(concurring)
I desire to explain my reasons for concluding that Stewart complied with the peremptory requirement for an affidavit. The question is whether Stewart’s last affidavit, quoted in full in the foregoing opinion, so far met the requirement of the regulation as to entitle him to a hearing and a decision upon his application. The question is not whether the affidavit was true, or whether the Secretary is bound to accept the affidavit as a recitation of facts, or whether additional information may not become pertinent to issues properly posed in the course of the hearing proceeding. The question is whether the affidavit is sufficient under the regulation as a procedural prerequisite so that as a procedural matter Stewart was entitled to a hearing and a decision.
Section 51.142 is the procedural requirement. It is the section which provides for the filing of an affidavit. It provides one peremptory result from such a filing. Its last sentence is : "If applicant states that he is a Communist, refusal of a passport in his case will be without further proceedings.” So If he files an affidavit and in it says he "is”— “is”, present tense, — the proceedings halt and the passport is forthwith refused. But the regulations provide for no such peremptory disposition if the affiant says he was in the past a Communist. And this is quite noteworthy, because in the next preceding sentence this procedural regulation (Sec. 51.142) provides that at any stage of the proceeding an applicant may be required to file a statement with respect to “present or past”' membership in the Party. So the regulations in two consecutive sentences say that a statement as to past or present *606membership may be required and, if the applicant says he is presently a Communist, the passport is to be forthwith refused without further ado. What happens if he says he was in the past a Communist but is not now one?
I think that, if an applicant says he is not now a Communist but was one in the past, the Secretary must determine whether he (the applicant) comes within one of the proscriptions of Section 51.135. This is the substantive section. It recites the conditions under which a passport will be denied. Like Section 51.142 it says passports will be denied persons who “are” — “are”, present tense, —members of the Communist Party. In a case of present membership the proscription is unqualified and peremptory. But as to all other circumstances this regulation obviously contemplates evidentiary conclusions by the Department. In it appear expressions such as “under such circumstances”, “not otherwise rebutted by the evidence”, “on the balance of all the evidence”, etc. So the regulations plainly provide, to my mind, that if an applicant says he is presently a Communist he is to be forthwith denied a passport but, if he says he was a Communist in the past, findings must be made as to the circumstances, etc., on the whole of the evidence, etc., as the regulation specifies.
I interpolate that at the moment I am not concerned with what happens when an applicant refuses to file an affidavit. That was the problem in Briehl. Our present appellant, Stewart, filed an affidavit. In it he said certain things. Our problem is to discover the procedural results, under the regulations, of what he said.
Stewart certainly did not say he was then .presently a Communist. So under the regulations he was not to be summarily denied his passport. He did say he had not been a Communist for fifteen years. If he had said flatly he had been a Communist more than fifteen years ago, he would not have been summarily denied his passport. He would have been entitled to findings on the circumstances, etc. I think he was entitled to that much upon the basis of what he did say — that is, the denial of membership for fifteen years last past. And that is so even if his statement is construed as a negative pregnant. His statement is to be treated, as I read the regulation, as evidentiary, as a piece of evidence for the purposes of Section 51.135. It does not justify a summary halt to the proceeding or a forthwith denial of the passport.
But it is argued to us that his failure to deny all-time past membership was equivalent to a refusal to file at all. And so, it may be argued, his situation falls within the doctrine of Briehl, which is that refusal to file justifies refusal to proceed. I think Stewart did not refuse to file and moreover what he did file was in substantial compliance with the meaning, purpose and content of the regulation.
The only past which is pertinent to a determination under the substantive regulation (Sec. 51.135) is the immediate past. The thrust of that regulation is to the present. Paragraphs (b) and (c) are cast in the present tense. Paragraph (a) is directed to present membership and to membership “recently terminated”. The whole meaning of the regulation is that passports will not be issued to persons who are now or recently have been engaged in Communist activities. It makes no pretense of forbidding passports to persons who have no present or recent Communist interests but who may have had some in the dim, distant past. Indeed I doubt the legal validity of a regulation which would peremptorily deny a passport to any person who ever at any time has had any Communist connections. This is not to say that the Secretary may not in the course of determining an applicant’s possible present interests inquire into the nature and extent of his past connections and activities. But in that situation the ultimate finding would have to be a reasonable inference from the facts. That is not the question now before us. Our question is whether the regulation requires a flat denial of Communist Party membership at any *607time, unlimited past as well as recent past, as a prerequisite to a hearing and final decision on an application. The distant past may have some relevance to the questions to be determined here concerning the present and immediate past, but, whatever the distant past may have been, failure to reveal it alone is not sufficient to justify the Secretary’s refusal to proceed.1
If the immediate past is the only pertinent past under the substantive regulation (Sec. 51.135), an affidavit denying membership in the immediate past must be held to satisfy the requirement of the procedural regulation (Sec. 51.142) for an affidavit with respect to “past” membership. Fifteen years is a sufficient period to cover the immediate past. Therefore when Stewart made an affidavit covering fifteen years he complied with the procedural regulation. He is not to be treated as though he had refused to file.
Since Stewart did not say he was then presently a Communist, he is not, under the regulation, to be summarily denied a passport. His affidavit denying membership in the immediate past was a compliance with the procedural regulation; it was not a refusal to file. That affidavit must, under the regulation, be treated as an evidentiary affidavit, pertinent to the requirements of Section 51.135. He was entitled to a hearing and a determination under that section. I therefore voted to remand for that purpose.
WASHINGTON, Circuit Judge, with whom BURGER, Circuit Judge, joins (concurring).
This court held in Briehl [101 U.S.App. D. C.-, 248 F.2d 561], that the State Department is entitled to require an affidavit from a passport applicant “with respect to present or past membership in the Communist Party.” The State Department’s interpretation of the regulation is evidently that the affidavit must fully disclose all connections with the Communist Party, no matter how remote in time. We need not decide whether a regulation clearly phrased in those terms would be valid and effective. It might well be subject to challenge as being unnecessarily sweeping in its requirements, and beyond the reasonable demands of the situation. The existing regulation makes no such explicit requirement, and I do not think we are bound to construe it as if it did, even after giving very considerable weight to the agency’s own interpretation. Cf. Unemployment Compensation Commission of Territory of Alaska v. Aragan, 1946, 329 U.S. 143, 154, 67 S.Ct. 245, 91 L.Ed. 136. This is an exceptional sort of case. The right to travel is involved — an important personal right. And the affidavit here required is merely the condition precedent to the holding of a hearing. I conclude that an affidavit of the sort Mr. Stewart filed should be held sufficient under Briehl for the purely procedural step of holding a hearing, at which the relevant facts can be brought out. A considered decision can then be made giving such weight to the affidavit (including its omissions as well as its positive statements) as may be reasonable under all the circumstances.
. See Schware v. Board of Bar Examiners, 1957, 353 U.S. 232, 243 et seq., 77 S.Ct. 752, 1 L.Ed.2d 796; Konigsberg v. State Bar, 1957, 353 U.S. 252, 271, 77 S.Ct 722, 1 L.Ed.2d 810.