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
THOMAS A. CLARK, Circuit Judge,
concurring in part and dissenting in part:
I join in Judge Fay’s concurrence. However, I would decide the “discretionary function” issue after trial as a matter of determining liability, not jurisdiction. 28 U.S.C. § 1346 (b) provides jurisdiction in Federal Tort Claims Act cases. If the governmental function is a discretionary one, there is no liability due to the language of the Act. Judge Tjoflat’s discussion in his dissent is very learned and helpful. However, I would first want to know how Whisenhant, an established homicidal psychotic, happened to be given the opportunity to be in Mobile in 1975 and 1976 when he killed and mutilated the three women. I do not see how one decides whether the circumstances leading to his release constituted a “discretionary function” without a factual judicial inquiry. Such a judgment call should not be based merely on what is in a complaint.