The Secretary of State denied a pass-part 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 certаin 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 appeаl undisposed of pending our
en banc
disposition of Boudin v. Dulles (Dulles v. Boudin),
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, аnd without any finding sufficient to bring the applicant within any one of sаid 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 рassport was under subsection (c) of said Section 51.135. The аffidavit 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 а statement of the reason for the Secretary’s deniаl of the passport; but the better practice requirеs that the denial itself, rather than an affidavit filed in court aftеr litigation over the denial has arisen, should specify the rеgulation upon which it rests and should contain such findings as are called for by our Boudin opinion.
Here, as in the Boudin casеs, the Secretary in denying the passport advised the aрplicant that the denial was on the basis of evidencе which included confidential reports of investigation. In requiring reconsideration by the Secretary of the Boudin casеs we said inter alia that we did not reach Boudin’s contention that the Sеcretary could not rely on confidential information, but wе added, and here repeat as applicablе to Dayton’s case:
“ * * * since that question may arise at a subsequent stage, we think the Secretary should — if he refuses a рassport * * * after the fur *45 ther consideration we have оrdered —state whether his findings are based on the evidencе openly produced, or (in whole or in material part) on secret information not disclosed to the applicant. If the latter, the Secretary should explain with such particularity as in his judgment the circumstances permit the naturе of the reasons why such information may not be disclosed. 4 Cf. Dulles v. Nathan, 1955,96 U.S.App.D.C. 190 ,225 F.2d 29 . This will facilitate the task of the courts in dealing with the question of the propriety of the Secretary’s use of confidentiаl information — a question which, we repeat, we do not now reach.”
For the reasons above given, and more fully explained in the Boudin opinion, the judgment herein is reversed and the case is remanded to the District Court for further proceedings not inconsistent with this opinion.
It is so ordered.
Notes
“4. If considerations of internal security rather than of the conduct of foreign affairs are involved, we think the Secretary should so state.”