1 28 U.S.C. sections 2671-2680. The proper name of the act

is the Federal Employees Liability Reform and Tort Compensation

Act of 1988, Pub.L. 100-694, 102 Stat. 4563.

1 United States Court of Appeals,

Fifth Circuit.

No. 92-8490.

Robert GARCIA, Plaintiff-Appellant,

v.

UNITED STATES of America, Defendant-Appellee.

Aug. 25, 1995.

Appeal from t he United States District Court for the Western

District of Texas.

B efore POLITZ, Chief Judge, WISDOM, KING, GARWOOD, JOLLY,

HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO

M. GARZA, DeMOSS, BENAVIDES, STEWART and PARKER, Circuit Judges.

PER CURIAM:

We sit en banc in this case to resolve two questions. First,

we consider whether a certification by the Attorney General under

the Westfall Act 1 that a feder al employee was acting within the

scope of his employment at the time of an allegedly tortious act is

subject to judicial review. Second, we must determine whether the

source for the standard to determine scope of employment is state

or federal law.

I.

The plaintiff/appellant, Robert Garcia, brought this tort

action because of injuries he sustained when his car was struck by

a car driven by an employee of the Environmental Protection Agency

(EPA). The plaintiff filed this case in Texas state court and also2 Garcia v. United States, 799 F.Supp. 674 (W.D.Tex.1992).

3 Garcia v. United States, 22 F.3d 609 (5th Cir.1994), which

held that, based on Fifth Circuit precedent, the certification

was not subject to judicial review but recommended an en banc

rehearing on the issue.

4 Other circuit courts have also struggled with this issue.

Almost all the circuit courts that had addressed the issue held

that certification of scope of employment under the Westfall Act

was reviewable. Nasuti v. Scannell, 906 F.2d 802, 812-813 (1st

Cir.1990); McHugh v. University of Vermont, 966 F.2d 67, 71-72

(2d Cir.1992); Melo v. Hafer, 912 F.2d 628, 640-42 (3d

2 filed an administrative tort claim with the EPA. The U.S. Attorney

certified that the EPA employee was acting within the scope of his

employment. As a result, the United States, the appellee in this

action, was substituted for the federal employee as a party

defendant pursuant to the Westfall Act. The United States then

removed the case to federal district court. The district court,

after deciding that the scope of employment certification was

reviewable, agreed with the Attorney General's contention that the

EPA employee was acting within the scope of his federal

employment. 2 The district court used federal law in making this

determination. Further, the district court dismissed the action in

respo nse to a motion by the United States that the plaintiff had

failed to exhaust his administrative remedies. On appeal, this

Court, bound by an earlier decision, held that the scope of

employment certification was not reviewable. 3

II.

We decided to revisit our decision that the Westf all Act

removes the opportunity for judicial review of the scope of

employment issue with a rehearing en banc. 4 Since then, this issueCir.1990), affirmed, 502 U.S. 21, 112 S.Ct. 358, 116 L.Ed.2d 301

(1991); Arbour v. Jenkins, 903 F.2d 416, 421 (6th Cir.1990);

Hamrick v. Franklin, 931 F.2d 1209, 1210-11 (7th Cir.), cert.

denied, 502 U.S. 869, 112 S.Ct. 200, 116 L.Ed.2d 159 (1991);

Brown v. Armstrong, 949 F.2d 1007, 1010-11 (8th Cir.1991);

Meridian v. International 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, 502 U.S. 813, 112 S.Ct. 62,

116 L.Ed.2d 37 (1991). But see, 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). Thus, when the Supreme Court

accepted certiorari in the Gutierrez case, a circuit split

existed.

5 --- U.S. ----, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995).

6 Id. at ----, 115 S.Ct. at 2236.

7 Id.

3 has been reviewed by the United States Supreme Court in the recent

case, Gutierrez de Martinez v. Lamagno. 5 In G utierrez, the Supreme

Court held that "the Attorney General's certification that a

federal employee was acting within the scope of his employment

...

does not conclusively establish as correct the substitution of the

United States as a defendant in place of the employee". 6 The

Supreme Court made this decision in "accord[ ] with traditional

understandings and basic principles: that executive determinations

generally are subject to judicial review and that mec hanical

judgments are not the kind federal courts are set up to render". 7

In the light of the Supreme Court's recent decision, we hold

that certification of scope of employment under the Westfall Act is

subject to judicial review. Furthermore, we hold, in accordance

with Supreme Court precedent, that whether a particular federal

employee was or was not acting within the scope of his employment8 Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100

L.Ed. 761 (1955). For an application of this rule, see e.g.

Nelson v. United States, 838 F.2d 1280, 1282 (D.C.Cir.1988);

Nasuti v. Scannell, 906 F.2d 802, 805 n. 3 (1st Cir.1990);

Cronin v. Hertz Corp., 818 F.2d 1064, 1065 (2d Cir.1987); Aliota

v. Graham, 984 F.2d 1350, 1358 (3d Cir.), cert. denied, --- U.S.

----, 114 S.Ct. 68, 126 L.Ed.2d 37 (1993); Flechsig v. United

States, 991 F.2d 300, 302 (6th Cir.1993); Forrest City Mach.

Works, Inc. v. United States, 953 F.2d 1086, 1088 n. 5 (8th

Cir.1992); Washington v. United States, 868 F.2d 332, 334 (9th

Cir.), cert. denied, 493 U.S. 992, 110 S.Ct. 539, 107 L.Ed.2d 536

(1989); Pattno v. United States, 311 F.2d 604, 607 (10th

Cir.1962), cert. denied, 373 U.S. 911, 83 S.Ct. 1300, 10 L.Ed.2d

412 (1963); S.J. & W. Ranch, Inc. v. Lehtinen, 913 F.2d 1538,

1542 (11th Cir.1990), amended, 924 F.2d 1555 (11th Cir.), cert.

denied, 502 U.S. 813, 112 S.Ct. 62, 116 L.Ed.2d 37 (1991).

1 Eight justices in Lamagno also thought it an integral

consideration in deciding congressional intent. See id. at ----

- ----, 115 S.Ct. at 2236-37 (Ginsburg, J., plurality opinion;

id. ----, 115 S.Ct. at 2239-40 (Souter, J., dissenting); but see

4 is controlled by the law of the state in which the negligent or

wrongful conduct occurred. 8

Therefor e, the panel opinion having been vacated by our

granting en banc rehearing, we REVERSE the distr ict court's

decision that federal law governs the scope of employment question,

AFFIRM the district court's decision that the scope of employment

question is subject to judicial review, and REMAND the case to the

panel.

EMILIO M. GARZA, Circuit Judge, concurring specially:

I concur in the per curiam, but write separately to point out

that lurk ing behind L amagno is a contentious question of

jurisdiction which the Supreme Court specifically did not decide,

but which, in my opinion, is integral to the issues before us. S ee

Gutierrez de Martinez v. Lamagno,

--- U.S. ----, 115 S.Ct. 2227,

132 L.Ed.2d 375 (1 995). 1 Because Justice O'Connor did not concurid. at ----, 115 S.Ct. at 2236 ("The parties' diverse citizenship

gave petitioners an entirely secure basis for filing in federal

court.").

2 See id. at ---- - ----, 115 S.Ct. at 2237-38 (O'Connor, J.,

concurring in part and concurring in the judgment) ("That

discussion [Part IV] all but conclusively resolves a difficult

question of federal jurisdiction that, as the Court notes, is not

presented in this case....").

3 See United Mine Workers of America v. Gibbs, 383 U.S. 715,

725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966).

5 in either Part IV of the plurality opinion in Lamagno or in the

dissent, 2 a panel, and perhaps later the en banc court, may have to

predict whether there is pendent jurisdiction, 3 as Justice Ginsburg

suggests, see id. at ----, 115 S.Ct. at 2237, or whether there is

no subjec t matter jurisdiction as Justice Souter would hold, s ee

id. at

---- - ----, 115 S.Ct. at 2239-40 (Souter, J., dissenting).

This issue, however, presupposes a holding that Agent Langlois

was not within the scope of his employment with the E PA when the

accident here took place and further presupposes no diversity

j urisdiction—issues not presently before this en banc Court. To

that extent, therefore, the issue of jurisdiction is prema ture.

N either this Court's per curiam, as I read it—nor I, by this

concurrence—predetermine the issue of jurisdiction.