'(b) * * * 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.'
The defendant contends it has specifically withheld its consent to be sued under the following exception to the Act:
' § 2680. Exceptions
'The provisions of this chapter and section 1346(b) of this title shall not apply to --
'(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or 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, whether or not the discretion involved be abused.' (Emphasis supplied.)
The defendant cites the case of Dalehite v. United States, 1953, 346 U.S. 15, 73 S. Ct. 956, 97 L. Ed. 1427, as controlling in this action. There, Mr. Justice Reed speaking for the majority construed § 2680 and said, 346 U.S. at page 32, 73 S. Ct. at page 966:
'One only need read § 2680 in its entirety to conclude that Congress exercised care to protect the Government from claims, however negligently caused, that affected the governmental functions. Negligence in administering the Alien Property Act, or in establishing a quarantine, assault, libel, fiscal operations, etc., was barred. An analysis of § 2680(a), the exception with which we are concerned, emphasizes the congressional purpose to except the acts here charged as negligence from the authorization to sue. It will be noted from the form of the section, see 346 U.S. 18, 73 S. Ct. 959, 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 out statutes or regulations whether valid or not. It bars tests by tort action of the legality of statutes and regulations. The second is applicable in this case. It excepts acts of discretion in the performance of governmental functions or duty 'whether or not the discretion involved be abused.' * * *'
The plaintiff relies upon Indian Towing Co. v. United States, 1956, 350 U.S. 61, 76 S. Ct. 122, in support of his contentions. However, this Court is of the opinion that the latter case has no application to the instant case. In the Indian Towing case, the plaintiff sued for damages caused by a shipwreck resulting from the failure of the Coast Guard to maintain a channel light. The Court at page 64 of 350 U.S., at page 124 of 76 S. Ct. said:
'The question is one of liability for negligence at what this Court has characterized the 'operational level' of governmental activity. Dalehite v. United States, 346 U.S. 15, 42, 73 S. Ct. 956, 971, 97 L. Ed. 1427. The Government concedes that the exception of § 2680 relieving from liability for negligent 'exercise of judgment' (which is the way the Government paraphrases a 'discretionary function' in § 2680 (a)) is not involved here, * * *.'
In the instant case, the Coast Guard followed the procedure under the regulations adopted pursuant to the Statute. The Commandant was authorized to exercise his judgment in refusing to issue the certificate to the plaintiff. Such decisions cannot be considered as negligent regardless of the final result of his conclusions.
Therefore, this Court is of the opinion that the Commandant of the Coast Guard was performing a 'discretionary function or duty' with respect to the plaintiff. The defendant is not liable for negligence since the act performed cannot be characterized as on the 'operational level' of governmental activity.
Accordingly, defendant's Motion to Dismiss is hereby granted.
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