62 F.3d 126 | 5th Cir. | 1995
Lead Opinion
We sit en banc in this case to resolve two questions. First, we consider whether a certification by the Attorney General under the Westfall Act
I.
The plaintiffiappellant, Robert Garcia, brought this tort action because of injuries he sustained when his car was struck by a car driven by an employee of the Environmental Protection Agency (EPA). The plaintiff filed this ease in Texas state court and
II.
We decided to revisit our decision that the Westfall Act removes the opportunity for judicial review of the scope of employment issue with a rehearing en banc.
In the light of the Supreme Court’s recent decision, we hold that certification of scope of employment under the Westfall Act is subject to judicial review. Furthermore, we hold, in accordance with Supreme Court precedent, that whether a particular federal employee was or was not acting within the scope of his employment is controlled by the law of the state in which the negligent or wrongful conduct occurred.
. 28 U.S.C. sections 2671-2680. The proper name of the act is the Federal Employees Liability Reform and Tort Compensation Act of 1988, Pub.L. 100-694, 102 Stat. 4563.
. Garcia v. United States, 799 F.Supp. 674 (W.D.Tex.1992).
. Garcia v. United States, 22 F.3d 609 (5th Cir.1994), which held that, based on Fifth Circuit precedent, the certification was not subject to judicial review but recommended an en banc rehearing on the issue.
. Other circuit courts have also struggled with this issue. Almost all the circuit courts that had addressed the issue held that certification of scope of employment under the Westfall Act was reviewable. Nasuti v. Scannell, 906 F.2d 802, 812-813 (1st Cir.1990); McHugh v. University of Vermont, 966 F.2d 67, 71-72 (2d Cir.1992); Melo v. Hafer, 912 F.2d 628, 640-42 (3d Cir.1990), affirmed, 502 U.S. 21, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991); Arbour v. Jenkins, 903 F.2d 416, 421 (6th Cir.1990); Hamrick v. Franklin, 931 F.2d 1209, 1210-11 (7th Cir.), cert. denied, 502 U.S. 869, 112 S.Ct. 200, 116 L.Ed.2d 159 (1991); Brown v. Armstrong, 949 F.2d 1007, 1010-11 (8th Cir.1991); Meridian International Logistics, Inc. v. United States, 939 F.2d 740, 743-45 (9th Cir.1991); S.J. & W. Ranch, Inc. v. Lehtinen, 913 F.2d 1538, 1540-41 (11th Cir.1990), modified, 924 F.2d 1555 (11th Cir.), cert. denied, 502 U.S. 813, 112 S.Ct. 62, 116 L.Ed.2d 37 (1991). But see, Johnson v. Carter, 983 F.2d 1316, 1320 (4th Cir.) (en banc), cert. denied, -U.S. -, 114 S.Ct. 57, 126 L.Ed.2d 27 (1993). Thus, when the Supreme Court accepted certiorari in the Gutierrez case, a circuit split existed.
. -U.S.-, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995).
. Id. at-, 115 S.Ct. at 2236.
. Id.
. Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955). For an application of this rule, see e.g. Nelson v. United States, 838 F.2d 1280, 1282 (D.C.Cir.1988); Nasuti v. Scannell, 906 F.2d 802, 805 n. 3 (1st Cir.1990); Cronin v. Hertz Corp., 818 F.2d 1064, 1065 (2d Cir.1987); Aliota v. Graham, 984 F.2d 1350, 1358 (3d Cir.), cert. denied, - U.S. -, 114 S.Ct. 68, 126 L.Ed.2d 37 (1993); Flechsig v. United States, 991 F.2d 300, 302 (6th Cir.1993); Forrest City Mach. Works, Inc. v. United States, 953 F.2d 1086, 1088 n. 5 (8th Cir.1992); Washington v. United States, 868 F.2d 332, 334 (9th Cir.), cert. denied, 493 U.S. 992, 110 S.Ct. 539, 107 L.Ed.2d 536 (1989); Pattno v. United States, 311 F.2d 604, 607 (10th Cir.1962), cert. denied, 373 U.S. 911, 83 S.Ct. 1300, 10 L.Ed.2d 412 (1963); S.J. & W. Ranch, Inc. v. Lehtinen, 913 F.2d 1538, 1542 (11th Cir.1990), amended, 924 F.2d 1555 (11th Cir.), cert. denied, 502 U.S. 813, 112 S.Ct. 62, 116 L.Ed.2d 37 (1991).
Concurrence Opinion
concurring specially:
I concur in the per curiam, but write separately to point out that lurking behind Lam-agno is a contentious question of jurisdiction which the Supreme Court specifically did not decide, but which, in my opinion, is integral to the issues before us. See Gutierrez de Martinez v. Lamagno, — U.S. -, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995).
This issue, however, presupposes a holding that Agent Langlois was not within the scope of his employment with the EPA when the accident here took place and further presupposes no diversity jurisdiction — issues not presently before this en banc Court. To that extent, therefore, the issue of jurisdiction is premature. Neither this Court’s per curiam, as I read it — nor I, by this concurrence— predetermine the issue of jurisdiction.
. Eight justices in Lamagno also thought it an integral consideration in deciding congressional intent. See id. at-, 115 S.Ct. at 2236-37 (Ginsburg, J., plurality opinion; id.-, 115 S.Ct. at 2239-40 (Souter, J., dissenting); but see id. at -, 115 S.Ct. at 2236 ("The parties’ diverse citizenship gave petitioners an entirely secure basis for filing in federal court.”).
. See id. at-, 115 S.Ct. at 2237-38 (O'Connor, J., concurring in part and concurring in the judgment) ("That discussion [Part IV] all but conclusively resolves a difficult question of federal jurisdiction that, as the Court notes, is not presented in this case....").
. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966).