Mansell v. United States ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PATRICE MANSELL,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
No. 96-1744
Defendant-Appellee,
and
STEVEN A. GREGOIRE,
Defendant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CA-95-2797-S)
Submitted: February 28, 1997
Decided: August 19, 1997
Before MURNAGHAN, WILKINS, and NIEMEYER,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Patrice Mansell, Appellant Pro Se. George Levi Russell, III, OFFICE
OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Patrice Mansell appeals from the district court's order substituting
the United States as a party and dismissing his defamation claim for
lack of federal jurisdiction. We affirm.
Mansell filed suit in state court against a fellow employee for defa-
mation. Because both Mansell and the Defendant were federal
employees, an Assistant United States Attorney (AUSA) moved for
removal of the case to federal court. In support of this motion, he
presented a certificate of scope of employment signed by the United
States Attorney as a delegate of the Attorney General. According to
this certification, the co-employee was acting within the scope of his
employment when he made the alleged defamatory statements.
Removal was granted. The AUSA then moved for substitution of the
United States as the Defendant, under 28 U.S.C.§ 2679(d) (1994),
arguing that the certification of employment required the district court
to grant the substitution. Finally, the AUSA moved for dismissal,
arguing that the required substitution would result in a claim against
the United States which would be barred by the Federal Tort Claims
Act because Mansell had not pursued any administrative remedies.
The district court granted the motion for substitution and then dis-
missed for lack of federal subject matter jurisdiction. On appeal, we
vacated and remanded, finding that the district court had relied on
recently overruled Fourth Circuit precedent in determining that the
AUSA's certification was conclusive for substitution.
On remand, the district court, properly applying state law princi-
ples, found that Mansell's co-employee was acting within the scope
of his employment when he made the allegedly defamatory state-
ments. It therefore granted substitution and again dismissed for failure
to file with the appropriate administrative agency as required by the
FTCA. Our review leads us to conclude that the employee was in fact
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acting within the scope of his employment when the allegedly defam-
atory statements were made and therefore we find that substitution
was proper under § 2679(d). This substitution leaves only the United
States as a defendant to Mansell's actions and accordingly he is
obliged to comply with the FTCA by filing a claim with the appropri-
ate federal agency prior to commencement of suit in a federal court.
28 U.S.C. § 2675(a) (1994). Mansell has not filed such a claim and
accordingly we affirm the district court's dismissal for lack of federal
subject matter jurisdiction.*
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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*We also affirm the district court's denial of Mansell's motion for
recusal because Mansell failed to allege any extra-judicial bias. See In re
Beard, 811 F.2d 818, 827 (4th Cir. 1987) (providing standard).
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