BAUER v. ACHESON, Secretary of State.
Civ. No. 743-52.
United States District Court District of Columbia.
July 9, 1952.
106 F. Supp. 445
Courts of other jurisdictions have also applied the principles of these District of Columbia cases and denied declaratory or injunctive relief under factual circumstances analogous to those here presented for failure to present a justiciable controversy. England v. Devine, D.C.Mass., 59 F.Supp. 379; San Francisco Lodge No. 68 of the International Association of Machinists v. Forrestal, D.C.N.D.Cal., 58 F.Supp. 466, 468. In the last cited case, the court denied injunctive relief and a declaratory judgment and dismissed the complaint on the ground that it failed to present a justiciable controversy, stating:
“It appears to the court that no justiciable controversy in the legal sense exists and therefore the court should not exercise its power under the Federal Declaratory Judgment Act. That the exercise of this power is within judicial discretion is so declared by respectable authority [citing cases]. An actual controversy is not one which may occur, but one which in fact exists. * * * The record here conclusively shows that plaintiff‘s claim rests upon an anticipation as to the future course of action of defendants and not upon a present actual factual issue.
“I am also of the opinion that the record does not disclose any grounds for general equitable relief by restraining order, injunction or the like. That a member of plaintiff association may violate the rules of employment, that he may be discharged therefor, that he may be consequently denied clearance and referral—these are speculative and conjectural factors.”
Like the foregoing case, here too the record shows that plaintiffs’ claim rests upon a speculative anticipation of a future course of action by defendants which may never occur, and not upon a present actual factual issue. This being the case, were the Court to grant the relief requested, it would be doing no more than rendering an advisory opinion upon a hypothetical set of facts.
Plaintiffs’ motion for an injunction pendente lite is denied. Defendants’ motion for summary judgment is granted, and the cause is dismissed for failure to state a claim upon which relief can be granted.
Counsel will present an order in conformity with this opinion.
Charles M. Irelan, U. S. Atty. for the District of Columbia, Washington, D. C., Ross O‘Donoghue, Asst. U. S. Atty. for the District of Columbia, Washington, D. C., for defendant.
Before FAHY, Circuit Judge, and KEECH and CURRAN, District Judges, sitting as a statutory three-judge court.
KEECH, District Judge.
This is an action against the Secretary of State for a declaratory judgment under
The material facts are undisputed.* The plaintiff, a naturalized American citizen is and at all times since her naturalization in 1944 has been a loyal American
The plaintiff contends that the Passport Act of 1918, as amended,
In view of the important constitutional questions raised by the complaint, plaintiff‘s motion to convene a three-judge court, pursuant to
The pertinent provision of law is
“The Secretary of State may grant and issue passports * * * under such rules as the President shall designate and prescribe for and on behalf of the United States, * * *”
Pursuant to this section the President issued Executive Order 7856, which includes the following regulations:
Ҥ 51.75. Refusal to issue passport. The Secretary of State is authorized in his discretion to refuse to issue a passport, to restrict a passport for use only in certain countries, to restrict it against use in certain countries, to withdraw or cancel a passport already issued, and to withdraw a passport for the purpose of restricting its validity or use in certain countries.
Ҥ 51.76. Violation of passport restrictions. Should a person to whom a passport has been issued knowingly use or attempt to use it in violation of the conditions or restrictions contained therein or of the provisions of the rules in this part, the protection of the United States may be withdrawn from him while he continues to reside abroad.
“§ 51.77. Secretary of State authorized to make passport regulations. The Secretary of State is authorized to make regulations on the subject of issuing, renewing, extending, amending, restricting, or withdrawing passports additional to the rules in this part and not inconsistent therewith.”
Section 224 of
From the pleadings and argument of counsel, it is clear that plaintiff basically is attacking the constitutionality of
It is clear that the authority to issue passports necessarily implies authority also to regulate their use and to withdraw them. The particular questions for inquiry in this case are whether a person who has received a passport may have it summarily revoked, during the period for which it was valid, without prior notice or opportunity for a hearing and on the bald statement that “her activities are contrary to the best interests of the United States,” and whether the Secretary of State may refuse to renew such passport on the same statement.
It is the сontention of the defendant that a passport is a purely political document addressed to foreign powers,1 and that since a passport is in the realm of foreign affairs its issuance or denial is a political matter, entirely in the discretion of the Secretary of State and not subject to judicial review. It is true that the conduct of foreign affairs is a political matter within the discretion of the executive and legislative branches of the government, and that the courts recognize the plenary power of the President and of the Congress, singly or in combination, to perform acts peculiarly within the realm of political affairs without judicial interference.2 There is, however, the recognized limitation on the power of the political departments of the government that their acts must be within the Constitution and not in conflict with any provision thereof.3
The plaintiff contends that the denial of a passport to her is in violation of the bill of attainder and ex post facto provisions of the Constitution.
Ex post facto laws are classified in Calder v. Bull, 3 Dall. 386, 390, 3 U.S. 386, 390, 1 L.Ed. 648, as:
“1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action.
“2d. Every law that aggravates a crime or makes it greater than it was when committed.
“3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.
“4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.” This definition has been repeatedly approved.
Neither the statute nor the regulаtion here involved is on its face a bill of attainder or an ex post facto law. It is true that these constitutional prohibitions are not limited to punishment by criminal penalty. A bill of attainder includes any legislative act which takes away the life, liberty, or property of a particular named or easily ascertainable person or group of persons because the legislature thinks them guilty of conduct which deserves punishment;5 and an ex post facto law is a statute which ” ‘in its relation to the offense, or its consequences, alters the situation of the accused to his disadvantage.’ ”6 But a statute which makes the right to engage in some activity in the future depend upon past behavior, even behavior before the passage of the regulatory act, is not invalid as a bill of attainder or ex post facto law if the statute is a bona fide regulation of an activity which the legislature has power to regulate and the past conduct indicates unfitness to participate in the activity.7 It is possible that by arbitrary administration the statute and regulation here attacked might be made to partake of the nature of a bill of attainder or ex post facto law, but such application is not inherent. Since they are susceptible of a constitutional interpretation, the court must construe the statute and regulations as constitutional.8
The plaintiff‘s contention that
The Fifth Amendment provides, “no person shall be * * * deprived of life, liberty, or property, without due process of law * * *.” The Supreme Court has recognized that personal liberty includes “the right of locomotion, the right to remove from one place to another according to inclination,”9 stating, “The liberty, of which the deprivation without due process of law is forbidden, ‘means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation * * *.’ ”10
Aside from the provisions of
Since denial of an American passport has a very direct bearing on the applicant‘s personal liberty to travel outside the United States, the executive department‘s discretion, although in a political matter, must be exercised with regard to the constitutional rights of the citizens, who are the ultimate source of all governmental authority.14
The liberty guaranteed by the Constitution is not absolute. “Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses.”15 Thus, freedom to travel abroad, like other rights, is subject to reasonable regulation and control in the interest of the public welfare. However, the Constitution requires due process and equal protection of the laws in the exercise of that control.
“Due process of law has never been a term of fixed and invariable content.”16 Due process does not require a judicial hearing,17 but merely a procedure in which the elements of fair play are accorded. Essential elements of due process are notice and an opportunity to bе heard before the reaching of a judgment,18 but the particular procedure to be adopted may vary as appropriate to the disposition of issues affecting interests widely varying in kind.19
The court recognizes that in the matter of passports the executive department of the government, acting through the Secretary of State, must necessarily be accorded wide discretion in determining when and where the protection of the United States
This court is not willing to subscribe to the view that the executive power includes any absolute discretion which may encroach on the individual‘s constitutional rights, or that the Congress has power to confer such absolute discretion. We hold that, like other curtailments of personal liberty for the public good, the regulation of passports must be administered, not arbitrarily or capriciously, but fairly, applying the law equally to all citizens without discrimination, and with due process adapted to the exigencies of the situаtion. We hold further that such administration is possible under the existing statute and regulations.
Since the Act in question is susceptible of an interpretation which would permit due process, it follows that it is not in violation of the Fifth Amendment. The President‘s regulation authorizing withdrawal of passports is clearly within the intent of the Congress, and is susceptible of and must be construed as exacting notice and opportunity to be heard prior to any judgment effecting revocation or refusal to renew a passport.
The third member of this court is of the view that the complaint is to be analyzed as an attack merely on the action of the Secretary of State and, as such, it involves no substantial question as to the constitutionality of the statute.
We take the view that a substantial and serious constitutional question has been raised,20 which necessitated the convening of a three-judge court, in that the statute is susceptible of the interpretation followed by the Secretary of State, and as so interpreted and applied it would be unconstitutional. While there have been previous pronouncements by the Supreme Court reading into statutes due procеss provisions under certain circumstances, the statutes there involved were not so clearly analogous to the one here in question as to remove the substantial character of the constitutional question. The mere fact that in the opinion of the three judges who heard the case, the statute may be interpreted so as to provide due process, does not change the fact that there is a substantial constitutional question, and does not ipso facto require a remand to one district judge for final determination of the issues.
Since there is а substantial constitutional question, there is no doubt of the propriety of action by the three-judge court as to all questions involved in the litigation necessary for disposition of the prayer for injunction.21 We find that this is a proper case for a final determination of the issues, since it requires no further encroachment on the time of the three-judge court for additional hearing, and remand to a single district judge would merely result in duplication.
We conclude that revocation of the plaintiff‘s passport without notice and hearing before revocation, as well as refusal to renew such passport without an opportunity to be heard, was without authority of law. It follows that the Secretary of State should be directed to renew or revalidate the plaintiff‘s passport without the amendment making it valid only for return to the
Counsel will present promptly an appropriate order.
CURRAN, J., concurs.
FAHY, Circuit Judge (dissenting on jurisdictional grounds).
In my opinion the case should be decided by a single district judge rather than by a specially constituted three-judge court. This latter type of court has been authorized by Congress in circumstances which come within the following provision:
“An interlocutоry or permanent injunction restraining the enforcement, operation or execution of any Act of Congress for repugnance to the Constitution of the United States shall not be granted by any district court or judge thereof unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title.” (
28 U.S.C. § 2282 (Supp. IV 1951) )
In other circumstances jurisdiction does not fall to a district court composed of three judges. California Water Service Co. v. Redding, 1938, 304 U.S. 252, 58 S. Ct. 865, 82 L.Ed. 1323;1 see, also, Ex parte Bransford, 1940, 310 U.S. 354, 361, 60 S.Ct. 947, 84 L.Ed. 1249.2 As said in Oklahoma Gas Co. v. Oklahoma Packing Co., 1934, 292 U.S. 386 at 391, 54 S.Ct. 732, 78 L.Ed. 1318,3 the three-judge procedure is an extraordinary one, designed for a specific class of cases. Under such procedurе an appeal may be taken directly to the Supreme Court,
The amended complaint does not meet these requirements. It does not even mention the Act of Congress relied upon to support the Secretary‘s revocation of, and refusal to renew, plaintiff‘s passport, namely, 44 Stat. 887 (1926),
Even if we construe the complaint as though it implicitly attacks the constitutionality of
“The Secretary of State may grant and issue passports, and cause passports to be granted, issued, and verified in foreign countries by diplomatic representatives of the United States, and by such consul generals, consuls, or vice consuls when in charge, as the Secretary of State may designate, and by the chief or other executive officer of the insular possessions of the United States, under such rules as the President shall designate and prescribe for and on behalf of the United States, and no other person shall grant, issue, or verify such passports.” (44 Stat. 887 (1926),
22 U.S.C.A. § 211a .)
In the first place, the constitutionality of this provision is not affected by construing it to include the power to revoke a passport. If such an interpretation is erroneous revocation has resulted from an exercise of authority not granted and would be invalid on that ground. This would leave untouched the question of constitutional validity of the statute itself, placing control of granting and issuing passports in the Secretary of State under rules prescribed by the President. On that question I think it cannot be seriously doubted that Congress acted within its authority. Congressional chоice in this respect is not only plainly constitutional but is obviously appropriate, for the subject has much to do with the conduct of foreign affairs. Indeed, when plaintiff‘s position is analyzed her attack upon the action of the Secretary is not in reality an assertion that the statute itself is unconstitutional but a claim that the Secretary, in administering the statute, has exceeded his powers in assuming authority to revoke, and, in any event, in not according plaintiff the safeguards to which she is entitled.7 As indicated above, whether or not the statute includes the power to revоke is a question of statutory construction; and failure of the Secretary, or of the regulations prescribed by the President, to accord proper safeguards, does not affect the constitutionality of the statute, for if plaintiff is entitled by the Constitution to notice and hearing or other appropriate procedures, the statute must be read as requiring such procedures. The Japanese Immigrant Case, 1903, 189 U.S. 86, 23 S.Ct. 611, 47 L.Ed. 721; American Power & Light Co. v. S. E. C., 1946, 329 U.S. 90, 67 S.Ct. 133, 91 L.Ed. 103; Wong Yang Sung v. McGrath, 1950, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616.8
In my view therefore the case is one for the usual district court composed of a single judge, with right in the parties to appeal from his decision to the Court of Appeals, followеd by right of petition to the Supreme Court for review on writ of certiorari. This litigation should not be deemed within the special class of cases committed by Congress to a specially constituted three-judge court, properly con-