Opinion
No. 121, Docket 32407.
Argued November 8, 1968.
Decided December 11, 1968.
Sheldon May, Brooklyn, N.Y. (Schonfeld, Schonfeld May, Brooklyn, N.Y., on the brief), for plaintiff-appellant.
Peter R. DeFilippi, Asst. U.S. Atty., New York City (David Paget, Asst. U.S. Atty., and Robert M. Morgenthau, U.S. Atty., for Southern Dist. of New York, New York City, on the brief), for defendant-appellee.
Plaintiff, a merchant seaman and one-time radio operator, appeals from the dismissal for lack of subject matter jurisdiction of his suit which was originally to declare unconstitutional the Coast Guard regulations governing the issuance of radio operators' licenses on merchant marine vessels, promulgated pursuant to 46 U.S.C. § 229, to direct the issuance of a license and for other relief.
Upon stipulation of the parties, plaintiff resubmitted his license application and the license has now been granted. Thus the principal charge became moot. The remaining, belatedly asserted, claim seeking damages for the alleged wrongful withholding of the license for 18 years was properly dismissed as the Government has given no consent to be sued on such a claim. See 28 U.S.C. § 2680(a). Viewed as a personal claim against the Commandant the latter is immune from suit based upon the exercise of a discretionary duty. Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959). Moreover, we think Judge Ryan did not abuse his discretion in refusing to transfer this suit to the Court of Claims, see 28 U.S.C. § 1406(c), or to award costs to plaintiff.
Affirmed.