UNPUBLISHED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.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Patrice Mansell, Appellant Pro Se. George Levi Russell, III, OFFICE

OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for

Appellee.

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Unpublished opinions are not binding precedent in this circuit.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 defamation. 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 dismissed 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 principles, found that Mansell's co-employee was acting within the scope

of his employment when he made the allegedly defamatory statements. 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 defamatory 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 appropriate 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 contentions 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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