# Myers v. United States

> Court of Appeals for the Sixth Circuit · March 1, 1994 · 17 F.3d 890

URL: https://www.frixlaw.com/law-library/cases/6929890

## Case

- **Full name:** Barbara G. MYERS, Individually and as Administratrix of the Estate of Charles , R. Myers (92-5812) Joyce Ann Layne Rollins, Individually and as Administratrix of the Estate of Darrell Glenn Rollins (92-5813) Connie Rancene Kilgore Parson Dykes, Individually and as Administratrix of the Estate of Gaylon L. Parson (92-5814) Georgia Ruth Nolan Henry, Individually and as Administratrix of the Estate of Harvey J. Nolan, Jr. (92-5816) v. United States
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** March 1, 1994
- **Citations:** 17 F.3d 890; 1994 WL 59940
- **Precedential status:** Published
- **Opinion:** Concurrence by Guy
- **Judges:** Dowd, Guy, Suhrheinrich
- **Cited by:** 159 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6929890

## How later opinions describe it (automated extraction)

- holding that the plaintiffs could not proceed under Section 324A(a) of the Restatement where they failed to allege facts showing that the defendant affirmatively made, or caused to be made, a change in the conditions that created or increased the risk of harm that befell the p…
- stating that 28 U.S.C. § 2674 requires “some relationship between the governmental employee and the plaintiff to which state law would attach 'a duty of care in purely private circumstances”
- stating that holding the government liable for undertaking to fulfill a duty owed by an operator to its miners would require the court "to ignore [the] plain language" of 30 U.S.C. Sec. 801
- holding that for claims dismissed with prejudice, a plaintiff is not 18 required to reallege such claims in a subsequent amended complaint to preserve them for appeal

## Opinion text

RALPH B. GUY, Jr., Circuit Judge,
concurring.
I concur in the result reached by Judge Suhrheinrich, except I would not reject the concept of a “discretionary function” analysis leading to the same conclusion. Like Judge Suhrheinrich, I do not think Congress ever intended the FTCA to be an invitation to parse the rules and regulations of regulatory agencies looking for those functions the agencies arguably were required to perform, and then attempting to have liability follow those functions. When Congress passes statutes and delegates their enforcement to a federal agency, the agency, of course, has no discretion whether to enforce or not. To equate this lack of discretion with waiver of immunity, however, is to miss the point of the discretionary function exception provided by Congress in the FTCA
Aso, like Judge Suhrheinrich, I would prefer an analysis that provided something closer to a bright line test. Here, for example, we have injured miners, whose injuries were the result of their employer’s negligence. It is not difficult to sort out the injured from those responsible. By passing mine safety regulations, the federal government is not substituting itself for the mine owners or assuming their responsibilities.
The very essence of the federal function is to evaluate the mine owner’s compliance with the applicable regulations and then, if noncompliance is noted, to impose some type of remedial course of action to be enforced by the imposition of sanctions if necessary. In short, the government agents are making judgment calls on what is wrong and how to correct it. This, for me at least, equates to the exercise of discretion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6929890. Public record. Not legal advice.