Garcia v. United States , 62 F.3d 126 ( 1994 )

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by an unpublished decision of this Court2 to hold that the federal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.
5