Dayton v. Dulles, Civ. A. No. 4890-55.

CourtU.S. District Court — District of Columbia
Writing for the CourtMcGARRAGHY
Citation146 F. Supp. 876
PartiesWeldon Bruce DAYTON, Plaintiff, v. John Foster DULLES, Secretary of State, Defendant.
Decision Date21 December 1956
Docket NumberCiv. A. No. 4890-55.

146 F. Supp. 876

Weldon Bruce DAYTON, Plaintiff,
v.
John Foster DULLES, Secretary of State, Defendant.

Civ. A. No. 4890-55.

United States District Court District of Columbia.

December 21, 1956.


146 F. Supp. 877

Harry I. Rand, Washington, D. C., for plaintiff.

George Cochran Doub, Asst. Atty. Gen., Oliver Gasch, U. S. Atty., Edward H. Hickey, Andrew P. Vance, Washington, D. C., for defendant.

McGARRAGHY, District Judge.

This is a proceeding in which the plaintiff prays for a judgment declaring (a) that he is entitled to a passport under the statutes of the United States; (b) that the passport regulations and rules of the Board of Passport Appeals are unlawful, invalid and illegal; (c) enjoining defendant (the Secretary of State) from continuing to deny a passport to plaintiff; and (d) directing defendant to issue a passport to plaintiff forthwith in standard form and for standard duration.

The plaintiff filed a motion for summary judgment. The defendant Secretary of State filed his answer, motion for summary judgment and affidavit of the Acting Secretary of State reciting the reasons for his decision denying plaintiff passport facilities. This Court held that the denial of plaintiff's application for a passport was a reasonable exercise of discretion by the Secretary of State under valid regulations, and that it was not in violation of the due process requirements of the Constitution, Amend. 5. Thereupon, an order was entered granting the defendant's motion for summary judgment and dismissing the complaint.

146 F. Supp. 878

On appeal, Dayton v. Dulles, D.C.Cir., 237 F.2d 43, the Court of Appeals, following its decision in Boudin v. Dulles, 98 U.S.App.D.C. 305, 235 F.2d 532, held that instead of accepting the affidavit filed in support of the defendant's motion for summary judgment, the better practice requires that the denial of the passport itself should specify the regulations upon which it rests and should contain findings as called for by the Court's opinion in Boudin.

The Court of Appeals quoted from Boudin as applicable here that the Secretary should, if he refuses a passport, state whether his findings are based on the evidence openly produced or (in whole or in material part) on secret information not disclosed to the applicant. If the latter, the Secretary should explain with such particularity as in his judgment the circumstances permit, the nature of the reason why such information may not be disclosed. It was pointed out that this will facilitate the task of the Courts in dealing with the question of the propriety of the Secretary's use of confidential information — a question which was not reached in Boudin.

In a footnote to the quotation from Boudin, the Court of Appeals pointed out that if considerations of internal security rather than the conduct of foreign affairs are involved, the Secretary should so state.

Accordingly, the judgment heretofore entered herein was reversed and the case remanded to this Court for further proceedings not inconsistent with the opinion of the Court of Appeals.

Thereafter, the Secretary of State filed his "Decision and Findings in the case of Weldon Bruce Dayton" and transmitted a copy thereof to Mr. Dayton. The passport application was denied under Sec. 51.135(c) of the Passport Regulations and because the issuance of a passport would be contrary to the national interest.

The decision of the Secretary of State is divided into six numbered paragraphs, the first four of which have sub-paragraphs (a) and (b) respectively.

The sub-paragraphs (a) of the first four numbered paragraphs are based upon information contained in the open record and relate various associations and activities of the plaintiff.

Sub-paragraphs (b) of the first four numbered paragraphs are based on confidential information contained in the files of the Department of State indicating that a committee of which the plaintiff was at one time chairman, was conceived and organized by Communist party officials as a front for propaganda and espionage activities; that the individuals named as associates of the plaintiff in the organization of said committee were members of the Communist party at the time of their association with the plaintiff in the work of the committee; that another individual with whom the plaintiff was closely associated and with whom he resided for a period of time was an active member of the Communist party, and that he was involved in the espionage apparatus of Julius Rosenberg; that an apartment building in New York, where the plaintiff was present during 1949 and 1950 on more than one occasion, contained an apartment unit leased to the same individual with whom the plaintiff had been associated and which apartment unit was used by Julius Rosenberg and other members of his spy ring for the microfilming of classified United States Government documents which were ultimately transferred to a foreign power; and that the plaintiff's proposed travel abroad is to work in close collaboration with an individual who recently renounced his American citizenship, has held membership in the Communist party outside the United States, has engaged in numerous Communist activities both in this country and abroad, and is suspected of being a Communist espionage agent.

Paragraph V of the Decision and Findings by the Secretary states that he has reason to believe, on the balance of all the evidence, "that the applicant is

146 F. Supp. 879
going abroad to engage in activities which will advance the Communist movement for the purpose, knowingly and willfully of advancing that movement." The Secretary states that he has reached this conclusion on the basis of the findings, together with the confidential information relating thereto "as well as other confidential information contained in the files of the Department of State, the disclosure of which might prejudice the conduct of United States foreign relations." (Emphasis supplied.)

Paragraph VI states that the confidential information referred to in subparagraphs (b) of paragraphs I, II, III, and IV, relates to the internal security of the United States; that the substance of this confidential information was disclosed to the applicant during the consideration of his passport application and that to disclose publicly the sources and details of this information would, in the judgment of the Secretary of State, "be detrimental to our national interest...

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3 practice notes
  • Mullins v. Mulcahy, Civ. A. No. 56-460-A.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • December 21, 1956
    ...Francis' interest in said property is alleged to exceed $3,000. Plaintiff is a citizen of Alabama, and the Mulcahys of Massachusetts. 146 F. Supp. 876 The defendants seasonably filed a demand for jury trial. Plaintiff moves to have this stricken. The defendants also moved to dismiss, allegi......
  • Dayton v. Dulles, No. 621
    • United States
    • United States Supreme Court
    • June 16, 1958
    ...then brought suit in the District Court for declaratory relief. The District Court entered summary judgment for the Secretary. 146 F.Supp. 876. The Court of Appeals reversed, 99 U.S.App.D.C. 47, 237 F.2d 43, and remanded the case to the Secretary for reconsideration in Page 150 the light of......
  • Dayton v. Dulles, 13717.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 24, 1957
    ...237 F.2d 43 (1956). 2 Boudin v. Dulles, 98 U.S.App.D.C. 305, 235 F.2d 532 (1956). 3 22 C.F.R. § 51.135 (Supp.1956). 4 Dayton v. Dulles, 146 F.Supp. 876 5 101 U.S.App.D.C. 239, 248 F.2d 561. 6 Section 51.135(c): "Persons, regardless of the formal state of their affiliation with the Communist......
3 cases
  • Mullins v. Mulcahy, Civ. A. No. 56-460-A.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • December 21, 1956
    ...Francis' interest in said property is alleged to exceed $3,000. Plaintiff is a citizen of Alabama, and the Mulcahys of Massachusetts. 146 F. Supp. 876 The defendants seasonably filed a demand for jury trial. Plaintiff moves to have this stricken. The defendants also moved to dismiss, allegi......
  • Dayton v. Dulles, No. 621
    • United States
    • United States Supreme Court
    • June 16, 1958
    ...then brought suit in the District Court for declaratory relief. The District Court entered summary judgment for the Secretary. 146 F.Supp. 876. The Court of Appeals reversed, 99 U.S.App.D.C. 47, 237 F.2d 43, and remanded the case to the Secretary for reconsideration in Page 150 the light of......
  • Dayton v. Dulles, 13717.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 24, 1957
    ...237 F.2d 43 (1956). 2 Boudin v. Dulles, 98 U.S.App.D.C. 305, 235 F.2d 532 (1956). 3 22 C.F.R. § 51.135 (Supp.1956). 4 Dayton v. Dulles, 146 F.Supp. 876 5 101 U.S.App.D.C. 239, 248 F.2d 561. 6 Section 51.135(c): "Persons, regardless of the formal state of their affiliation with the Communist......

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