PATTERSON v. U.S.

No. 88-3902.

881 F.2d 127 (1989)

Lois PATTERSON, Administratrix of the Estate of Gracie Altizer, deceased; Allyne Muncey, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

United States Court of Appeals, Fourth Circuit.

Decided August 3, 1989.


Attorney(s) appearing for the Case

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.


MURNAGHAN, Circuit Judge:

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...

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