# Douglas Glynn Payton, Administrator of the Estate of Sheryl Lynn Payton, Deceased v. The United States of America

> Court of Appeals for the Fifth Circuit · July 1, 1982 · 679 F.2d 475

URL: https://www.frixlaw.com/law-library/cases/9469273

## Case

- **Full name:** Douglas Glynn PAYTON, Administrator of the Estate of Sheryl Lynn Payton, Deceased, Et Al., Plaintiffs-Appellants, v. the UNITED STATES of America, Defendant-Appellee
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** July 1, 1982
- **Citations:** 679 F.2d 475; 1982 U.S. App. LEXIS 17759
- **Precedential status:** Published
- **Opinion:** Concurring in part by Clark
- **Judges:** Godbold, Roney, Tjoflat, Hill, Fay, Vance, Kravitch, Johnson, Henderson, Hatchett, Anderson, Clark
- **Cited by:** 68 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/9469273

## How later opinions describe it (automated extraction)

- establishing parole guidelines is discretionary; application in individual cases is operational

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9469273. Public record. Not legal advice.