# Petition for Writ of Certiorari — Dupree v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA0438641_1012%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1959 - **Citation:** 361 U.S. 823 ## Text THE UNITED STATES OF AMERICA. | _ Petition for Writ of Certiorar, = er as Oo : Wim. J. Wooreror, ae a «ee a a NC 2015 Land Ttitle Bldg, ae CSE, AS aa neyo “Philadelphia 10, Pa, a —— v Attorney -for Petitioner. cf mia 7 : vi. : % } XS international, 711 So. Stth'Se, Phila. 43, Pe , § : ; FR a See eee \ om ‘ : a / a ; pint Spee oe Be | _ _ INDEX TO PETITION. Opinions BELOw ...... ce Wr. CETTE TT i prees JurisprctioN bbaaess speceneate scape coset Ohi oak eaces STATUTORY PROVISIONS INVoLveD bap tes Feces esas : : Pere STATEMENT OF THE i Kee bana eee ee cn en eee QuEsTION Ronis RAIN Oh en ae canee? Y Supra os ae . ; REASONS FOR GRANTING THE WRIT ..... age eeeeseeeeeees 1. There Is a Conflict Between the Ni Ninth Circuit and the - Third Circuit Regarding a Sabatamnial Deane of Stat- sutory Interpretation .......°..5.....855. Mave gee ee 2. Reipny Statutory Interpretation lavibeed Has Never Been Considered by This ED TE ee Se Court's. Expressed Philosophy Reape Pe ra pe wee 4. There Is a Substantial Issue Involved. ...... 22. } ery a 55 The Liability of the Gov ernment for Its Negligent Oper- ation. of Its: Merchant :Seaman Seeurity Screening Program Is at Issue PecheswneeEN Pend yak ena / pes “ao, ae Pe t . = . om iy ; . : ° é ‘ . ; . = . - a ( * > ’ eet “thet Third Circuit pisdiassi ts Is in Conflict With ‘hig* | tro > + ‘ Opinion Sur Petition to File Petition for es Out of Time and Petition, for “Rehearing (Same Case) . Order ‘Sur Petition for Rehearing (Same Case) .. _ Papers in Previous Appeal (No. 12,147) Tiberporited iy Reference Opinion of U. S. Court of Appeals eT VeETO Qpinion of U. S. District ere Ls i, ee Miatiot Ge TINE oo oeie 5 cto cen ge cecss West sanni Complaint in Trespass ...........0.0:.c00neceeeee eeeee ee nn re ee ant i ; ies / » a _--~ QNDEX TO PETITION (Continued), p ° . Page oe RR aT er Ieee ae we teeeet atin ere Goinplaint (U.S.DC, E.D. Pa, No. 23,300) \.'......... la | Motion to Dismiss (Same Case) Gmenk einen Sa” Opinion of the U. S. District. Court (Same Cast). ...... oe ee ‘of U.S. Come of ‘Appeals for the 7 Circuit + (No. 12,617) *..... Sree rT ee Beetenxen os eee ' 9a : Judgment of.U. S. Court of Appeals for the Third Circuit /(Same Case) .... ene ee Seer PETE eee yr Tee cms: See Order ef -U. S® Court of Appeals for the Third Circuit ee (Same Case) pebadedhow: -~ letvansud yeees ery ree © Prayer. for Permission to File Petition wal Reargument Sei . (Same Case). ee rree Pee See eee et rie ares Petition for Rehearing (Same. Case) Lerek oe eae a 19a 7 23a oe — ag ? TABLE OF CASES CITED. ery Se ieee | 2, Page suilders Corporation of Amexica vw U.S S., 259°F. aoe Cole v. Young, 251 U. S. 538, 76 S. Ct.-861: 100 L. Ed. 1396. 10 . ee OS Or i cc. zr Hatahley . U.S. 351 U, S. 173, 76 S. Ct. 745, 100° : Ed. TEASE ACCU Paps pein OR ov aati 7,10 Indian Towing: Co. v, U. 5.350 U. s. 61,76 S. Ct. 123 100. ... a Ed. SRST NAR Fae nT anna a ar 279,10 Klauder v. . Cregar, 327 Pa. Severe ere betas: ake Sgakekt e. 10 Lemer’y. Parte, 305-0: 0-707 oe cece ivietsssee &Y . Parker v. Lester, Né. 36830, U. S. D. €., N. D. Cal. siltees “9 Parker v. Lester, ss A ae rye ee TE ee Rayonier v. U. , 382 Uz ‘S. 315; 77 S. Ct. 374, 1 L.-Ed. * Ba OR A ASE Py men ae ere Traux v. Raich 239 U.S. 33, 36 S. Ct. 7, 60 L: Ed. 131 . ¥: U.S. v. Union Trust Co., 250 U. S. 907, 76 S. - 192, 100" a. Se ‘en tates; Sr AG CANS Silos ngewe iA Walh. v. Strous, 344 Pa. 402 eee te a Perse qeerovoree. 10 fy a | TABLE OF STATUTES eAND ‘AUTHORITIES CITED. \ ae _ Page : Aétef June 25; 1048, c. 646, 62 Stat.-928 (28 U.S. C. 1254(1)) 2 Act of Aug..26, 1950, ¢.. 808, § 1, 64 Stat. 476 (5 U. S. ip Sh ee Department of Defense Industrial Review Regulations . (Direc- © tive issued Feb. 2, 1955, No. 5220.6 as-amended March. 19,. SO I oso ip cdcmn saben essay a 4 Federal Tort Claims Act,” 3. Uz S. C. '}346(b), 2671, 2674, ° MN ak eweewoakae, te Restatement of Torts, Sec. 76, Pennsylvania Annotations a ee , OS e+ + s ra . , " ' * es . ~ . . “* e . \ ° ‘ . rw # ‘ ‘ - . . . e o «6 , e- ' . . «® . ° : ’ ‘ ' - . ‘ . af ° » e 4 ‘ es 3 ° . m Ss . ~ °° * . ~~, . . * . ° . * e . e . | . - i . . e- : ™ Cm | s a . .. . a e . ? . . . . é . * . * a , . ' : ‘ Z s A e . . P es 4 . * “ ec ‘ . -_ ‘ 4 . ., 7 ’ . “a ‘ ‘ . ° « . ® . . . >. . ~ ¢ 2 oe . 5 ‘as ° eg © . . : 2 B P ° . . ad 3 é bd e sf . ° Pe . ’ i ® i ay el . ” oo 7 wv IN_THE es ee Supreme Court’ of the United States. ee , eins: Trek, 1958. ee in ee EUGENE DUPREE, ; . ; Vv. } *. ® THE UNITED ST ATES ‘OF MERIC A. . ‘ 983-4 as thereafter amended (28 U.S. €. ee 2680) ; (28 U. S. C. 1346 (b)). 2. The plaintiff, Eugene Dupree, iediden at 125 S, 21st _ Street, Philadelphia, Pennsy lvania, and is a birthright citi- ' zen of the United States. 3. The United States ona Guard is an agency of-and. part of the United States Government, being w ithin the Treasury Department of the United States. eet (la) | . Be * 2a Fe - Complaint 4. During aise 1950, the United ‘Mii Coast Guard, as a part of the United ‘States Government, deter- mined and advised the plaintiff that no third. party could | employ ‘him on-any —— of the United States Merchant : Marine. ea ; ae a 5. whales on“ May = Aw the United, States _ Coast Guard, as a part of the’ United ‘States Government, advised the. plaintiff that its aforesaid determination of September 1950 was based upon the belief that the plaintiff had been affiliated with or’ was sympathetic with an organi- zation or group er persons subversive to or Galoyst to. the United States. 3 ; 6. Nevertheless, during the period haste: in question the: United States Coast Guard, as a part of the Unitéd States ; - Government, issued and re-issued to the plaintiff a master’s - or captain’s license, and at no time revoked or sought to revoke that duly issued ligense. ee ioe _-7; Nevertheless, the United States Coast pao as - part of the United States Government continued to via to permit third parties to employ plaintiff on any, United. States vessel throughout the mae from h magieeaner 1950 to November 1955. | ; 8. For the reasons set forth hereafter in paragraphs 9, 10 and 11, the Coast Guard’s aforesaid refusal to permit third parties to employ plaintiff was improper, unwar- ranted, unreasonable, unjustifiable. and negligent and there- / . fore not a privileged invasion of the plaintiff’s right - ob- ‘ tain employment with such third parties. 9. Prior to May 23, 1951, such invasion was unreason- ° able, unjustifiable and negligent in that the defendant had, | up until that time, prevented plaintiff's. employment in. the — absence of affording the plaintiff any administrative pro-- “ . ceeding in which he could seek to establish that thé interest - of national security did not require the aforesaid refusal to permit his:employment by such“third parties. or so sympathetic. . , ic> x Compan el ee al 10. sities to May 23, 1951,, such invasion was . improper, unwarranted, unreasonable unjustifiable and negligent for the administrative. inquiries or proceedings ~ afforded the plgintiff were improperly, unwarrantedly, un- reasonably, unjustifiably and negligently. condueted i in that - thé defendant. priog, to and at those inquiries and proceed-— ings, refused to Produce, disclose or identify any of its witnesses or evidence which established that the plaintiff was affiliated with or sympathetic with an organization: or group of persons subversive to or ee to the United ; States. 11. ‘Pactiiemaaa: the defendadt’s refusal: to permit plaintiff’s employment wes improper, unwarranted, -un- " reasonable, unjustifiable and negligent in that’. plaintiff throughout said period himself and by his evidence denied all disclosed allegations that he was affiliated with or sympathetic with an organization or group of persons. sub- versive to or disloyal to the United States, or that-he had - participated in activities indicating that he was so affiliated 12.. During said period while the defendant prohibited third. parties ‘from employing the plaintiff, plaintiff was: - ‘a member in good standing of the National Masters, Mates and Pilots of America; thus had a right to and a means of obtaining: employment ag an officer in the United States : Merchant Marine. ‘ _13Furthermore, during. the aforesall period: there ; was a shortage of available ship’s officers, which i was Tecognized by the deferidant. 14, As a result of said prohibition the. plaintiff - 7 suffered loss of wages or earnings and other rights as an employed ship’s officer suchas seniority; social. security, pension and the sundry rights and privileges specified by the appropriate. labor contracts hetween ‘National. Masters,. Mates and Pilots of Amieriqg and the’ operators of vessels ‘ e 4a rai BS, Seta Complaint. “seit _ of the United yp Vente Merchant Marine; and furthermore, ~ ‘the aforesaid prohibition caused plaintiff humiliation’ ‘and _ disgrace, which: amongst other things caused a permanent _ _ physical disability to plaintiff’s eyes. aa ae 2 i WHEREFORE plaintiff brings this action for the sum of /s/ ,WiLL1AM > eas. William J. Woolgton, 7 +. 9015 Land. Title Building, aA Philadelphia 10, Pa., apnea for Plaintiff. a ° 3 v s \ LT e ‘ s - wa : 4 ; ‘ ¥ = e — ee Cireuit i in Appeal nufiber 1 Motion to Dismiss a da () .° * MOTION To DISMISS. on 11- 7-51. ) » es Defendant United States of American moves the Court to dismiss the plaintiff’s en and assigns therefor — ; Tollowi ing reasons: =~ 1. The. Complaint fails ti to state a cause of action against defendant upon which, relief can be granted. oe = . The Consplaint fails to state a cause éf action against — the Pa iy with respect to whjch the United States has consented to be, sued, as set forth in Title 28 U.S. C. Section \ ", 2680. : 3.. "Phe Court lacks! jurisdiction of the subject matter of. this action. 4 7) . 4. The Complaint sdeablinken on its face that the action 9 has not been commenced within two years next following the. _ * alleged wrongful acts on the part of the defendant or any agency thereof. Retort J > §. The instaint suit. Ae eae the identical factual and legal issues Which have been decided. previously against the sr. by the United States District Court for the Eastern ; District of Pennsylvania i in Civil Action, Number 20%" ind . affirmed by the United States Court of Appeals ° : ae (s/ Haro , Harold K: V Koa, United States Attornen. 8. /ss HEenr’ “J. Morean, Ke Henry*J. Morgan, ats te waited United States Attornen: E “ 2. \ 7 ; j e \ ra : \ a ee ee sasammanqpicensepscennnaneneeneliesiantapiti ‘leincanmasommcste : ’ ee ———— 7 *. g 6a - District Court Opinion (No. 23,300) Q OPINION OF THE U. 8. ‘DISTRICT COURT | ts ne NO. 23,300. ; : Ganey, J. R | ; oad _ March 10, 1958. On June 13, 195 6, plaintiff beat: an action (Civ + Action No. 20,873) in this court, under the Federal. Tort : Claims Act, 28 U. S. C. A. § 1346(b), seeking damages re- sulting from. the allegedly ‘‘illegal and unconstitutional’’ ‘denial of his application for a security clearance by the - Commandant of the Coast Guard. Without such clearance, as evidenced by a validated.document or certificate, plaiptiff, who possessed a five year license which certified his fitness - to be a master of a merchant vessel, could not obtain em- ployment on a vessel of American registry. The reason for the clearance denial was the Commandant’s. belief, that _ plaintiff’s presente on board a merchant vessel of the _ United States would be inimical to the security of the nited, States. .The complaint contained no allegation of negligence nor did it describe any conduct of any,.employee of. the - .Government as: being wrongful. ©n November 5, 1956, Judge John W. Lord, Jr. granted the Government’s motion ‘ to dismiss the complaint on the ground that the claim stated came within, the diser ‘etionary function exception of §.2680(a), 28 U.S. CLA, 146 F. ‘Supp. 148. Judgment of dis- missal was entered on the same day., | On appeal, in a -eareful, painstaking’ ard well docu- mented opinion, the v nited States Court ‘of Appeals for the Third Circuit, - speaking through Circuit Judge Kalodner, affirmed the judgment of the District Coyrt on - _June 10, 1957, without granting ‘leave to amend the com- plaint. ar Since it is our view that. the complaint does not set forth a new claim, but at most a new ground for the old — . claim, the filing of the complaint is nothing more than an rh s ¢ ie] ° Sa District Coutt- Opinion (No. tide attempt on the part of the plaintiff to aiaenat the complaint ~ in Civil Action No. 20, 873. He has not indicated that’ he qcould not have or give any reason why he’did not present to.the Court of Appeals in that action the allegations he now makes in the complaint. before us. Under these cit- ‘cumstances we have no power to rule on the propriety of his request to amend. Ginsburg v. Stern, 242 F. 2d 379° (C. A. 3, 1957) ; Butcher & Sherrerd v. Welsh, 206 F. 2d 259, 262 (1953). Before we may have such power, plaintiff | must first obtain an order of our Court of Appeals grant-— ing leave to this court to consider his request to amend his complaint under Rule 60(b) of the. Federal Rules of Civil Procedure. See Federal Deposit Insurance C orp. Uv. Alker, 223 F. 2d 263 (C. A. 3, 1955). Accordingly, the Government’ s motion to dismiss the complaint will be allowed on the ground that this court is | without power at this time to entertain it. i Court of Appeals Opinion (No. 12,617) 9a UNITED STATES COURT OF APPEALS For THE Tuirp Circuit po No. 12,617 » EUGENE DUPREE, Appellant ~ * v. THE UNITED PEATE AppEAL From THE U NITED STATES District. a RT FOR THE . KASTERN District OF Pes NSYLVANIA . | -Argued October 23, 1958 Before McLavcuurx, Kavopner and Hastir, Circuit Judges OPINION OF THE U. S. COURT OF APPEALS FOR THE THIRD CIRCUIT IN NO. 12, 617. (Filed February 24, 1959) By Kavovxer, Circuit Judge ; a Can an action for damages be niiiitiniasiid against ‘the United States under the. Federal Tort Claims ‘Act! on a claim premised upon an alleged negligent interference with a merchant seaman’s prospective economic advantyge, viz., future employment? | : , That is the critical question presented by uf, s appeal from the Order of the District Court dismissing a complaint - | filed by Eugene Dupree, a licensed ship’s master, charging alleged negligent withholding of a security clearance by the Commandant: of the United States Coast Guard in the | 1. 28 U.S S.C §§ 1346(b), 2671, 2674, 2680(h) are the relevant sectioris. ° 10a Samet ot Anges Opinion (Nod. 12,617) course of enforcement of the government’ s merchant, sea- _. Men screening program. The merchant seamen screening program is adminis- tered by the United States Coast Guard under the Magnu- son Act, Executive Order 10173, as amended,” and regula- tions promulgated. thereunder by the Commandant of the Coast Guard® Pursuant to their provisions, Dupree’s secu- \rity clearance was withheld by the Commandant upon. his — determination that there ‘was reason to believe that ‘he was affiliated with or sympathetic to subversive or disloyal or- ganizations. After a lapse of some five years Dupree was ultimately. given a. clearance. The facts relating to the | denial of the clearance and its ultimate issuance are de-: tailed in our prior-opinion, Dupree v.-United States, 247 F.2d 819 (1957), rehéaring denied, wherein we affirmed the judgment of the District: —— i rene Dupree’s com- plaint. In. the opinion cited we sien noted: “with respect, to Dupree’ s complaint that ‘‘It contains no allegations of | negligence, nor does it describe any conduct of any em- ployee of the Government as being wrongful’’ and ‘‘There © is no allegation of lack of dife care in the applicat n of the regulations to Dupree’’; that the complaint in substance ’ merely alleged ‘‘insufficiencies in the oar fi big -pro- cedure such as the failure to afford a hearing prior to the initial determination’’ ete. and yas ‘‘based upen nothing | more than the invalidity of the regulations under Ww hyeh his security clearance was processed.’’. On the score ‘of ‘the allegations of. ‘peactiiacnetes in the admiftistrative procedure’’ and the ‘‘invalidity of the regulations’’ we held that ‘‘Where government employees act pursuant to and in furtherance of regulations, resulting harm, is not compensable under the act [Federal Tort ‘ 2. 15 F. R. 7005, 16 F. R. 7537, 17 F. R. 4607; 33 C.F. R. (1956 ane ), Part 6. . 15 F. R. 9327, as amended, 33. C. F. R. — Supp.), Part 4B 4. Dupree v. United States, 146 F. Supp. 148 (FE. D. Pa. 1954). a Court of Appeals’ Qpinion (No. 12,617) — lla (Yaims Act] : ... except where they donot exercise due eare.*’’ In doing se we observed: that the t Claims Act did not contemplate a remedy for damages sustained by reason of the application of invalid laws or regulations. It may also ‘be noted that, although the District Court in its opinion had premised its dismissal of Dupree’s orig- inal complaint on the ground that it was barred by. the discretionary function exception of the Act,® we specifically stated'that the case in its then posture did not require de- . cision as to the applieablity of the diseretionary function - exception since there was absent any allegation that the Coast Guard had failed to use iets eare in the application _of the regulations. _. It must further be stated that in the sailor litigation the parties did not, either in the District Court or on appeal, — present, nor did we cons.der, the issue w hich we consider critical in the instant appeal, viz., does the, Tort Claims Act permit maintenance of a claim for damages for negligent , interference with future employment. The issue is squarely presented now, although, as in the initial litigation, the parties have made no reference ‘to if,.cither below er here. Instead they have focused -their, contentions on other grounds: Dupree urges that his pres- ent complaint presents a ‘‘new’’ cause of action based upon ‘‘unreasonable, unjustifiable and negligent’? interference . with, and.‘‘énvasion”’ of his ‘‘right-to obtain employment’, with speecifié allegation’ of ‘‘absence of reasonable care”. and, should it be regarded ‘‘as an amended complaint’, it, is permissible under Rule 15(a), or, in the alternative, this Court ean, and should, grant permission to file an-amended complaint ; the government, in reply, says the instant-appeal brings the same cause of action before the Court as the original complaint and presents only questions of pleading and procedure and (1) the District Court correctly held it was without power to entertain the second complaint or to permit an amendment, (2) this Court should not grant, per- mission to amend,. and, (3) the prior judgment, dismissing >. ane '° eieawin . ° ‘12a . Court of Appeals ({pinion (No.°12,617) — ll Dupree’ s complaint for fajlure to state a cause of action, is res judicata and bars the instant action. It would serve no useful purpose to discuss the con-. tentions recited inasmuch as we are of the opinion that in ~ the interest of expeditious | ‘admitiistration of justice we _must at onée come to grips with the issue which must ulti- mately be decided even should we subscribe to any of the points raised by Dupree, We are of the opinion that by its clear terms the Tort ‘ Claims, Act, in Section 2680(h), excludes invocation of the relief granted by ‘the Act in instances where there is inter- ference, negligent or otherwise, by a gov ernment employee . or officer, with contractual rights of an aggrieved individual. It is plain from Dupree’s complaint that he seeks re- * eovery for negligent interference by a gov ernment agent or agency with his prospective employment.® In his brief he . stressed the elements ‘of the tort of interference with his prospective economic advantage and his reliance on it as the: basis of,his claim for damages,. stating: ‘‘The complaint’s paragraphs 4 and 7 allege that the United States Coast Guard, from. September 1950 until Nov eniber 1955, refused to permit third parties to em- ploy the plaintiff, Plaintiff is a resident of Pennsyl- vania, and thus‘the Coast’ Guard so prevented here in Pennsylv ania. ’ “ terference with prospective contracts or business rela- tions’? . . . Sinee Congress had decided not to sur- rerider the immunity of the United States from tort actions hased on interference with contract relations, 28 U.S.C.A. § 2680(h), the essential issue which this Court must decide, then, is whether the tort of inter- - 4 Court of Appeals Opinion (No. (12,617) | Lda: ference with prospective adv. antage or prespective con- tracts is properly includable within the aforementioned exception to the Tort Claims Act. It w ould seem-to be. quite illogical to conclude that Congress intended to exclude one tort from the operation of-the Act, and, at the same time, waive the Government’s immunity fr om ‘actions sounding in a substantially identical tort; the distinction between the two being one of degree, only, “in the ele ments neeessary to cer sean a aol “With respect to the distindion sap tidicaneds the Court made these pertinent observations (footnote 1, p. 484): “Both the tort of interference with contract fetaftone and the tort of interference w ith prospective contract. or business relations involve basically the same ‘conduct on the part of the tortfeasor. In one case the inter-- -~/ference takes place when a-contract is alres ady in ex- isteneé, in the other, when a contract w ould, with cer- | tainty, have been consummated but for the conduct of. ¢ the tortfeasor. (Bre Prosser on Torts, p, 720 et. seq., and p. 745 et seq. (2d Ed. 1955]). Rather than char- acterizing the two as separate torts, the more rational approach seems to be that the basie tort of interference with economic relations can be established by showing, inter alia, an interference with an existing contract or a contract which is certain to be ‘consummated, with broader grounds for justification ‘of the interference where the latter situation is presented.’? In United ‘Slates v. Ein ¢ ‘hemical Corporation, 161 F. Supp. 238, 246, 247 (5. D. N.Y, 1958), decided on other grounds, the Court inferentially subscribed to the doctrine of the Fletcher and Builders Corporation cases. Sirice Section 2680(h) excepts from the purview of the’. Tort Claims Act actions for ‘‘interference with contract rights’? Dupree cannot maintajn the instant. suit. 4 - 16a Court of Appeals er (No, 12 aii As was ssid in Munro v. United States, 303 U. S. 36 (1938) (Pp. 41): : “Suits against the United States can be ‘maintained onl¥ by permission, in the manner prescribed and sub- ject to the restrictions imposed... Reid v. United States, 211 U.S. 529; 538. . 5” ; . i nea For the reasons , stated the Onder of the District Court will be affizmed. Court of we Judgment & Order (No, 12,617) 17a JUDGMENT OF: THE U. 8. COURT OF APPEALS: IN a NO. 12,617. : This cause came on to be any on the sanend from the — Pi United States District Court for the Eastern District of Pennsylvania and was argued by counsel -On consideration whereof, it is, now here ordered ‘aiid . —_— by this Court that the order of the said District Court in this case be, and the same is hereby affirmed: est: e | & ‘ee Te! ig Soh ’ . Harriet G. Humpnrys,, | : | Chief Deputy, Clerk.. -_ February 24, 1959. : me A neg eae gee o ORDER IN NO. 12,617. Present: McLav GHLIN, “KALopNER and Has, Circutt ae ‘ AND Now, to wit, this 10th day of March, 1959, it: is Orperep that the second full cco on page’3 be amended: to read as‘follows: R “Tt must: further be stated that in the earlier litiga- tion- we did not reach. the issue which we consider critical *. in,the instant appeal, viz., does the Tort Claims Act permit | maintenance of a claim for damages for negligent interfer- - ence with f uture employment.” 3 By THE COURT, | Kaopner, J. % : 18a Prayer for-Perm ission (No. 12,617) a ~ e° PRAYER FOR PERMISSION TO FILE PETITION FOR REARGUMENT. (No. 12,617) Anp Now comes petitioner, by his attorney W illiam J. Woolston, and prays this Court’s permission to file this petitfon for rehearing. This Court-entered its judgment -. and Opinion on February 24, 1959.- Thereafter this ¢ ‘ourt™ slightly modifiéd that Opinion by an Order of March 10,, 1959, and on that same day—the Clerk was instrueted to ws advise petitioner that if he desires ‘‘reargument * * * the ~ p g proper procedure is to file a-petition for rehearing.” | Petitioner prays that this Court enlarge he fiftee nN - days specified by Rule 33 in order to permit the filing of: . the attached petition. Respectfully submittest, Wurm J. Wootstos, , 2015 Land Title Bldg., x _ Philadelphia 10, Pa., Sant @ Attorney for Petitioner. 7 Petition for Réhen ring (No. 12,617 i » 19a - . a | / | PETITION FOR REHEARING (No. 12,617) Axp Now comes petitioner, by his ‘atlovnes, W illiam i Ww ‘volston, Esq., and prays this ‘Court to grant a rehear- ing for the following reasons : 1. The Opinion of this Court diene on quotes from ‘- Builders Corp. of America v. U. S., 148 Fed. Supp. 482, — and now the Court of Appeals for the Ninth Circuit has re- ~~ versed and its Opinion is now available at 259 Fed. 2d 766. ere The cited and quoted Opinion of the U.S _ District. Court for the Northern District of California sustained’ the preliminary. motion to dismiss because it found that ‘interference with prospective contract rights was similar _ to interference with existing contract rights, and the latter ewas exempt from the Tort Claims Act. ' 3. The Court ‘of Appeals in: reversing ditinadishes interference with contract rights frdm interference w itha: fn -right to. seck to obtain contraet or employment rights, and -as the: latter is a right independent of existing or pro- spective contracts, it follows that af interference of that right is without. the interferénce | of contract rights ex ception to the Tort: Claims Act. 4. That distinction between coritract rights and the - right to seek to “obtain a contract right was not observed by the cited and quoted Opinion of the U. S. District Court for the Northern District of California, nor was it observed in any of the other cited authorities. 5. Both the Builders Corp. of denies and Dupree base their actions on such an interference’ of their right to seck to obtain contracts or employment rights. Neither . the Builders Corp. of Amerion nor Dupree base their ac- -——_— ene ey oN { ea . a = : 20a. e* Petition for Rehearing ( No. 12,617) sa ry tions upon an sahil — existing or prospective contract rights. 6. This Court, in citing and quoting from ie afore- ‘mentioned U. S. District Gourt for the Northern District of: California, overlooked the distinction between contract “ew and the right to seek * obtain: contract rights. 7 The right to seck to obtain a contract or employ- ment rights. is a recognized right protectable by law. 1 v. Rich, 239 U.S. 33... a : "Respectfully wulnnittel, fot ae ia ea ae, bape , Wituam J. Wootston, . : - & aa oe -* 2015 Land Title Bldg., ° \ ate ; Philadelphia 10, Pa.; a. ae . . Attorney for Petitioner. ez . / ti is enhes by the undersigned that ‘the above ii ae tion- for\rehearing is presented in good faith and not t for ii ae delay. - ates | ey Wiis J. Wootston. i’ Opinion Sur Petition | Qla | OPINION @UR PETITION TO FILE PETITION FOR REARGU- MENT OUT OF TIME AND PETITION FOR RE. HEARING. —— _ (Filed May 8, 1959) Present: Bicus, Chief Judge, McLaucGHuin, KaALopNER and Hastig, Circuit Judges Per Curiam: piesa ~The’ petition of Kugene Dupr ee for leave to file petitidn © for reargument out of time is granted. ‘The petition for rehearing is -_ premised on‘the’fact that in our pinion filed. February 24, 1959, we cited with ap- proval Builders Corporation of America v. United States, +148 F. Supp: 482 (N. D. Cal. 1957), and the fact that the United States Gourt of ppeals for the Ninth Circuit had . reversed in taat case, 259 F.2d .766 (1958). Upon consideration we are of the opinion that the - reversing opinion is inapposite in. that it was premised on - considerations absent in the instant case. | For. the reasons ‘stated the petition for rehearing will be denied. Bicas, Chief Judge,. dissenting. The decision in this. case is ? in apparent conflict with. that of the Court of Appeals of the Ninth Circuit in Builders Corporation of America Vv. Uni (1958), reversing the United States District Court for the . Northern District of California, The issue presented, which invo a interference with contract righ eral Tort Claims Act’’, 28 US.C. Ba Ese aee he In the. case at bar, as in ted States; 259 F.2d 766 148 ¥. Supp. 482. (1958). lves' interpretation of the . ts’’- exception to. the Fed- § 2680(h), is an important Builders Corporation ‘of America, the Ninth-Circuit ‘case, no ‘‘actual_ interference with contract rights’’ was alleged. Dupree had no contract nd - ny ly em 22a Opinion ‘Sur Petition. for ‘employment with any ship or sdiliiatn ner with which ime United States Coast Guard could have interfered. In the Builders Corporation case ‘that: company had no existing contracts ‘ith, which the United States Army could inter- fere. In both ases.there was alleged interférenge by govern- ment officers With prospective econdmic advantages to plaintiffs. ‘See 259 Fi2d at p. 769, and. the concurring opinion of Judge Pope, w., at p..7%73. In the Builders Corporation case, a& in the ease at bar, ‘adv antageous con- tracts could have.come to the respective plaintiffs had the government official withheld his ‘hand. The interposition by the Coast Guard in the instant case was in fact a depriva, tion of Dupree’s right to earn a living as a licensed ship. mastor rather than an intarference with any actual contract _ tight. It is difficult to find a’helpful analogy but Dupree’s position after the Coast Guard failure or refusal to award him security clearance; was not unlike that of a law yer, admitted to the bar of a court, who by actidn of that ‘court is not permitted to practice law before it. Such an in- dividual still remains an. attorney: but he has been put in a, : _ position where he will not ‘be retained by’ clients’ and will be unable to ‘procure contraets of employment. In my opinion the ‘provisions of Section 2680(h) are _ too broadly construed by the decision of this court. The statute, necessary for the preserv ation of our national seeu-’ rity, nonetheless iniposed on Dupree a disability analogous to a penalty, and for this reason: its provisions should be >, construed strictly as if they were penal in nature. Negligent conduct by the Coast Guard is alleged suffi- . ‘ciently, in the complaint. The court granted leave. to the plaintiff to file his petition for rehearing but now denies the prayers of his ~ petition. Ithink that the denial is erroneous and that a substantial issue of statutory interpretation -is presented which should be explored fully by this court sitting en bafte. For the foregoing reasons I must respectfully dissent. ig ' | * e | 2 Order Sur Petition 23a ORDER SUR PETITION FOR REHEARING. es Present: Bros, Chief Judge; McLavauuis, Kauvopyer and Hastiz, Circuit Judges, After due consideration the petition. for rehearing in the above-entitled case is hereby denied. Chief Judge Biggs dissents. Attest: Ipa O.-CRESKOFF, Clerk. Dated: May 8, 1959. 24a Court of ee Opinion (No 12117) PAPERS IN PREVIOUS APPEAL INCORPORATED | °BYREFERENCE. UNITED STATES COURT OF A PREALS For tHe Turrp Crircvit —_— No. 12,147 EUGENE DUPREE, | . 0 % ot Appellant . Vv. _ THE UNITED STATES Appeal From tHe Unitep States District CourRT FOR THE Eastern District of PENNSYLVANIA pane em A: Argued April 2, 1957 Before Manis, KaLopver and Sratey, Circuit Judges. OPINION OF THE COURT. (Filed June 10, 1957) By Kavopner, C peal Judge. Can an-action be maintained against ‘the United State 'S for damages under the Federal Tort Claims Act on a claim | arising out of the enforcement of the merehant seaman sercening program, which resulted in the allegediy wrongful withholding of a security clearance ‘by the Commandant of the Coast Guard acting pursuant to the recommendations of hearing boards performing functions under regulations promulgated by the Commandant? That is the question presented on this appeal from the judgment of the District Court for the Eastern District of Pennsylvania granting the motion of the United States to CS e \ Court of Appeals Opinion (No, 12,147) ' 20a _ dismiss, the complaint. The district*court held that the claim was barred* by the diseretionary function exception of the Federal. Tort Claims Act.’ ’ ee In order to.test the legal validity of the complaint, the allegations of fact therein are taken as admitted and ‘may be summarized as follows: _ Eugene Dupree was a licensed ship’s master from 1930 _ through 1956 by virtue of a license granted to him by the~ United States Coast-Guard.2 In September, 1950, Dupree applied for a berth as'a ship’s master, buf the Coast.Guard refused ‘to issue to him the validated document required ‘for employmeng in the merchant marine. On May 23, 1951, he was advised by the Coast Guard that the validated docu- ment had been denied because the Commandant, of the “Coast Guard had determined that there was reason to be- lieve that he had been affiliated’ with or was sympathetic to an organization, group or combination of persons sub- versive or disloyal to the Government of the United States. This determination was made without affording Dupree a hearing. , “ia =e Dupree subsequently requested and was given a hear- ing for the purpose of establishing that he was not affiliated with or sympathetic to an objectional organization. Neither prior to nor at the hearing was he advised upon what in- formation the Commandargy had based his determination.’ Thereafter Dupree invoked the appeal procedures. At no- time was he confronted with any witnesses or evidence in support of the Commandant’s determination despite his repeated denials of the charges. - : In November, 1955, the Commandant reversed the de- termination against Dupree making him eligible for em- - ployment as a.ship’s master. Dupree then instituted an ————$ ean cic en AED 1. Dupree v. United States, 146 F. Supp. 148 (E. D. Pa. 1956). 2. The Coast Guard issues licenses pursuant to 46 U. SC. § 226. . 3. During the course of the appeal proceedings Dupree was given a “Bill of Particulars” settirig forth the specific data upon which the adverse determination was based. The “Bill of Particulars” is quoted in full in Dupree v. United States, 141 F. Supp: 773 (Ct. Cls. 1956). 26a om of Appeals oe (No. 12,147) action against the United States in the Court of ¢ ‘aims. The motion of the United Stafes to dismiss that) os was sustained for failure to state a clairh within the class of cases cognizable in the Court of Claims.’ The instant action was instituted in the district court asa ‘‘Complaint in Trespass’? under the Federal Tort Claims Act. That act provides : rs \\ - 28 U.S.C. § 1346(b). “(T]he district eourts shall have aaleaies jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, pr personal injury or death -eaused by the’ negligent\or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the Jaw of the — place where the act or Omission occurred.’ 28 U.S. § 2674. ‘The United States shall be liable, respecting - provisions of this title relating to tort claims, in the same manner and’ to the same extent as apr ivate individnal uncer like cireamstances, but shall _ not be liable for interest prior-to judgment or for prnt- tive damages.’”’ Dupree sought $100,000 damages for. loss of earnings, for legal and other expenses curry in obtaining his clear anee, for an alleged incurable physical disability result- ing from the nervous strain he underwent while elearance was withheld, and for the humiliation, disgrace and conse- quent pain and suffering as a result. of the determination that he was affiliated with subversive or disloyal groups. Both the United, States dnd Dupree -have in essenée” based, their contentions upen the question of the appliea- bility of the discretionary function exception of the Tort Claims Act which is set forth in the second part. of 28 4: lid, BAN 5 : : ; , / Court of Appeals Opinion (No, 12,147) | 27a U.S.C. § 2680(a), and which excludes recovery under the - aet for 4 ae Any‘elaim . . _ based upon the exercise, or per- formance or the failure to exercise or perform “i disere- tionary function or duty,on the part of a federal agency or an employee of the Government, whether or-not the diseretion involyed be abused.’’ fi . Viewing the complaint as we do, that exception is not exclusively, critical to the disposition of this case for the, reasons as set forth below. © Sih, cas Dupree was denied a security clearance under the merchant seaman. serégning program which is administered, “by the Coast Guard under the guthority of the Magnuson Act2 and Executive Order 10173, as amended.’ | Pursuant » “to this authority the Commandant of the Coast Guard promulgated regulations to-enforce the seeurity program.’ - —.- The Magnuson Act was enacted by Congress in Au- cust, 1950 during tlie Korean erists.. It provides that wheti- ever the President finds that the security of the United States is cridangered by reason of actual or threatened war, | . or by reason of subversive activity, or of disturbarices in the international. relations of the United States, he may issue rules and regulations to safeguard vessels and water- front facilities against destruction from sabotage or other | subversive acts. Pursuant to this act the President issued — Exceutive Order 10173 in which he prescribed regulations relating to the protection and security of vessels, harbors and waterfront facilities. ere | ee The regulations, as amended, authorized the Com- mandant of the Coast Guard to. require that licensed officers and certified men employed on merchant Vessels of the United States be holders of specially validated documents reflecting their security clearance. The regulations further provided : = : 5 64 Stat. 427 (1950), 50 U.S. C. § 191. 6, 33. C. FR. (1955 Supp.) Part 6. . 9. Id. Part.121. -e 28a Ss Court-of Appeals Opinion.(No, 12,147) hy ‘(No person shall be issued a document required for employment on a merchant vessel of the United States nor shall any person be employed on a merchant vesse of the United States unless the Commandant is satis- fied that the character and habits of life of such person are such as to’ authorize the belief that the presence | of the individual on board would not be inimical to the security of the United States, Provided, That the Commandant may designate categories of mefchant ~ vessels to which the foregoing shall not apply.’’* The implementing regulations promulgated, by the Commandant. of the Coast Guard set forth detailed pro- cedures for the enfotcement of the Executive Order. Appli- cation for security clearance was to be in writing and was to contain certain specified information.®. Without afford- ing the applicant a hearing, the Commandant could detiy the applicant a- security clearance on cerfain. specified’ grounds.’® However, whenever security clearance was ‘de- ‘nied, the applicant was to be notified in writing and astate- ment of the basis of the initial determination was to be incluued, .but not ‘‘with such, particularity as to disclose the source of such information ‘or data, nor. the identity - “of any person of persons, who may have furnished such in, ’ formation or data, to said person or other persons.’ Any person who was denied a security elearanee under . these regulations: was given rights of appeal’? to a Local Appeal Board which was composed of one representative of the Coast Guard; one representative of management, and one representative of labor, so far as practicable"? The Board was to furrish the appellant with a written notifica- 8. Id.°§ 6:10-1. me 7 3 -9. Id. §121.13(b). 5; * | 10. Id. § 121.13(d). ) - 11. Id. § 121.15(e)(1) 3), as amended Nov. ‘3, 1953, 18 Fed. 3 Reg. 6941. The “Bill of Particulars” referred to in Note 3,. supra, was not required prior to this amendment. 12. 33 C. F. R. § 121.17. 13. Id. § 121.19(a). ae Ma" Z Ke ; . , sere Court of Appeals Opinion (No. 1147) ; 29a tion as to the data on whith the adverse determination had ‘hoon made, subject to the restrictions concerning the dis-. closure of the-source of the information or the identity of - the persons furnishing it.4 The hearings were to ‘be held- - with due regard to the security of the United States, and the technical rules of evidence did not apply. After h are ing, the Board was to transmit its recémmendation, ‘to- ‘vether with ifs reasons, to the Commandant who then could, either approve or reject the recommendation or remand the, case for fufther proceedings. The, Commandant would: \. notify: the applicant. of the decision.“ If the decision was es adverse to -the applicant, an ‘appeal was ‘allowed to the National Appeal Board (which also conducted hearings and transmitted its recommendations to the Commangant.'? The final authority to grant or deny security clearance was vested in the Commandant."®= s 7 ‘It is alleged that in applying these regulations to Dupree he suffered great injury. Whatever the extent of that injury no legal duty arises upon the: part of the United States to reimburse him unless provision has’ been made therefor in the Feileral Tort Claims Act or other com- pensatory constitutional. or, statutory provisions. The com- F plaint against the Inited States'is entitled ‘(Complaint in Trespass’? dnd it is alleged. that ‘‘ [t]his action sounds in tort >. - oo? dt contains no allegations of negligence, nor does it deseribe any conduet of.any employee of the Gov- ernment as being wrongful. The allegations 4 substance merely state the alleged insufficiencies in the administrative procedure such as the failure to afford a hearing, prior to’ the initial determination, the Jack of advice to Dupree upon what information tlie Commandnt based his determination, 14. Id. $ 121.21(a)(3)(i), as amended Nov. 3, 1953, 18 Fed.” Reg. 6942, Feb..5, 1954, 19 Fed. Reg. 674. See Note 11, supra. + £$, 33. FR..9 121.28. ; | 10. Id. § 121.25. - ip “Td. $121.27, 121.29, : ax. Id. $121;31. ° ae wT r . 30a Court of Appeals Opinion (No, 12,147) the failure to confront Dupree with any witnesses or evi- -dence in support of the Commandant’s determination, and, generally, unconstitutienal denial to Dupree of property - rights through application of the procedure to him. - In seeking damages from the United States under the Federal Tort Claims Act, recovery is not precluded by the fact. that the claim involves a uniquely governmental activ- ity. Rayonier vy. United States, 352. U.S. 315. (1957).; In- dian Towing Co. v. United States, 350 U.S. 61 (1955). The -. fact that-there isno counterpart in. private law for the gov- ernmental activity creates a problem in applying the local: tort law as required in 28 U.S.C. § 2674. -Proof of negli- \ gence in failing to fight a forest fire or in.the operation of va lighthouse light 2° involves concepts of local law which ymay be adapted’ to such situations without great difficulty. t is in a regulatory situation such as presented in the in- Atant case that the perplexities in ascertainment of the tort i) accordance with local law become more apparent. But stripping such situation of its governmental foliage, extrac- ‘tion of the tort Where one exists ix not an insurmountable ulty. Whether it be negligence or an intentional tort, yurt must characterize the situation in terms the loc i law will permit.*" Here Dupree hoped to prove that some- thing was done to him as a result of negligence or an inten- tional tort, both of which are bases for-an action under the Tort Claims Act™ stig . The allegations in Dupree’s complaint, however, do not, © permit the application of any local law in ¢haracterizing the alleged tort since the act provides that the°actions of’ gov- ernment employees acting within a statwtory or regulatory - “49. Raybnier Inc. v. United, Statés, 352 U. S. 315 (1957). 20. Indian Towing Co. v. United Statés, 350 U.S. 61 (1955). ° 21. Cf. Aleutco Corp. v. United States, 244 F 2d 674 (3rd Cir. 1957). PAR 22. Zé U. S. C. § 2680(hr)-excepts from the act many of the in- tentional torts.” However, certain torts in trespass and a tort sounding® in conversion are’still proper theories for recovery against the Unite 7 States. Aleutco Corp. v. United States, supra; see Hatahley v. United States, 351 U. S. 173, 181, (1956). ¢ a * } - * & : ; Ded . j i ; ? _ ae es . : . : ‘ a. es is ; / ts les: ( ici id App te Opinio 0 ( ‘No, 12, Liz): - eregulations, cee the alléged insufliciencies in the cabeisdsc: -, gstrative procedure an#its exceution were consistent aenad in -aceordanee with the regulations” promulgated by -the (%m- ie — of the Coast Guard.” Fhere JIS. N0- allegation of ‘laek of due care in the aplication of the regul: tions toe “ ~. Rypree.- That. being so, Dujprec® ‘annot makes out a glam’ > based upon the actions of officials cnfore ing the regulatory: schome. ~ Since. his claim is based upon, nothing more than the inv alidity of the. regulations winder which his security elearance was processed, it is precisely ‘the type. of claim which. Congress: intended to exclude, and Fecovery Is. ac-: “cordingly farred,, - | The United S states and Dapree i in the district, court and: hee argued: the question of the applicability of the disere- tionary function exception. Whether or not that part: of -.- ’ the ‘exception ‘in § 2680(a) is appli¢able to te official repre-_ sentatives enforcing the, regilations of the Commandant’ need not be decided in view-of the ‘applicablity of its first part. The diseretionary function exeeption has been a cot. fusing one in meaning and in application.’ Due io the paucity of facts upon which to determine the exte nt-af dis- cretion exercised by the various officials acting with respcet to’ Dipree, this is not a proper ‘¢asesto test the applic dnility. § ¥ $am of that exception”? Theretore, as ty. all ‘those officials, reli- ance need be placed only on the first part of the ‘xceptidn Ninice there, is no indication © baf to be presented that tho&e ¢mploy Bs did not exercis®@™@ue eare in ci irrying out * the regulations. © JNto the Commaddant of the Coast Gnand, however, - the discretionary function exception, is cle arly applicable, ~ 25: For a detailed tliscussion of the prior security clearance pro- cedure, see. Brown and Fassett, Security Tests for Maritime Workers, 62 Yale_L. J. 1163, 1172-1179 (1953). New regulations were pro- criigaten by the Commandaggs on. May 1, 1956, 29 Fed. Reg. 2814, 33 -- R. ¢1956 Supp.) Part 121. . ees : #6, Note, 66° Harv. L. Rev. 488 (1953). Heer. roma. « 2 ‘27.. Unlike Dalehite v. United States, 346.U. S. 15, (1953), where the Supreme Court had the benefit of evidence as to the duties of the various government employees Serge: ee e , ? = ae By ‘5 : “ 2 Court of Appeals Opimion (No. 12,117) 33a oa Whether the claim he based upon the wrongful denial of a security clearance or upon the promulgation of unreason- able and, unconstitutional regulations, it is. barred. : * The duty. of determining whether a security clearance Eheuld be given or denied was vested in the Commandant by the Executive Order.™ ‘This. determination by the Com- mandant .was the product of antexereise of judgment, an ° action involving diseretion within the meaning of the ex- voption“* Furthermore, the conduct of the administrative process: WhRlr provided the basis for the Commandant’s - determination was the result of procedures, judged by the Commandant to be best ‘fitted for the purpose. . The seg- inent of the Commandant’s judgment was also within the ‘ameaning. of the distretionary function exception. - Little more need be said about this phase of Dupree’s claim since it is apparent: that it was not the intention of Congress to encompass it within the periphery of the Tort Claims Act.” Dupree has also urged the Fifth Amendment of the Constitution as grounds for recovery from the United - States: Alowever, claims for’the amount involved, against the United States based upon the Constitution are Within the jurisdiction of thé Court of Claims which has already ruled on tie Validity of Dupree’s constitutional theory.*! For, the teasons stated the 3udgment of the district court will be affirmed. . . : a a Sa ee ee mama aa ale aaa samiheeueenaniaiilieait . 28. Note 8 supra. “ys 29. [alehite v. United States, supra at page 34. 5 30. See Hearings before House Committee on Judiciary on H. R. 5373 and H. RK: 64603, 77th Cong,, 2d Sess. 33. Analogous situations existed in Dalehite v. United States, supra (cabinet-leve] decision to institute a fertilizer export. program, failure of the Coast.Guard and | other agencies to regulate the storage or loading. of the fertilizer ina . different fashion from that used) | Schmidt v. United States, 198 F. 2d 32 (7th Cir.), cert. denied, 344 U. S. 896°(1952) (decision by the Securities and Exchange Commission to investigate and publish in-’ formation concerning ‘a corporation ) ; Matveychuk v. United States, 195 F. 2d 613 (2d Cir.), cert. denied, 344 U. S. 845 (1952) (Office of ieigg, \ciuinisttation denial of rent: increase). Mp1. 28 U.S.C. § 1491. See Note 4 supra. , ”. . % a , - “Cant es - t ’ ° x | 5 5 ae . , * F, ir sda ag — Court Opinion (No. 20,873) s ie. ty A ‘ ; | “_GPINION OF U.S. DISTRICT COURT ; (In previous case. S a ; Lorn, S be 3%) : Novedjber ad, 1936 Bs : * ‘ This matter comes before the Court on De fendant's Motion to Dismiss. The Government: contends that the : . complaint failg to state a cause of action with respect to which the Unites] States has consented to be sued-in ac- 7 cordance’ with the: Federal Tort Claims Act, Title © 28 US.CLA. §§ 13846(b) and 2680(a). Plaintiff alleges that in 1930 the C nited Statés:- Coast \ Guard issued to him: a five year master's license, which certified his fitness to’be a master of merchant vessels of unlimited tonnage. The license was feissued cach five. vears thereafter. In September,'1950 plaintiff sought from the Coast Guard a validated certificate which was then -re- quired as a prerequisite for an officer or seaman to sail on “a ship of United, States registry. Such’ certificate was re- quired by the Act of September 26, 1950. (64 Stat. 427, 1038, Title 50 U.S.C.A. § 191) and Ex ecutive: Order: 1Qis (15 Féd. Reg. 1005). On May .23, 1951, plaintiff.was advised that he was denied the-validated’ certificate on security grounds. In November -of 1955, the Coast Guard reversed its prior posi- tion and determined that plaintiff was cligible for _employ-" ment. United States, ( ‘ourt of Claims for reimbursement of wages lost-and other damages which ‘he allegedly suffered during the. period that the Coast Guard withheld:certifieation. The Court of Claims granted the Government’s motion to: dismiss plaintiff’s action. (See Eugene Dupree v. The United States, 24 L. W. 2569).. Following this dismissal, suit was instituted in this Court. _ Plaintiff contends that the refusal of the- Coast Guard to certify him was a negligent act and thus ‘is a suit that_ is cognizant under the.Federal Tort Claims Act, supra. cd ‘ ‘Thereafter, the plaintiff éérimeneced an action in the. oa oP ad ’ District Court Opinion = 20 S73) - Joa > Plaintiff was denied ecrtification as authorized by ‘the Act of September 26, 1950, supra, which was passed by- ( ‘ongreage during the Korean crisis. The Act, authorized the Pre@dent, in a time of national emergency, to make rules -. and regulations governing | the movement and anchorage of vessels in the territoral waters of the United States: The primary purpose was “in order to secure such vessels from damage or injury ; -to any harbor or waters Of the Uneted -States’’, and in pursuance of this.purpose when necessary, “to take full possession and control of such vessel and re- move. therefrom the officers and étew thereof. Pursuant to the authority of this Act, i enon issued Exgeutive . Order 10173, which required that c: ach seamal seeure a certificate that his employment. on a mer- chant vessel was ‘consistent with the purpose sought to be accomplished by the Act. This order vested enforcement of the Act’in the ¢ ‘onimandant’ of the Coast Guard. The Federal’ Tort, Claims ‘Act, supra, prov ides) when actions can be brought against, the United States as follows: ig 346. United States as defendant (1) _ .. exekusive jurisdiction of civil actions on. claims against the Pnited States, for. money damages, accruing on -sand after. January 1, 1945, for injury or loss of: property, or personal, injury or death caused by the neyhyent or wrongful aet or omission of any employee of the Govern- ment while acting within the scope of his office or —— ment, under circumstances . where the United. States, .if private person, W ould be liable to the claimant in nd ance with hes oe taw of the ee where. the’ act or omission occurred,’ : : The defendant conte nds i it o spetifieally withheld its con- sent to be sued under the d6llowing exceptions to the Act: ‘es © 2680.gExeeptions . . The provisions of this chapter ‘and section 1546 (hb) of this title shall not apply to— ' Bba meatret Court Opinion (Nb, 20,875) a. | (a) Any claim baie upon an act or ofMission. of an employee of the’ Government; ‘exercising due dare, in| the execution of.a statute or igo ev GeO whether or not such statute orgregulation be valid, or based upon the exercise or performance or ‘the fitues to exercise or perform a discretionary function or duty on ‘the part of a federal agency or an employee of the. Gove rnment, whether or ‘not the discretion involved be ¢ abused.’ The defendant cites the case of Dalehite v. United States, 346 U. S.-15 (1953) as controlling.in this action. There, Mr? Justice Reed oe for the mnajorty con- ‘strued: § 2680 and said at page a2 . “One only need read § 2680 in its entirety to con- clude that ‘Congress exercised care to: protect the Pal - Government from claims, hoWever negligently caused, that affected the governmental ‘functions. Negligence ‘in administering the Alien Property Act, or in estab- . lishing a quarantine, assault, libel, fiseal operations, ete, was. barred. An analysis of. § 2680 (a), the ex-- ception. with which we are- eantend, emphasizes the congressional purpose to except the acts here charged as negligence from the authorization to sue. It willbe — noted from the form of the seefion, see p. 18, supra, that there are two phrases describing the excepted acts of government employees. The first deals-with acts or omissions of government: employees,’ exercising due care in carrying gyt statutes or regulations whether valid or not. It ‘tests by tort action of the legality ‘of: statutes and regulations. _ The second is applieable in this ease. It excepts acts of discretion in the pér- Formance of governmental functions or duty ‘whether or not the discretion involved be abused . . .’ ”’ ese phasis supplied.) : The plaintiff relies upon Indian Towitg,. Co. v “United States, 350 U. S. 61 (1956) *in support of his contentions. However, this Court is: of the opinion. that the latter case . Phe. District Court Opinion (No. 20,873) _ Sta has no application to the instant case. In the Indian Tow- ing case, the plaintiff sued foredamages caused by a ship- wreck, resulting from the failure of the Coast Guard to maintain a channel light. The Court at page 64 said: .2*!The question is one of Hability for negligence at what this Court has. characterized the ‘operational level’ of governniental activity. Dalehite v. United States, 346 U.S. 15, 42. ‘The Government concedes: _ that the exception of § 2680: relieving from liability. for negligent ‘exereise-of Judgment’ (which is the way the Government paraphrases ‘a ‘diseretionary\_fune- tion’ in § 2680 (a)) is not involved here, . .’7 In the instant case, the Coast ‘Guard followed the procedure under the regulations adopted pursuant to the Statu:y. “Phe Commandant was authorized to exercise his . . judgment in refusing to issue the certificate to the plajn- tiff. Such decisions eafinot be considered as negligent + regardless of the final result of is conclusions. — > . . 5 4 i: 77. Therefore, this Court-is of the opinion that the Com- mandant of the Coast Guard was. performing a ‘‘discre- tionary function or-duty’’ with respect to the plaintiff. The defendant is not liable for negligence sinee the act ’ \ a... 66 . . performed cannot be characterized as on the operational level’? of governmental activity. ; Accordingly, Defendant’s Motion to Dismiss is hereby | GRANTED. Saf Toms W. Lorp, Jr., . i @ ’ 38a Motion ta, Dismiss (No, 20,873 one © . a - J MOTION TO DISMISS, (In previous, case.) . Cisibeaitiigih moves the Court as follows : 1. To dismiss the action because the. Complaint fails . _ to state a canse of action against defer 1dant Upon which .. — relief ‘can be granted. , ~~ .» : : - 2. To dismiss the action because the. Complaint fails to state a cause of action against the defendant, the United | -4 ‘States, with respect to which the United States. has con- sented to be sued, as set forth i in Title 28 U.S. C., Section 2680 (a) and (b). ‘ —_-3.-To dismiss the PRE a the Court lacks jurisdiction of the subject matter. ve /s/ W. Witsox Ww HITE, el ras oie wie f Wilson White, by tants Oy: a . - United States Aflorne —* /s/ NORMAN: £. ‘HEnss, . * *Norman C. Henss, - Assistant United States Attorney. a ne aeons -& = titan - hacded ™ inal e 2 ‘ ; . 7 ey ies Complaint in Trespass (Np. 20,873). 39a - \ A . . > 7° COMPLAINT IN TRESPASS. _- | (In previous case.) - ; Axp Now comes Eugene Dupree: and presents this \. claim upon the following representations: -—_ 1, Eugene, Dupree is a citizen of the ‘Veited States residing at 125 South 21st Street, Philadelphia, .Penna.,. and during@the period from 1930. through 1956 he was a_, licensed ship’s master for vessels of unlimited tonnage and © — was so licensed by the United States Coast Guard by virtue of the authority” and responsibility granted it by R. S: 4439, December 21, 1898; (. 29, Section 2, 30 Stat. 764 (46.U.S. | C, A226). pee Begs se 2y This action, sounds in tort and ts brought -urider . Section 1346(b) Title 28 United States Code. , . 3. That. during September, 1950, the plaintiff applied _\ for a berth as*a ship’s master. « : + —+, -Epon-reeeipt -of-that-appHeation, the United States. Coast Guard refused to certify plaintiff available for such a berth, or for any other berth im the merchant marine. ‘- 5, On May 23, 1951, the United States Coast Guard ~ advised the plaintiff that it had not and would not certify plaintiff available for employment in the merchant marine — because, the Commandant of the Coast Guard had deter? + mined, without ‘affording plaintiff a hearing, that there was. __._ reason to -believe-that-plaintifi tad -peon affiliated with: or nae was sympathetic with an organization, association, group or combination of persons subversive of disloyal to the “Goyernment of the United States. at 7 +6, Qn May. 23, 1951, plaintiff was also -advised that ? he might request a hearing at which he could offer evidence to establish that he was not affiliated with or was not sympathetic with any organization, association, group or ere a Bene, Gov érnment of the United States. Wisk Py 40a : iain in Trespass (No, 20,875 4 combination of persgns ‘subversive | or - disloyal to the 7. Plaintiff requested and was giv en such a hearing but neither prior to nor at said hearing was he advised upon what the Commandant based his aforementioned des termination. _ ° 8. Neither at ‘that hearing nor..at — hearings thereafter was plaintiff confronted with any witnesses or evidence ‘in support of the Government’s charge. or de-' termination that the plaintiff was affiliated. with or was sympathetic with an organization, association, group or ’ combination of persons subversive or disloyal to the United States, despite his repeated denials of said charges: 9, Nevertheless from . September 1950 to November’ 1955, the Government denied ‘the plaintiff the opportunity to accept employment or.to othérwise engage in’ activ ities as a ship’s master. - 10. The plains chroughout “this said oe alleged 7 the unilateral _procedure by which the Government de- termined he was denied the opportunity ‘to. act as a,ship’s master was an illegal and. unconstitutional denial to hem * of his property, and property rights i as a licensee and as a : skilled and trained ship's master. ‘ \ 11. Without explanation and Ww ithout disclosure upon - what evidence or upon what w itnesses the Gov rornment had relied during the said period | from September 1950 to = vefnher 1955, the Government thereafter. reversed ° former determination that the plaintiff was affijiated ae or was sympathetic with an organization, association, group or combination of. ‘persons subversive or: disloyal to the * United States and in so rev ersing permitted the plaintiff” ; to thereafter engage in activities as a ship’s master. "BB. Because: of the aforementioned denial, plaintiff . has suffered loss of earnings and other rights and benefits. se ) | a Complaint in Trespass (No.°20,873) .) 41a. | m which he would have earned, made or received, and plain- tiff has incurred other losses and* expenses. including ‘but not limited to legal and*other expenses. ineurred in revers- ing and -yacating the a Government denial vg ; ‘and plaintiff has ,suffered ‘and incurred an incurable physical disability as a result: of ‘the nervous strain and — tension he underwent .durfng the’ period in which the aforementioned Governmenf denial was effective ‘rand dur- . - _ ing which plaintiff gought to have that aforementioned denial reversed ad vacated, and the plaintiff has suffered. humiliation, disgrace and consequent_pain~and suffering as a result of having been-determined by the United States _as cither subversive or disloyal to the United States or | ‘sympatheti¢e with or affiliated with persons or groups who were subversive fo or disloyal to the United States. § @ WHEREFORE, plaintiff- brings this action for the sum of ; $100,000. oer aS . ; — /s/ Wands J. Wootston, | William’J. Woolston, | 2015 Land Title Bldg.,” ae i, Philadelphia 10, Pa. vA er, teers ee es Attorney for Plainfif. tl Ad 7 i --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA0438641_1012%3A3. Public record. Not legal advice.