Zemel v. Rusk

• Decision Date: 20 February 1964
• Docket Number: No. 9549.,9549.
• Citation: 228 F. Supp. 65
• Court: U.S. District Court — District of Connecticut
• Parties: Louis ZEMEL, Plaintiff, v. Dean RUSK, Secretary of State, Department of State, and Robert F. Kennedy, Attorney General, Defendants.

228 F. Supp. 65

Louis ZEMEL, Plaintiff, v. Dean RUSK, Secretary of State, Department of State, and Robert F. Kennedy, Attorney General, Defendants.

No. 9549.

United States District Court D. Connecticut.

February 20, 1964.

Leonard B. Boudin, Rabinowitz & Boudin, New York City, Samuel Gruber, Gruber & Turkel, Stamford, Conn., for plaintiff.

Benjamin C. Flannagan, Dept. of Justice, Washington, D. C., Robert C. Zampano, U. S. Atty., New Haven, Conn., for defendants.

Before J. JOSEPH SMITH, Circuit Judge, and CLARIE and BLUMENFELD, District Judges.

CLARIE, District Judge.

The plaintiff, a citizen of the United States and residing within this judicial district, has brought this action against Dean Rusk, Secretary of State of the United States and Robert F. Kennedy, the Attorney General of the United States for a declaratory judgment and to enjoin the enforcement and execution of two acts of Congress, namely, the Passport Act of 1926, 44 Stat. 887, 22 U.S.C. § 211a and § 215 of the Immigration and Nationality Act of 1952, 66 Stat. 163, 190, 8 U.S.C. § 1185, both of which the plaintiff claims are repugnant to the Constitution. Jurisdiction of this Court is invoked under Section 10 of the Administrative Procedure Act, 60 Stat. 243 (1946), 5 U.S.C. § 1009 and 28 U.S.C. §§ 1391 and 2201; and pursuant to 28 U.S.C. §§ 2282 and 2284 a three-judge court was convened to pass upon the constitutional questions in issue.

Cross motions have been filed by the respective parties, pursuant to Rule 56, Fed.R.Civ.P., for the entry of summary judgment based on the representation of both parties that there exists in this case no genuine issue as to any material fact. Having heard the arguments of counsel for the respective parties and having considered their amended pleadings, affidavits, briefs and other papers on file, the Court is of the opinion that the plaintiff's motion for summary judgment should be denied and the defendants' motion for summary judgment should be granted.

The material facts are undisputed. On March 31, 1962, while the plaintiff was the holder of a valid United States passport of standard form and duration, he applied by letter to the Director of the Passport Office at Washington, D. C., for permission to have his passport validated for travel to Cuba as a tourist. The Passport Office denied him the permission requested, with the explanation that only persons whose travel might be in the best interests of the United States, such as newsmen and businessmen with previously established interests, could be eligible; and specifically that tourist travel was excluded. Thereafter, on May 1, 1962, the petitioner requested a hearing on his application without reciting any new reason, except that he felt justified in wanting to make the trip. He was sent a copy of the current Administrative Procedures of the Passport Office and advised by the acting Deputy Director, citing 22 C.F.R. 51.170 (1958), that in those instances where foreign travel was restricted by geographical limitations, which were generally applicable to everyone, no administrative procedures for review or appeal were provided. Subsequently, on October 11, 1962, the petitioner through his attorney advised the Passport Office by letter, that the former had acquired a new passport and renewed petitioner's request for its validation and a review of any denial. The department advised counsel that in view of the lapse of time, since filing the original application, a new application should be filed, setting forth the purpose of the trip, his expected duration in Cuba, his address while there and assurance of his willingness to register with the Swiss Consulate upon his arrival in Havana.

Thereupon, the petitioner filed a new application for validation, wherein he represented that the purpose of his trip to Cuba was to satisfy his curiosity about the state of affairs in Cuba in order to make him a better informed citizen. He represented further, that he expected to stay at the Havana Libre Hotel for approximately two or three weeks and expressed his willingness to register with the Swiss Consulate upon his arrival in Havana.

On November 5, 1962, the petitioner was notified by the Deputy Director of the Passport Office that his "present purpose of visiting Cuba does not meet the standards for validation of your passport." It should be emphasized that at the time of the Court's hearing on this motion, petitioner's counsel stated that he was making no claim of illegality on the basis of his client's not having been afforded an administrative hearing with reference to the denial of the passport validation and this Court will therefore consider that he has abandoned any claim of illegality on this ground, notwithstanding its recitation in the complaint.

It is the plaintiff's contention that the Passport Act of 1926, 44 Stat. 887, 22 U.S.C. § 211a does not authorize the action taken, that said Act and § 215 of the Immigration and Nationality Act of 1952, 66 Stat. 163, 190, 8 U.S.C. § 1185 are unconstitutional, because they interfere with the rights of a citizen, in this instance the plaintiff, to the right to travel under the Fifth, Ninth and Tenth Amendments; to the freedom of speech, belief and association under the First Amendment and that it is an arbitrary and unreasonable denial of due process under the Fifth Amendment; further, that it is an invalid delegation of legislative power because it does not contain adequate standards and safeguards. The petitioner claims that Executive Order 7856 and Presidential Proclamation 3004, 67 Stat. c. 31 fail to provide adequate standards to guide the Secretary of State in promulgating the regulations and giving proper notice to the American citizen whether said regulations are supported by statute or proclamation; and to the extent that the denial rests upon Executive power over foreign relations, it is still subject to constitutional limitations, and the reasons given by the Secretary do not warrant this abridgement.

The plaintiff presently prays for a declaratory judgment and an injunction decreeing that § 215 of the Immigration and Nationality Act of 1952, 66 Stat. 163, 190, 8 U.S.C. § 1185 and the Passport Act of July 3, 1926, 44 Stat. 887, 22 U.S.C. § 211a are unconstitutional and that the Secretary of State's regulations,¹ restricting travel to Cuba are thus without any authority in law and are invalid as to the plaintiff. He also requests that the Secretary of State be directed to validate the petitioner's passport for travel to Cuba, and that he and the Attorney General of the United States be enjoined from interference with his prospective travel or instituting any criminal procedure by reason thereof when consummated.

THE THREE-JUDGE COURT ISSUE

The preliminary jurisdictional question is whether this proceeding should be heard by a three-judge District Court pursuant to 28 U.S.C. § 2282. This statute requires such a tribunal as a prerequisite to the granting of any "interlocutory or permanent injunction restraining the enforcement, operation or execution of any Act of Congress for repugnance to the Constitution * * *." The necessary elements for the convocation of such a court are three-fold: (1) The complaint must allege a basis for equitable relief, Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963); (2) The constitutional question raised must be substantial. Schneider v. Rusk, 372 U.S. 224, 83 S.Ct. 624, 9 L.Ed.2d 695 (1963); and (3) The Complaint must assail an `Act of Congress', William Jameson & Co. v. Morgenthau, 307 U.S. 171, 59 S.Ct. 804, 83 L.Ed. 1189 (1939).

A judgment for the plaintiff would put the operation of 22 U.S.C. § 211a and 8 U.S.C. § 1185 under the restraint of an equity decree. The constitutional claim is plainly substantial, for in Kent v. Dulles, 357 U.S. 116, 130, 78 S.Ct. 1113, 1120, 2 L.Ed.2d 1204 (1957) the Supreme Court said: "we deal here with a constitutional right of the citizen, a right which we must assume Congress will be faithful to respect." The Supreme Court's refusal to grant certiorari in three cases² involving geographic restrictions, all arising subsequent to Kent v. Dulles, supra, does not render the present claim insubstantial. The Court has frequently reiterated that "the denial of a writ of certiorari imports no expression of opinion upon the merits of the case * * *." United States v. Carver, 260 U.S. 482, 490, 43 S.Ct. 181, 182, 67 L.Ed. 361 (1922). See also Stern & Gressman, Supreme Court Practice § 5-7 (3d ed. 1962).

The plaintiff claims, inter alia, that if §§ 211a and 1185 authorize the Secretary to place geographic limitations upon the right to travel, they are unconstitutional by reason of an unlawful delegation of legislative power to the Executive. He argues that a reading of these sections shows that they are devoid of any standards or principles by which the Secretary is guided.

Inasmuch as this plaintiff seeks affirmatively to enjoin the operation of a passport regulatory system, the propriety of empaneling a three-judge tribunal is manifest. The legislative history of § 2282 indicates that it was enacted to prevent a single federal judge from paralyzing the operation of an entire administrative system by the issuance of a broad injunctive order.

"Repeatedly emphasized during the congressional debates on § 2282 were the heavy pecuniary costs of the unforeseen and debilitating interruptions in the administration of federal law which could be wrought by a single judge's order, and the great burdens entailed in coping with harassing actions brought one after another to challenge the operation of an entire statutory scheme, wherever jurisdiction over government officials could be acquired, until a judge was ultimately found who would grant the desired injunction. 81 Cong.Rec. 479-481, 2142-2143 (1937)." Kennedy v. Mendoza-Martinez, supra, 372 U.S. at 155, 83 S.Ct. at 560, 9 L.Ed.2d 644.

This is truly a...