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KELLY v. U.S.

No. 99-35134.

241 F.3d 755 (2001)

Elizabeth A. KELLY, individually and as Personal Representative of the Estate of Robert Eugene Kelly; Michael Kelly; Kenneth Kelly; Anne Marie Kelly, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant. Rockey R. Lynn, Personal Representative of the Estate of Randy Clifford Lynn, Deceased, on Behalf of the Estate; Denise Lynn Warnken; Connie Lynn Gordon; Nicholas James Lynn; Clifford Connell Lynn; Madelon Jesse Lynn, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.

United States Court of Appeals, Ninth Circuit.

Filed February 28, 2001

Attorney(s) appearing for the Case

Charles W. Scarborough, United States Department of Justice, Civil Division, Washington, D.C., for appellant the United States of America.

Mark S. Connell, Connell Law Firm, Missoula, Montana, Brian K. Branch, Branch & Weingartner, Albuquerque, New Mexico, Cynthia A. Fry, Law Offices of Cynthia A. Fry, Albuquerque, New Mexico, for the appellees.

Before: Arthur L. Alarcon, Warren J. Ferguson, and M. Margaret McKeown, Circuit Judges.

Argued and Submitted October 5, 2000 — Seattle, Washington

Opinion by Judge McKEOWN; Concurrence by Judge FERGUSON

McKEOWN, Circuit Judge:

This case strikes at the heart of one of the discretionary functions of the United States Forest Service — formulating the nature and type of flight training required of firefighter pilots. At issue is whether the United States is immune from liability under the Federal Tort Claims Act, 28 U.S.C. ...

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