Garcia v. United States

United States Court of Appeals, Fifth Circuit.

No. 92-8490.

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

June 10, 1994.

Appeal from the United States District Court for the Western District of Texas.

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by an unpublished decision of this Court2 to hold that the federal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 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.) (table), reh'g en banc denied, 3 F.3d 441 (5th Cir.1993).

1 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 3

28 U.S.C. § 2679 (d).

2 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,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,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 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).

3 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 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. ----, 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 Loc.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, No. 93-7020, 20 F.3d 466 (5th Cir. Mar. 22, 1994) (unpublished), manuscript opinion at 2. Our result is the same 4 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.

even though the circuits disagreeing with us now number eight rather than seven.

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