Garcia v. US

• Decision Date: 17 July 1992
• Docket Number: Civ. No. A-91-CA-903.
• Citation: 799 F. Supp. 674
• Parties: Robert GARCIA v. UNITED STATES of America.
• Court: U.S. District Court — Western District of Texas

799 F. Supp. 674

Robert GARCIA v. UNITED STATES of America.

Civ. No. A-91-CA-903.

United States District Court, W.D. Texas, Austin Division.

July 17, 1992.

Lloyd E. Bemis, Lonnie Roach, Shields & Rusk, Austin, Tex., for plaintiff.

Mollie S. Crosby, U.S. Attorney's Office, Austin, Tex., for defendant.

ORDER

NOWLIN, District Judge.

Before the Court is the issue of whether an employee of the United States was acting within the scope of his employment at the time of the accident giving rise to this lawsuit. Having reviewed the various pleadings, the deposition testimony, and the applicable caselaw, the Court is of the opinion that the employee was acting within the scope of his employment. Therefore, the plaintiff's motion to remand is DENIED.

I. BACKGROUND

This lawsuit was originally commenced in state court by the Plaintiff Robert Garcia against an individual defendant, a special agent for the Environmental Protection Agency of the United States.¹ The cause was removed to federal court and the United States attorney certified that the agent was acting within his scope of employment. The United States was then substituted as the party defendant.

On February 27, 1992, the plaintiff's attorney conducted a deposition of the EPA agent, and the deposition revealed the following testimony. The EPA agent is a federal official. He is based and resides near Dallas. His superiors had ordered the agent to proceed to Austin to participate in a federal criminal investigation in the Austin area, until they ordered him to do otherwise. The agent had been issued an official government travel authorization. The agent drove from Dallas to Austin in a government-owned vehicle. Apparently, the EPA has a pool of vehicles from which it assigns vehicles to its investigating agents to use to participate in investigations. The agent drove the car that was assigned to him.²

On this particular trip, the agent arrived in Austin several days before the accident occurred. At government expense, the agent resided at a local hotel. Late in the evening, after leaving one of the particular sites he was investigating, the agent testified that he initially was in search of a place to eat. Eventually, the agent stopped at a local restaurant and bar. While there, the agent did not eat but did consume alcoholic beverages. The agent also testified that he had an ulcer. Upon leaving the restaurant, the agent drove a short distance in search of a pharmacy. Not being able to recall the exact details, the agent stated that he found a pharmacy but he did not go inside. Instead, after he had stopped the car, he became nauseated.

Apparently, after driving a short distance further, the agent collided with the plaintiff's automobile. The agent was arrested and charged with driving while intoxicated.³ The local police gave the agent a breath-test that demonstrated a blood-alcohol level of .2, twice the legal limit. The agent conceded that he had been intoxicated at the time of the accident.

Evident from the deposition is the stressful lifestyle of a federal agent. The hours are long and irregular. Extensive travel is involved.

The EPA did try to prevent its agents from becoming involved in traffic accidents. During his five years with the EPA preceding the accident, the agent's superiors had required the agent to participate in several defensive driving courses.

This case presents an interesting situation. Over the years, seeking to obtain liability on behalf of the employer, plaintiffs have historically argued that an employee was acting within the scope of employment. In this case, the plaintiff argues that the defendant employee was not acting within the scope of his employment. Presumably, the plaintiff seeks to avoid the application of the Federal Tort Claims Act (the "FTCA").

II. SCOPE OF EMPLOYMENT UNDER THE FTCA AND THE WESTFALL ACT

A. Reviewability

An initial issue in this case was whether this Court could review the Assistant United States Attorney's certification that the defendant employee was acting within the scope of his employment. See 28 U.S.C. § 2679(d). This Court does agree with the United States that some consideration should be recognized in light of the United States attorney's "scope certification" of the employee.⁴ The United States has conceded that the courts may review such "scope certification." See Defendant's Response To Court's Sua Sponte Order, filed June 17, 1992, at 2-3; see also Arbour v. Jenkins, 903 F.2d 416, 421 (6th Cir.1990) (holding that a plaintiff who is dissatisfied with a "scope certification" may challenge the certification in court).⁵

B. The Applicable Law

The next question is how should this Court make the scope of employment determination. Implicit in the decisions of the federal circuit courts and in the statute is the conclusion that the district court itself should make the determination of whether the employee was acting within the course and scope of employment. See e.g., Mitchell v. Carlson, 896 F.2d 128, 131 and n. 2 (5th Cir.1990); see also 28 U.S.C. § 2679.

More specifically, the statute states that the district court may find and certify that a federal employee was acting within the scope of employment when the United States Attorney has refused to so certify. See 28 U.S.C. § 2679(d)(3). Additionally, if in such a situation the district court finds that the employee was not acting within the scope of his employment, the district court must remand the proceeding to state court. See id. Therefore, when a district court declines to follow the "scope certification" of the United States Attorney, the district court presumably should likewise remand the action to state court.⁶

Although neither of the parties raised the issue of the law applicable to the scope of employment question, this Court must try to give proper effect and construction to the Westfall Act and the FTCA. Based upon the implications of a very brief decision of the United States Supreme Court, various circuit courts have concluded that the determination of whether an employee is acting within the scope of his employment is based upon the law of the state where the conduct occurred. See generally: Arbour v. Jenkins, 903 F.2d 416, 421-422 (6th Cir.1990); S.J. & W. Ranch, Inc. v. Lehtinen, 913 F.2d 1538, 1542 (11th Cir.1990); (all of these cases refer to Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955)).⁷

Based upon recent decisions of the Supreme Court and of the Fifth Circuit and the recent enactment of the Westfall Act, this Court believes that a more uniform approach should be applied by the federal courts to determine if a federal employee was acting within the scope of his or her employment under the Westfall Act and the FTCA.

In Community For Creative Non-Violence v. Reid, 490 U.S. 730, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989), the Supreme Court emphasized that in past cases it had concluded that Congress intended terms such as "employee," "employer," and "scope of employment" in the Copyright Act to be understood based upon the general common law of agency, rather than on the law of any particular State. See id., 490 U.S. at 740, 109 S.Ct. at 2173 (citations omitted); accord Easter Seal Society v. Playboy Enterprises, 815 F.2d 323, 335 (5th Cir.1987). The Court specifically stated that the Copyright Act nowhere defines the term "scope of employment." See id., 490 U.S. at 740, 109 S.Ct. at 2172. Likewise, the Federal Tort Claims Act nowhere defines the term "scope of employment." The Court recognized that "federal statutes are generally intended to have uniform nationwide application." See id. (citing Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 43, 109 S.Ct. 1597, 1605, 104 L.Ed.2d 29 (1989)). The Court found that establishment of a federal rule of agency is "particularly appropriate" because of the Copyright "Act's express objective of creating national uniform copyright law by broadly pre-empting state statutory and commonlaw regulation." See id.

In a more recent case involving the definition of "employee" under ERISA, the Supreme Court adopted the same federal common law approach to determine the meaning of "employee" under ERISA. See Nationwide Mutual Insurance Co. v. Darden, ___ U.S. ___, ___ and n. 3, 112 S.Ct. 1344, 1348 and n. 3, 117 L.Ed.2d 581 (1992). The Court specifically declined to look to state law. Id. at n. 3. Acknowledging a federal common law, the Court applied the general common law of agency. See id.

The Fifth Circuit has applied federal law to determine who is an employee under the FTCA. Under 28 U.S.C. § 1346(b), whether a person qualifies as a federal employee is to be determined according to federal law, not the law of the state. See LeFevere v. United States, 362 F.2d 352, 353 (5th Cir.1966); see also Blackwell v. United States, 321 F.2d 96, 98 (5th Cir.1963). The courts should apply federal law to this issue because the federal statutes control. See Blackwell, 321 F.2d at 98. Although not expressly so stating, the Supreme Court applied federal law in holding that a civilian employee who is also a military member of the National Guard is not an "employee" of the United States under the FTCA. See generally, Maryland v. United States, 381 U.S. 41, 85 S.Ct. 1293, 14 L.Ed.2d 205 (1965).

Indeed, it would be contrary to the purposes of the Westfall Act and the FTCA to permit state law to determine whether an individual is or is not an "employee" of the United States. To allow for inconsistent adjudications and rules of law on the "employee" status would not further the goals of the Act. As a matter of federal law, the federal courts must apply and establish uniform guidelines to determine whether a person is an "employee" of the United States.

Since the concept of course or scope of employment is enmeshed within the employee-employer relationship and the same general principles of agency law, federal courts should also apply and establish...