Smalls v. EPA
Citation: 19 ELR 20191
No. No. 88-1275, 861 F.2d 60/(3d Cir., 11/09/1988) Vacated & remanded
The court vacates a district court decision, 18 ELR 21085, holding that the Environmental Protection Agency's allegedly negligent hiring and supervision of a hazardous waste contractor falls within the discretionary function exemption of the Federal Tort Claims Act. Since the time of the district court's holding, the Supreme Court has overturned Third Circuit precedent on this issue in Berkovitz v. United States, 108 S. Ct. 1954 (1988), holding that the discretionary function exemption does not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. The court remands the case to the district court for reconsideration in light of the Supreme Court opinion.
Counsel for Appellants
Mark R. Cuker
Slap, Williams & Cuker
One Franklin Plaza, Ste. 960, Philadelphia PA 19102
Counsel for Appellees
U.S. Department of Justice
P.O. Box 888, Ben Franklin Station, Washington DC 20044
Before Mansmann and Greenberg, J.J.