Garcia v. U.S.

• Decision Date: 03 July 1996
• Docket Number: No. 92-8490,92-8490
• Citation: 88 F.3d 318
• Parties: Robert GARCIA, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 318

88 F.3d 318

65 USLW 2041

Robert GARCIA, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 92-8490.

United States Court of Appeals, Fifth Circuit.

July 3, 1996.

Lonnie Ann Roach, Austin, TX, for plaintiff-appellant.

Mollie S. Crosby, Austin, TX, Peter Rolf Maier, United States Department of Justice Civil Division, Washington, DC, Ernest Carlos Garcia, Office of the United States Attorney, Austin, TX, Barbara L. Herwig, US Department of Justice, Civil Division, Washington, DC, for defendant-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before WISDOM, BARKSDALE and EMILIO M. GARZA, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

On remand from our en banc court, 62 F.3d 126 (1995), under the Westfall Act we must first decide whether, under Texas law, a federal employee acted within the scope of his employment, as so certified by the Attorney General; and second, if the employee was not within the scope, resulting in his being reinstated as defendant, we must decide whether the action remains in federal court. Whether the action so remains involves not only the pertinent provisions of the Westfall Act, but also jurisdictional concerns under Article III of the Constitution. Holding that the agent was not within the scope and that the action must remain in district court, we REVERSE and REMAND.

I.

In early 1991, the Environmental Protection Agency dispatched one of its special agents from its Dallas office to Austin to assist for several days in a criminal investigation. While there, having had several drinks after 10:00 p.m., the agent was involved in an automobile accident with Robert Garcia.

Garcia brought this action in state court against the agent. But, pursuant to the Federal Employees Liability Reform and Tort Compensation Act of 1988, Pub.L. No. 100-694, 28 U.S.C. §§ 2671-80 (the Westfall Act), the Attorney General certified that the agent was acting within the scope of his employment at the time of the accident, resulting in substitution of the United States as defendant and removal to federal court, § 2679(d)(2). (As discussed infra, removal was also under, inter alia, 28 U.S.C. § 1442.)

The United States moved to dismiss for failure to exhaust administrative remedies, as required by the Federal Tort Claims Act, 28 U.S.C. § 2675(a). Garcia countered by seeking remand to state court, asserting that, at the time of the accident, the agent was not acting within the scope of his employment and, accordingly, was not entitled to FTCA protection. The district court held that it could review the certification; that federal, not state, law controlled the scope question; and that, under either, the agent was acting within the scope. As a result, the action was dismissed for failure to exhaust.

On appeal, 22 F.3d 609 (1994), this panel held that the certification was not subject to judicial review, based upon a statement to that effect in Mitchell v. Carlson, 896 F.2d 128, 131 (5th Cir.1990), and a subsequent unpublished opinion which, based on that statement, expressly so held. However, this panel recommended en banc review of this controlling precedent. 22 F.3d at 612.

Our en banc court agreed with the district court that certification is subject to judicial review, pursuant to the intervening holding to that effect in Gutierrez de Martinez v. Lamagno, --- U.S. ----, ----, 115 S.Ct. 2227, 2236, 132 L.Ed.2d 375 (1995). 62 F.3d at 127. But, contrary to the district court, our court held that the scope issue is reviewed under state law. Id. at 128.

II.

We determine first whether, under Texas law, the EPA agent was acting within the scope of his employment. If he was not, he must be reinstated as defendant, and we must decide whether the action remains in federal court.

A.

We review the scope issue de novo. Williams v. United States, 71 F.3d 502, 505 (5th Cir.1995). Under Texas law, an employee is within the scope if acting (1) within the general authority given by the employer, (2) in furtherance of the employer's business, and (3) for the accomplishment of the object for which employed. Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354 (Tex.1971). There is a presumption that an employee involved in an accident while driving the employer's vehicle is within the scope. J & C Drilling Co. v. Salaiz, 866 S.W.2d 632, 636 (Tex.Ct.App.--San Antonio, 1993, reh'g denied ). But, on the other hand, an employee involved in an accident while going to or returning from the place of employment is generally not within the scope. American Gen. Ins. Co. v. Coleman, 157 Tex. 377, 303 S.W.2d 370, 374 (1957). An exception applies when the employee "undertakes a special mission at the direction of his employer, or performs a service in furtherance of his employer's business with the express or implied approval of his employer". Id., 303 S.W.2d 370.

The Government contends that, when the accident occurred, the agent was on a special mission because he was on assignment in Austin. "If found to be on a special mission, the employee will be considered to be in the course and scope of his employment from the time that the employee commences the special mission until its termination, absent any deviation therefrom for personal reasons." Chevron, U.S.A., Inc. v. Lee, 847 S.W.2d 354, 356 (Tex.Ct.App.--El Paso, 1993) (emphasis added). The deviation exception is consistent with the general rule that "when the servant turns aside, for however short a time, from the prosecution of the master's work to engage in an affair wholly his own, he ceases to act for the master, and the responsibility for that which he does in pursuing his own business or pleasure is upon him alone". Texas & Pac. Ry. Co. v. Hagenloh, 151 Tex. 191, 247 S.W.2d 236, 241 (1952).

The factual scenario (provided by the agent's deposition) follows. The agent drove a government-owned vehicle and was provided with a gasoline credit card and per diem for food and lodging; but, the EPA does not reimburse for alcoholic beverages. His work involves irregular, unscheduled hours; during an investigation, his work day is not over until his "head hits the pillow". The agent could not "really say there was a time when [he] was through" with investigative activities on the day of the accident. On the other hand, there was "a point where you might have said or thought well, let's call it a day, go get something to eat". He did not know the time when he reached that point, "but it was late. It was late in the evening. 10:00." Because the agent was still pursuing investigative activities, he stopped at a restaurant in close proximity; once there, he considered eating, but did not. Next, he stopped at a second restaurant and again did not eat, but had several drinks. It is common for him to not eat if his stomach "doesn't feel right". (Although he did not remember how many drinks he had, his blood alcohol level was at least .2 later that night.)

The agent drove from the restaurant to a pharmacy. When he arrived, he became very ill in the parking lot. He then drove away; but, he did not testify as to where he was going. In fact, he did not "recall even leaving the parking lot"; instead, "the first thing I really remember is the EMS attendant telling me ... let me take you to the hospital". Concerning whether he remembered seeing Garcia's car prior to the collision, the agent only "remember[ed] stomping on the brakes and seeing lights".

Noting that "the concept of 'special mission' has escaped full definition in Texas", Chevron provides: "However, inherent in any applicable definition is the principle that an employee must be under the control of the employer or acting in furtherance of the employer's business to be on any such 'special mission' ". 847 S.W.2d at 356. Assuming arguendo that the agent's entire stay in Austin was a special mission, we conclude that this exception would not apply at the time of the accident, because the agent was then engaged in a personal deviation. Id. He apparently had completed work for the day (at the very least, temporarily) and stopped for dinner; he did not eat, but instead consumed alcohol; he then drove to a pharmacy; and his destination when he drove away from the pharmacy and had the collision is unknown.

Therefore, the agent was not within the scope of employment at the time of the accident. As a result, the United States cannot be substituted as defendant; the agent must be reinstated in that capacity.

B.

Accordingly, we address whether the action must be remanded to state court. This turns, in part, on whether district court retention of the action is outside the jurisdictional boundaries set by Article III of the Constitution. If remand is not required, we are faced also with whether it is discretionary.

The issue at hand turns on § 2679(d)(1)-(3) of the Westfall Act, particularly subparts (2) (Attorney General certifies scope) and (3) (Attorney General refuses to so certify):

(1) Upon certification by the Attorney General that the defendant employee was acting within the scope of his ... employment at the time of the incident out of which the claim arose, any civil action ... commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the ... defendant.

(2) Upon certification by the Attorney General that the defendant employee was acting within the scope of his ... employment at the time of the incident ..., any civil action ... commenced upon such claim in a State court shall be removed ... at any time before trial by the Attorney General to the district court of the United States.... Such action ... shall be deemed to be an action ... brought against the United States ..., and the United States shall be substituted as the party defendant. This certification of the Attorney...