Plaintiff-appellant seeks a passport to travel abroad. Failing to obtain favorable action by the State Department on his application, he brought this suit in the District Court for declaratory and mandatory relief. The District Court granted appellee’s motion to dismiss for failure to state a claim on which relief may be granted. This appeal followed.
Appellant says that the purpose of his proposed trip is to gain backing in his effort to submit what he denominates the Kraus Case to the U. N. Commission on Human Rights. The Kraus Case appears to be appellant’s protest against his dismissal in 1933, for reasons which do not appear in this record, from the faculty of the City College of New York. To this effort appellant has devoted most of his energies since 1933, and his gainful employment has been intermittent since that time. He is without funds or property, and is dependent upon contributions from sympathizers and from charitable organizations; he has on at least one occasion also been supported by a public welfare agency.
There is some doubt as to the circumstances of a previous controversy between appellant and the State Department. The Department asserts only that appellant required the financial assistance of the Department to the extent of $95 in securing return transportation to the United States from Costa Rica in 1951, and that he has not repaid this money. Appellant asserts that he was about to depart Costa Rica for Panama when an American consular official in Costa Rica took away his passport on the ground his presence was undesirable, and would give it back only to permit direct return to the United States. Appellant states that he had prospects of receiving remuneration for lectures in Panama, and that he became destitute and had to accept the State Department’s offer of funds to return him to the United States only because of the Department’s action in taking away his passport and thus forcing his return.
Subsequent to his return, appellant’s passport was renewed for six months, but only after he had been required to submit and did submit evidence of his financial ability to travel, the evidence consisting of a bank deposit of $1,000 derived from contributions.
In 1954 appellant made the passport application which is the basis for the present suit. The State Department advised him that it took no position on the Kraus Case, and that it had no objection to his traveling abroad for the purpose of gaining support for his case. However, the Department declined to issue appellant a passport unless he could show that he had the necessary funds with which to travel abroad and return home, or a means of obtaining such funds which had reasonable assurance of success. The Department also expressed displeasure at the fact that appellant’s past travels had caused “Foreign Service offices of the United States to receive numerous troublesome and vexatious inquiries” about appellant’s activities. Appellant declined to make the submissions requested and instead brought this action in the District Court.
It is clear that the denial of a passport by the Secretary of State is subject to a measure of judicial review, including the question whether the action of the Secretary was arbitrary or capricious or contrary to law, Perkins *842v. Elg, 1939, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320; Shachtman v. Dulles, 1955, 96 U.S.App.D.C. 287, 225 F.2d 938; Boudin v. Dulles, 1956, 98 U.S.App.D.C.-, 235 F.2d 532. We think that in the instant case there is sufficient likelihood that the reason given represents arbitrary and capricious action to render the grant of appellee’s motion to dismiss-before answer and before hearing- — unjustified.1 In the instant case, some officials of the Department of State indicated in their correspondence with appellant that the Department has a longstanding policy “that it is not favorably disposed to issue passport facilities to persons who appear likely to require financial assistance in accomplishing their proposed travels abroad.” And a State Department official has testified before a Senate Subcommittee that some 120 passport applicants were screened on a financial basis during the ten months period from January 1 until October 30, 1955, with a resultant 25 rejections for financial reasons.2 On the other hand, appellant’s attorney in the District Court submitted an affidavit that he had been advised by the State Department that no requirement relative to money or property was ever made of a passport applicant, and that in fact no such requirement had been made in appellant’s ease. And an examination of the extensive regulations of the President and of the Secretary of State relating to the issuance of passports, 22 C.F.R. Pts. 51-53, shows no evidence of the existence of any such policy. It is clear from the questions required to be answered on passport applications that there is not the slightest effort to screen the great majority of passport applicants on a financial basis. It thus is quite possible, from the record as it now stands, that the State Department has applied to appellant a test it does not apply generally to passport applicants, and that this has been done without the establishment of any reasonable classification which could justify such discrimination. If such action has occurred, it is arbitrary and capricious and must be set aside on judicial review. Mastrapasqua v. Shaughnessy, 2 Cir., 1950, 180 F.2d 999; Hyman v. Coe, D.C.D.C.1952, 102 F.Supp. 254.
We are reinforced in our view that dismissal was not justified because the establishment of a means test for passport applicants, particularly at a time when a passport is required for most foreign travel, 8 U.S.C.A. § 1185; 18 Fed.Reg. 489 (1953), would obviously raise serious constitutional questions. These ought not to be passed on in the present unsatisfactory state of the record as to what the State Department’s policy is and how it is applied, compare Naim v. Naim, 1955, 350 U.S. 891, 76 S.Ct. 151; Rescue Army v. Municipal Court, 1947, 331 U.S. 549, 67 S.Ct. 1409, 91 L.Ed. 1666, particularly since there is the non-constitutional ground suggested above which may possibly be decisive. Accordingly, the order of the District Court must be vacated and the case remanded for further proceedings not inconsistent with this opinion.
So ordered.
. Appellee urges that we treat the action of the District Court as in effect the granting of appellee’s motion for summary judgment rather than the granting of its motion to dismiss. We consider that the reasons hereinafter set forth as to why the dismissal was erroneous show with equal force that summary judgment for appellee would be incorrect.
. Hearings, Subcommittee on Constitutional Rights, Senate Committee on the Judiciary, 84th Cong., 2d Sess., pursuant to S.Res. 94, pp. 162-63 (1955).