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United States Court of Appeals,
Fifth Circuit.
No. 92-8490.
Robert GARCIA, Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellee.
Aug. 25, 1995.
Appeal from the United States District Court for the Western
District of Texas.
Before POLITZ, Chief Judge, WISDOM, KING, GARWOOD, JOLLY,
HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO
M. GARZA, DeMOSS, BENAVIDES, STEWART and PARKER, Circuit Judges.
PER CURIAM:
We sit en banc in this case to resolve two questions. First,
we consider whether a certification by the Attorney General under
the Westfall Act1 that a federal employee was acting within the
scope of his employment at the time of an allegedly tortious act is
subject to judicial review. Second, we must determine whether the
source for the standard to determine scope of employment is state
or federal law.
I.
The plaintiff/appellant, Robert Garcia, brought this tort
action because of injuries he sustained when his car was struck by
a car driven by an employee of the Environmental Protection Agency
(EPA). The plaintiff filed this case in Texas state court and also
128 U.S.C. sections 2671-2680. The proper name of the act
is the Federal Employees Liability Reform and Tort Compensation
Act of 1988, Pub.L. 100-694, 102 Stat. 4563.
1

filed an administrative tort claim with the EPA. The U.S. Attorney
certified that the EPA employee was acting within the scope of his
employment. As a result, the United States, the appellee in this
action, was substituted for the federal employee as a party
defendant pursuant to the Westfall Act. The United States then
removed the case to federal district court. The district court,
after deciding that the scope of employment certification was
reviewable, agreed with the Attorney General's contention that the
EPA employee was acting within the scope of his federal
employment.2 The district court used federal law in making this
determination. Further, the district court dismissed the action in
response to a motion by the United States that the plaintiff had
failed to exhaust his administrative remedies. On appeal, this
Court, bound by an earlier decision, held that the scope of
employment certification was not reviewable.3
II.
We decided to revisit our decision that the Westfall Act
removes the opportunity for judicial review of the scope of
employment issue with a rehearing en banc.4 Since then, this issue
2Garcia v. United States, 799 F.Supp. 674 (W.D.Tex.1992).
3Garcia v. United States, 22 F.3d 609 (5th Cir.1994), which
held that, based on Fifth Circuit precedent, the certification
was not subject to judicial review but recommended an en banc
rehearing on the issue.
4Other circuit courts have also struggled with this issue.
Almost all the circuit courts that had addressed the issue held
that certification of scope of employment under the Westfall Act
was reviewable. Nasuti v. Scannell, 906 F.2d 802, 812-813 (1st
Cir.1990); McHugh v. University of Vermont, 966 F.2d 67, 71-72
(2d Cir.1992); Melo v. Hafer, 912 F.2d 628, 640-42 (3d
2

has been reviewed by the United States Supreme Court in the recent
case, Gutierrez de Martinez v. Lamagno.5 In Gutierrez, the Supreme
Court held that "the Attorney General's certification that a
federal employee was acting within the scope of his employment ...
does not conclusively establish as correct the substitution of the
United States as a defendant in place of the employee".6 The
Supreme Court made this decision in "accord[ ] with traditional
understandings and basic principles: that executive determinations
generally are subject to judicial review and that mechanical
judgments are not the kind federal courts are set up to render".7
In the light of the Supreme Court's recent decision, we hold
that certification of scope of employment under the Westfall Act is
subject to judicial review. Furthermore, we hold, in accordance
with Supreme Court precedent, that whether a particular federal
employee was or was not acting within the scope of his employment
Cir.1990), affirmed, 502 U.S. 21, 112 S.Ct. 358, 116 L.Ed.2d 301
(1991); Arbour v. Jenkins, 903 F.2d 416, 421 (6th Cir.1990);
Hamrick v. Franklin, 931 F.2d 1209, 1210-11 (7th Cir.), cert.
denied, 502 U.S. 869, 112 S.Ct. 200, 116 L.Ed.2d 159 (1991);
Brown v. Armstrong, 949 F.2d 1007, 1010-11 (8th Cir.1991);
Meridian v. International Logistics, Inc. v. United States, 939
F.2d 740, 743-45 (9th Cir.1991); S.J. & W. Ranch, Inc. v.
Lehtinen, 913 F.2d 1538, 1540-41 (11th Cir.1990), modified, 924
F.2d 1555 (11th Cir.), cert. denied, 502 U.S. 813, 112 S.Ct. 62,
116 L.Ed.2d 37 (1991). But see, Johnson v. Carter, 983 F.2d
1316, 1320 (4th Cir.) (en banc), cert. denied, --- U.S. ----, 114
S.Ct. 57, 126 L.Ed.2d 27 (1993). Thus, when the Supreme Court
accepted certiorari in the Gutierrez case, a circuit split
existed.
5--- U.S. ----, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995).
6Id. at ----, 115 S.Ct. at 2236.
7Id.
3

is controlled by the law of the state in which the negligent or
wrongful conduct occurred.8
Therefore, the panel opinion having been vacated by our
granting en banc rehearing, we REVERSE the district court's
decision that federal law governs the scope of employment question,
AFFIRM the district court's decision that the scope of employment
question is subject to judicial review, and REMAND the case to the
panel.
EMILIO M. GARZA, Circuit Judge, concurring specially:
I concur in the per curiam, but write separately to point out
that lurking behind Lamagno is a contentious question of
jurisdiction which the Supreme Court specifically did not decide,
but which, in my opinion, is integral to the issues before us. See
Gutierrez de Martinez v. Lamagno, --- U.S. ----, 115 S.Ct. 2227,
132 L.Ed.2d 375 (1995).1 Because Justice O'Connor did not concur
8Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100
L.Ed. 761 (1955). For an application of this rule, see e.g.
Nelson v. United States, 838 F.2d 1280, 1282 (D.C.Cir.1988);
Nasuti v. Scannell, 906 F.2d 802, 805 n. 3 (1st Cir.1990);
Cronin v. Hertz Corp., 818 F.2d 1064, 1065 (2d Cir.1987); Aliota
v. Graham, 984 F.2d 1350, 1358 (3d Cir.), cert. denied, --- U.S.
----, 114 S.Ct. 68, 126 L.Ed.2d 37 (1993); Flechsig v. United
States, 991 F.2d 300, 302 (6th Cir.1993); Forrest City Mach.
Works, Inc. v. United States, 953 F.2d 1086, 1088 n. 5 (8th
Cir.1992); Washington v. United States, 868 F.2d 332, 334 (9th
Cir.), cert. denied, 493 U.S. 992, 110 S.Ct. 539, 107 L.Ed.2d 536
(1989); Pattno v. United States, 311 F.2d 604, 607 (10th
Cir.1962), cert. denied, 373 U.S. 911, 83 S.Ct. 1300, 10 L.Ed.2d
412 (1963); S.J. & W. Ranch, Inc. v. Lehtinen, 913 F.2d 1538,
1542 (11th Cir.1990), amended, 924 F.2d 1555 (11th Cir.), cert.
denied, 502 U.S. 813, 112 S.Ct. 62, 116 L.Ed.2d 37 (1991).
1Eight justices in Lamagno also thought it an integral
consideration in deciding congressional intent. See id. at ----
- ----, 115 S.Ct. at 2236-37 (Ginsburg, J., plurality opinion;
id. ----, 115 S.Ct. at 2239-40 (Souter, J., dissenting); but see
4

in either Part IV of the plurality opinion in Lamagno or in the
dissent,2 a panel, and perhaps later the en banc court, may have to
predict whether there is pendent jurisdiction,3 as Justice Ginsburg
suggests, see id. at ----, 115 S.Ct. at 2237, or whether there is
no subject matter jurisdiction as Justice Souter would hold, see
id. at ---- - ----, 115 S.Ct. at 2239-40 (Souter, J., dissenting).
This issue, however, presupposes a holding that Agent Langlois
was not within the scope of his employment with the EPA when the
accident here took place and further presupposes no diversity
jurisdiction--issues not presently before this en banc Court. To
that extent, therefore, the issue of jurisdiction is premature.
Neither this Court's per curiam, as I read it--nor I, by this
concurrence--predetermine the issue of jurisdiction.

id. at ----, 115 S.Ct. at 2236 ("The parties' diverse citizenship
gave petitioners an entirely secure basis for filing in federal
court.").
2See id. at ---- - ----, 115 S.Ct. at 2237-38 (O'Connor, J.,
concurring in part and concurring in the judgment) ("That
discussion [Part IV] all but conclusively resolves a difficult
question of federal jurisdiction that, as the Court notes, is not
presented in this case....").
3See United Mine Workers of America v. Gibbs, 383 U.S. 715,
725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966).
5