decision by parole board to grant or deny parole is discretionary function immune under federal tort claims act
How later courts described this case
- decision by parole board to grant or deny parole is discretionary function immune under federal tort claims act
- “The plaintiff must therefore allege that the Board breached a duty sufficiently separable from the decision-making function to be nondiscretionary and outside of the exception.”
- "It is established in the Fifth Circuit that when the government undertakes to perform services which would not be required in the absence of specific legislation, it will be liable if these activities are performed negligently.”
- distinguishing under discretionary function immunity a negligent decision to release from negligent medical treatment
Written by the judges who cited it.
Distinguished
Distinguished by Clarke v. United States, 107 F. Supp. 3d 238 (2015)
Because Defendant did not undertake to perform any medical services which would not be required in the absence of specific legislation, the analysis in Payton is inapplicable here.
The opinion
FAY, Circuit Judge, joined by HENDERSON and THOMAS A. CLARK, Circuit Judges,
concurring in part and dissenting in
part:
Most respectfully, I join in those portions of Judge Hatchett’s opinion which reverse the trial court and dissent from those portions which affirm the trial court. As author of the panel opinion, 636 F.2d 132 , I tried to present a full analysis of both the legislative history and judicial precedent surrounding the issues presented. Nothing submitted during the en banc consideration of this case has altered my views expressed at that time. It is most appropriate that the case will now proceed to a full development of the facts leading up to and surrounding the release of Thomas Warren Whisenhant.