King Fisher Marine v. Perez

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 16, 1993
• Docket: 93-7020
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT __________________

No. 93-7020 Conference Calendar __________________

KING FISHER MARINE SERVICE, Plaintiff-Appellant, versus

ROGELIO PEREZ, ETC., Defendant, and

UNITED STATES OF AMERICA, Defendant-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. CA-G-91-267 - - - - - - - - - - (March 22, 1994)

Before KING, DAVIS, and DeMOSS, Circuit Judges.

PER CURIAM:*

King Fisher Marine Service, Inc. (KFMS) argues that the

district court erred as a matter of law in holding that the

Attorney General's certification of Perez' scope of employment is

conclusive, in refusing to allow discovery on the issue, and in

refusing to conduct an evidentiary hearing to determine the scope

of employment issue. KFMS argues that 28 U.S.C. § 2679(d)(1) and

(2) provide that the certification is conclusive for removal

* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the Court has determined that this opinion should not be published. No. 93-7020 -2-

purposes only and cites opinions from seven other circuit courts

which have so held.

The Federal Tort Claims Act provides that federal employees

acting within the course and scope of their employment are immune

from liability. Mitchell v. Carlson, 896 F.2d 128, 130 (5th Cir.

1990). In Mitchell, this Court stated that "once the United

States Attorney certifies that the federal employee acted within

the scope of her employment, the plaintiff properly can proceed

only against the United States as defendant." 896 F.2d at 133.

This Circuit has held that the Attorney General's certification

is conclusive on the issue of scope of employment. Id. at 131;

Fenelon v. Duplessis, No. 92-3200 (5th Cir. Jun. 29, 1993)

(unpublished; copy attached).

Even if seven other circuits have disagreed with this

Circuit on this issue, this panel may not overrule previous panel

decisions absent en banc reconsideration or a superseding

contrary decision of the Supreme Court. Matter of Dyke, 943 F.2d

1435, 1441-42 (5th Cir. 1991).

AFFIRMED.