Gail Merchant Irving v. United States of America, Gail Merchant Irving v. United States of America, Cross-Appellee

146 F.3d 12, 1998 CCH OSHD 31,574, 18 OSHC (BNA) 1289, 1998 U.S. App. LEXIS 7452, 1998 WL 390970

• Court: Court of Appeals for the First Circuit
• Decided: June 8, 1998
• Docket: 96-2368, 96-2369
• Status: Published

Opinion

ORDER OF COURT

A majority of the judges of this court in active service have voted sua sponte to review the panel decision in this matter en bane. The panel opinions (majority and dissenting) are therefore withdrawn.

The parties shall file simultaneous supplemental briefs within thirty days of the date of this order, not to exceed twenty-five pages per side. The issues for en banc review include both the applicability of the Federal Tort Claims Act and its discretionary function exception, and the question of whether New Hampshire law (particularly that state’s Good Samaritan doctrine) would hold a private actor liable under the circumstances of this case.

The en banc court reserves, pending its receipt and consideration of the supplemental briefs, any determination as to whether further oral argument will aid the decisional process. If the court answers that question affirmatively, oral argument will be scheduled during the court’s September 1998 sitting. If the court answers that question negatively, the court will decide the case on the record (including the supplemental briefs).