Patterson v. U.S., 88-3902
Decision Date | 03 August 1989 |
Docket Number | No. 88-3902,88-3902 |
Citation | 881 F.2d 127 |
Parties | Lois PATTERSON, Administratrix of the Estate of Gracie Altizer, deceased; Allyne Muncey, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. |
Court | U.S. Court of Appeals — Fourth Circuit |
Michael Fielding Gibson (Johnston, Holroyd & Gibson, Princeton, W.Va., on brief), for plaintiffs-appellants.
Phyllis Jackson Pyles (Jeffrey Axelrad, Civ. Div., U.S. Dept. of Justice, John R. Bolton, Asst. Atty. Gen., Washington, D.C., Michael W. Carey, U.S. Atty., on brief), for defendant-appellee.
Before ERVIN, Chief Judge, RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, SPROUSE, CHAPMAN, WILKINSON, and WILKINS, Circuit Judges, sitting en banc. *
The panel decision in this case, Patterson v. United States, 856 F.2d 670 (4th Cir.1988), has now been vacated by the grant of en banc rehearing. We on the panel wrestled with the question of what would constitute a discretionary function excepting from the thrust of the Federal Tort Claims Act
[a]ny 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.
28 U.S.C. Sec. 2680(a).
Judge Murnaghan authored the original panel opinion, which I joined. I respectfully dissent...
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