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DUPREE v. BYRD

September 3, 1954

Eugene DUPREE
v.
Capt. John H. BYRD, Captain of the Port, United States Coast Guard, Commander John Ulery, Shipping Commissioner, United States Coast Guard, and Commander Donald Gunn, Steamboat Inspector, United States Coast Guard



The opinion of the court was delivered by: FOLLMER

The Complaint which was filed August 7, 1953, alleges, inter alia:

 That on July 29, 1953, plaintiff made application for employment as master of vessel to be operated by the Atlantic Refining Company.

 That on the same day plaintiff was advised that he could not be thus employed and permitted to ship unless and until he received a security clearance from the United States Coast Guard.

 That on July 30, 1953, at the Philadelphia office of the United States Coast Guard, plaintiff sought permission from the Shipping Commissioner to ship as master for Atlantic Refining Company without having received security clearance from the said Coast Guard, when he was advised that a clearance certificate was essential prior to shipping.

 That on August 3, 1953, the Shipping Commissioner addressed a letter to plaintiff's attorney stating, inter alia, that on May 23, 1951, plaintiff had been refused a clearance certificate, and that the statement of reasons for such refusal of that date would be given to plaintiff upon application to the Shipping Commissioner.

 That from the refusal of May 23, 1951, plaintiff had appealed to local, area and National Appeal Board, and on July 14, 1953, plaintiff was notified that upon review of his case the Commandant of the United States Coast Guard was satisfied that reasonable grounds existed for the retention of plaintiff's classification as a poor security risk.

 That on August 6, 1953, plaintiff applied to the Shipping Commissioner for statement of reasons for refusal of security clearance and was advised by the Commissioner that the only statement available was the same statement which plaintiff had received on May 23, 1951.

 Defendants did not answer the Complaint, but on December 4, 1953, filed a Motion for Summary Judgment on the following grounds:

 
'1. There is no genuine issue as to any material fact and defendants are entitled to a judgment as a matter of law.
 
'2. The Court has no jurisdiction to grant any relief to plaintiff because he has failed to exhaust his administrative remedy provided by the amended regulations issued on October 27, 1953, by the United States Coast Guard pursuant to the Act of August 9, 1950 (64 Stat. 427, 50 U.S.C. 191) (18 F.R. 6941).'

 On December 14, 1953, plaintiff filed a paper captioned 'Motion of Plaintiff for Summary Judgment.' This paper sets forth the following:

 
'1. The defendants have filed a Motion for Summary Judgment.
 
'2. Defendant's Motion for Summary Judgment states that there are no genuine issues ...

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