357 U.S. 144 (1958), 621, Dayton v. Dulles

Docket Nº:No. 621
Citation:357 U.S. 144, 78 S.Ct. 1127, 2 L.Ed.2d 1221
Party Name:Dayton v. Dulles
Case Date:June 16, 1958
Court:United States Supreme Court
 
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357 U.S. 144 (1958)

78 S.Ct. 1127, 2 L.Ed.2d 1221

Dayton

v.

Dulles

No. 621

United States Supreme Court

June 16, 1958

Argued April 10, 1958

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Syllabus

At a time when an Act of Congress required a passport for foreign travel by citizens if a state of national emergency had been declared by the President and when the Proclamation necessary to make the Act effective had been made, the Secretary of State, after administrative hearings, concluded that the issuance of a passport to petitioner "would be contrary to the national interest," and denied him a passport. This action apparently was based on petitioner's alleged association with various Communists and with persons suspected of being part of the Rosenberg espionage ring, his alleged presence at an apartment allegedly used for microfilming material obtained for the use of a foreign government, and upon confidential information in the possession of the Government which was not revealed to petitioner.

Held: the Secretary was not authorized to deny the passport for these reasons under the Act of July 3, 1926, 22 U.S.C. § 211a, or § 215 of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1185. Kent v. Dulles, ante, p. 116. Pp. 145-150.

102 U.S.App.D.C. 372, 254 F.2d 71, reversed.

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DOUGLAS, J., lead opinion

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

Petitioner, a native-born citizen, is a physicist who has been connected with various federal projects and who has been associated as a teacher with several of our universities. In March, 1954, he applied for a passport to enable him to travel to India in order to accept a position as research physicist at the Tata Institute of Fundamental Research, affiliated with the University of Bombay. I n April, 1954, the Director of the Passport Office advised him that his application was denied because the Department of State "feels that it would be contrary to the best interest of the United States to provide you passport facilities at this time."

Petitioner conferred with an officer of the Passport Office, and, as a result of that conversation, executed an affidavit1 which covered the wide range of matters inquired into, and which stated in part:

I am not now and I have never been a member of the Communist Party.

With the possible exception of a casual and brief association with the work of the Joint Anti-Fascist Refugee Committee for a few months in 1941 and 1942 (all as related below), I am not now and have never been a member of any of the organizations

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designated on the Attorney General's list (which I have carefully examined).

I am not now engaged, and I have never engaged, in any activities which, so far as I know or at any time knew, support or supported the Communist movement.

I wish to go abroad for the sole purpose of engaging in experimental research in physics at the Tata Institute of Fundamental Research in Bombay . I am not going abroad to engage in any activities which, so far as I know or can imagine, will in any way advance the Communist movement.

The Director of the Passport Office wrote petitioner's lawyer in reply that the Department had given careful consideration to the affidavit, and added,

in view of certain factors of Mr. Dayton's case which I am not at liberty to discuss with him, the Department must adhere to its previous decision that it would be contrary to the best interests of the United States to provide Mr. Dayton with passport facilities at this time.

Later, the Director wrote again, saying:

In arriving at its decision to refuse passport facilities to Mr. Dayton, the Department took into consideration his connection with the Science for Victory Committee and his association at that time with various communists. However, the determining factor in the case was Mr. Dayton's association with persons suspected of being part of the Rosenberg espionage ring and his alleged presence at an apartment in New York which was allegedly used for microfilming material obtained for the use of a foreign government.

Thereupon petitioner, pursuant to the Passport Regulations of the Secretary of State, as amended, 22 CFR § 51.1 et seq., filed a petition of appeal with the [78 S.Ct. 1129] Board

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of Passport Appeals.2 He also requested, pursuant to the Regulations,3 information from the Board of particulars concerning three items: (1) petitioner's alleged "association with various communists"; (2) his "association with persons suspected of being part of the Rosenberg espionage ring"; and (3) his "alleged presence at an apartment in New York which was allegedly used for microfilming material obtained for the use of a foreign government." The Board's reply contained some, but very little, of the information requested, and it stated:

The file contains information indicating that the applicant was present at 65 Morton Street, New York City, in the summer of 1949 (July or August) and at Apartment 61, 65 Morton Street, New York

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City, during the month of January, 1950. The applicant's relationship, if any (past or present), with the following-named persons is considered pertinent to the Board's review and consideration of the case: Marcel Scherer, Rose Segure, Sandra Collins, Frank Collins, Bernard Peters, Kurt Fritz, Karl Sitte, Louis S. Weiss, Alfred Sarant, and William Perl.

A hearing was held4 at which witnesses for petitioner and for the State Department testified. Pursuant to the Regulations,5 the Board announced, over petitioner's protest, that it would consider "a confidential file composed of investigative reports from Government agencies" which petitioner would [78 S.Ct. 1130] not be allowed to examine.6

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Later, petitioner was advised by the Acting Secretary of State that the Board had submitted its recommendation, and that the Secretary, after "a review of the entire record and on the basis of all the evidence, including that contained in confidential reports of investigation," had denied the application. The denial was rested specifically upon § 51.135 of the Regulations.7

Petitioner then brought suit in the District Court for declaratory relief. The District Court entered summary judgment for the Secretary. 146 F.Supp. 876. The Court of Appeals reversed, 99 U.S.App.D.C. 47, 237 F.2d 43, and remanded the case to the Secretary for reconsideration in

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the light of its earlier decision in Boudin v. Dulles, 98 U.S.App.D.C. 305, 235 F.2d 532.

On remand, the Secretary, without further hearing, denied the application under § 51.135(c),8 saying that "the issuance of a passport would be contrary to the national interest." The Secretary at this time filed a document called "Decision and Findings" which is reproduced as an Appendix to this opinion.

The District Court again granted summary judgment for the Secretary, 146 F.Supp. 876, and the Court of Appeals affirmed by a divided vote, 102 U.S.App.D.C. 372, 254 F.2d 71. The case is here on a petition for a writ of certiorari. 355 U.S. 911.

The question most discussed in the briefs and on oral argument is whether the hearing accorded petitioner satisfied the requirements of due process. A majority of the Court thinks we need not reach that constitutional question, since, on their face, these findings show only a denial of a passport for reasons which we have today held to be impermissible. Kent v. Dulles, ante, p. 116. Whether there are undisclosed grounds adequate to sustain the Secretary's action is not here for decision.

Reversed.

APPENDIX TO OPINION OF THE COURT

DECISION AND FINDINGS OF THE SECRETARY OF STATE

IN THE CASE OF WELDON BRUCE DAYTON

I have examined the files of the Department of State concerning the passport [78 S.Ct. 1131] application of Weldon Bruce Dayton, including the proceedings in the Passport Office and before the Board of Passport Appeals, including confidential security information, and have found and concluded as follows:

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I

a. I find that applicant was active in the Science for Victory...

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