Robert Garcia v. United States

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Robert GARCIA, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 92-8490.

United States Court of Appeals, Fifth Circuit.

June 10, 1994.

On Suggestion for Rehearing En Banc June 23, 1994.

609 F.2d 609

§ 187)“). Here the justified expectations of the parties are expressed in the explicit terms of their contract: that (1) the law of a single state-Mississippi will govern their agreement; and (2) the noncompete provision of that agreement will protect Herring Gas‘s business interests in Mississippi and in Louisiana. Because the approach to § 187 advocated by Magee and Burris would imperil these justifiable expectations, § 6(2)(d) counsels in favor of rejecting Magee‘s and Burris‘s position.

Furthermore, protection of the parties’ justified expectations in this case is conducive to the realization of two other goals outlined in Restatement § 6: “certainty, predictability and uniformity of result” and “ease in the determination and application of the law to be applied.” See id. § 6(2)(f) and (g). The commentary to § 187 states:

Prime objectives of contract law are to protect the justified expectations of the parties and to make it possible for them to foretell with accuracy what will be their rights and liabilities under the contract. These objectives may best be attained in multistate transactions by letting the parties choose the law to govern the validity of the contract and the rights created thereby. In this way, certainty and predictability of result are most likely to be secured.

Id. § 187 cmt. e (emphasis added). Protection of the parties’ expectations lends itself to ease in the determination and application of the law to be applied because the regime agreed to by the parties is simpler to administer than the one now proposed by Magee and Burris. They advocate bifurcating the “materially greater interest” analysis and applying the laws of two states rather than one.

Along with Mississippi‘s general principle in favor of honoring the choice of law of the parties, the balance of factors under Restatement § 6 leads us to conclude that the Mississippi Supreme Court would not bifurcate the “materially greater interest” analysis under Restatement § 187, even though that solution would better protect the policies and interests of Mississippi‘s sister state. See id. § 187 cmt. e (“It may likewise be objected that, if given this power of choice [of the governing law], the parties will be enabled to escape prohibitions prevailing in the state which would otherwise be the state of the applicable law. Nevertheless, the demands of certainty, predictability and convenience dictate that, subject to some limitations, the parties should have the power to choose the applicable law.“). We therefore reject Magee‘s and Burris‘s argument that the Mississippi Supreme Court would have found that Louisiana has a materially greater interest in the enforcement of the noncompete agreement in Louisiana, and Magee and Burris fail to show that the district court erred by honoring the parties’ choice of the law of Mississippi, and by holding that the noncompete agreement is fully enforceable.

III

For the foregoing reasons, we AFFIRM the summary judgment in favor of Herring and Herring Gas.

Lonnie Roach, Bemis, Roach & Reed, Austin, TX, for appellant.

Ernest C. Garcia, Asst. U.S. Atty., Mollie S. Crosby, Ronald F. Ederer, U.S. Atty., Austin, TX, Barbara L. Herwig, Asst. Director, Appellate Staff, Peter Maier, Civ. Div., U.S. Dept. of Justice, Washington, DC, for appellee.

Before WISDOM, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM.

An injured motorist appeals from the district court‘s dismissal of his tort claim for failing to exhaust administrative remedies. The motorist was injured by an intoxicated federal employee. The United States Attorney certified, under the Westfall Act,¹ that the employee acted within the scope of his employment at the time he injured the plaintiff. We conclude that we are bound by an unpublished decision of this Court² to hold that the federal courts may not review a certification issued under the Westfall Act that a federal employee was acting within his scope of employment at the time he injured the plaintiff. Accordingly, we AFFIRM.

I.

An employee of the Environmental Protection Agency (EPA) who lived in Dallas was sent to Austin to investigate a possible criminal violation of environmental laws. At 10:00 p.m. on March 7, 1991, the EPA agent concluded his investigative activities for the day. He then drove to an Austin restaurant where he consumed several alcoholic beverages-but no food. He began to feel ill and left the restaurant. He drove to a nearby pharmacy and got sick in the parking lot, then drove away without ever having entered the pharmacy. Shortly thereafter, the EPA agent‘s car collided with a car driven by plaintiff/appellant Robert Garcia. Garcia was injured. A “breathalyzer” test performed at the scene of the accident revealed that the EPA agent‘s blood-alcohol level was 0.20, or fully twice the legal limit in Texas.

Garcia sued the EPA agent in Texas state court and also filed an administrative tort claim with the EPA. The U.S. Attorney certified that, at the time of the accident, the EPA agent was acting within the scope of his federal employment. Pursuant to the Westfall Act‘s amendments to the Federal Tort Claims Act (FTCA), therefore, the case was removed to federal court and the United States was substituted for the federal employee as a party defendant.³

Once in federal court, the United States filed a motion to dismiss on the grounds that Garcia had not exhausted his administrative remedies. Garcia countered with a motion to remand the case to state court on the grounds that the federal employee had not been acting within the scope of his employment and therefore was not entitled to the protection of the FTCA. The district court granted the United States‘s motion to dismiss and denied Garcia‘s motion to remand.⁴ Garcia appealed to this Court.

II.

In

Mitchell v. Carlson, 896 F.2d 128 (5th Cir.1990),⁵ we stated in dicta that Congress in the Westfall Act amended prior law “in order to give the new certification procedure conclusive effect on the issue of whether the employee acted within the scope of employment“.⁶ In our unpublished opinion in

Fenelon v. Duplessis, 997 F.2d 880 (5th Cir.1993),⁷ we interpreted that language from

Mitchell to bar judicial review of a scope of employment certification issued under the Westfall Act. We explained:

Fenelon next contends that the individual defendants were not acting in the scope of their employment at the time of the conduct of which she complains. That objection is defeated by the Attorney General‘s certification that they were. As we explained in

Carlson v. Mitchell [sic], one purpose of the 1988 amendment to the FTCA was “to give the new certification procedure conclusive effect on the issue of whether the employee acted within the scope of employment“.⁸

Both parties to this case argued that

Mitchell v. Carlson did not foreclose judicial review of the scope of employment certification in this case. They noted, for example, that scope of employment was not a disputed issue in

Mitchell, and thus any intimation in that case concerning limits on the federal courts’ power vel non to review a scope certification was obiter dicta. They also pointed out that eight of the nine circuits to squarely consider this question have held that Westfall Act scope of employment certifications are subject to judicial review.⁹ Nevertheless, in this Circuit all opinions, even unpublished ones, bind subsequent panels absent a contrary decision of the Supreme Court or of this Court en banc.¹⁰ Accordingly,

Fenelon v. Duplessis compels us to conclude that the district court had no authority to review the scope of employment issue, which was decisively resolved in the employee‘s favor by the act of certification.¹¹ We therefore AFFIRM the district court‘s judgment dismissing Garcia‘s claim for failing to exhaust his administrative remedies. We recommend, however, that the Court reconsider this case and the holding of

Duplessis en banc.

AFFIRMED.

ON SUGGESTION FOR REHEARING EN BANC

June 23, 1994

Before POLITZ, Chief Judge, KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, DEMOSS, BENAVIDES, STEWART and PARKER, Circuit Judges.

BY THE COURT:

A majority of the Judges in active service, on the Court‘s own motion, having determined to have this case reheard en banc,

IT IS ORDERED that this cause shall be reheard by the Court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs.

Notes

1

The Federal Employees Liability Reform and Tort Compensation Act of 1988, Pub.L. No. 100-694, is commonly referred to as the “Westfall Act“.

2

Fenelon v. Duplessis, 997 F.2d 880 (5th Cir. 1993) (table), reh‘g en banc denied,

3 F.3d 441 (5th Cir.1993).

3

28 U.S.C. § 2679(d).

4

Garcia v. United States, 799 F.Supp. 674 (W.D.Tex.1992).

5

896 F.2d 128 (5th Cir.1990).

6

Id. at 131.

7

997 F.2d 880 (5th Cir.) (table), reh‘g en banc denied,

3 F.3d 441 (5th Cir.1993).

8

Id., manuscript opinion at 3 (footnote omitted).

9

See

Nasuti v. Scannell, 906 F.2d 802, 812-13 (1st Cir.1990);

McHugh v. University of Vt., 966 F.2d 67, 71-72 (2d Cir.1992);

Melo v. Hafer, 912 F.2d 628, 640-42 (3d Cir.1990), aff‘d,

502 U.S. 21, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) (not addressing reviewability issue);

Arbour v. Jenkins, 903 F.2d 416, 421 (6th Cir.1990);

Hamrick v. Franklin, 931 F.2d 1209, 1210-11 (7th Cir.), cert. denied,

U.S., 112 S.Ct. 200, 116 L.Ed.2d 159 (1991);

Brown v. Armstrong, 949 F.2d 1007, 1010-11 (8th Cir.1991) (holding judicial review not only permissible, but required);

Meridian Int‘l 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,

U.S., 112 S.Ct. 62, 116 L.Ed.2d 37 (1991). Contra

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).

10

See 5th Cir. R. 47.5.3;

Hodges v. Delta Airlines, 4 F.3d 350, 355 (5th Cir.1993), reh‘g en banc granted,

12 F.3d 426 (5th Cir.1994).

11

“This Circuit has held that the Attorney General‘s certification is conclusive on the issue of scope of employment.... Even if seven other circuits have disagreed with this Circuit on this issue, this panel may not overrule previous panel decisions absent en banc reconsideration or a superseding contrary decision of the Supreme Court“.

King Fisher Marine Serv. v. Perez, 20 F.3d 466 (5th Cir.1994) (table), manuscript opinion at 2. Our result is the same even though the circuits disagreeing with us now number eight rather than seven.

Case Details

Case Name: Robert Garcia v. United States

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jun 23, 1994

Citation: 22 F.3d 609

Docket Number: 92-8490

Court Abbreviation: 5th Cir.