[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

____________________ No. 12

- 15609 Non

- Argument Calendar

____________________ D.C. Docket No. 2:10

- cv - 03291

- AKK

JUSTIN LEE FLYNN, Plaintiff

- Appellant,

versus UNITED STATES OF AMERICA, Defendant

- Appellee.

_____________________________ Appeal from the United States District Court for the Northern District of Alabama

______________________________ (August 20, 2013) Before TJOFLAT, MARTIN, and JORDAN, Circuit Judges

. PER CURIAM: Justin Flynn sued the United States under the Federal Tort Claims Act, 28
U.S.C. §§ 1346(b), 2671

- 80, to recover damages for injuries he sustained in a 2009

Case: 12-15609 Date Filed: 08/20/2013 Page: 1 of 32 automobile accident in Hoover, Alabama. According to Mr. Flynn, the negligence of several agents from Immigration and Customs Enforcement

– including Michael Nelson and Stephen Wojc ik

– caused the accident. The district court, following a bench trial, found that there was no negligence on the part of Agents Nelson and Wojcik, and that even if there was, Mr. Flynn’s own contributory negligence barred recovery under Alabama law. 1
Mr. Flynn now appeals, arguing that certain of the district court’s factual findings on the issue of negligence were clearly erroneous. Following review of the record and the parties’ briefs , we affirm. Findings of fact cannot be set aside unless they are c learly erroneous. See Fed. R. Civ. P. 52(a)(6). As a rev iewing court, we do not reweigh the evidence, and we cannot reverse simply because we might have decided the case differently. If there are two permissible view s of the evidence, the district court ’s choice between them does not constitute clear error. See Anderson v. City of Bessemer , 470 U.S. 564, 573

- 74 (1985); Solomon v. Liberty County Commissioners , 221 F.3d 1218, 1226

- 27 (11 th Cir. 2000). The district court did not clearly err in finding tha t Mr. Fly nn was contributorily negligent . Mr. Flynn alleged that he was forced to swerve to his left

1 Alabama law, which controls in this FTCA case, see § 1346(b)(1), generally provides that a party cannot recover if his own negligence proximately caused the injury. See generally La Forge North America v. Nord , 86 So.3d 326, 336 (Ala. 2011).

Case: 12-15609 Date Filed: 08/20/2013 Page: 2 of 33 – and as a result crash ed into the back of the vehicle driven by Agent Nelson

– when Agent Wojcik tried to enter his lane from the right. Even if Agent W ojcik acted negligently in attempting to change lanes, the district court found that Mr. Flynn contributed to the accident because he was speeding and did not attempt to apply his brakes after he was forced to swerve. Both of these subsidiary factual
find ings are supported by the evidence. First, one of the eye witnesses testified that, in his estimation, Mr. Flynn was driving 50

- 55 miles per hour, or 5

- 10 miles above the speed limit. See Tr. Transcript at 212. Second, Mr. Flynn did not remember braking or reducing his speed after swerving, and there were no tire
marks on the road indicating that Mr. Flynn had applied the brakes. See id. a t 78, 82, 98. Third, the police officer w ho investigated the accident

– an officer who

was a certified in accident reconstruction

– determined that Mr. Flynn was not in control of his vehicle and was at fault for the collision. See id. at 97, 103. In sum, there is no basis for disturbing the district court’s factual findings or judgment

. 2
A FFIRMED .

2 Mr. Flynn also argues that the district court erred in finding that the “sudden emergency” doctrine did not apply. Because that do ctrine does not help a driver who has lost control of his car and rear

- ended a stationary vehicle, see Freidlander v. Hall , 514, So.2d 914, 915 (Ala. 1987), we reject this argument given the district court’s findings.

Case: 12-15609 Date Filed: 08/20/2013 Page: 3 of 3