Copeland v. Secretary of State

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtHAYS, Circuit , and McGOHEY and EDELSTEIN, , sitting as a statutory court
PartiesVincent COPELAND, Plaintiff, v. The SECRETARY OF STATE, Defendant.
Decision Date23 January 1964

226 F. Supp. 20

Vincent COPELAND, Plaintiff,
v.
The SECRETARY OF STATE, Defendant.

United States District Court S. D. New York.

January 23, 1964.


226 F. Supp. 21
COPYRIGHT MATERIAL OMITTED
226 F. Supp. 22
Leonard B. Boudin, Rabinowitz & Boudin, New York City, for plaintiff

Robert M. Morgenthau, U. S. Atty., S.D.N.Y. (Robert E. Kushner, Asst. U. S. Atty., S.D.N.Y., Eugene R. Anderson, Asst. U. S. Atty., S.D.N.Y., and Benjamin C. Flanagan, Atty., Dept of Justice, of counsel), for defendant.

Before HAYS, Circuit Judge, and McGOHEY and EDELSTEIN, District Judges, sitting as a statutory court.

EDELSTEIN, District Judge.

Section 6 of the Subversive Activities Control Act, Title I of the Internal Security Act of 1950, 64 Stat. 998, 50 U.S.

226 F. Supp. 23
C.A. § 785 ("Act") provides that when an order of the Subversive Activities Control Board ("Board") requiring a Communist organization to register has become final, it shall be unlawful for a member of such a Communist organization, having knowledge of its registration, to apply for a passport. The Act also makes it unlawful for a passport officer with knowledge that an applicant is a member of such an organization to issue or renew a passport to such person.1 The action of the Board in ordering the Communist Party of the United States to register as a Communist-action organization was upheld, after marathon litigation, in Communist Party of United States v. Subversive Activities Control Board, 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed. 2d 625 (1961).2 The Communist Party case sustained the constitutionality of the registration provisions of the Act, 50 U.S.C.A. § 786 and the Board's registration order became final on October 20, 1961. The finality of the order brought § 6 of the Act, the passport provision, into play.3

The defendant Secretary of State has been granted the statutory authority to "grant, issue and verify passports", 22 U.S.C.A. § 211a4 and on April 12, 1962,

226 F. Supp. 24
Copeland filed an application with the Secretary for a passport to travel to Europe. Because Copeland refused to execute what is commonly referred to as a non-Communist affidavit, which the Secretary pursuant to 22 C.F.R. § 51.135 (Supp.1963)5 requires of all applicants, the Secretary of State declined to process the application and refused to issue him a passport. The Secretary's justification for his inaction was based on the ground that the non-Communist statement "is considered a matter of fact which is material to the determination of an applicant's entitlement to passport facilities."6 Copeland's failure to supply a statement which the Secretary deemed to be a procedure essential to the implementation of his substantive power under the passport statute, rendered the application incomplete and no further action was taken by the Secretary. Thereupon, this suit was brought

The complaint herein challenges the constitutionality of Section 6 of the Act, 50 U.S.C.A. § 785, and contests the defendant Secretary's substantive power to require a passport applicant to furnish information with respect to Communist Party membership. The complaint seeks the following forms of relief: a declaratory judgment that 50 U.S.C.A. § 785 is unconstitutional, an injunction restraining the defendant from enforcing and executing the statute against plaintiff because of the statute's "repugnance to the United States Constitution" and an order directing the Secretary to issue a passport to plaintiff. Plaintiff subsequently moved for summary judgment which was met, in due course, by the defendant's cross motion to dismiss the complaint for failure to state a claim upon which relief can be granted, or, in the alternative, summary judgment. See Fed.R.Civ.P. 12(b) (6); 56(c).

Plaintiff's prayer for an injunction restraining the enforcement of a Federal statute necessitated the convening of a three-judge court since these cross motions raised a substantial constitutional question as to whether the Secretary's inquiry into applicant's Communist Party membership was relevant to the exercise of a valid substantive power upon which the Secretary could properly refuse to issue a passport. See Briehl v. Dulles, 101 U.S.App.D.C. 239, 248 F.2d 561, 577 (1957) (concurring opinion); rev'd. sub. nom., Kent v. Dulles, 357 U.S. 116, 131, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958) (Clark, J., dissenting opinion); Schneider v. Rusk, 372 U.S. 224, 225, 83 S.Ct. 621, 9 L.Ed.2d 695 (1963); Communist Party v. Subversive Activities Control Board, supra 367 U.S. at 70, 81, 81 S.Ct. at 1396-1397, 1402, 6 L.Ed.2d 625; Mayer v. Rusk, D.C.D.C., 1963, 224 F.Supp. 929. See 28 U.S.C. § 2282 (1952).7

226 F. Supp. 25

The following material facts essential to the disposition of the important legal questions posited by these cross motions are not in dispute:

Vincent Copeland is an American citizen who resides in the Southern District of New York. In applying for a passport to travel to Europe Copeland executed the standard passport application on the most recent form required by the Secretary of State. See 22 U.S.C.A. § 213; 22 C.F.R. § 51.14; 22 C.F.R. § 51.134.8 The passport application form, DSP-11 (Government Exhibit A) is in the form of a factual statement to be signed by the applicant. It commences with "I, (name of applicant), a citizen of the United States, do hereby apply to the Department of State for a passport" on the first page and runs through to the signature on the second page. The application calls for answers to such routine questions as birthplace, birth date, occupation, residence, travel plans and means of transportation. At the end of the second page, after the routine questions are completed, there is a lengthy statement which must be sworn to by the applicant. The statement on the application, reproduced below,9 begins with "I have not (and no other person to be included in the passport has) since acquiring

226 F. Supp. 26
United States citizenship been naturalized as a citizen of a foreign state, etc. * * *" The statement goes on to describe activities which, if engaged in, may lead to loss of citizenship and the right to United States passport facilities, i. e., voting in a national election of a foreign state; claiming the benefits of the nationality of a foreign state; service in the armed forces of a foreign state; or oath or affirmation or formal declaration of allegiance to a foreign state, etc. See Marks v. Esperdy, 315 F.2d 673 (2d Cir. 1963), cert. granted, 375 U.S. 810, 84 S.Ct. 66, 11 L.Ed.2d 47 (1963). But see Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). The last clause of the declaration contains the following factual statement
"* * * and I am not and have not been at any time during the period of 12 full calendar months preceding the date of this application (and no other person to be included in the passport is or has been at any time during the said period) a member of any organization registered or required to register as a Communist organization under Section 7 of the Subversive Activities Control Act of 1950, as amended (50 U.S.C. § 786)."

This non-Communist affidavit was made part of the revised passport form subsequent to the Secretary's promulgation, on January 12, 1962, of revised passport regulations. Department of State Passport Reg. 22 C.F.R. §§ 51.135-51.170 (Supp.1963); 27 Fed.Reg. 344 (1962). These regulations were promulgated pursuant to the Secretary's authority to grant and issue passports and his ancillary power to promulgate such regulations "as may be necessary to carry out the functions * * * vested in him * * *" 5 U.S.C.A. § 151c; 22 C.F.R. § 51.77. See 22 C.F.R. § 51.135 — § 51.170 (Supp.1963). The most significant of the revised regulations, at least for the present action, is § 51.135, 22 C.F.R. § 51.135, which provides that a passport shall not be issued to or renewed "for any individual who the issuing officer knows or has reason to believe is a member of a Communist organization registered or required to be registered under Section 7 of the Subversive Activities Control Act of 1950, as amended (50 U.S.C. Sec. 786)." The precursor to Regulation § 51.13510 was invalidated by the Supreme Court in Kent v. Dulles, supra, which held that neither 22 U.S. C.A. § 211a, the passport statute, nor § 215 of the Immigration and Nationality

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Act, 8 U.S.C.A. § 118511 provided the Secretary with statutory authority to curtail in his discretion the free movement of citizens in order to satisfy himself about their Communist beliefs or associations. Hence, after Kent, the "old" § 51.135 was rendered obsolete. Since the Court stated that Communist membership or activities was not available as a standard for denying passport facilities the statutory underpinning was removed from beneath the regulations, and the regulations, consequently, could not be applied to control the foreign travel of Communist Party members

This statutory void was filled when § 6 of the Subversive Activities Control Act, 50 U.S.C.A. § 785, became effective on October 20, 1961. Section 6 is an explicit grant of statutory authority to deny passports to those members of a Communist organization that is registered or ordered to register under the Act. The non-Communist affidavit's reference to 50 U.S.C.A. § 786 indicates the Secretary's reliance on § 7 of the Act, the registration provision, as the statutory foundation for the employment of the passport provisions of the Act as well as for the promulgation of the oath which is authorized by § 51.142 of the Regulations,12 22 C.F.R. § 142.

The passport application instructions contain the following explicit warning on page 4 at paragraph 6:

"WARNING"
"Section 6 of the Internal Security Act of 1950 (50 U.S.C. 785) prohibits application for or use of a passport by and issuance or renewal of a passport to a member of an organization registered or required to register as a Communist organization under Section 7 of the
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2 practice notes
  • State ex rel. Osburn v. Cole, No. 15787
    • United States
    • Supreme Court of West Virginia
    • December 14, 1983
    ...in data which the applicant can supply." [173 W.Va. 603] 318 F.2d at 279. (Footnote omitted) 12 See also Copeland v. Secretary of State, 226 F.Supp. 20 In conclusion, we adhere to the test formulated in Albertson v. Subversive Activities Control Board, supra, and California v. Byers, supra,......
  • Relco, Inc. v. Consumer Product Safety Commission, Civ. A. No. 74-H-362.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • March 24, 1975
    ...heard. The three-judge court procedure is not to be invoked on a conditional constitutional question. Copeland v. Secretary of State, 226 F. Supp. 20 (D.C., S.D.N.Y.1964), vacated and remanded on other grounds, 378 U. S. 588, 84 S.Ct. 1931, 12 L.Ed.2d 1041; International Ladies Garment Work......
2 cases
  • State ex rel. Osburn v. Cole, No. 15787
    • United States
    • Supreme Court of West Virginia
    • December 14, 1983
    ...in data which the applicant can supply." [173 W.Va. 603] 318 F.2d at 279. (Footnote omitted) 12 See also Copeland v. Secretary of State, 226 F.Supp. 20 In conclusion, we adhere to the test formulated in Albertson v. Subversive Activities Control Board, supra, and California v. Byers, supra,......
  • Relco, Inc. v. Consumer Product Safety Commission, Civ. A. No. 74-H-362.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • March 24, 1975
    ...heard. The three-judge court procedure is not to be invoked on a conditional constitutional question. Copeland v. Secretary of State, 226 F. Supp. 20 (D.C., S.D.N.Y.1964), vacated and remanded on other grounds, 378 U. S. 588, 84 S.Ct. 1931, 12 L.Ed.2d 1041; International Ladies Garment Work......

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