Gail Merchant Irving v. United States

BOWNES, Senior Circuit Judge,

with whom LIPEZ, Circuit Judge, joins (dissenting).

The majority opinion fundamentally misconstrues controlling Supreme Court prece*170dent in analyzing the discretionary function exception to the Federal Tort Claims Act (“FTCA”). The majority is concerned that permitting Irving’s claim to succeed would undermine OSHA’s broad discretion in deciding how to implement its enforcement policy. No one disputes that the agency as a whole retains considerable discretion. The problem is that the majority undertakes its analysis from the wrong vantage point.

As the Supreme Court…