Schmid, Jr., Christian C. v. The United States of America

BECKER, Circuit Judge.

This appeal presents the question whether a government employee who is alleged to have been injured as the result of the government’s negligent maintenance of its property can, where the injury has been determined by the appropriate agency to have arisen “out of the performance of his duty,” nonetheless successfully sue the government under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (FTCA), by invoking the so-called “dual capacity” doctrine. For the reasons that follow, we determine that, under the circumstances of this case, he cannot.

I

The plaintiff,…