Agee v. Muskie

Decision Date05 August 1980
Docket NumberNo. 80-1125,80-1125
Citation629 F.2d 80,203 U.S.App.D.C. 46
PartiesPhilip AGEE v. Edmund S. MUSKIE, Secretary of State, Appellant.
CourtU.S. Court of Appeals — District of Columbia Circuit

Michael F. Hertz, Atty., Dept. of Justice,Washington, D. C., with whom Alice Daniel, Asst. Atty. Gen., Charles F. C. Ruff, U. S. Atty., Leonard Schaitman, Mark H. Gallant and Douglas N. Letter, Attys., Dept. of Justice, and Roberts B. Owen, Dept. of State, Washington, D. C., were on brief for appellant.

Melvin L. Wulf, New York City, and Charles S. Sims, for appellee.

Before MacKINNON, ROBB and WALD, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROBB.

Dissenting opinion filed by Circuit Judge MacKINNON.

ROBB, Circuit Judge:

In this case Philip Agee challenges a regulation relied on by the United States Department of State to revoke his passport. The District Court, 483 F.Supp. 729, declared the regulation invalid for lack of congressional authorization and restored the passport. We affirm.

Appellee Philip Agee, a United States citizen and a former employee of the Central Intelligence Agency (CIA), presently resides in Hamburg, West Germany. Agee is a leading critic of the CIA's clandestine operations throughout the world. He has written and spoken extensively attacking American intelligence efforts, and has purportedly revealed the identities of certain undercover CIA agents. Agee was issued a United States passport, No. Z3007741, on March 30, 1978, with an expiration date of March 29, 1983. However, the United States Department of State, aware of Agee's activities and perhaps believing that they took on special significance because of the Iranian crisis 1 and the recent unrest in other Islamic countries, moved to revoke his passport.

On December 23, 1979 the United States Consul General in Hamburg delivered to Agee a letter from the Department of State notifying him that his passport was immediately revoked and should be surrendered. The letter invoked the authority of 22 C.F.R. §§ 51.70(b)(4) & 51.71(a) (1979). 22 C.F.R. § 51.70(b) (4) (1979) provides:

A passport may be refused in any case in which:

The Secretary determines that the national's activities abroad are causing or are likely to cause serious damage to the national security or the foreign policy of the United States . . . .

22 C.F.R. § 51.71(a) (1979) states:

A passport may be revoked, restricted or limited where:

The national would not be entitled to issuance of a new passport under § 51.70 . . . .

According to the State Department letter

The Department's action is predicated upon a determination made by the Secretary under the provisions of Section 51.70(b)(4) that your activities abroad are causing or are likely to cause serious damage to the national security or the foreign policy of the United States. The reasons for the Secretary's determination are, in summary, as follows: Since the early 1970's it has been your stated intention to conduct a continuous campaign to disrupt the intelligence operations of the United States. In carrying out that campaign you have travelled in various countries (including, among others, Mexico, the United Kingdom, Denmark, Jamaica, Cuba, and Germany), and your activities in those countries have caused serious damage to the national security and foreign policy of the United States. Your stated intention to continue such activities threatens additional damage of the same kind.

(J.A. at 13). The letter also informed Agee of his right to administrative review, and the Department of State subsequently offered him a hearing on an expedited basis. Agee rejected this option, however, and on December 31, 1979, he sued Cyrus Vance, who was then Secretary of State, in the District Court. The complaint sought declaratory and injunctive relief.

Agee's complaint challenged the revocation of his passport on five grounds: (1) that 22 C.F.R. § 51.70(b)(4) has not been authorized by Congress and is therefore invalid; (2) that 22 C.F.R. § 51.70(b)(4) is impermissibly vague and overbroad; (3) that the revocation of his passport prior to a hearing violated his Fifth Amendment right to procedural due process; (4) that the revocation of his passport violated his right to travel a liberty interest protected by the Fifth Amendment; and (5) that his passport was revoked in order to punish him and suppress his criticism of government policy in violation of the First Amendment. In proceedings before the District Court on January 3, 1980, Agee's counsel, for the purposes of attacking the Secretary's authority to adopt and apply 22 C.F.R. § 51.70(b)(4), conceded the truth of "the charges as they are made in the letter to Agee." (Tr. at 16). On January 18, 1980 the case was orally argued to the District Court on cross-motions for summary judgment.

By Memorandum and Order dated January 28, 1980 the District Court granted summary judgment to Agee and ordered the restoration of his passport. The District Court concluded that "(t)he Secretary of State's power to revoke or limit a passport flows from Congress not from the President" and "(h)is power is no greater than Congress may choose to delegate to him." Accordingly the court held that 22 C.F.R. § 51.70(b)(4) is invalid because "the Secretary's promulgation of the challenged regulation was without (express or implied) authorization from Congress." On January 29, 1980 the Secretary of State filed a notice of appeal from the District Court's decision, and by Orders dated February 4 and 5, 1980 this court granted the Secretary's motion for a stay pending appeal.

As authority to promulgate and enforce 22 C.F.R. § 51.70(b)(4), the Secretary of State relies on the Passport Act of 1926, 22 U.S.C. § 211a (1976), which at the time the regulation was adopted in 1968 provided that:

The Secretary of State may grant and issue passports, and cause passports to be granted, issued, and verified in foreign countries by diplomatic representatives of the United States, and by such consul generals, consuls, or vice consuls when in charge, as the Secretary of State may designate and by the chief or other executive officer of the insular possessions of the United States, under such rules as the President shall designate and prescribe for and on behalf of the United States, and no other persons shall grant, issue, or verify such passports. 2

In Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958), the Secretary of State had denied two passport applications pursuant to a regulation promulgated in reliance on 22 U.S.C. § 211a. The regulation prohibited the issuance of passports to members of the Communist Party or to persons who "engage in activities which support the Communist movement" or "are going abroad to engage in activities which will advance the Communist movement for the purpose, knowingly and wilfully of advancing that movement." Id. at 117-18 n.1, 78 S.Ct. at 1114 n.1. The Supreme Court held that "(t)he right to travel is a part of the 'liberty' of which the citizen cannot be deprived without due process of law under the Fifth Amendment," and, therefore, "(i)f that 'liberty' is to be regulated, it must be pursuant to the law-making functions of the Congress." Id. at 125, 129, 78 S.Ct. at 1118, 1120. Further, the Court stated that it would "construe narrowly all delegated powers that curtail or dilute (the right to travel)." Id. at 129, 78 S.Ct. at 1120. The Court held that Congress did not give the Secretary of State "unbridled discretion to grant or withhold a passport from a citizen for any substantive reason he may choose", and that the only grounds for refusing a passport "which it could fairly be argued were adopted by Congress in light of prior administrative practice" were "relate(d) to citizenship or allegiance on the one hand or to criminal or unlawful conduct on the other." Id. at 127-128, 78 S.Ct. at 1119. The Court explained that:

The difficulty is that while the power of the Secretary of State over the issuance of passports is expressed in broad terms, it was apparently long exercised quite narrowly. So far as material here, the cases of refusal of passports generally fell into two categories. First, questions pertinent to the citizenship of the applicant and his allegiance to the United States had to be resolved by the Secretary, for the command of Congress was that "No passport shall be granted or issued to or verified for any other persons than those owing allegiance, whether citizens or not, to the United States." 32 Stat. 386, 22 U.S.C. § 212. Second, was the question whether the applicant was participating in illegal conduct, trying to escape the toils of the law, promoting passport frauds, or otherwise engaging in conduct which would violate the laws of the United States.

Id. at 127, 78 S.Ct. at 1119. Thus, the Court, observing that the State Department rulings concerning Communists were "scattered" and "not consistently of one pattern", concluded that the regulation employed to deny passports to members and supporters of the Communist Party lacked congressional authorization and was therefore invalid. Id. at 128-30, 78 S.Ct. at 1119-1120.

In Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965), the Supreme Court considered the validity of an area travel ban imposed by the Secretary of State to prohibit travel to Cuba by all United States citizens. The Court reasoned that the language of 22 U.S.C. § 211a "is surely broad enough to authorize area restrictions, and there is no legislative history indicating an intent to exclude such restrictions from the grant of authority." Id. at 8, 85 S.Ct. at 1276. Noting that area restrictions were imposed on numerous occasions both before and after the Passport Act was adopted in 1926, the Court held that the ban on travel to Cuba was valid because there was "an administrative practice sufficiently substantial and consistent to...

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