d at 612. And the Supreme Court, speaking to the propriety of the substantial evidence standard of review of administrative action, stated in Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966):

Congress was very deliberate in adopting this standard of review. It frees the reviewing courts of the time-consuming and difficult task of weighing the evidence, it gives proper respect to the expertise of the administrative tribunal and it helps promote the uniform application of the statute.

With the Commission’s role, and our own, properly in mind, we turn to the particular contentions of the parties to this appeal.

Ill

1. The Puerto Rican Trade Issue.

Probably the most hotly contested issue before both the Commission and this court is that of the treatment of Puerto Rican trade. NYSA chose to make no distinction for Puerto Rican trade, i. e., not to grant it the “excepted cargo” status that was offered certain “marginal” cargoes. See note 5, supra. The Commission considered the question on two occasions and twice found fault with the NYSA proposal.

The Commission’s initial determination was to grant all Puerto Rican trade “excepted cargo” status. On reconsideration, the Commission adopted the solution offered by its Hearing Counsel in the reopened proceedings. It assessed the Puerto Rican trade for certain “industry” obligations, for which Puerto Rican cargo was as responsible as all other cargoes, in a manner that required that trade to pay a percentage of the total “industry” expense that roughly corresponded with the trade’s approximate share of the total tonnage volume in the Port of New York. The Commission continued to require that the Puerto Ri-can cargo be assessed on an “excepted cargo” basis in respect of certain other costs for which its responsibility could not be so traced.

We have examined petitioners’ procedural challenges and find them to be without merit. The contentions that no new evidence existed to support the reopening of the proceedings or the Commission’s decision to alter its initial determination simply ignore the evidence that earlier cost estimates had been significantly in error, as well as the other matters set forth in the Commission’s decision to reopen. It is certainly within the Commission’s province to redraw its conclusions in light of its more complete and accurate understanding of the underlying facts. Nor do we feel that the subjects considered in the reopened proceedings necessarily need be limited to matters adverted to in its decision to reopen where, as here, none of the parties complain of lack of notice and an opportunity to participate in the reopened proceedings. Finally, contentions that NYSA did not meet its “burden” on reopening to demonstrate that the Commission’s initial determination was erroneous likewise fail to recognize the nature of the Commission’s inquiry, the substantial body of new evidence adduced in the reopened proceedings, and the latitude that courts must afford agencies that act rationally on the basis of substantial evidence on the record.

A great number of issues raised by petitioners for the Puerto Rican interests essentially relate to the conclusions that the Commission derived from the evidence before it and to the sufficiency of the evidence on specific points. These petitioners repeatedly maintain, for example, that the Commission improperly characterized the benefits received by the Puerto Rican trade and therefore erred in concluding that the benefits received justified the imposition of the assessments that it ultimately approved. We have examined the record and the decisions of the Hearing Examiner and the Commission as they relate to the specific points raised by these petitioners, and we are convinced that substantial evidence exists on the record to support the Commission’s determination not to grant the Puerto Ri-can trade a total “excepted cargo” treatment for all of the fringe benefit costs of the ILA agreement.

Petitioners’ repeated protestations that their trade had already modernized and therefore received no benefits — the premise for many of their claims that providing “excepted cargo” status was the only permissible result — overlook the Hearing Examiner’s extensive findings on the question of benefit, particularly those relating to the NYSA’s successful blunting of union demands aimed against the containerized carriers in the 1968 negotiations. See, e. g., JA I, at 164-66; JA II, at 486-87, 496.

Petitioners for the Puerto Rican trade interests also attack the Commission’s attempt to categorize the expenses, and to assess the Puerto Rican trade differently for different types of fringe benefit costs. They assert that the obligation for funding the guaranteed annual income expense is no different in kind from the obligation to pay for “shortfall,” and that the Commission erred in establishing a different method of assessment for the former. Petitioners raise other objections to the manner in which the Commission interpreted the evidence before it, and complain that the final Commission decision was simply a “compromise for the sake of compromise.”

It is, of course, not a fatal flaw that the Commission’s perception of the fairest allocation of the costs of the fringe benefit expenses creates an assessment that rests somewhere between the results advocated by the parties, so long as the Commission decision rests on substantial evidence. Most of the contentions advanced to this court were previously advanced to the Examiner and the Commission. What the parties request, in essence, is that we reverse the Commission on factual determinations. We have, however, examined the record and the decisions of the Examiner and the Commission, and have determined that the Commission’s ultimate decision finds the support of substantial evidence in the record. That exhausts our function.

Finally, some of the petitioners assert that any exclusion of the Commonwealth of Puerto Rico from the “excepted cargo” category effects an improper discrimination between Puerto Rican and other “domestic” cargoes. In large part, this contention rests too heavily on the word “domestic” and ignores the basic nature of the excepted category. As the records reveals, the “excepted cargo” category was designed to encompass “marginal” cargoes that might be diverted to other ports or other modes of transportation if burdened too heavily by the costs of the fringe benefit concessions in the labor agreement. Both the Hearing Examiner and the Commission properly focused on the essential nature of the excepted category rather than on the word “domestic.” Under any standard of review, we find no error in that determination.

Although the result sought is diametrically opposite, some of the contentions of NYSA are similar to those raised by the petitions for the Puerto Rican trades. NYSA also quarrels with the Commission’s decision to establish a different method for assessing the costs of “shortfall” and guaranteed annual income, and disagrees with the Commission’s evaluation of the nature of the benefits received by the Puerto Rican trade and the size of the assessment that the receipt of those benefits will support. It also asserts that the Commission’s solution was simply a compromise. To those contentions our answer is the same.

Finally, both NYSA and the petitioners for the Puerto Rican trade also attack the maimer in which the Commission chose to treat the Puerto Rican economy as a factor in its determination. The Commonwealth asserts that the unique nature of the Puerto Rican economy and its dependence on shipping should be critical, if not determinative, factors in the Commission’s decision. NYSA, on the other hand, maintains that these factors should have no bearing whatsoever, and that the Commission’s partial reliance on them was improper. The Commission and the Hearing Examiner consciously wrestled with these considerations and with the weight that they should receive in their determinations. The Examiner, after resting his first decision in part on the unique nature of the Puerto Rican economy, finally concluded that that fact should merit no weight whatsoever. The Commission, on the other hand, noted the peculiar status of the Puerto Rican economy and viewed it as a relevant factor in both of its decisions.

Assessment of the proper content to be given the mandate to protect the “public interest” is an elusive undertaking that varies from one context to the next. As this court has noted: “The same statutory phrase may have different meanings in different contexts, and the statutes agencies and court decisions are not necessarily fungible.” The Commission had previously considered the unique dependence of the Puerto Rican economy on maritime trade in other contexts, and we are not convinced that it cannot also take note of that factor here, especially when the record so clearly reveals that this was but one of the number of factors considered in attempting to assess a very complex proposal and determine what was “fair” and “reasonable” under all of the circumstances. Thus, we reject NYSA’s assertion that the Commission’s consideration of the character of the Puerto Rican economy was improper. But neither are we persuaded by the Commonwealth’s contention that this factor should be virtually dispositive. As the Commission noted, even the Commonwealth’s economic witness properly conceded that Puerto Rico must be prepared to bear some fair share of the common burden. On this record, we cannot find that the Commission gave improper weight to this one of many factors that contributed to its ultimate result.

In sum, we have considered each of the many individual arguments that have been advanced in opposition to the Commission’s resolution of the assessment for the Puerto Rican trade and found that none requires reversal of the Commission’s decision. In a matter turning so heavily on “a complex and hard-to-review mix of considerations,” Consolo, supra, 383 U.S., at 621, 86 S.Ct. 1027, as this one, we will not reverse the obviously considered opinion of the Commission when it finds support in a substantial body of the evidence of record.

2. The Newsprint Interests.

Treatment of the newsprint cargo was not at issue in the initial proceedings before the Examiner or the Commission. Petitioners Daniels & Kennedy, Inc. and the Madden Corporation did participate in the reopened proceedings, however, and they now assert to this court that the solution offered by the Commission imposed a disproportionately high burden in relation to the benefits received.

The Commission adopted the recommendation of the Hearing Counsel, which was to assess the newsprint cargo in the same manner as the Puerto Rican trade. The newsprint interests apparently considered that solution to be acceptable at one time. See JA II, at 527. But they now contend that they should be granted full “excepted cargo” status or should be assessed by some formula that would equalize their proportionate increase in costs with that of the break-bulk carriers. NYSA, contrarily, argues that newsprint should receive no special treatment.

/ The Hearing Examiner’s decision to deny any special treatment to newsprint cargo seems to have been based in large part on his conclusion that newsprint’s assessment increase was the same dollar amount as that imposed on breakbulk, and that newsprint’s high labor productivity made the assessment fair in comparison to other cargoes. The Commission, however, followed the recommendation of the Hearing Counsel on this issue. After finding that newsprint cargo was similar to “excepted” cargoes in that it was both highly productive and noninnovative, the Commission determined that newsprint should not be granted full “excepted cargo” status because it was not a “marginal” cargo that would cease moving through New York if saddled with additional costs. See note 5, supra. The Commission then adopted the formula that isolated the specific costs of the labor contract that might properly be attributed to newsprint, and assessed it on the basis of its proportionate share of the total tonnage volume in the Port. It granted newsprint “excepted” status for the expense of “shortfall.”

Many of the positions pressed upon us by the newsprint interests were advanced before the Commission and rejected. Examination of the Commission’s reasons and petitioners’ challenges persuades us that its decision to reject those solutions finds adequate support in the record.

Petitioners maintain that the Commission should make no reference to the relative fairness of the assessments that existed prior to 1968. That seems to be an untenable proposition. The thrust of the newsprint interests’ position is that their increase from the prior assessment levels is disproportionately greater than that suffered by some other cargoes. It therefore seems to us proper that the Commission should examine the fairness of the prior assessment, at least for the limited purpose of determining the validity of the basis of the comparison that newsprint has advanced. Obviously, if prior ratios were not “fair,” deviation from those ratios might not be “unfair.” We will not force the Commission to blind itself to reality.

In part, NYSA’s attacks on the Commission formulation of the newsprint assessment are similar to those asserted against the Puerto Rican formula. Our response to those arguments need not be restated. Nor do we find merit in the NYSA contention that the Commission mechanically applied the Puerto Rican assessment to newsprint; the Commission’s decision itself belies that assertion.

Finally, NYSA quarrels with the Commission’s comparison of the percentage increases in the assessment of various cargoes, maintaining that under Volkswagen such comparisons are only applicable in eases in which the Commission is reviewing a formula that is applied unequally to different parties or cargoes. The conclusion sought to be drawn from this argument here is that, since newsprint is assessed in the same manner as other cargoes under T-2390, the Commission should not have inquired into the relative impact of the increase. This contention reads the Commission’s mandate too narrowly. The uniformity of an assessment does not necessarily make it fair and reasonable. That is particularly true where, as here, the Commission found that the benefits received by the parties differed. NYSA’s further assertion that the formula was correcting past underassessment of newsprint only reiterates an element that the Commission recognized and took into account in reaching its conclusion.

3. The Automobile Interests.

Petitioners representing the automobile interests support the assessment formula for their cargo. The sole challenger on this point is NYSA. It contends that its assessment formula of 20% of measurement, approved by the Commission in its first decision and by the Hearing Examiner in the reopened proceedings, was fair, and that the Commission’s subsequent decision was an arbitrary compromise accepted after a proceeding that uncovered no new evidence relevant to the automobile assessment.

But the Commission did consider new evidence that was relevant to a determination of the fairness of the automobile assessment. The Commission’s initial determination that the 20% of cubic measurement was a fair assessment was derived from calculations based on a tonnage charge of $1.23 per ton, a figure then considered sufficient to finance the estimated cost of the ILA agreement. However, by the time the Commission considered the matter anew in the reopened proceedings, the tonnage charge had risen to $3.23 in order to reflect the fact that experience had proven the ILA agreement to be considerably more costly than initially contemplated.

Thus, the overall picture had changed significantly since the Commission’s determination that the 20% of measurement assessment was a fair one. The burden on automobiles had increased considerably. Moreover, the magnitude of the increase in the burden occasioned by the escalation of fringe benefit costs was not uniform among the various assessment categories. Just as any tonnage basis of assessment costs the efficient carriers comparatively more in relation to the breakbulk operators than did the man-hours assessment, any increase in the cost per ton falls more heavily on their shoulders as well. In light of the Commission’s determination that automobiles “were not the major cause of the ILA concern nor the chief beneficiary of the collective bargaining agreement,” JA II, at 547, we cannot agree that no new evidence existed that would justify the Commission’s reconsideration of the fairness of the automobile assessment.

Many of NYSA’s assertions relating to the question of the propriety of the automobile assessment mirror those previously considered in relation to newsprint and the Puerto Rican trade, and will not be discussed anew here. The remainder of the Association’s contentions relate primarily to the manner in which the Commission chose to evaluate the evidence.

NYSA has identified for this court relevant portions of the Examiner’s findings which, if interpreted in the manner suggested by NYSA, would lead to the conclusion that the 20% assessment of T-2390 is the only fair assessment. However, as we have noted earlier in this opinion and countless times in previous opinions, it is not the role of this court to decide these matters de novo. Rather, our inquiry is limited to a determination whether there is substantial evidence on the record to support the Commission result. Examination of this record reveals that the Commission evaluated the numerous suggested assessments for automobile cargoes and weighed the nature of the burdens imposed by each against the nature of the benefits received by the automobile interests. Moreover, as the Commission opinion makes clear, the Commission fully understood the obligation imposed on it by the Volkswagen case and operated within those parameters. It is not fatal to the final decision that the Commission differed with its own previous determination where, as here, it carefully articulated a proper basis for its ultimate conclusion that finds support in substantial evidence. Although inconsistencies may and should prompt more careful judicial scrutiny, where that examination reveals no impropriety, the fact of alteration itself is of no dispositive significance.

IV

In light of the substantial number of contentions raised before this court that appear to repeat issues raised and considered in administrative proceedings, it is perhaps appropriate to close with a reiteration of the judicial role in proceedings of this nature. The Commission’s powers under Sections 15, 16, and 17 of the Shipping Act are unquestionably broad. Once the court has satisfied itself that the Commission properly understood the nature and scope of its duties, its reviewing function on questions of fact is limited to determining whether substantial evidence exists to support the Commission’s determinations. We have examined carefully the procedural challenges raised, as well as the questions that appear to present issues of the Commission’s statutory authority. Having satisfied ourselves that the Commission did not err in these'matters, we have examined the Commission’s factual determinations, and its conclusions therefrom, under the substantial evidence standard of review. In no occasion did we find reversible error. Accordingly, we affirm the Commission’s approval of T-2390, as modified, in all respects, and deny the petitions for review.

It is so ordered.

      . This general background description has been summarized from the Hearing Examiner’s and the Commission’s reports, which are contained in the joint appendices (.TA) filed as a part of this appeal.

      . NYSA has apparently since adopted a different approach in allocating the cost of the subsequent labor contract. First, the membership of NYSA changed. The carrier members withdrew, leaving only stevedores and direct employers of labor. NYSA then adopted an assessment formula that follows some of the general patterns of T-2390, bolstered by an enforcement clause that effectively deprives non-paying shippers of any longshoremen labor. In July of 1972, NYSA and ILA petitioned the Commission for a declaratory judgment that that assessment agreement was not covered by Section 15 of the Shipping Act. Upon the Commission’s rejection of their position, both sought review in the Second Circuit (Nos. 73-1919, 73-1991, 2d Cir.) In July of 1973 Trans-american Trailer Transport, Inc., also a party to this appeal, presented a petition for review of the matter in this circuit. We subsequently granted NYSA’s motion to transfer TTT’s petition to the Second Circuit (No. 73-1782, Aug. 22, 1973).

      . NYSA previously filed two prior allocation agreements with the Commission. The first, a “temporary” agreement adopted by NYSA members on September 29, 1969, called for contributions to be based largely on a man-hour basis, but assessed most cargoes for the “shortfall” of contributions attributable to strikes or economic recessions on a tonnage basis. The temporary agreement was superseded by a “permanent” agreement, adopted in December of 1969 by a vote of 35-17, which provided a tonnage basis as the sole method of assessment of most cargoes. That agreement was in turn superseded by T-2390. During the negotiations and considerations of these agreements, the old man-hours basis of assessment continued in effect. Thus, the new system was not actually implemented until the spring of 1970.

      . The unique nature of the employment relationship in the maritime industry creates the need to provide a mechanism for the funding and disbursement of fringe benefits. In essence, the longshoreman is an employee of the entire port industry. His individual loading assignments often cause him to work for a number of employers in a relatively short span of time. Thus, the practice in the Port of New York and other ports is for the individual employer to pay the longshoreman’s wages for the time that he works on that particular job, and for a common association, in this case NYSA, to pay the fringe benefits that accrue generally from employment in the industry rather than from employment in a particular assignment.

      . “Excepted cargo” under the agreement included all cargo moving in domestic commerce or the intercoastal trade of the United States, excluding cargo moving to points outside the continental United States. The characterization of this cargo as “domestic” was somewhat misleading. As the discussion of the Hearing Examiner reveals, the basis for the creation of the excepted status was NYSA’s concern that certain “marginal” cargoes would be diverted to other locations if burdened with too great an assessment.
      “Excepted cargo” did not escape all payment. In place of the regular man-hour tonnage assessments imposed by T-2390, the “excepted cargo” was to be assessed on the basis of the previously existing rates for certain expenses and was exonerated entirely of liability for “shortfall” until October of 1970, at which time it would pay for that expense on the basis of the assessment rate then applicable for other cargoes.

      . The peculiar nature of automobile cargo necessitated a special assessment formula for it. The combination of the fact that automobiles are a highly productive cargo and their peculiar shape makes either of the traditional methods of measuring that cargo, weight or cubic measurement, inappropriate. This was recognized by all parties before the court, and the basic decision to formulate some different standard for assessing automobiles is not at issue here. The dispute centers on the more narrow question of which of a number of proposed special for-mulae is the proper one.

      . The Hearing Counsel participated throughout the extensive proceedings. In response to the Commission’s request that the parties offer mutually acceptable assessment formu-lae, the Hearing Counsel offered a method for charging the Puerto Rican cargo in his opening brief in the reopened proceedings. The Hearing Examiner termed it a “complicated proposal apparently based on much consideration . . . but apparently unacceptable to any of the parties.” Near the close of the Examiner’s proceedings, the Hearing Counsel submitted a new method of assessing the expenses for automobiles. The other parties neither requested nor were granted the opportunity to comment on the Hearing Counsel’s proposals at that stage, and the Hearing Examiner did not comment in detail on them other than to note that the NYSA’s solution had more substantial merit.
      The Commission considered arguments presented in opposition to the Hearing Counsel’s proposals in the second proceedings before it, and concluded that his approach was preferable to any other advanced.

      . Id., at 282, 88 S.Ct. at 941 (Stewart, J.). In Volkswagen the Commission had concluded that'there was no Section 17 violation because the petitioner had received “substantial benefits” and there was no demonstration of intent to impose an unfair burden on the part of the association that levied the charge. Id., at 281, 88 S.Ct. at 940. This interpretation, in the opinion of the Volkswagen majority, “reflects far too narrow a view of § 17.” “The question under § 17 is not whether the petitioner has received some substantial benefit as a result of the . . . assessment, but whether the correlation of that benefit to the charges imposed is reasonable. The ‘substantial benefits’ measure of unreasonableness used by the Commission in this case is far too blunt an instrument.” Id., at 282, 88 S.Ct. at 940. In his concurrence, Justice Harlan further emphasized the breadth of the Commission’s function. “The existence of such a categorical difference between the benefits received by different groups should at least invite inquiry whether the charges are as appropriately proportioned as would he feasible.” Id., at 294, 88 S.Ct. at 947 (Harlan, J., concurring) (emphasis added).

      . We do not interpret the Supreme Court’s decision in Volkswagen to have altered the Consolo standard of review in cases in which the Commission demonstrates that it properly understands the nature and scope of its statutory duty, and the questions for judicial review involve principally challenges to the conclusions derived by the Commission from the evidence presented to it. In a companion case to Volkswagen, the Court clarified this point while reviewing a court of appeals’ reversal of a Commission decision of a disputed factual question:
      The issue to be decided here was a purely factual one, and the Commission was entitled to draw inferences . . . from the record as a whole.
      * * * * *
      Although any conclusion as to the rate . . . must to some extent rest on “conjecture,” the court below misconceived its reviewing function when it found this a sufficient basis for setting the Commission’s finding aside. Having correctly noted that positive proof on various aspects of the case was simply not available one way or the other, the Commission was fully entitled to draw inferences on these points from the incomplete evidence that was available. “Conjecture” of this kind, when based on inferences that are reasonable in light of human experience generally or the Commission’s special familiarity with the shipping industry, is fully within the competence of this administrative agency and should be respected by the reviewing courts.
      Federal Maritime Commission v. Aktiebolaget Svenska Amerika Linen, 390 U.S. 238, 248-249, 88 S.Ct. 1005, 1011, 19 L.Ed.2d 1071 (1968).

      . Many of the petitioners complain that the Commission basically agreed with the Hearing Examiner in his findings of fact and yet disagreed with his conclusions. They insist that the Commission could not have possibly come to any other conclusions than those reached by the Hearing Examiner if it agreed with the Examiner’s characterization of the facts. This contention turns a blind eye to the Commission’s elaboration of the nature of its reasons for disagreeing with the Examiner’s conclusions, JA II at 524, n. 4, and its articulation of reasoning to buttress the conclusions that it chose to draw from the facts. As this court observed in considering a similar problem in the context of review of an PCC decision, “in the last . analysis it is the agency’s function, not the Examiner’s, to make the findings of fact and select the ultimate decision, and where there is substantial evidence supporting each result it is the agency’s choice that governs.” Greater Boston Television Corporation v. FCC, 143 U.S.App.D.C. 383, 395, 444 F.2d 841, 853 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 2231, 29 L.Ed.2d 701 (1971); see also Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 496, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Cinderella Career & Finishing Schools, Inc. v. F. T. C., 138 U.S.App.D.C. 152, 425 F.2d 583, 588 (1970). Nor do we find any problem with the fact that the Commission altered its earlier determination. Its final decision finds support in the record, and its reasons for altering its previous conclusions are well articulated and related to the evidence presented in the initial proceedings and in the reopened proceedings. Greater Boston Television Corp., supra, 143 U.S.App.D.C. 383, 444 F.2d at 852; FTC v. Crowther, 139 U.S.App.D.C. 137, 430 F.2d 510, 513-515 (1970); Cf. FCC v. WOKO, Inc., 329 U.S. 223, 227-228, 67 S.Ct. 213, 91 L.Ed. 204 (1946).

      . Petitioner Seatrain raises additional claims that involve essentially questions of contract interpretation. We find ourselves in agreement with the Commission that the Hearing Examiner properly disposed of these contentions. See JA I at 246, n. 13, and at 216-18.

      . “Shortfall” is an item of the labor expense attributable to the failure of the Port of New York to attain a total of 40 million hours of labor annually. The Commission found that it would be unfair to assess the cargoes whose man-hours of labor employed were growing with a shortfall expense, the basis of which is a decrease in hours of labor employed. See JA I, at 240-41; JA II, at 530-32. Guaranteed annual income, by contrast, is an obligation on the part of NYSA to guarantee each longshoreman 2,080 hours per year of work, vacations, etc. Unlike some of the fixed obligations in the labor agreement, GAI varies depending on the number of eligible recipients. NYSA apparently vastly underestimated the number of men who would receive GAI and thus the cost of that element of the ILA agreement. See JA I, at 176; JA II, at 500-02, 532-34.
      The Hearing Examiner and the Commission disagreed on the significance of these individual expenses in the determination of the overall fairness of the assessment for-mulae. Compare JA II, at 496 with JA II, at 530-38.

      . City of Lafayette v. SEC, 147 U.S.App.D.C. 98, 105, 454 F.2d 941, 948 (1971), aff’d sub nom., Gulf States Utilities v. FPC, 411 U.S. 747, 93 S.Ct. 1870, 36 L.Ed.2d 635 (1973). See also Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608 (2d Cir. 1965), cert. denied sub nom., Consolidated Edison of New York v. Scenic Hudson Preservation Conference, 384 U.S. 941, 86 S.Ct. 1462, 16 L.Ed.2d 540 (1966); City of Pittsburgh v. FPC, 99 U.S.App.D.C. 113, 237 F.2d 741 (1956).


author: McGOWAN, Circuit Judge: MacKINNON, Circuit Judge

text:
    Edward L. CAREY v. Britt HUME, Appellant, Jack Anderson et al.
    No. 71-1736.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Oct. 27, 1972.
    Decided Jan. 28, 1974.
    Rehearing Denied Feb. 21, 1974.
    Petition Dismissed June 5, 1974.
    See 94 S.Ct. 2654.

      Leonard Appel, Washington, D. C., with whom Warren Woods and Betty Southard Murphy, Washington, D. C., were on the brief, for appellant.
    J. Gordon Forester, Jr., Washington, D.C., for appellee.
    William R. Glendon and Anthony F. Essaye, Washington, D. C., filed a brief on behalf of the Washington Post Company as amicus curiae.
    Before DANAHER, Senior Circuit Judge, and McGOWAN and MacKINNON, Circuit Judges.
   McGOWAN, Circuit Judge:

The troublesome legal issue of the compelled disclosure by a journalist of his sources of information gave rise to this interlocutory appeal (28 U.S.C. § 1292(b)) from the District Court. It comes to us in the context of a civil action for libel, as contrasted with the criminal setting in which the Supreme Court has most recently examined the question and sustained compulsion. Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). Although there may be discernible degrees of difference in the social interests attaching to the exaction of testimony in the one field as compared with the other, we have concluded, on the basis of both authority and reason, that civil litigation has its entitlements on proper occasion to the pursuit of truth wherever it may be found. We find that this record presents one such occasion; and we affirm the District Court.

I

The complaint in the District Court alleged that on December 14, 1970, the following item was published in a syndicated daily newspaper column known as “The Washington Merry-Go-Round”:

WASHINGTON EXPOSE
Records Stolen? — With the government digging deeper into the financial affairs of the United Mine Workers, the union’s President Tony Boyle and General Counsel Ed Carey spent hours recently going through the records. Later, they were seen removing box-fuls of documents from Boyle’s office. Not long afterward, Carey made an official complaint to Washington police that burglars had struck at union headquarters. Among the goods reported stolen: a boxful of “miscellaneous items.” The Justice Department is investigating.

The complaint further alleged that this item had been written by appellant and a co-defendant, Jack Anderson, with a malicious purpose to damage appellee’s reputation, and with the effect of causing such injury. Substantial compensatory and punitive damages were sought. An answer was filed on behalf of appellant and Anderson, which described appellant as employed by the latter for the purpose of “research, news gathering, and journalistic writing in the course of this employment.” Authorship was admitted of the paragraph upon which the complaint was based, but liability was denied. Extensive discovery proceedings were then engaged in by both sides. The facts which follow are derived from a deposition taken of appellant.

Prior to publication of the item in question, appellant established, by direct inquiry at the police department, that the burglary complaint mentioned in the story had in fact been filed with the police. He also attempted to call appellee on the day the story was to go to press, but, being unable to reach him, went forward with publication, apparently with no further attempt at verification . of his facts. The day the story ap- ¡ peared appellee called appellant, and that / conversation led to the inclusion of this item in the column published December 15:

CAREY’S DENIAL — Our report on the circumstances surrounding the reported burglary of a box of “miscellaneous items” from United Mine Workers headquarters has drawn a belated but angry denial from the union’s general counsel Ed Carey. “A contemptible, despicable lie,” said Carey. Our report was based upon information supplied by eyewitnesses, and we will not retract.

Since this second story indicated that the first had been based on eyewitness observation, appellant was asked the identity of those sources. Although appellant refused, as directed by his counsel, to give their names, he did indicate that there was more than one such informant, and that they were UMWA employees. Appellant also disclosed in the course of the deposition that he did not know the date on which the activities described by him had occurred, but said it could have been any time during the six weeks immediately prior to publication. The claimed eyewitnesses had provided no written statements or affidavits, nor did appellant know of any writing or recording summarizing their accounts of these incidents. He was unsure whether he had taken notes of the revelations made to him by his informants, and, if so, whether he had preserved them.

Appellee then made a motion under Rule 37(a), Fed.R.Civ.P., to compel appellant to reveal the names of the eyewitnesses. Appellant filed an opposition to this motion, the first ground of which was that the “generic question” raised by the motion was pending before the Supreme Court on petitions for writs of certiorari in the Branzburg trilogy of cases; and that because of “the significant posture of the question at issue before the Supreme Court,” the motion should be denied pending disposition of the writs. The other grounds advanced by 'appellant were the constitutional claim of privilege, and the assertion that the information sought was not relevant to appellant’s case or material to his proof.

The Pretrial Examiner recommended that appellant be required to answer the questions concerning the eyewitnesses; and the District Court, disallowing appellant’s objections to the recommendation, entered an order directing him to do so, with a stay provided pending determination of. an appeal. This appeal is from that order.

II

There is no dispute before us as to the standard of proof which appellee must meet if he is ultimately to win his ease. That standard is the rigorously demanding one of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), where the Supreme Court established the principle that a civil libel plaintiff who is a public figure must show that the statement at issue was published with actual malice or in reckless disregard of the truth. In the context of an asserted newsman’s privilege to protect confidential news sources, the Sullivan rule is a source of tension. On the one hand, the Court’s concern that the spectre of potential libel actions might .have an inhibiting effect on the exercise of press freedom militates against compulsory disclosure of sources. Contrarily, the heavy burden of proof imposed upon the plaintiff in such a case will often make discovery of confidential sources critical to any hope of carrying that burden.

Some six years before Sullivan markedly altered the ground rules for recovery in civil defamation actions, there was decided the case of Garland v. Torre, 259 F.2d 545 (2d Cir. 1958), cert. denied, 358 U.S. 910, 79 S.Ct. 237, 3 L.Ed.2d 231 (1958). The opinion for the court was written by Circuit Judge (now Mr. Justice) Stewart, sitting in the Second Circuit by designation. In that case Judy Garland sued Columbia Broadcasting System, Inc., alleging that the latter had made false and defamatory statements about her, and had authorized or induced their publication in newspapers. An example of such publication was attached to the complaint in the form of some paragraphs appearing in a TV-radio column written by Marie Torre and printed in the New York Herald Tribune. The column contained several statements about Garland which Torre in her column attributed to a CBS “network executive.”

In an attempt to learn the name of the alleged detractor, plaintiff deposed three CBS executives without success. In a deposition taken by plaintiff Garland, the columnist refused to disclose her sources and was sentenced to 10 days in jail for criminal contempt. On appeal the Second Circuit upheld the District Court, concluding that resolution of the First Amendment issue in the case before it, although perhaps “delicate,” was not “difficult.” See Schneider v. State of New Jersey, 308 U.S. 147, 161, 60 S.Ct. 146, 84 L.Ed. 155 (1939).

The key factor which the Second Circuit identified as allowing it to move confidently to this conclusion was that the “question asked of [Torre] went to ¡the heart of the plaintiff’s claim.” The ¡decisional process with respect to the ¡¡constitutional issue before it, said the “court, involved a determination of “whether the interest to be served by compelling the testimony of the witness in the present case justifies some impairment of this First Amendment freedom . . . ” Conceding that freedom of the press is “basic to a free society,” the court went on to say that “basic too are courts of justice, armed with the power to discover truth”, and that the “concept that it is the duty of a witness to testify in a court of law has roots fully as deep in our history as does the guarantee of a free press.” The court went on to conclude that “[I]f an additional First Amendment liberty— the freedom of the press — is here involved, we do not hesitate to conclude that it too must give place under the Constitution to a paramount public interest in the fair administration of justice.”

In striking the constitutional balance contemplated in Garland, it could perhaps be argued that, although the Sullivan decision did not eliminate civil libel suits entirely, it has so downgraded their social importance that a plaintiff’s interest in pressing such a claim can rarely, if ever, outweigh a newsman’s interest in protecting his sources. The tenor of the Court’s opinion in Sullivan may be thought to reflect an attitude to- ^ ward libel actions palpably different/) from its approach to grand jury pro-' ceedings in Branzburg. There is, however, the matter of the Court’s continuing gost-Sullivan citations of Garland. This strongly suggests the continuing vitality of the latter case, and negates any inference that the Court does not; consider the interest of the defamed| plaintiff an important one.

Branzburg’s lengthy discussion of a newsman’s duty to testify before a grand jury undoubtedly has implications with respect to the deference to be accorded a newsman’s claim of privilege in other areas as well. Although the differences between civil and criminal proceedings distinguish Branzburg from the case before us, we cannot ignore the fact that the interests asserted by the newsmen in the Branzburg trilogy of cases were not accorded determinative weight by five members of the Court.

Although these cases provide some guidance as to the importance to be assigned to each of the competing interests, they do not seem to disturb the basic balancing approach set forth in Garland. Indeed, the Branzburg result appears to have been controlled by the vote of Justice Powell. His concurring opinion states:

The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a ease-by-ease basis accords with the tried and traditional way of adjudicating such questions. (Footnote omitted). 408 U.S. at 710, 92 S.Ct. at 2671.

Hopefully anticipating a different result in Branzburg, appellant was content to present the case to us upon the theory that the First Amendment left no room, under any circumstances, for compelling a newsman to identify his source. That is clearly not the law after Branzburg with respect to criminal proceedings, and it appears to us that Branzburg, in language if not in holding, left intact, insofar as civil litigation is concerned, the approach taken in Garland. That approach essentially is that the court will look to the facts on a case-by-case basis in the course of weighing the need for the testimony in [ question against the claims of the newsman that the public’s right to know is ' impaired.

Ill

Turning to the facts of the case before us, the information sought appears to go to the heart of appellee’s libel action, certainly the most important factor in Garland. It would be exceedingly difficult for appellee to introduce evidence byond his own testimony to prove that he did not, at any time of day or night over an indefinite period of several weeks, remove boxfuls of documents from the UMW offices. Even if he did prove that the statements were false, Sullivan also requires a showing of malice or reckless disregard of the truth. That further step might be achieved by proof that appellant in fact had no relia-, ble sources, that he misrepresented the) reports of his sources, or that reliance! upon those particular sources wasl reckless.

Knowledge of the identity of the alleged sources would logically be an initial element in the proof of any of such circumstances. Although it might be if possible to submit the question of malice to the jury simply on the basis of the conflicting allegation^ of the parties, that procedure would seem to provide the plaintiff little/prospect of success in view of his heavy burden of proof. Consequently, we find that the identity of appellant’s sources is critical to appellee’s claim.

In Garland the court was unable to say that the plaintiff’s claim was frivolous. Neither can we conclude on the basis of the record before us that appel-lee’s claim is without merit. In that respect this case is distinguishable from Cervantes v. Time, Inc., 464 F.2d 986 (8th Cir. 1972), which involved a libel action by the Mayor of St. Louis against Life magazine. After a prolonged and detailed investigation, Life published an article representing that the Mayor had maintained business and social ties with organized crime. Although the article consisted of 87 paragraphs generally containing statements detrimental to the Mayor’s public image, his complaint challenged only four of those paragraphs, while the truth of the rest was either admitted or not expressly denied.

The Mayor sought by deposition to discover confidential sources upon whom Life had relied for part of the story. The defendant publisher refused to disclose that information and countered with a motion for summary judgment. That motion was accompanied by extensive affidavits detailing the prolonged and careful research, and numerous other sources, both public and private, upon which the article was based. The court granted summary judgment for the defendant on the ground that, regardless of the identity of the confidential sources, the plaintiff would be unable to establish malice. It reasoned that the extensive documentation and uncontro-verted accuracy of the bulk of the article, combined with the evidence as to the prolonged, careful, and comprehensive nature of the defendant’s investigation, made it so unlikely that the plaintiff could succeed in his suit that compulsory disclosure of the confidential sources was unwarranted.

There has, of course, been no motion by appellant for summary judgment in the case before us, and thus no showing of facts bearing upon the likelihood that appellee will be able to meet the Sullivan standard. The present pre-trial record, in any event, discloses no wide-ranging and thorough investigatory effort by appellant comparable to that demonstrated in Cervantes. Aside from the confirmation of the burglary report, his description of appellee’s actions appears to have been based solely on the confidential sources in question. In Cervantes the article had been prepared over a period of several months by numerous people who had “spent countless hours corroborating and evaluating this data.” 464 F.2d at 994. In contrast to that procedure, after appellant attempted unsuccessfully to reach appellee by one telephone call, he went ahead with publication immediately without waiting even one day to attempt to obtain appellee’s comments. Further, his only action when appellee denied the story was to publish that denial along with a refusal to retract.

We do not, of course, mean to intimate any opinion as to whether appellant’s investigation was in fact adequate, or whether appellee will ultimately prevail. We say only that the facts disclosed by the record before us at this time are inadequate to support a conclusion that appellee is so unlikely to meet the admittedly heavy Sullivan burden that no purpose would be served by disclosure of the identity of the sources.

. There is, finally, the matter of the possible availability of the information in question from someone other than appellant. The values resident in the protection of the confidential sources of newsmen certainly point towards compelled disclosure from the newsman himself as normally the end, and not the beginning, of the inquiry. In Garland the court took into account the fact the plaintiff had deposed three CBS executives without success before turning to Torre. In Baker, note 9 supra, the district court, in exercising its discretion to deny compelled revelation by the writer, had found that there were other sources that might have disclosed the true name of the pseudonymous informant.

Our information on this score is confined to what appears in appellant’s deposition. There appellant testified that the eyewitnesses were all employees of UMWA. When asked as to their number, this colloquy occurred:

THE WITNESS: There is one that I know of personally and I understand that there were others.
BY MR. FORESTER:
Q. Others being at least two more that we are talking about ?
A. At least one more.

As to the time when the observations occurred, appellant testified that his understanding was that “this was something that had been done over a period of time, more than one occasion;” and he was unable to give any idea of the number of such occasions because his sources had not been specific about that. Appellant stated his understanding to be that the observations occurred in the daytime during normal working hours, but he was unable to say precisely where in the building they took place.

We think it may be assumed that the national offices of the UMWA are manned by a very substantial number of employees. It is also clear from the foregoing that the observations in question could have been made by anyone from an office boy to a top officer, and in any part of the building. We do not think that the concept of exhaustion of remedies relevant here is invoked by guide marks as vague as these. Appellant’s own information as to the circumstances of the observations was so imprecise as to afford appellee no reasonable basis to know where to begin.

These facts are quite unlike those in Garland, where the plaintiff testified in a deposition that she did not know who the CBS “network executive” was who was referred to in Torre’s column, but she had been told that it was “either Lester Gottlieb or Hubbell Robinson.” Neither does this record appear to be like that in Baker where there were some sixty defendant real estate agents charged with certain discriminatory practices, and the informant was described as a real estate agent himself who had engaged in the same practices at the same place at the same time; the court obviously saw no reason why the defendants themselves could not be deposed for the same information.

The courts must always be alert to the¡ possibilities of limiting impingements* upon press freedom to the minimum j and one way of doing so is to make comj pelled disclosure by a journalist a last resort after pursuit of other opportunities has failed. But neither must lit-gants be made to carry wide-ranging and onerous discovery burdens where the path is as ill-lighted as that emerging from appellant’s deposition.

IV

It is important to remember that this matter is before us on an appeal from an order of the District Court overruling an objection to that part of the pretrial examiner’s recommendation that appellee’s Rule 37 motion be granted and that appellant, “either on further deposition or in writing, identify the ‘eye-witnesses’ referred to by him . . .” Before discovery began, appellant had filed an answer denying liability. There have been no other proceedings thus far by way of motion for judgment or otherwise, and of course there has been no trial.

What we have decided — and all that we have decided — is that the District Court cannot, on the limited record before us, be said to have abused the discretion vested in it to grant or to deny a motion to compel discovery under Rule 37. We have rejected the only contention made to us by appellant, and that was the pre-Branzburg claim that there either is, or should be, an absolute First Amendment barrier to the compelled disclosure by a newsman of his confidential sources under any circumstances. That was not, in our view, the law before Branzburg, and it is certainly not the law after, in either civil or criminal proceedings.

Affirmed.

MacKINNON, Circuit Judge

(concurring) :

L concur in the foregoing opinion but wish to add some additional reflections on the practical result if appellant’s claim were to be sustained.

In recent decisions the Supreme Court has substantially changed the longstanding libel law of this nation so as to make newspapers, broadcast stations and all others immune from civil or criminal responsibility for libelous statements against public figures unless the statements are made maliciously, i. e., “with knowledge of their falsity or in reckless disregard of whether they are true or false.” Garrison v. Louisiana, 379 U.S. 64, 78, 85 S.Ct. 209, 217, 13 L.Ed.2d 125 (1964); New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). The news media has been quick to take advantage of this new-found freedom and since the decision in New York Times, supra, the nation has witnessed an enormous expansion in the publication of articles and statements that under prior law would have subjected the publishers to liability for libelous defamation. This development in the law also comes at a time when the speed of electronic communication has greatly increased and a growing concentration has developed in the ownership, power and influence of the news media. This, coupled with the existence of widespread electronic communication networks, vests a relatively small number of people with the ability within a few minutes to blanket the nation with statements that for the prior 200 years were held to be actionable libel. This is an enormous power.

In this case we are requested by appellant, a news reporter, to decide that the news media in effect possesses virtually absolute immunity from liability for libel. This would result if those employed by the news media were freed from the obligation to testify as to their sources, or alleged sources, of their libelous publications. If that were the law, the reporters and their employers (newspapers and broadcast stations) could as a practical matter in most cases never be held accountable for the serious injuries they cause. In cases where recovery is justified the amount of damage, which depends upon the degree of malice, would be much more difficult, if not impossible, properly to assess where the reliability or existence of an alleged informant is unknown and unknowable. The appellant, Britt Hume, admitted as much in an article of his published in The New York Times Magazine, December 17, 1972:

Yet Carey has a point. If newsmen can refuse to name the source of defamatory stories, they can effectively vitiate what is left of the libel laws [after New York Times v. Sullivan] by hiding behind anonymous sources whenever sued.

The logic of that statement by Hume disposes of his argument in this case and should dispose of any claim for a reporter’s immunity if the law is to be fair to the general public. If the law were otherwise, an injured plaintiff attempting to prove his case would face a blank wall, with practically no opportunity to discover the identity of the alleged source upon which the defense claims reliance.

If media publishers of defamatory material were to be given immunity from disclosing their sources, public figures would be greatly restricted, if not prevented, from recovering their damages, cf. Goldwater v. Ginzburg, 414 F.2d 324 (2d Cir. 1969), cert. denied, 396 U.S. 1049, 90 S.Ct. 701, 24 L.Ed.2d 695 (1970), but more importantly, private individuals would be equally prevented from securing fair compensation for their injury because the immunity of the reporter from disclosing his alleged news source would apply to all suits whether the injured person was a public figure or a private citizen. This immunity would also inure to the benefit of the reporter’s employer, the newspapers and news media.

In my view such immunity from practically all responsibility for libelous publications by the news media, constituting, as it would, a substantial departure from previously well settled law, would be contrary to the public interest and not conducive to a responsible press. The news media must be free but it should also be responsible. To hold that it is responsible to the same extent as all other citizens are responsible for libelous publications, with the additional freedom recognized in New York Times, does not amount to an infringement on the constitutional guarantee of free speech and the freedom of the press. Cf. Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972).

In my view the constitutional grant of “freedom ... of the press” does not convey an absolute immunity to the press to publish libelous information that it receives and then protect itself and the source by exercising a privilege that prevents the victim from proving the malicious intent of the source or publisher. The constitutional privilege contemplates a responsible press. To grant the media what as a practical matter amounts to absolute immunity — absolute privilege — would tend to lead to irresponsible journalism which would be, to paraphrase Walter Lippmann, “corrupting to the whole journalistic process.” I accordingly concur in the foregoing opinion because I believe it to be a correct statement of the law and sound public policy as well.

      . Appellant’s counsel made it clear in the deposition transcript that he was limiting his non-disclosure instruction to those eyewitness sources who “have been or are now employed by the United Mine Workers.” The witness was permitted to give the names of sources of information who were Government employees, but this information did not relate to the observation of removal of records from the UMW offices. The grounds asserted by counsel at that time as supporting his instruction to appellant were that there was fear of retaliation against UMW employees, and that the First Amendment rights of appellant as a newsman afforded him a privilege not to reveal confidential sources.

      . In addition to Branzburg, which involved two judgments of the Kentucky Court of Appeals, the Supreme Court by one opinion also decided In re Pappas [408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626] from the Supreme Judicial Court of Massachusetts, and United States v. Caldwell, 434 F.2d 1081, from the Ninth Circuit. The Supreme Judicial Court of Massachusetts, whose decision in In re Pappas to compel a newsman to testify before a grand jury was sustained by the Supreme Court, has recently held that a journalist must, in the course of pretrial discovery in a tort action for libel, respond to questions seeking the identity of the sources of information used in the writing of the allegedly defamatory news story. Dow Jones & Co. v. Superior Court, Mass., 303 N.E.2d 847 (1973).

      . In an earlier stage of this litigation there was some intimation by appellee that he was not a public figure within the reach of Sullivan. He has since, however, expressly disclaimed that position. See Curtis Publishing Company v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). In any event, because of the recent focus of public attention upon .the affairs of the United Mine Workers, there would seem to be no question as to the applicability of the Sullivan standard. Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 U.Ed.2d 296 (1971).
      We have recognized the heavy burden which that standard imposes upon the allegedly defamed plaintiff. See, e. g., Thompson v. Evening Star Newspaper Company, 129 U.S.App.D.C. 299, 394 F.2d 774, 776, cert. denied, 393 U.S. 884, 89 S.Ct. 194, 21 L.Ed. 2d 160 (1968), where we held that the plaintiff could not survive a motion for summary judgment and get to the jury on the issue of malice “unless he makes some showing ... of facts from which malice may be inferred ...”

      . Over and above the claim that the First Amendment without more barred the compelled disclosure of the confidential sources of newsmen, it was urged upon the court in Garland that it should recognize, apart from the Constitution, a societal interest in the unrestricted flow of news by throwing the protection of at least a qualified privilege over the identity of the news source. Noting a threshold question as to whether in this diversity case New York law governed, the court found no such privilege there provided under New York law, and it rejected the non-statutory privilege sought as one which “would poorly serve the cause of justice.”
      It was, lastly, argued in Garland that the district judge should, on the precise circumstances before him, have exercised his discretion under Rule 30 to protect the news source. In this regard it was suggested that the plaintiff Garland “might be able to acquire the information somewhere else”, and that the claim was of such doubtful value on .its merits that compulsion of the testimony would be no use. As to the first of these, the court noted that, while it was possible that the plaintiff might have learned the identity from further discovery proceedings against CBS, “her reasonable efforts in that direction had met with singular lack of success.” As to the second, the court found itself unable to say that the claim was frivolous, especially since the information sought was of obvious materiality and relevance to its establishment.

      . In United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), Justice Stewart, writing for the Court, referred to Branzburg in these terms (pp. 8-9, 93 S.Ct. at p. 769):
      These are recent reaffirmations of the historically grounded obligation of every person to appear and give his evidence before the grand jury. “The personal sacrifice involved is a part of the necessary contribution of the individual to the welfare of the public.” Blair v. United States, 250 U.S. 273,- 281 [39 S.Ct. 468, 471, 63 L.Ed. 979]. See also Garland v. Torre [2 Cir.], 259 F.2d 545, 549.
      In Justice Marshall’s dissenting opinion in that case (410 U.S. p. 41, 93 S.Ct. 764, 35 L.Ed.2d 67), Garland is cited, along with Branzburg and other Supreme Court cases, as suggesting that compulsions to testify are limited to personal testimony as distinct from voice exemplars.
      In Branzburg itself, Garland was cited in Mr. Justice White’s opinion for the Court as follows (408 U.S. at p. 686, 92 S.Ct. at p. 2659):
      . . . In 1958, a news gatherer asserted for the first time that the First Amendment exempted confidential information from public disclosure pursuant to a subpoena issued in a civil suit, Garland v. Torre, 259 F.2d 545 (CA2), cert. denied, 358 U.S. 910 [79 S.Ct. 237, 3 L.Ed. 2d 231] (1958), but the claim was denied, and this argument has been almost uniformly rejected since then although there are occasional dicta that, in circumstances not presented here, a newsman might be excused. . . .
      It also appears in Justice Stewart’s dissent (408 U.S. at p. 743 n. 33, 92 S.Ct. at p. 2681), which was joined in by Justices Douglas and Marshall, as turning upon the finding that the information sought “went to the heart of the plaintiff’s claim.”

      . Branzburg was decided after this case was taken under submission, thereby disappointing the high hopes entertained for it by appellant and pressed strongly in both the District Court and on appeal, especially with respect to the Ninth Circuit decision in United' States v. Caldwell, 434 F.2d 1081, which was reversed in Branzburg. Although it is certainly necessary to consider carefully the emphasis in Branzburg upon the public interest in the giving of testimony, we do not believe that it automatically controls this case. This is a civil libel suit rather than a grand jury inquiry into crime, and the dispute over disclosure is between the press and a private litigant rather than between the press and the Government. This difference is of some importance, since the central thrust of Justice White’s opinion for the Court concerns the traditional importance of grand juries and the strong public interest in effective enforcement of the criminal law. Justice White also relied on the various procedures available to prosecutors and grand juries to protect informants and on careful use by the Government of the power to compel testimony. Private litigants are not similarly charged with the public interest and may be more prone to seek wholesale and indiscriminate disclosure.

      . See United States v. Liddy, 155 U.S.App.D.C. 382, 478 F.2d 586 (1972) (Leventhal, J., concurring).

      . There are no federal statutes embodying a testimonial privilege for newsmen, nor has Congress made any special provision on this score for the District of Columbia. Although the elements of diversity jurisdiction may be present in this case, it would appear that jurisdiction was considered as attaching in the District Court under the then applicable provisions of the D.C.Code.

      . This element serves to distinguish Baker v. F & F Investment, 470 F.2d 778 (2d Cir. 1972). That case involved a federal class action pending in Illinois alleging racial discrimination over a prolonged period in the sale of houses in Chicago on the part of some 60 realtors named as defendants. Plaintiffs in that suit went into the Southern District of New York for an order under Rule 37, Fed.R.Civ.P., to compel a journalist, who had since moved to New York, to disclose the identity of one Chicago real estate agent whose “block-busting” techniques had been the basis of a magazine article 10 years earlier by the journalist. Emphasizing that the information sought, although perhaps relevant, was simply not central to the plaintiff’s case, the Second. Circuit distinguished Garland as involving “facts wholly unlike those before us”, and upheld the District Court’s determination that the newsman need not disclose his source. The court, rejecting a First Amendment claim of absolute privilege, asserted that the only question before it was whether, on the immediate facts, the District Judge had abused the wide discretion vested in him to disiwse of motions under Rule 37.

      . As regards this last xjossibility, see Curtis Publishing Co. v. Butts, note 3 supra.

      . Indeed, it is at best questionable whether a jury would ordinarily be permitted to infer malice from so little evidence. See Afro-American Publishing Co. v. Jaffe, 125 U.S.App.D.C. 70, 366 F.2d 649 (1966) (en banc).

      . In Curtis Publishing Co. v. Butts, note 3 supra, Justice Harlan, in extending Sullivan to reach public figures as well as public officials, expressed concern (388 U.S. at p. 135, 87 S.Ct. at p. 1981) “lest the [Sullivan] rule become a talisman which gives the press constitutionally adequate protection only in a limited field, or, what would be equally unfortunate, one which goes far to immunize the press from having to make just reparation for the infliction of needless injury upon honor and reputation through false publication.” Ilis formulation (p. 155, 87 S.Ct. at p. 1991) was that “a ‘public figure’ who is not a public official may also recover damages ... on a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers . . In affirming the award of damages to Butts, the Court stressed the sketchiness of the investigation made prior to publication. Indeed, Chief Justice Warren, concurring in Butts, 388 U.S. at 169-170, 87 S.Ct. at p. 1999, commented “that little investigative effort was expended initially, and no additional inquiries were made even after” protest against and denial of the defamatory matter.

      . These two persons were deposed by plaintiff Garland, as was later a third CBS executive presumably working in the same area of network operations.

      . 99.8 per cent of the homes of America have radio and television sets. Statistical Abstract of the United States, 1972, at 691. In addition, in 1971 newspapers had a daily paid circulation that reached 62,108,000 homes. Id. at 501.

      . A frequent response to questioning as to sources would bo that given by the defendant in Ginzburg, supra: “I don’t recall who I had in mind when I wrote that statement.” 414 F.2d at 332.

      . Walter Lippmann commented as follows in an interview on the general subject of the responsibility of the press :
      Q: There’s been a great concern over the freedom of the press recently — the right of newsmen to protect their sources, the effort of the government to intimidate the media. Tou’ve been concerned with this problem throughout your career. Do you think there is a serious threat to freedom of the i>ress?
      A: [By Walter Lippmann] I think that very often troubles of the press come from a commercialized desire to get scoops, to be the first to print the news. These “sources” very often are places to get tips of what’s going to happen. The desire of newspapers to he the first to print particular information is corrupting to the whole journalistic process. In the journalistic world I grew up in, it wasn’t a question of law whether you had to divulge your sources. It was a question of whether the reporter had the guts to refuse to reveal where he got the information, whether he was willing to go to prison if necessary. That was regarded as the elementary code of a newspaper man. The reverse of that was — and this was always my practice — when someone told me something in confidence, I didn’t pass it on to the reporters so we could get a scoop. I had a relationship with the man I was interviewing and I didn’t want to print that.
      Washington Post, March 25, 1973 (emphasis added).