King Fisher Marine v. Perez ( 1993 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 93-7020
Conference Calendar
__________________
KING FISHER MARINE SERVICE,
Plaintiff-Appellant,
versus
ROGELIO PEREZ, ETC.,
Defendant,
and
UNITED STATES OF AMERICA,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. CA-G-91-267
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(March 22, 1994)
Before KING, DAVIS, and DeMOSS, Circuit Judges.
PER CURIAM:*
King Fisher Marine Service, Inc. (KFMS) argues that the
district court erred as a matter of law in holding that the
Attorney General's certification of Perez' scope of employment is
conclusive, in refusing to allow discovery on the issue, and in
refusing to conduct an evidentiary hearing to determine the scope
of employment issue. KFMS argues that 28 U.S.C. § 2679(d)(1) and
(2) provide that the certification is conclusive for removal
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
No. 93-7020
-2-
purposes only and cites opinions from seven other circuit courts
which have so held.
The Federal Tort Claims Act provides that federal employees
acting within the course and scope of their employment are immune
from liability. Mitchell v. Carlson, 896 F.2d 128, 130 (5th Cir.
1990). In Mitchell, this Court stated that "once the United
States Attorney certifies that the federal employee acted within
the scope of her employment, the plaintiff properly can proceed
only against the United States as defendant." 896 F.2d at 133.
This Circuit has held that the Attorney General's certification
is conclusive on the issue of scope of employment. Id. at 131;
Fenelon v. Duplessis, No. 92-3200 (5th Cir. Jun. 29, 1993)
(unpublished; copy attached).
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. Matter of Dyke, 943 F.2d
1435, 1441-42 (5th Cir. 1991).
AFFIRMED.