235 F.2d 810
Paul ROBESON, Appellant,
John Foster DULLES, Secretary of State, Appellee.
United States Court of Appeals District of Columbia Circuit.
Argued March 8, 1956.
Decided June 7, 1956.
Writ of Certiorari Denied November 5, 1956.
Mr. Leonard B. Boudin, New York City, with whom Mr. James T. Wright, Washington, D. C., was on the brief, for appellant.
Mr. Benjamin Forman, Atty., Dept. of Justice, with whom Mr. Leo A. Rover, U. S. Atty. at the time the record was filed, and Messrs. Paul A. Sweeney and B. Jenkins Middleton, Attys., Dept. of Justice, were on the brief, for appellee.
Mr. Ralph E. Powe, Philadelphia, Pa., filed a brief on behalf of Dr. W. E. B. Du Bois, Dr. Alphaeus Hunton, Dr. Herbert Aptheker, Eslanda Goode Robeson, Rev. Charles Hill and Dr. Samuel Sillen, as amici curiae, urging reversal.
Before EDGERTON, Chief Judge, and PRETTYMAN, WILBUR K. MILLER, BAZELON, FAHY, WASHINGTON, DANAHER and BASTIAN, Circuit Judges, sitting in banc.
PRETTYMAN, Circuit Judge.
Appellant Robeson applied for a passport. It was refused — tentatively refused, the Government says. He brought a civil action in the District Court praying judgment that he is entitled to a passport and that certain regulations of the Secretary of State and rules of the Board of Passport Appeals are invalid because in violation of statute, the Constitution, and the Declaration of Human Rights. The complaint also prayed for a decree enjoining the Secretary from continuing to deny a passport and directing him to issue one. The District Court granted summary judgment for the Secretary and dismissed the complaint.
When Robeson applied for a passport on July 29, 1953, he was informed by letter that issue of the passport "would appear" precluded under the regulations by reason of alleged Communist affiliations and activities. He was advised he had a right to seek further review by the Passport Office by conforming with certain regulations. Robeson made no answer to that letter. When he applied for a passport a year later, July 7, 1954, he was given the same information and again failed to reply. When he later amended his application he was advised by wire that in the absence of reply to its previous letter the Department was forced to assume he considered himself ineligible under the regulations. Robeson replied that the regulations were invalid and he intended to seek judicial relief. The Department again wrote Robeson advising it would be necessary for him to proceed in accordance with the regulations if he wished further consideration by the Department. He replied, declining to execute an affidavit concerning present or past membership in the Communist Party, which affidavit he understood to be one of the prerequisites, under the regulations, to informal hearing in the Passport Office. He asked for a final decision. The Department wrote him that failure to execute the affidavit did not preclude the informal hearing afforded by the regulations but that at such a hearing he would be expected to answer questions concerning past and present membership in the Communist Party and later to confirm his oral statements in an affidavit. Robeson made no reply to this letter but instead filed his civil action.
In later oral conferences at the Passport Office Robeson affirmed his position that the regulations are invalid and that he would not execute the required affidavit.
Robeson failed to exhaust his administrative remedies. We think he was required to do so. He did not ask for a hearing but instead asserted the invalidity of the regulation providing for one.1 We cannot assume the invalidity of a hearing which has not been held or the illegality of questions which have not been asked. The judgment of the District Court will be
BURGER, Circuit Judge, took office after this case was heard and took no part in its consideration and decision.
1. Cf. National Lawyers Guild v. Brownell, D.C.Cir., 1955, 96 U.S.App.D.C. 252, 225 F.2d 552, certiorari denied 1956, 351 U.S. 927, 76 S.Ct. 778, 100 L.Ed. ___.