Mayer v. Rusk
Decision Date | 03 December 1963 |
Docket Number | Civ. A. No. 1034-63. |
Citation | 224 F. Supp. 929 |
Parties | Milton S. MAYER v. Dean RUSK, Secretary of State, Washington, D. C. |
Court | U.S. District Court — District of Columbia |
David Carliner, Washington, D. C. with whom Jack Wasserman and Oliver Stone, Washington, D. C., were on the brief, for plaintiff.
Benjamin C. Flannagan, Attorney, Dept. of Justice, for defendant.
Before McGOWAN, Circuit Judge, and SIRICA and HART, District Judges.
On June 13, 1963, upon application of the plaintiff and agreement of the Government and after motion to convene a three-judge Court was granted, this Court was appointed to hear the question of the constitutional validity of Section 6 of the Subversive Activities Control Act of 1950, 64 Stat. 993, 50 U.S.C. § 785, as applied to the facts of the case at bar and the question of whether, if the statute is constitutional, the Secretary of State may make the processing of an application for a new passport conditional upon either an affirmation by the applicant that he is not a member of the Communist Party of the United States of America or an explanation by the applicant of his inability to make such an affirmation.
Both parties moved for summary judgment stating that there is no genuine issue of material fact involved and the Court finds that there is no genuine issue of material fact involved.
He also declared his allegiance to the Constitution of the United States. Plaintiff refused to sign, as part of his application, a statement which read:
Subsequently, on March 11, 1963, at San Francisco, California, he re-executed his application for a passport on Form DSP-11, prescribed in May, 1962, which form contained the same declarations on its face as those of the Bern application. Plaintiff again answered and affirmed all of the declarations required except that relating to membership in an organization registered or required to register under Section 7 of the Subversive Activities Control Act. With regard to all declarations required on Form DSP-11 there is the following provision:
"If any of the above mentioned acts or conditions have been performed by or apply to the applicant or to any other person to be included in the passport, the portion which applies should be struck out, and a supplementary explanatory statement under oath (or affirmation) by the person to whom the portion is applicable should be attached and made a part of this application."
Paragraph 6 of Information for Passport Applicants, printed on the back of Form DSP-11, sets forth that the only organization registered or required to register as a Communist organization under Section 7 of the Internal Security Act of 1950 is The Communist Party of the United States of America.
Plaintiff, in refusing to affirm the declaration set forth on the application form as to membership in The Communist Party of the United States of America, informed the Department of State that he refused to execute this statement on the grounds that it was a "test oath" which violated his constitutional rights. It must be noted that the plaintiff did not assert that the required declaration, or the required explanatory statement if the declaration could not be made, would violate his right against self-incrimination insured by the Fifth Amendment, and therefore the question of self-incrimination is not raised.
The Department of State notified plaintiff that absent such affirmation or explanation, the application must be considered incomplete and would not be processed until such time as it is completed.
On April 20, 1963, Mr. Mayer filed this action seeking a declaratory judgment and an injunction restraining the enforcement of Section 6 of the Subversive Activities Control Act, 50 U.S.C. § 785.
Before this Court Mr. Mayer claims that to refuse to process his passport application because he refused to affirm non-membership in the Communist Party denies him his liberty of travel in violation of the Constitution. He asserts that Section 6 of the Subversive Activities Control Act, upon which the requirement depends, is unconstitutional and that even if Section 6 is constitutional, making such an affirmation a condition precedent to the processing of his passport application violates due process by shifting to him the burden of proving his ability to qualify for a passport.
The question of the constitutionality of Section 6 of the Subversive Activities Control Act of 1950 has previously been raised and decided by a three-judge Court in this Circuit. In Flynn v. Rusk, and Aptheker v. Rusk, D.C., 219 F.Supp. 709, a three-judge Court of this Circuit upheld the constitutionality of Section 6. This Court agrees with the decision of that Court.
It is clear that the Secretary of State has the statutory authority to refuse to process an incomplete application for a passport if the information required on the application is proper and authorized by law. The provisions of 22 U.S.C. § 213 state:
"Before a passport is issued to any person by or under authority of the United States such person shall subscribe to and submit a written application duly verified by his oath * * * which said application shall contain a true recital of each and every matter of fact which may be required by law or by any rules authorized by law to be stated as a prerequisite to the issuance of any such passport." (Emphasis supplied)
By State Department regulation information regarding membership in the Communist Party is required to complete the application. The non-affiliation declaration, when read in conjunction with the explanatory statement provision which immediately follows it on Form DSP-11, calls for such information. Section 51.134 of the Passport Regulation (22 C.F.R. 51.134) provides:
"Application for passports should be made on the most recent form or forms prepared by the Department of State and should contain complete information called for in such form or forms."1
If the requirement is a valid one, and the information is not supplied, the application is incomplete and need not be processed.
Plaintiff concedes this, but maintains that to decline to process his application and to issue him a passport because he refuses to affirm non-membership in the Communist Party is, in effect, to conclude that he is a Communist Party member, and to restrain his liberty as if he were a member, without holding a hearing and without requiring the Government to prove by a preponderance of the evidence that applicant is a member of the Communist Party of...
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...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 The following material facts essential to the disposition of the important legal questions posited by thes......
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Zemel v. Rusk
...determination of "the gravest imminent danger to the public safety." Cf. Flynn v. Rusk, 219 F.Supp. 709 (D.C.D.C.1963); Mayer v. Rusk, 224 F.Supp. 929 (D.C.D.C.1963) (on appeal to the Supreme Court, Dkt. 746). The problem here is that as yet Congress has made no determination that there is ......