Boudin v. Dulles, 13130

Decision Date28 June 1956
Docket Number13031.,No. 13130,13130
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.
CourtU.S. Court of Appeals — District of Columbia Circuit

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 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 information on which the Secretary says he in part relied, we cannot assume that findings sufficient to bring Boudin within any subdivision of the regulation were secretly made or that they will be made. In an affidavit executed June 3, 1954, Boudin swore that he was not then a member of the Communist Party nor "otherwise a person described in Regulation 51.135 subsection (a)," and that I "am not going abroad to engage in activities which will advance the Communist movement in violation of subsection (c), but for the purpose indicated in my correspondence with the Passport Office."3 At the Review Board hearing he testified under oath that he had not been a member of the Communist Party at any time since June 3, 1954, and that the facts stated in the affidavit continued to be true. His testimony bearing on the applicability of subsection (b) cannot be described as particularly frank or helpful, but he did to some extent outline — and seek to explain as non-subversive — his activities in connection with several organizations and publications, alleged to be Communist, and he did state that he was never "ordered" or "directed" (as distinguished from "retained") by the Communist Party to defend any individual or association in a legal capacity.

We think that factual findings sufficient to bring the applicant within one of the classes described in Section 51.135 are required before the Secretary may deny a passport under the authority of that regulation. Cf. Burrell v. Martin, 1955, 98 U.S.App.D.C. —, 232 F.2d 33. Since none were made here, the regulation, which the Secretary relied on exclusively in denying the passport, does not support his action. Cf. Perkins v. Elg, 1939, 307 U.S. 325, 349-350, 59 S.Ct. 884, 83 L.Ed. 1320; Shachtman v. Dulles, 1955, 96 U.S.App.D.C. 287, 225 F.2d 938. An administrative order "cannot be upheld unless the grounds upon which the agency acted in exercising its powers were those upon which its action can be sustained." Securities and Exchange Commission v. Chenery Corp., 1943, 318 U.S. 80, 95, 63 S.Ct. 454, 462, 87 L.Ed. 626.

The Government urges that Boudin is barred from any relief because he declined to answer...

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14 cases
  • Briehl v. Dulles
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • June 27, 1957
    ...much particularity as possible the reasons why he cannot do so, courts must rely upon his integrity and accept his statement. We held in Boudin v. Dulles73 that, where a passport has been denied by the Secretary on the authority of a specific regulation, he (the Secretary) must make finding......
  • Williams v. Washington Metropolitan Area Transit Com'n
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • October 8, 1968
    ...of the legislature 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 (1956). 87 See, e.g., Burlington Truck Lines, Inc. v. United States, supra note 86, 371 U.S. at 176, 83 S.Ct. 239, 9......
  • Hornsby v. Allen
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • January 7, 1964
    ...was based, it was held 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 (1956). Also, the Supreme Court has held that the arbitrary refusal to grant a license or permit to one group when other group......
  • United States v. Laub
    • United States
    • U.S. District Court — Eastern District of New York
    • June 13, 1966
    ...cert. 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. Dull......
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