Before MARIS, KALODNER and STALEY, Circuit Judges.
Can an action be maintained against the United States for damages under the Federal Tort Claims Act on a claim arising out of the enforcement of the merchant seaman screening program, which resulted in the allegedly wrongful withholding of a security clearance by the Commandant of the Coast Guard acting purcuant 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 UnitedStates to dismiss the complaint. The district court held that the claim was barred by the discretionary function exception of the Federal Tort Claims Act.*fn1
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.*fn2 In September, 1950, Dupree applied for a berth as a ship's master, but the Coast Guard refused to issue to him the validated document required for employment in the merchant marine. On May 23, 1951, he was advised by the Coast Guard that the validated document had been denied because the Commandant of the Coast Guard had determined that there was reason to believe that he had been affiliated with or was sympathetic to an organization, group or combination of persons subversive or disloyal to the Government of the United States. This determination was made without affording Dupree a hearing.
Dupree subsequently requested and was given a hearing 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 information the Commandant had based his determination.*fn3 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 determination against Dupree making him eligible for employment as a ship's master. Dupree then instituted an action against the United States in the Court of Claims. The motion of the United States to dismiss that complaint was sustained for failure to state a claim within the class of cases cognizable in the Court of Claims.*fn4
The instant action was instituted in the district court as a "Complaint in Trespass" under the Federal Tort Claims Act. That act provides:
28 U.S.C. § 1346(b). "[The] district courts * * * shall have exclusive 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, or personal injury or death caused 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 law of the place where the act or omission occurred."
28 U.S.C. § 2674."The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages."
Dupree sought $100,000 damages for loss of earnings, for legal and other expenses incurred in obtaining his clearance, for an alleged incurable physical disability resulting from the nervous strain he underwent while clearance was withheld, and for the humiliation, disgrace and consequent pain and suffering as a result of the determination that he was affiliated with subversive or disloyal groups.
Both the United States and Dupree have in essence based their contentions upon the question of the applicability of the discretionary function exception of the Tort Claims Act which is set forth in the second part of 28 U.S.C. § 2680(a), and which excludes recovery under the act for
"Any claim * * * based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, ...