Flynn v. Rusk
Citation | 219 F. Supp. 709 |
Decision Date | 12 July 1963 |
Docket Number | 3478-62.,Civ. A. No. 3886-62 |
Parties | Elizabeth Gurley FLYNN v. Dean RUSK, Secretary of State. Herbert Eugene APTHEKER v. Dean RUSK, Secretary of State. |
Court | U.S. District Court — District of Columbia |
Joseph Forer, Washington, D. C., and John J. Abt, New York City, of the Bar of the State of New York, pro hac vice, by special leave of Court, for plaintiffs.
Benjamin C. Flannagan, Atty., Dept. of Justice, with whom J. Walter Yeagley, Asst. Atty. Gen., and Oran H. Waterman, Atty., Dept. of Justice, were on the brief, for defendant.
Before BURGER, Circuit Judge, and HART and WALSH, District Judges.
On April 30, 1963, upon application of each plaintiff and agreement of the Government and after motion to convene a three-judge court was heard and granted, this Court was appointed to hear the question of the constitutional validity of section 6 of the Subversive Activities Control Act of 1950, 64 Stat. 993, 50 U.S.C. § 785, as applied to the facts of the cases at bar.
The plaintiff Elizabeth Gurley Flynn filed suit on November 6, 1962, and the plaintiff Herbert Eugene Aptheker on December 14, 1962. The facts of each case are practically identical, and the cases were consolidated by order of the Court on April 29, 1963.
Section 6 of the Subversive Activities Control Act, provides, in pertinent part, as follows:
For the purposes of the questions here presented, the above section of the Act became effective October 20, 1961, when the Communist Party of the United States was ordered to register by a final order of the Subversive Activities Control Board, pursuant to the authority of section 7 of the Act, 50 U.S.C. § 786, said section 7 having been previously upheld by the Supreme Court in Communist Party v. Subversive Activities Control Board, 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed. 2d 625 (1961).
On January 22, 1962, the Acting Director of the Passport Office notified both plaintiffs that their passports were revoked because of the belief by the Department of State that use of their passports would be in violation of the Subversive Activities Control Act. Plaintiffs were also informed of their right to a hearing. Subsequently, both passports expired: Mr. Aptheker's on December 9, 1962, and Mrs. Flynn's on March 9, 1963.
The matter is now before the Court on cross-motions for summary judgment, both parties stipulating that all administrative remedies have been exhausted. The plaintiffs agree that for the purpose of these proceedings, the Secretary of State had an adequate evidentiary basis for finding that plaintiffs were members of the Communist Party. The plaintiffs further agree that the Secretary of State made findings on all matters required by section 6. The Secretary is not required, under the terms of the statute, to make any findings as to the purpose of the travel for which the passport is requested and he in fact made none.
The validity of section 6 has not been determined by the courts, but such determination was reserved for future consideration in Communist Party v. Subversive Activities Control Board, supra, 367 U.S. at 79, 81 S.Ct. at 1401. The Supreme Court stated:
Plaintiffs allege that they wish to travel abroad for recreation and study in pursuit of their profession as writers. They contend that section 6 of the Act is unconstitutional as applied to them for the following reasons:
(1) Plaintiffs are deprived without due process of law of their constitutional liberty to travel abroad, in violation of the Fifth Amendment to the Constitution of the United States;
(2) Plaintiffs' rights to freedom of speech, press and assembly are abridged in violation of the First Amendment.
(3) A penalty is imposed on plaintiffs without a judicial trial, and therefore constitutes a bill of attainder, in violation of article I, section 9 of the Constitution;
(4) Plaintiffs are deprived of the right to trial by jury as required by the Fifth and Sixth Amendments and article III, section 2, clause 3 of the Constitution; and
(5) The action of the Secretary of State under section 6 constitutes imposition of a cruel and unusual punishment in violation of the Eighth Amendment.
The defendant admits all the material facts as alleged by the plaintiffs but denies that section 6 is unconstitutional. The defendant contends that the disqualification imposed by section 6 is a valid regulatory device, reasonably drawn to meet the dangers of foreign subversion and that it does not effect punishment for past activity but rather that it is a regulation of the activities of present members of the Communist Party necessary for the preservation of the Government.
It is admitted by both parties that if either plaintiff terminates his or her membership in the Communist Party that section 6 will no longer apply to him or her. They also agree that it would be a futile act for either plaintiff to apply for a passport or renewal of a passport until such membership is terminated. Indeed such application would be unlawful under section 6 of the Act as quoted above.
There is no contention that the administrative procedures provided by the defendant for determining plaintiffs' membership in the Communist Party were in any way inadequate or violated procedural due process.
The plaintiffs pray that the defendant be enjoined from enforcing section 6 of the Act and that defendant be ordered to reissue to each of them a valid United States passport.
The sole question to be decided by this Court is the constitutional validity of the section in question as applied to the facts of these cases. In order to properly decide this question it is necessary to view the enactment of the Subversive Activities Control Act of 1950 in its proper context.
H.R.1844, 80th Cong., 2d Sess., dated April 30, 1948. The same thought was expressed in the debates which preceded enactment of the Internal Security Act of 1950, 64 Stat. 987 et seq., 50 U.S.C. 781 et seq., 94 Cong.Rec. 5850 and 5851; "H.Rept. 2980", 81st Cong.2d Sess., dated August 22, 1950, U. S. Code Congressional Service p. 3886.
The Congressional findings contained in the 1950 Act are binding on this Court. As the Supreme Court stated in the case of Communist Party v. Subversive Activities Control Board, supra, 367 U.S. at 94-95, 81 S.Ct. at 1409, with respect to the...
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Aptheker v. Secretary of State
...contentions, sustained the constitutionality of § 6 of the Control Act, and granted the Secretary's motion for summary judgment. 219 F.Supp. 709. The court concluded 'the enactment by Congress of section 6, which prohibits these plaintiffs from obtaining passports so long as they are member......
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