(concurring in part and dissenting in part).
The District Court dismissed the complaint with prejudice. After an appeal was filed in this court, the Government moved for affirmance of the judgment on the ground that the suspension of nuclear weapons testing had made the possibility of future injury too remote to justify judicial intervention. This would require us to reverse the judgment and remand the case to the District Court with directions to dismiss the complaint without prejudice. United States v. *255Munsingwear, Inc., 1950, 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36. Under such an order, appellants would not be precluded from instituting a new suit if nuclear weapons testing were resumed.
When appellants filed their complaint in April of 1958, the Atomic Energy Commission, with the approval of the President, had announced' its intention to conduct a series of atomic weapons tests in Nevada and the South Pacific during the spring and summer of that year. These tests were completed on October 30, 1958. The Government’s motion shows that pursuant to a series of self-imposed moratoria the United States has not conducted any nuclear weapons tests since that time. In a recent statement on the subject, the President on December 29, 1959, said that “Although we consider ourselves free to resume nuclear weapons testing, we shall not resume nuclear weapons tests without announcing our intention in advance of any resumption.”
I agree with the Government’s assertion that there is not a sufficient probability that testing will be resumed to justify judicial intervention in so delicate an area either by injunctive relief, United States v. W. T. Grant & Co., 1953, 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303, or declaratory judgment, Public Service Commission of Utah v. Wycoff Co., 1952, 344 U.S. 237, 73 S.Ct. 236, 97 L.Ed. 291. “Courts should avoid passing on questions of public law even short of constitutionality that are not immediately pressing.” Eccles v. Peoples Bank, 1948, 333 U.S. 426, 431, 68 S.Ct. 641, 645, 92 L.Ed. 784.
With respect to the count in appellant’s amended complaint requesting damages, I would affirm the District Court’s dismissal on the ground that administrative officials named herein are immune from tort liability for discretionary acts taken within the scope of their duties. Kendall v. Stokes, 1845, 3 How. 87, 98, 44 U.S. 87, 98, 11 L.Ed. 506, 833