Garcia v. United States, 62 F.3d 126 (5th Cir. 1994). · Go Syfert
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Garcia v. United States, 62 F.3d 126 (5th Cir. 1994). Cases Citing This Book View Copy Cite
39 citation events (17 in the last 25 years) across 9 distinct courts.
Strongest positive: Aguayo v. United States, No. 3:23-cv-00539 (N.D. Tex. Jan. 18, 2024)
Treatment trajectory · 1995 → 2026 · click a year to view as-of
1995 2010 2026
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Cited for
At page 127 Determining judicial review of scope of employment certification24 citing casesholding that certification of scope of employment under the Westfall Act is subject to judicial review and that whether a particular federal employee was or was not acting within the scope of his employment is controlled by state law where the conduct occurred2 citing courts put it this way
  • Aguayo v. United States, No. 3:23-cv-00539 (N.D. Tex. Jan. 18, 2024).
    “Whether a federal employee acted within the scope of his employment is determined by the law of the state in which the negligent or wrongful conduct occurred.” White, 419 F. App’x at 442 (citing Garcia v. United States, 62 F.3d 126, 127 (…
  • Robertson v. Intratek Comput., Inc., No. 1:18-cv-00373 (W.D. Tex. June 19, 2023).
    Garcia v. United States, 62 F.3d 126, 127 (5th Cir. 1995).
  • Senkowski v. United States, No. 4:18-cv-00639 (N.D. Tex. Nov. 5, 2020).
    Id.; Garcia v. United States, 62 F.3d 126, 127 (5th Cir. 1995).
  • Demetrius Rankin v. USA, 556 F. App'x 305 (5th Cir. 2014).unpublished
    Garcia v. United States, 62 F.3d 126, 127 (5th Cir.1995) (en banc). “[Wjhether a particular federal employee was or was not acting within the scope of his employment is controlled by the law of the state in which the negligent or wrongful…
  • Fartima Hawkins v. Sean Fowler, 430 F. App'x 329 (5th Cir. 2011).unpublished
    Garcia v. United States, 62 F.3d 126, 127 (5th Cir.1995) (en banc).
  • Charlotte White v. United States, 419 F. App'x 439 (5th Cir. 2011).unpublished
    Garcia v. United States, 62 F.3d 126, 127 (5th Cir.1995) (en banc).
  • Anderson v. United States, 364 F. App'x 920 (5th Cir. 2010).unpublished
    See id.; Garcia v. United States, 62 F.3d 126, 127 (5th Cir.1995) (en banc). “[WJhether a particular federal employee was or was not acting within the scope of his employment is controlled by the law of the state in which the negligent or…
  • Shirley v. United States, 232 F. App'x 419 (5th Cir. 2007).unpublished
    FDIC v. Meyer, 510 U.S. 471, 475-76 , 114 S. Ct. 996 , 127 L.Ed.2d 308 (1994). 2 . 28 U.S.C. § 1346 (b)(1); Garcia v. United States, 62 F.3d 126, 127 (5th Cir.1995) (en banc). 3 .
  • Davis v. United States, 474 F. Supp. 2d 829 (N.D. Tex. 2007).published
    When determining liability under the FTCA, the courts must apply state substantive law. 28 U.S.C. § 1346 (b); Garcia v. United States, 62 F.3d 126, 127 (5th Cir.1995).
  • Harris v. United States, 340 F. Supp. 2d 764 (S.D. Tex. 2004).published
    Federal Tort Claims Act Title 28 U.S.C. § 2679 (b) provides absolute immunity to any federal employee acting within the ‘scope of his office or employment.’ Palmer v. Flagg *770 man, 93 F.3d 196, 200 (5th Cir.1996). “[W]hether a particular…
Show 14 more citing cases
  • Counts v. USA, 328 F.3d 212 (5th Cir. 2003).published
    Garcia v. United States, 62 F.3d 126, 127 (5th Cir.1995).
  • Rodriguez v. Sarabyn, 129 F.3d 760 (5th Cir. 1997).published
    Garcia v. United States, 62 F.3d 126, 127 (5th Cir.1995) (en banc) (citing Williams v. United States, 350 U.S. 857 , 76 S.Ct. 100 , 100 L.Ed. 761 (1955)); see also H.R.Rep.
  • Nevarez v. United States, 957 F. Supp. 884 (W.D. Tex. 1997).published
    Garcia v. United States, 62 F.3d 126, 127 (5th Cir.1995) (en banc).
  • Aldridge v. Hartford Hosp., 969 F. Supp. 816 (D. Conn. 1996).published
    Palmer, 93 F.3d at 198 (citing Garcia v. United States, 62 F.3d 126, 127 (5th Cir.1995)); Wood v. United States, 995 F.2d 1122, 1125 (1st Cir.1993).
  • Gary L. Pearson v. Milton Friend, 103 F.3d 133 (7th Cir. 1996).unpublished
    Snodgrass v. Jones, 957 F.2d 482, 484 (7th Cir.1992); see also Aversa v. United States, No. 95-2216, 1996 WL 593509, at * 6-7 (1st Cir. Oct. 21, 1996); Garcia v. United States, 62 F.3d 126, 127 (5th Cir.1995) (en banc) (per curiam) (citing…
  • Aversa v. United States, 99 F.3d 1200 (1st Cir. 1996).published
    See Heuton v. Anderson, 75 F.3d 357, 360 (8th Cir.1996); Haddon v. United States, 68 F.3d 1420 (D.C.Cir.1995); Garcia v. United States, 62 F.3d 126, 127 (5th Cir.1995); Jamison v. Wiley, 14 F.3d 222 , 227 n. 4 (4th Cir.1994); Schrob v. Cat…
  • Bivens v. Six Unknown Named Agents of Fed. Bureau of..., No. 95-50482 (5th Cir. Oct. 9, 1996).unpublished
    Garcia v. United States, 62 F.3d 126, 127 (5th Cir. 1995)(en banc).
  • Yeary v. United States, 921 F. Supp. 549 (S.D. Ind. 1996).published
    (holding that whether a federal employee was acting within the scope of his employment is controlled by law of state where tortious conduct occurred)
  • Williams v. United States, 71 F.3d 502 (5th Cir. 1995).published
    SCOPE OF EMPLOYMENT A. In our recent decision in Garcia v. United States, 62 F.3d 126, 127 (5th Cir.1995) (en banc), we held that the Attorney General’s certification of scope of employment under the Westfall Act is subject to judicial rev…
  • John Doe & Jane Doe v. Rains Cnty. Indep. Sch. Dist., 66 F.3d 1402 (5th Cir. 1995).published
    Louis v. Praprotnik, 485 U.S. 112, 124-27 , 108 S.Ct. 915, 924-26 , 99 L.Ed.2d 107 (1988), and determines whether a federal employee was acting within the scope of his employment, see Garcia v. United States, 62 F.3d 126, 127 (5th Cir.1995…
  • Rodriguez v. Sarabyn, 908 F. Supp. 442 (W.D. Tex. 1995).published 2 cites
    Id. at —, 115 S.Ct. at 2234 ; Garcia v. United States, 62 F.3d 126, 127 (5th Cir.1995).
  • Vasquez v. United States, No. 4:23-cv-00727 (N.D. Tex. May 22, 2024).
    See White v. United States, 419 F. App’x 439, 442 (5th Cir. 2011) (citing Garcia v. United States, 62 F.3d 126, 127 (5th Cir. 1995) (en banc)).
  • Diaz v. United States, 789 F. Supp. 2d 722 (S.D. Miss. 2011).published
    See Garcia v. United States, 62 F.3d 126, 127 (5th Cir.1995) (en banc) (citing Williams v. United States, 71 F.3d 502, 505 (5th Cir. *728 1995)).
  • Izen v. Catalina, 251 F. Supp. 2d 1327 (S.D. Tex. 2002).published
    (holding that certification of scope of employment under the Westfall Act is subject to judicial review and that whether a particular federal employee was or was not acting within the scope of his employment is controlle…)
Retrieving the full opinion text from the archive…
Garcia
v.
United States
92-08490.
Docket on CourtListener (RECAP)
Court of Appeals for the Fifth Circuit.
Jun 10, 1994.
Published opinion
62 F.3d 126
1995 WL 472106
Published
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.
[*~126–128]

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

3 28 U.S.C. § 2679(d).

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[*~127–128] 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.

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