Briehl v. Dulles

• Citation: 248 F.2d 561
• Decision Date: 27 June 1957
• Docket Number: No. 13317.,13317.
• Parties: Walter BRIEHL, Appellant, v. John Foster DULLES, Secretary of State, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

248 F.2d 561 (1957)

Walter BRIEHL, Appellant, v. John Foster DULLES, Secretary of State, Appellee.

No. 13317.

United States Court of Appeals District of Columbia Circuit.

Argued January 29, 1957.

Decided June 27, 1957.

Mr. Leonard B. Boudin, New York City, with whom David Rein, and Joseph Forer, Washington, D. C., were on the brief, for appellant.

Mr. B. Jenkins Middleton, Attorney, Department of Justice, with whom Asst. Atty. Gen. Doub, Mr. Oliver Gasch, U. S. Atty., and Mr. Paul A. Sweeney, Attorney, Department of Justice, were on the brief, for appellee. Mr. Lewis Carroll, Asst. U. S. Atty., also entered an appearance for appellee.

Before EDGERTON, Chief Judge, and PRETTYMAN, WILBUR K. MILLER, BAZELON, FAHY, WASHINGTON, DANAHER and BASTIAN, Circuit Judges, sitting en banc.

EDGERTON, Chief Judge, announced the judgment and division of the court as follows:

The judgment of the District Court, granting the Secretary's motion for summary judgment, is affirmed. Judges Prettyman, Miller, Washington, Danaher and Bastian vote to affirm. Judges Edgerton and Bazelon vote to reverse. Judge Fahy votes to remand to the District Court with instructions to remand to the Secretary. Judge Burger took no part in the consideration or decision of this case.

Judge Prettyman files an opinion in which Judges Miller, Danaher and Bastian concur. Judge Washington files an opinion concurring in the result reached by Judges Prettyman, Miller, Danaher and Bastian. 101 U.S.App.D.C. ___, 248 F.2d 576. Judge Bazelon files a dissenting opinion in which Judge Edgerton concurs. 101 U.S.App.D.C. ___, 248 F.2d 579. Judge Edgerton also files a separate dissent. 101 U.S.App.D.C. ___, 248 F.2d 596. Judge Fahy files a dissenting opinion. 101 U.S.App.D.C. ___, 248 F.2d 597.

PRETTYMAN, Circuit Judge, with whom WILBUR K. MILLER, DANAHER and BASTIAN, Circuit Judges, concur: Appellant, Dr. Walter Briehl, applied in April, 1955, to the Department of State for renewal of a passport, stating his desire to attend an international psychoanalytic congress in Geneva and a World Mental Health Organization Congress in Istanbul. He was and is engaged in the practice of medicine, specializing in psychiatry. In prior years he had attended international meetings in this field. The Director of the Passport Office wrote him that "it would be helpful to the Department if you would furnish an affidavit setting forth whether you are now or ever have been a Communist, and explain your connections with" certain named organizations. Dr. Briehl's attorney replied, saying in part:

"My clients refuse to submit the affidavits your letters request. Your demands and the vague and formless standards of the passport regulations under which you purport to act are palpable violations of their Constitutional rights, including, but not limited to, the First, Fifth, Ninth and Tenth Amendments."

The attorney described Dr. and Mrs. Briehl's professional interests and concluded by saying: "Demand is hereby made that passports as applied for by them be issued forthwith."

Thereupon the Director of the Passport Office wrote Dr. Briehl, saying in part:

"I regret to inform you that after careful consideration of your application for the renewal of passport facilities, the Department of State is obliged to disapprove your request tentatively on the ground that the granting of such further passport facilities is precluded under the provisions of Section 51.135 of Title 22 of the Code of Federal Regulations. A copy of the pertinent Regulations is enclosed for your information.

"In cases coming within the purview of the Regulations above referred to, it is the practice of the Department to inform the applicant of the reasons for the disapproval of his request for passport facilities insofar as the security regulations will permit. In your case it has been alleged that you were a Communist."

Dr. Briehl's attorney replied in part:

"My clients wish you to be advised that they do not choose to offer any evidence in support of their applications for passports unless and until they are confronted with the informers your letter states have furnished you with proof that they have been, are, or intend to engage in acts contrary to the national interests of this country."

Thereafter the attorney wrote several times demanding the issuance of the passports and "an evidentiary hearing". An "informal" hearing was arranged. Dr. Briehl, his attorney, and two representatives of the State Department attended. The attorney made an extended statement, in the course of which he recounted the correspondence, described Dr. Briehl's purposes in seeking to go abroad, and made three points as follows:

"Our first point, therefore is that medicine has nothing to do with politics and you may not introduce and confuse the issue of his right to practice medicine and his right to study, and his right to participate in conferences by injecting this issue of politics in connection with his travel abroad. When a physician has a legitimate purpose in going abroad as was stated here, all issues of political affiliations, past or present, definite or indefinite, good or bad, are irrelevant. That will be our first point. * * * My second point is that everyone has the right to travel regardless of political considerations. * * * Now we turn to the third point. * * * that you confront us with the evidence against Dr. Briehl. * * * It is up to the Department to support those allegations by evidence and witnesses which we can examine and confront. * * * We have a right to what the courts have now called a quasijudicial hearing, * * * and * * * it is the Department\'s job to prove not only the facts with respect to each of these allegations but it is the Department\'s job to prove wherein each of these activities was wrong and wherein the activities were in violation of the laws of the United States."

The attorney later said:

"* * * Dr. Briehl will not execute an affidavit of the kind you requested. He will not execute an affidavit with respect to past membership; he will not execute an affidavit with respect to present membership; he will not execute an affidavit with respect to future membership. And that does not apply only to the Communist Party situation, it applies to any political activities or associations or beliefs because those are things which we think are irrelevant to the right of travel and particularly irrelevant, in fact, incredibly so, to the right of a physician to travel for the purposes indicated in the application for the passport renewal."

In response to a letter from Dr. Briehl's attorney, counsel for the Board of Passport Appeals replied:

"It is understood that you appeared with your client, Dr. Briehl, at a hearing in the Passport Office on August 30, 1955. It is further understood that Dr. Briehl refused to execute an affidavit as to present or past membership in the Communist Party, having been requested to do so by the Passport Office. The Board has not been advised of any further processing of this case under Section 51.137 of the Passport Regulations.

"In these circumstances, the Board could not entertain an appeal from Dr. Briehl at this time. Your attention is invited to Sections 51.138 and 51.142 (22 CFR) of the Passport Regulations, and Sections 51.156(2) and 51.147 (22 CFR) of the Rules of the Board."

And a few days later the Passport Office wrote:

"You will recall that during the recent informal hearing in which you represented Dr. Briehl, he refused to explain or deny the allegations concerning him. He also refused to submit an affidavit setting forth whether he was or ever had been a member of the Communist Party.

"In view of the above, the Department knows of no further action which it can appropriately take in the case of Dr. Briehl."

Dr. Briehl filed a civil action in the District Court, naming the Secretary of State as defendant. He prayed for a judgment decreeing that he is entitled to a passport under the statutes, that the passport regulations of the Secretary of State are invalid and illegal, and that the refusal to renew the passport was in violation of his (Briehl's) rights under the Passport Act of 1926, the Constitution of the United States and the Declaration of Human Rights of the United Nations; enjoining the Secretary from continuing to deny the passport; and directing him to renew the passport.

The Secretary answered, and a motion and a cross motion for summary judgment were made, with supporting affidavits and exhibits. The court rendered a brief opinion, denied the plaintiff's motion, and granted the motion of the Secretary.

In this court Dr. Briehl divides his argument into four main points:

1. Appellant\'s constitutional right to travel could not be conditioned upon his execution of a non-Communist affidavit or compliance with any other political test.

2. Appellee\'s regulations deprive appellant of procedural due process and the quasi-judicial hearing to which he is entitled under the recent decisions of this Court.

3. The regulations are not authorized by statute, they conflict with the will of Congress and were invalidly promulgated.

4. The Secretary has not made out a case against appellant, even under the Regulations.

The arguments thus advanced involve consideration of six basic subjects.

I

The nature of the Communist movement. Dr. Briehl's underlying premise, as shown by the statements we have quoted, is that Communist membership or affiliation is a matter of politics, an issue of political affiliation, a political consideration, a political test, and thus is subject to the same rules which apply to political beliefs generally. But it is not so. The Communist organization and program have long since passed beyond the area of mere politics and political opinion. All three branches of the Federal Government — the executive, the legislature, and the judiciary — have declared unequivocally that the Communist movement today is an international...