Stewart v. Dulles, 13533

• Decision Date: 03 July 1957
• Docket Number: 13638.,No. 13533,13622,13533
• Citation: 101 US App. DC 280,248 F.2d 602
• Parties: Donald Ogden STEWART, Appellant, v. John Foster DULLES, Individually and as Secretary of State, Appellee (two cases). John Foster DULLES, Secretary of State, Appellant, v. Donald Ogden STEWART. Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

101 US App. DC 280, 248 F.2d 602 (1957)

Donald Ogden STEWART, Appellant, v. John Foster DULLES, Individually and as Secretary of State, Appellee (two cases).

John Foster DULLES, Secretary of State, Appellant, v. Donald Ogden STEWART. Appellee.

Nos. 13533, 13622, 13638.

United States Court of Appeals District of Columbia Circuit.

Argued January 29, 1957.

Decided July 3, 1957.

Petition for Rehearing Denied September 24, 1957.

Mr. Leonard B. Boudin, New York City, and Mr. Harry I. Rand, Washington, D. C., appeared for appellant in Nos. 13533 and 13638 and appellee in No. 13622.

Mr. B. Jenkins Middleton, Atty., Dept. of Justice, with whom Asst. Atty. Gen. George Cochran Doub, Mr. Oliver Gasch, U. S. Atty., and Mr. Paul A. Sweeney, Atty., Dept. of Justice, were on the brief, for appellee in Nos. 13533 and 13638 and appellant in No. 13622. Mr. Lewis Carroll, Asst. U. S. Atty., also entered an appearance for appellee in No. 13533.

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

PER CURIAM.

Appellant Donald Ogden Stewart is a professional author, playwright, and screen writer, a native-born American citizen, resident since 1950 in London, England. He has had American passports from time to time during his life. He was issued a passport on May 15, 1951. That passport would normally have been valid for two years. In June of 1952 the Embassy was instructed to withdraw that passport and to furnish him one valid only for direct return to the United States. In February, 1955, he applied for a new passport. Pursuant to instructions from the Passport Office Stewart was informed the Department had information indicating connections on his part with Communist activities. He was advised it appeared his case came within Section 51.135 of the Passport Regulations¹ and it would be necessary for him to furnish an affidavit pursuant to those regulations. Stewart responded with an affidavit, which he said was in reply to four allegations made by the Department concerning the issuance to him of a passport. Informal hearing was held in the Passport Office, attended by Stewart's attorney, and at that hearing other alleged connections on Stewart's part with Communist activities were called to the attention of his attorney. A few days thereafter Stewart submitted another passport application through the American Embassy in London, which was followed by an additional statement, also under oath, describing his activities and asserting that they had contributed substantially to a better understanding of the United States in England and to enhancement of the good relations between the people of the United States and those of England. He called attention to the affidavit which he had theretofore filed and said: "I refer the Department to that affidavit and reaffirm that I have at no time, while residing in England, engaged in any political activity or in any activity whatsoever that could conceivably damage the interests of the United States." The Passport Office advised Stewart that no further consideration would be given his request until he submitted "the requisite affidavit with respect to present or past membership in the Communist Party." Thereupon Stewart filed a third affidavit, which read as follows:

"1. I am not a member of the Communist Party or the Communist Political Association; nor have I recently terminated membership in the said organizations; nor have I been a member of the said organizations at any time during the past fifteen years.

"2. I am not engaged in activities which, so far as I know, or have reason to believe, support the Communist movement.

"3. I am not residing or remaining abroad for the purpose of engaging in activities which, so far as I know or have reason to believe, will advance the Communist movement.

"4. I am not engaged in activities abroad nor will I engage in activities abroad which, so far as I know or have reason to believe, have violated or will violate the laws of the United States or which have been or will be prejudicial to the orderly conduct of the foreign relations of the United States; or which otherwise have been or will be prejudicial to the interests of the United States."

The State Department held this affidavit failed to meet the requirement of the regulation which laid down a prerequisite to a hearing and final decision. It declined to give Stewart's application further consideration.

Section 51.135 of the Passport Regulations reads as follows:

"Limitations on issuance of passports to persons supporting Communist movement. In order to promote the national interest by assuring that persons who support the world Communist movement of which the Communist Party is an integral unit may not, through use of United States passports, further the purposes of that movement, no passport, except one limited for direct and immediate return to the United States, shall be issued to:

"(a) Persons who are members of the Communist Party or who have recently terminated such membership under such circumstances as to warrant the conclusion — not otherwise rebutted by the evidence — that they continue to act in furtherance of the interests and under the discipline of the Communist Party;

"(b) Persons, regardless of the formal state of their affiliation with the Communist Party, who engage in activities which support the Communist movement under such circumstances as to warrant the conclusion — not otherwise rebutted by the evidence — that they have engaged in such activities as a result of direction, domination, or control exercised over them by the Communist movement;

"(c) Persons, regardless of the formal state of their affiliation with the Communist Party, as to whom there is reason to believe, on the balance of all the evidence, that they are going abroad to engage in activities which will advance the Communist movement for the purpose, knowingly and wilfully of advancing that movement."

Section 51.142 of the Regulations² reads as follows:

"Oath or affirmation by applicant as to membership in Communist Party. At any stage of the proceedings in the Passport Division or before the Board, if it is deemed necessary, the applicant may be required, as a part of his application, to subscribe, under oath or affirmation to a statement with respect to present or past membership in the Communist Party. If applicant states that he is a Communist, refusal of a passport in his case will be without further proceedings."

In the case now here upon cross appeals as Nos. 13622 and 13638, the District Court ordered that the proceedings be remanded to the Secretary for consideration and determination of the merits of the application for the passport, in accordance with Boudin v. Dulles.³ A majority of this court, composed of Judges Prettyman, Bazelon, Fahy, Washington and Burger vote to affirm that order (except paragraph 5 thereof, as will hereinafter appear). Judges Wilbur K. Miller, Danaher and Bastian dissent. Chief Judge Edgerton and Judge Bazelon are of opinion, as stated by them in Briehl v. Dulles,⁴ that the regulations of the Secretary are invalid; but, accepting for purposes of this case the ruling in Briehl that the regulations are valid, they are of opinion that the regulations were complied with by Stewart. Judge Bazelon therefore votes to affirm the order of the District Court. Chief Judge Edgerton is of opinion the Secretary should be directed to issue a passport. Judge Prettyman is of opinion that the regulations are valid and that Stewart complied with the peremptory affidavit requirement of the regulation (Sec. 51.142). He therefore votes to affirm, filing an explanatory opinion. Judge Fahy votes to affirm upon the ground that to require more than appellant stated in his affidavit would constitute an invalid application of Section 51.142 of the Regulations. Judge Washington votes to affirm for reasons stated in his separate concurring opinion, in which Judge Burger joins. Judges Wilbur K. Miller, Danaher and Bastian are of opinion that the regulations are valid, as held in the opinion of Judge Prettyman in Briehl, but they are of further opinion that the affidavit requirement was not complied with by Stewart. They therefore dissent.

Paragraph 5 of the order of the District Court above mentioned, involved in Nos. 13622 and 13638, was:

"Nothing in this order shall preclude the Department of State from taking into consideration, among other factors, plaintiff\'s failure to subscribe, under oath or affirmation, to a statement with respect to past membership in the Communist Party, as deemed necessary by the Department."

That paragraph would seem to authorize the Department to take into consideration to any extent it deems necessary Stewart's failure to subscribe to the sort of statement which the Department has been urging. Such an authorization would be at variance with the prescriptions in Boudin v. Dulles. Therefore, in voting to affirm the order of the District Court, the court does not affirm paragraph 5. At the same time a majority of the court think it would be permissible for the Department to take into consideration the statement made by Stewart, that he has not been a member of the Communist Party or the Communist Political Association "at any time during the past fifteen years" and to draw such inferences as are proper to be drawn from such a limited negative statement.

Without affirming all the findings of fact or conclusions of law, we affirm the order of the District Court appealed from in No. 13533, which denied Stewart's motion for a preliminary injunction. Chief Judge Edgerton and Judge Bazelon would reverse the order denying a preliminary injunction.

Affirmed.

PRETTYMAN, Circuit Judge (concurring).

I desire to explain my reasons for concluding that Stewart complied with the peremptory requirement for an affidavit. The question is whether Stewart's last affidavit, quoted...