Dayton v. Dulles, 13176.

Decision Date13 September 1956
Docket NumberNo. 13176.,13176.
Citation237 F.2d 43
PartiesWeldon Bruce DAYTON, Appellant, v. John Foster DULLES, Secretary of State, Appellee.
CourtU.S. Court of Appeals — District of Columbia Circuit

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

Mr. B. Jenkins Middleton, Atty., Dept. of Justice, with whom Messrs. Oliver Gasch, U. S. Atty., George S. Leonard, Acting Asst. Atty. Gen., and Paul A. Sweeney, Atty., Dept. of Justice, were on the brief for appellee.

Messrs. Leo A. Rover, U. S. Atty., at the time record was filed, and Lewis Carroll, Asst. U. S. Atty., also entered appearances for appellee.

Before WILBUR K. MILLER, FAHY and BASTIAN, Circuit Judges.


The Secretary of State denied a passpart to appellant Dayton, who then sued in the District Court for a declaratory judgment that he is entitled to a passport and that the Secretary's passport regulations and certain rules of the Board of Passport Appeals in the Department of State are unlawful. The motion of the Secretary for summary judgment was granted, that of the plaintiff was denied, and the complaint was dismissed. We held Dayton's appeal undisposed of pending our en banc disposition of Boudin v. Dulles (Dulles v. Boudin), 98 U.S.App. D.C. 305, 235 F.2d 532.

As in the Boudin cases the Secretary rested the denial of the passport upon Section 51.135 of the regulations, without specifying, however, upon which of the three subsections of said section he relied, and without any finding sufficient to bring the applicant within any one of said subsections. When the case was pending in the District Court, however, an affidavit was filed in support of the Secretary's motion for summary judgment, and this affidavit stated that the refusal of the passport was under subsection (c) of said Section 51.135. The affidavit also contained a finding stated in the terms of that subsection.

In the Boudin cases we accepted, for purposes of the opinion, the affidavit filed in the District Court as a statement of the reason for the Secretary's denial of the passport; but the better practice requires that the denial itself, rather than an affidavit filed in court after litigation over the denial has arisen, should specify the regulation upon which it rests and should contain such findings as are called for by our Boudin opinion.

Here, as in the Boudin cases, the Secretary in denying the passport advised the applicant that the denial was on the basis of evidence...

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5 cases
  • Briehl v. Dulles
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 27 Junio 1957
    ...v. Dulles, 1955, 96 U.S. App.D.C. 287, 225 F.2d 938; Boudin v. Dulles, 1956, 98 U.S.App.D.C. 305, 235 F.2d 532; Dayton v. Dulles, 1956, 99 U.S.App.D.C. 47, 237 F.2d 43; cf. Kraus v. Dulles, 1956, 98 U.S.App.D.C. 343, 235 F.2d 840. The highly restrictive position taken by Judge Bazelon in hi......
  • Dayton v. Dulles
    • United States
    • U.S. District Court — District of Columbia
    • 21 Diciembre 1956 order was entered granting the defendant's motion for summary judgment and dismissing the complaint. 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......
  • Dayton v. Dulles
    • United States
    • U.S. Supreme Court
    • 16 Junio 1958
    ...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 the light of its earlier decision in Boudin v. Dulles, 98 U.S.App.D.C. 305, 2......
  • Dayton v. Dulles
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 24 Octubre 1957
    ...further delay this seems to me unavoidable in the process of working out legal solutions to the problems involved. 1 Dayton v. Dulles, 99 U.S.App.D.C. 47, 237 F.2d 43 (1956). 2 Boudin v. Dulles, 98 U.S.App.D.C. 305, 235 F.2d 532 3 22 C.F.R. § 51.135 (Supp.1956). 4 Dayton v. Dulles, 146 F.Su......
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