Boudin v. Dulles, No. 13130

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtWASHINGTON, Circuit
Citation98 US App. DC 305,235 F.2d 532
PartiesLeonard B. BOUDIN, Appellant, v. John Foster DULLES, Appellee. John Foster DULLES, Appellant, v. Leonard B. BOUDIN, Appellee.
Docket Number13031.,No. 13130
Decision Date28 June 1956

98 US App. DC 305, 235 F.2d 532 (1956)

Leonard B. BOUDIN, Appellant,
v.
John Foster DULLES, Appellee.

John Foster DULLES, Appellant,
v.
Leonard B. BOUDIN, Appellee.

Nos. 13130, 13031.

United States Court of Appeals District of Columbia Circuit.

Argued March 8, 1956.

Decided June 28, 1956.


235 F.2d 533

Mr. Benjamin Forman, Attorney, Department of Justice, with whom Messrs. Leo A. Rover, U. S. Atty. at the time cases were argued, Paul A. Sweeney and B. Jenkins Middleton, Attorneys, Department of Justice, were on the brief, for Dulles.

Mr. Harry I. Rand, Washington, D. C., for Boudin.

Before EDGERTON, Chief Judge, and PRETTYMAN, WILBUR K. MILLER, BAZELON, FAHY, WASHINGTON, DANAHER, and BASTIAN, Circuit Judges, sitting en banc. (Circuit Judge BURGER took office after these cases were heard and took no part in their consideration and decision.)

WASHINGTON, Circuit Judge.

The Secretary of State refused to issue a passport to Leonard B. Boudin, on the ground that issuance was precluded under Section 51.135 of the Passport Regulations "on the basis of all the evidence, including that contained in confidential reports of investigation." Boudin then sued in the District Court for a judgment that he, as an American citizen, is entitled to a passport, and that the Passport Regulations are invalid. He also sought an order directing the Secretary of State to issue a passport to him forthwith. The District Court held that the applicant had a right to be confronted with the evidence against him in order to permit him to rebut or explain it, and to enable the courts to review the decision. It sent the case back to the Passport Office, ordering that a hearing be held within 20 days thereafter and that the decision of the Passport Office be "substantiated by evidence contained in the record" made at such hearing. Both the Secretary of State and Boudin have appealed.

Section 51.135 of the Passport Regulations, 22 C.F.R. § 51.135 (Supp.1956), provides for denial of passports to three classes of persons, who are enumerated and described in subsections (a), (b), and (c) thereof.1 Although the Secretary

235 F.2d 534
relied solely on this section in his letter notifying Boudin of his decision not to grant him a passport, he did not there specify which subsection barred issuance of a passport to Boudin nor did he set out any findings indicating that Boudin fell into any of the three classes of persons described in the regulation. The Secretary later filed an affidavit in the District Court in which he stated: "The basis for my decision to deny the Plaintiff further passport facilities rests on a pattern of associations and activities on the part of the Plaintiff over an extended period of time leading to the conclusion that the Plaintiff has been and continues to be a supporter of the Communist movement.2 (Emphasis supplied.)

For present purposes, we accept the Secretary's affidavit as a statement that he has found that Boudin is a supporter of the Communist movement, even though such finding was not communicated in his letter notifying Boudin that issuance of a passport was precluded by Section 51.135 of the Passport Regulations. Subsection (b) of the regulation cited is the only part thereof which refers in terms to those who support the Communist movement. But that subsection is not phrased to deny passports to every supporter of the movement, without more. It states that passports shall be denied to persons "who engage in activities which support the Communist movement under such circumstances as to warrant the conclusion — not otherwise rebutted by the evidence — that they have engaged in such activities as a result of direction, domination, or control exercised over them by the Communist movement." In his letter to Boudin and even in his affidavit the Secretary has set out no finding or conclusion that Boudin's alleged pro-Communist activities were the result of direction, domination, or control exercised over him by the Communist movement. He has thus failed to make the finding contemplated by subsection (b). Nor has he set out findings which would render subsections (a) or (c) applicable.

On the record before us here, which of course contains none of the confidential...

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14 practice notes
  • Williams v. Washington Metropolitan Area Transit Com'n, No. 20200
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 8 Octubre 1968
    ...to bestow such arbitrary powers upon the Commission," 32 N.W.2d at 248-249); see also Boudin v. Dulles, 98 U.S.App.D.C. 305, 307-308, 235 F.2d 532, 534-535 87 See, e.g., Burlington Truck Lines, Inc. v. United States, supra note 86, 371 U.S. at 176, 83 S.Ct. 239, 9 L.Ed.2d 207; State of Flor......
  • Briehl v. Dulles, No. 13317.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 27 Junio 1957
    ...for reconsideration consistently with these views and with procedures required by our decision in Boudin v. Dulles, 98 U.S. App.D.C. 305, 235 F.2d 532. --------Notes: 1 64 Stat. 987, 50 U.S.C.A. § 2 Proc. No. 2914, 64 Stat. A454, 50 U.S. C.A.Appendix note preceding section 1. 3 103 Cong.Rec......
  • Hornsby v. Allen, No. 20656.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 7 Enero 1964
    ...F.2d 609 that factual findings would be required before the Secretary could deny the application. Boudin v. Dulles, 98 U.S.App. D.C. 305, 235 F.2d 532 Also, the Supreme Court has held that the arbitrary refusal to grant a license or permit to one group when other groups have obtained permit......
  • United States v. Laub, No. 64-CR-137.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • 13 Junio 1966
    ...denied, 352 U.S. 895, 77 S.Ct. 131, 1 L.Ed.2d 86 (1956); Boudin v. Dulles, 136 F.Supp. 218 (D.D.C.1955), modified 98 U.S.App. D.C. 305, 235 F.2d 532 (1956); Kent v. Dulles, pending in the D.C. Circuit Court of Appeals 1956, see 101 U.S.App.D.C. 278, 248 F.2d 600 (1957); Briehl v. Dulles, pe......
  • Request a trial to view additional results
14 cases
  • Williams v. Washington Metropolitan Area Transit Com'n, No. 20200
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 8 Octubre 1968
    ...to bestow such arbitrary powers upon the Commission," 32 N.W.2d at 248-249); see also Boudin v. Dulles, 98 U.S.App.D.C. 305, 307-308, 235 F.2d 532, 534-535 87 See, e.g., Burlington Truck Lines, Inc. v. United States, supra note 86, 371 U.S. at 176, 83 S.Ct. 239, 9 L.Ed.2d 207; State of Flor......
  • Briehl v. Dulles, No. 13317.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 27 Junio 1957
    ...for reconsideration consistently with these views and with procedures required by our decision in Boudin v. Dulles, 98 U.S. App.D.C. 305, 235 F.2d 532. --------Notes: 1 64 Stat. 987, 50 U.S.C.A. § 2 Proc. No. 2914, 64 Stat. A454, 50 U.S. C.A.Appendix note preceding section 1. 3 103 Cong.Rec......
  • Hornsby v. Allen, No. 20656.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 7 Enero 1964
    ...F.2d 609 that factual findings would be required before the Secretary could deny the application. Boudin v. Dulles, 98 U.S.App. D.C. 305, 235 F.2d 532 Also, the Supreme Court has held that the arbitrary refusal to grant a license or permit to one group when other groups have obtained permit......
  • United States v. Laub, No. 64-CR-137.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • 13 Junio 1966
    ...denied, 352 U.S. 895, 77 S.Ct. 131, 1 L.Ed.2d 86 (1956); Boudin v. Dulles, 136 F.Supp. 218 (D.D.C.1955), modified 98 U.S.App. D.C. 305, 235 F.2d 532 (1956); Kent v. Dulles, pending in the D.C. Circuit Court of Appeals 1956, see 101 U.S.App.D.C. 278, 248 F.2d 600 (1957); Briehl v. Dulles, pe......
  • Request a trial to view additional results

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