UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PATRICIA WADDELL,
Plaintiff-Appellant,

v.                                                                      No. 95-3143

UNITED STATES OF AMERICA,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Richard B. Kellam, Senior District Judge.
(CA-94-817-2)

Argued: June 5, 1996

Decided: June 24, 1996

Before WILLIAMS and MOTZ, Circuit Judges, and CURRIE,
United States District Judge for the District of South Carolina,
sitting by designation.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

ARGUED: Timothy T. Blank, LOWELL A. STANLEY--
ATTORNEY AT LAW, Norfolk, Virginia, for Appellant. Michael
Anson Rhine, Assistant United States Attorney, Norfolk, Virginia, for
Appellee. ON BRIEF: Helen F. Fahey, United States Attorney, Nor-
folk, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

In this case, Patricia Waddell appeals the district court's finding in
favor of the United States that Thomas J. Reed, a boatswain mate for
the Military Sealift Command, was acting within the scope of his
employment when his vehicle collided with her on the Norfolk Naval
base.

I.

On December 11, 1992, at about 8:15 in the morning, Waddell, a
civilian employee for the federal government, was walking on Pier 4
of the Norfolk Naval Base when she was hit by a 1988 Ford Ranger
pick-up truck. The driver of the truck, Thomas Reed, was a civilian
employed as a boatswain mate for the United States Navy. At the time
of the accident, Reed, who had been recently transferred from the
U.S.N.S. GRUMMAN to the U.S.N.S. KANAWHA, was using his
personal vehicle to move his belongings from one ship to the other.
Reed testified that when his shift began at 8:00 a.m., his supervisor
"told" him to drive his car to the GRUMMAN,"pick up [his] things
and return back to the ship [the KANAWHA]". Reed's belongings
consisted mostly of work clothes, safety shoes, toiletries, a television,
a stereo and some other items that he needed in order to begin work.
After having loaded these items onto his truck, Reed backed out of
his parking space into Waddell.

Waddell filed for and received workers compensation benefits pur-
suant to the Federal Employees Compensation Act (FECA), 5 U.S.C.
§ 8101 et seq. She also filed an action against Reed for injuries in
state court. The United States Attorney for the Eastern District of Vir-
ginia certified that Reed was acting within the scope of his employ-
ment for the United States and removed the case from the Norfolk
Circuit Court to the Eastern District of Virginia. Once the case was

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removed, the United States was substituted as a defendant for Reed.
The United States then moved to dismiss the action, arguing that the
district court lacked jurisdiction over Waddell's claim because she
had already received compensation from the government under the
FECA. The district court accepted the Attorney General's certifica-
tion as conclusive evidence that Reed had been acting within the
scope of his employment for the United States and that the United
States was therefore the proper defendant in the action. The court then
granted the government's motion to dismiss.

On appeal, this court stayed the matter, pending the Supreme
Court's decision in Gutierrez De Martinez v. Lamagno, ___ U.S. ___,
115 S. Ct. 2227 (1995). In Lamagno, the Supreme Court held that
"the Attorney General's certification that a federal employee was act-
ing within the scope of his employment . . . does not establish as cor-
rect the substitution of the United States as defendant in place of the
employee." Id. at 2236. After the Supreme Court issued its opinion,
we remanded to the district court for a specific finding as to whether
Reed had been acting within the scope of his employment at the time
of the accident.

On remand, the district court permitted Waddell to take Reed's
deposition. Waddell then filed a motion for summary judgment main-
taining that the undisputed facts demonstrated that Reed had not been
acting within the scope of his employment when he backed into Wad-
dell. Following a hearing on the matter, the district court concluded
that since the parties "agreed that no other evidence is required to
determine the scope of employment issue, and that no disputes exist
as to genuine issues of material fact, the matter is ripe for determina-
tion." The district court then denied Waddell's motion for summary
judgment. However, exercising its discretion to grant summary judg-
ment to the non-moving party, the district court granted summary
judgment to the United States. See 6 James W. Moore et al., Moore's
Federal Practice, ¶ 56.12 at 56-162 (2d ed. 1996) (citing cases).

II.

The district court clearly and carefully set forth the basis for its
holding that the undisputed facts demonstrated that Reed was acting
within the scope of his employment when he backed into Waddell.

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We affirm that conclusion for the reasons stated in the district court
opinion. See Waddell v. United States, C.A. No. 2:94cv817 (E.D. Va.
Oct. 6, 1995).

Upon reaching this conclusion, however, the district court should
have dismissed the case for lack of subject matter jurisdiction because
Waddell had already received benefits under the FECA. See Hanauer
v. Reich, 82 F.3d 1304, 1309 (4th Cir. 1996) ("[If] the Secretary did
not violate a clear statutory mandate [in determining the FECA
claim], the case must be dismissed for lack of subject matter jurisdic-
tion."); Lance v. United States, 70 F.3d 1093, 1095 (9th Cir. 1995)
("FECA would therefore clearly bar an FTCA suit .. . ."); Doe v.
United States, 914 F. Supp. 945, 949 (W.D.N.Y. 1996) ("Where
FECA applies, the federal courts have no jurisdiction to entertain
FTCA claims asserted by injured parties."); Kelley v. United States,
792 F. Supp. 793, 795 (M.D. Fla. 1992) ("[If] FECA is applicable to
an injury sustained by a federal employee, the federal district court
lacks jurisdiction over the subject matter of any action seeking recov-
ery under federal statutes, like the FTCA, for those injuries."), aff'd,
987 F.2d 774 (11th Cir. 1993). Accordingly, we vacate the grant of
summary judgment and remand to the district court with instructions
to dismiss this action for lack of subject matter jurisdiction.

VACATED AND REMANDED

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