Weldon Bruce Dayton v. John Foster Dulles, Secretary of State
254 F.2d 71
D.C. Cir.
1958
Check Treatment

*1 prayer ratify the sale. the court DAYTON,Appellant, Weldon Bruce Hardys interven- were admitted ing parties objections filed State, was DULLES, Secretary Trial John Foster of ratification and confirmation. Appellee. court That had in Court. the Circuit find- opinion, included rendered an No. 13717. ratifying ings fact, judgment and a Appeals United States Court of Hardys report of sale. trustees’ District of Columbia Circuit. Appeals of appealed to the Court Argued 28, June 1957. Maryland, affirmed.1 court and that 24, Decided Oct. 1957. meantime, In the after the first ad- published vertisement of the sale was Granted Writ Certiorari Jan. 1958. occurred, and a week before the sale See S.Ct. Hardys Dis- filed United Judgment 16, 1958. Reversed June trict for the of Columbia District See 78 S.Ct. 1127. complaint praying sale of property enjoined they have judgment against Northwestern $6,000. The Dis- trustees in the sum summary judgment

trict Court rendered

for the defendants. present

In so far as action is a

prayer injunction moot, now it is having sale occurred. points substance, one, All save Hardys raised in the ac present appeal tion on the were proceeding

raised them Maryland and were considered Appeals

Court of that State. Maryland jurisdiction had courts

property parties. and of the We are not any parties shown wherein was de

prived any constitutional

proceedings in those courts. We will

inquire questions into the considered disposed of there. point

The one raised here which Maryland proceed raised ings charge concerns of misconduct against the now made trustees. No such charge appears complaint, judge ap from remarks trial showing

pears no assertion of facts part on the misconduct the trustees him. will

was made before We not con point raised for the first sider appeal.

time

Affirmed. Hardy Gibson, 1957, 133 A.2d 213 Md.

72 dealt Each of the first sections with four They activity Dayton. specific

a were section, similar in for format. The first activity example, in dealt with his C., Victory Harry Rand, Washington, and his D. Science for Mr. I. Committee persons appellant. association with named for two organization. Secretary found, that Attorney, Middleton, Mr. B. Jenkins activity record, open on and this Justice, Asst. Department with whom found, on association existed. Then he Doub, Atty. George Mr. Oliver Gen. C. information basis of confidential A. Gasch, Atty., Paul and Mr. U. S. Department, the files of this the' Attorney, Department Jus- Sweeney, organized Com- Committee had been brief, appellee. tice, for on were Party front for munist officials as a Washington, David, Mr. Nathan H. espionage propaganda and and activities C., the Feder- on behalf of filed D. brief persons named Communist that the were Scientists, amicus of American ation Party section members. In the second Secretary urging curiae, reversal. findings pre- dealt his Before Mil- Prettyman, K. Dayton’s Wilbur cisely as- similar fashion with Judges. ler and Circuit Fahy, relationship another sociation and with person, “an named active member Judge. PRETTYMAN, Circuit * * * Party involved Communist applica controversy an concerns This espionage apparatus of Julius in the upon passport. here It is now for a tion Rosenberg.” he re- In section the third appeal1 appeal. Upon the first second finding Dayton was cited his applied had down we laid the rule we apart- on one more than occasion remanded. and the' Boudin case2 apart- building in which was the ment of the his denial rested had Rosenberg “and other ment used Regu of his 51.135 Section ring spy the micro- for members of his 3 find specification or lations but without ings filming Gov- of classified United identify the subsection sufficient ultimate- documents were ernment Dayton. We classified which he within ly foreign power.” to a transferred findings held he must make the fourth section the found sus passport was to denial relationship” “a association and close fur Quoting we Boudin from tained. engaged person who nu- with a “has Secretary relied if the ther said upon Communist activities both merous must information he suspect- country abroad; and is and this particularity explain as the with such being espionage ed a Communist permitted the nature of circumstances agent." why reasons findings the Secre- disclosed. V his not be In Section tary said: Upon ren- the remand Findings again believe, and and a Decision dered reason “I have Upon passport. representa- evidence, denied the of all the balance applicant granted engage the Sec- going District Court tion the summary judgment retary’s motion which will advance the in activities complaint.4 ap- pur- This dismissed movement for the Communist wilfully knowingly peal followed. of ad- pose, vancing I have that movement. findings of the Sec- decision on the basis this conclusion reached retary into sections. divided were .six (Supp.1956). 51.135 U.S.App.D.C. § Dayton C.F.R. Dulles, 99 v. (1956). F.2d 43 237 F.Supp. Dayton Dulles, 146 876 v. U.S.App.D.C. 305, (1956). Dulles, Boudin 235 F.2d 532 Boudin together requirements findings laid down foregoing of the original appeal in Dulles the confidential findings identi- Depart- this case. He made contained in the files Regula- *3 precise provision fied of the the State, disclosure the ment Dayton.6 he found might tions within which prejudice the which foreign confidential He said the of the substance relations.” of United States I, II, information on in Sections relied findings Section VI of the is: Dayton. III to and IV had disclosed been “The confidential re clearly Secretary stated, suc- and The I(b), paragraphs II(b), ferred to in cinctly, passport be- that he denied the III(b) IV(b) and above relates to believe, partly cause he had reason security the internal of the United open partly from from the and record States. The substance of this confi Dayton information, that dential information was disclosed to going engage activities was in abroad to during applicant the the considera which would the Communist advance passport application. tion To pass- the movement. port, issuance of publicly disclose the and sources de Secretary, con- be said the would would, tails of this information in trary to interest. Further the national my judgment, detrimental to be our clearly Secretary stated, and suc- the also by compromising national interest cinctly, his confidential information re- investigative sources and methods security lates to the of the Unit- internal interfering seriously and with the would ed and disclose it be States ability Department of this in re- detrimental to spect national interest the Executive Branch to obtain reliable security and to internal affecting our internal foreign prejudice our relations. security. Moreover, it would have ability an adverse effect our Thus case falls into two the obtain and utilize information from parts. question is whether the first sources abroad and interfere with grounds Secretary are stated the suf relationships in our established support pass denial of the ficient to security intelligence area; and and go Dayton port. If it be that was true might, respect to information ing knowingly wilfully to ad abroad and paragraph V, preju referred to in movement, vance the Communist could dice of United the interest Secretary passport? refuse him a foreign relations.” fully answered That Secretary The conclusion of the was: Briehl. he could refuse We there held ground. passport application “The that Wel- Dayton don Bruce is therefore de- is true did It 51.135(c) nied under Section say specific here terms that he denied Passport Regulations (22 CFR grant passport would because to be 51.135(c)), and because the issuance security detrimental to eign or for- internal contrary of a be surely, relations. But after all that the national interest.” said done has been about Com- Regulations validity Government, of the this of the movement munist passports Briehl, has described obvious upheld by Dulles, movement been us in Briehl v. de- the advance security cided June 1957.5 In the to the internal case detrimental strictly country its conformed relations. evidence, they going U.S.App.D.C. 239, are 248 F.2d 561. all engage in will activities which “Persons, regardless 51.135(c): 6. Section movement advance Communist of the formal their affiliation with state of wilfully purpose, knowingly and the advancing Party, to whom the Communist there movement.” believe, is reason to on the balance of having protected “The Secretary, of law. Clearly, when principle our decision Dayton’s purpose, which must control finding as to made the “Liberty doubt,” said. is not in the Court passport would of the issuance said that interest, neces- is thus public under the Constitution sarily subject contrary to the restraints internal public interest meant security process, regulation is reason- affairs. subject and is is, its able in relation to adopted now as it record context of the light pur- com- Dayton’s in the interests finding toas sup- (Italics munity process.”* clearly means is due pose, interest” “national Quoting opinion plied.) in- from its own security affairs”. “internal *4 McGuire,9 Quincy Chicago, meaning those B. & ft. Co. v. Any between difference contract, referring freedom of to the here. no moment terms is of “Liberty said, implies ab- the the Court question wheth The second restraint, arbitrary im- not sence of conclu could base er the regulations munity from reasonable upon partly confiden in this matter sion prohibitions imposed in the interests ground for if the Even information. tial upheld community.”10 the The Court if the valid, denial valid is the denial is contract, upon limitation the freedom of ground the establishes evidence ground community inter- upon that the stated, as ? The is confidential required protection of the health est out, pointed disclosure have we relatively helpless class women and of a detrimental of workers. respect in to interest to the national trade to contracts of our security ternal foreign doing abroad, the Court and consistently business upon is that view Our affairs. right can be held that the in disclose need not he that basis upon the basis denied the President upon may it. act formation but information, he need of confidential passed, has not Supreme information, Court The and that not disclose that question here before precisé upon authority inquire the courts have no permissible reliance us, e., the i. In United States v. Curtiss into it. Wright Export Corp.11 in a confidential had to the Court guideposts in helpful validity find But we case. of a Joint Reso determine the Court in principles down laid muni the sale of lution which forbade engage right persons fields. coun different tions of war to certain right con- into enter proclaimed business tries whenever the President liberty protected parts prohibition are tracts by sales Amend- Fourteenth Fifth and the reestablishment contribute to peace. deprived of person can be No ments. at some The Court discussed process rights except length those use of confidential informa respect to guiding principle in law. decided that tion in such matters.12 It Coast in the West embargo out set is well them is within the area of affairs, may had be- Court affect for 8There or at least well case.7 Hotel may eign relations, depend upon wage well attack act. The minimum it a fore ref deprivation of information. Court the statute was was congressional liberty earlier contract, part to several erred13 freedom page 392, 7, Parrish, Supra 57 300 U.S. at 300 note 10. Hotel Co. 7. Coast West page 578, L.Ed. 703 582. 379, 81 S.Ct. at 57 S.Ct. U.S. (1937). 216, 304, 81 57 S.Ct. L.Ed. 11. 299 U.S. (1936). page 391, Id., at 57 S.Ct. 255 at U.S. 300 8. page 581. pages 319-322, Id., at 57 S.Ct. 299 U.S. pages 259, 55 220-221. L. at 31 S.Ct. 219 U.S. Ed. 328 325-327, Id., U.S. at 57 S.Ct. at 299 page 224. authorizing directly responsible those to the the President resolutions prohibit people they exportation and other whose advance of coal welfare Refining imperil. They or Co. are decisions of a In Panama materials. Judiciary Ryan exec kind for which had described “cognate embargo aptitude, to” power neither facilities nor re- utive long sponsibility In a and which has been relations. the conduct belong polit- held to considered in the domain of recent case15 the Court more power subject judicial for ical a certificate an order which denied transportation. inquiry.”16 The order intrusion or air overseas by the Civil Aeronautics recommended Thus the Court held is. changed by President Board violated do business him, approved by pursuant then abroad is denied the basis of con- changes statute. But the reasons pertaining fidential information to for- beyond a statement were not disclosed eign affairs. relating factors that “because of certain commerce, Those cases involved more and other our welfare broad national readily subject regulation, depriva- or Executive matters for which the Chief tion, rights than are the inherent of in- *5 special responsibility, has reached has suggest dividuals. We do not changes require” which conclusions scope process of respect due to com- opinion. The the Board’s merce is the same as it is could such a whether the courts review rights. such other But we think the by President. The determination Supreme principles by laid down Court they held could not. The Court determining commerce cases for the ex- necessary said: tent of process due are of as- testing sistance in the nature President, of the as Commander- “The both process necessary deprivation organ of Nation’s in-Chief and as the right an right individual foreign such as affairs, available for intelligence travel abroad. reports services whose ought pub- problem and We turn to the are not before us. right part liberty. The to travel is a lished to the world. would be It courts, person deprived only by A can be intolerable that without the it process regulation information, due law. A relevant should review of a nullify liberty, perhaps reasonable in actions of the relation to its sub- ject adopted in the Executive taken information interest of the community, process. properly is held secret. Nor can Travel by people purposes abroad some for courts sit in camera order to be some may under some into executive confidences. circumstances taken involve foreign require even if our security. relations or our But courts could national disclosure, very Travel abroad to full nature of advance the foreign obviously, decisions as to Communist movement is executive on its “cognate face, may political, judicial. policy to” or is well affect our foreign wholly security. affairs and decisions are confided our national Such Obviously political our Constitution to the determination that a certain go person departments government, pur- wants to abroad for the Legislative. advancing They pose of Executive and the Communist move- may delicate, complex, depend upon ment are large involve information gleaned prophecy. They diplomatic elements of from or consular only are and should be undertaken sources or from other sources 388, 422, 241, Id., page 111, 14. 293 U.S. 55 S.Ct. 333 U.S. at 79 L. 68 S.Ct. at (1935). page Ed. 446 Chicago & Southern Air Lines v. Wa- Corp., S.S. terman U.S. 68 S.Ct. 92 L.Ed. 568 well-being. especially qualified make important he is decisions, Determina- to our question. officials bear tions made Executive traditionally, suggested For reasons the issu- thus such information have passports throughout toy provisions re- ance of history our virtue of constitutional lodged judg- lating thereto, Execu- been left to the been tive, he has ment of in which of State and the confidence regulation, been has never under Presidential received legis- subject only questioned or even constitutional violated safeguards. judicial Govern- of the must or And even these lative branches regard a determina- have 'be defined ment. We before with cautious State, based responsibility Executive tion upon derived in the confidential affairs.”18 in the him sources available from And we further cautioned: duties, performance his course prob- “We must not confuse the go person intends certain appellant’s application lem of for a move- Communist abroad to advance the passport with the conduct of disclosed ment. sense, political affairs in the person of this the substance entirely judicial removed from reasoning in- Upon the foregoing paragraphs we information. though competence. For even dicated application might come be said to procedure satisfies the that this conclude scope within the affairs process in such a requirements of due sense, in a broad is also within community makes interest matter. clause, scope necessary be so. that this liberty which is with the concerned *6 may abroad be denied to travel arbitrary of the individual free of basis. There administrative restraint. oppose always Americans resent must be some of these reconciliation liberty upon deprivation the basis of the right only interests of a where the so We do in information. of undisclosed particular in- travel is individual to agree to it ex- area. We would not question volved and not a of pub- cept of in necessitous circumstances political affairs on a level.”19 are circumstances lic concern. Such We adhere to views. The issu- those here. passport of a 17 ance foreign is not the of empha- Dulles we In v. Shachtman affairs. does not may the sized that Government have unfettered discretion to arbitrarily deny passport -and that a the regulations it—nor does he claim His it. proc- is one question of substantive persons specify will the to whom he doing In so we cautioned: ess. passports issue and indicate the reasons however, arbitrary, is “What They contemplate rules. for such factual constituting a denial sense opportunity conclusions after is afforded process, depends upon cir- of due hearing. applicant for All this the [Citing Re- cases.] cumstances. Secretary has done. have found his We be straint travel regulations valid, emergency and he has during substantive an reasonable though meticulously complied with them. The it would be normal times conditions, grounds upon arbitrary. other World —not areas, particular passport as to was denied but which those grounds special in- which established the the Executive evidence question. different basis of which —is a There formation and on the Id., U.S.App.D.C. page 293, U.S.App.D.C. 287, 225 F.2d 938 96 at 225 page F.2d at 290-291, pages Id., U.S.App.D.C. 96 at pages 225 F.2d at 941-942.

77 dividuals, merely and has not contem- problem would ad- whether disclosure is security plated quarantining, were, or certain versely our internal affect example, areas. 8 1185 affairs. For U.S.C.A. § of our the conduct right any to (b),2 hold restricts the citizen cases common sense ** “depart compel to “enter” as well as to from courts cannot garnered him United United States” when “the disclose during need not States is at war or the existence If he in this area. confidence only any emergency proclaimed has, national the information he disclose accept attempted This con- President.” other to course is for the courts judicially trol nullified be should not be would assertion that disclosure reasonably highest impor- it can be consistent- sustained detrimental in fields of ly with As I said the Constitution. tance care. to his exclusive entrusted my dissent, Briehl I think reasonable course. We think we must follow that Congressional exertion construe the judgment District together control, Executive with the Affirmed. affairs, authority in the area exercised, to extend consistently to such control as Judge FAHY, (dissenting). Circuit procedural process, growing developing In the law out my Briehl within stated in the criteria litigation due to the fact that denial of a existing dissent, no further under but passport has the effeet at this time of law. depriving person of a travel findings have, otherwise Shachtman In the case the Regulations Dulles, U.S.App.D.C. 287, applied 225 F.2d requires fur cri- I think this case still him those were not framed within Judge Secretary. weight ther consideration dissenting teria. I realize Secretary’s Dulles, Prettyman’s opinion Briehl 101 gave U.S. my App.D.C. 275, 51.135(c) I F.2d action under section Secretary Regulations, “the reasons for the view that the and his reference though deny interest,” power can construed national bring applicant qualification within the criteria has the basic the denial allegiance referred, being me person I it seems who which have but owes *7 interpret no I could find we be left thus United States.1 But should not greater power, when the either inherent the decisional basis delegated Congress, expressed in terms it Executive or has himself finding necessary authority possesses. deny passport A than when prevent inter- is in the “national “to likelihood denial reasonable particular when the harm or to the est” is too broad our national defense down to is not broken And national interest of our affairs.” governing procedural criteria. all come within the finding cases of denial authority appellant’s would required. is held travel Unless the engaged knowingly me bounds seems lead activities within these Judge movement say, Bazelon the Communist is to to advance alternative finding Briehl, subsidiary framed the basic said in dissent regulations embodying substantive “national interest.” terms denying passport us recent words, have been before criteria as passport other validity under authority lack all issuing cases focused has not legislation. grant whether the likely Congress to cause harm to national be I would am convinced foreign-travel attempted or to the conduct control in- defense applicant 1. I that such an also assumed Stat. complied Regulations having with identity and more do other or less or administrative matters. formal fact affairs. This is no due to the doubt Regulations applied to

that under the felt has not

this case the I think criteria which

limited to the govern should his action. not order

While the court should issued, I the basis think is not for the denial now before authority avail-

within the terms of the existing my posi- law. While able under

tion, prevailed, entail further delay to me unavoidable this seems working legal process of out solutions problems involved. Attorney BROWNELL, Jr.,

Herbert Gen- States, Appellant, eral of the United CARIJA, Cariji,

STJEPAN BOZO a/k/a Olga Kalajdic Carija, Tatjana Nevenka Igor Carija, Carija, Appel- Mira Ivan

lees.

No. 13482. Appeals

United Court of District of Columbia Circuit. 25,1957.

Argued Oct.

Decided Dec. 1957. *8 Harry Alexander, Mr. T. Asst. U. S.

Atty., Gasch, with whom Mr. Oliver U. Atty., Carroll, and Mr. Lewis S. Asst. Atty., brief, ap on U. S. were pellant. Reynolds, Washington,

Mr. Robert T. C., appellees, D. filed a brief behalf of