UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PATRICE MANSELL,
Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA,
                                                                      No. 95-2975
Defendant-Appellee,

and

STEVEN A. GREGOIRE,
Defendant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CA-95-2797-S)

Submitted: December 12, 1995

Decided: April 15, 1996

Before WILKINSON, Chief Judge, NIEMEYER, Circuit Judge, and
CHAPMAN, Senior Circuit Judge.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Patrice Mansell, Appellant Pro Se. George Levi Russell, III, OFFICE
OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Appellant appeals the district court order dismissing his claim for
lack of subject matter jurisdiction. Briefly, the facts of Appellant's
case are as follows. Appellant, a federal employee, filed suit in state
court against a co-employee for defamation. An Assistant United
States Attorney moved for removal, and then substitution of the
United States as a party under 28 U.S.C. § 2679 (1988). In support of
this motion, the Assistant United States Attorney presented the United
States Attorney's certification that the co-employee was acting within
the scope of his employment. The district court granted both motions,
stating that the certification was conclusive proof of the scope issue
for purposes of both removal and substitution. The court then granted
the Government's motion for dismissal, stating that since the Appel-
lant had not presented an administrative claim to the appropriate
agency under the Federal Tort Claims Act the court lacked subject
matter jurisdiction. Appellant then filed two motions, one for leave to
proceed in forma pauperis, and one to enjoin the United States Attor-
ney from seeking removal to federal court in a second state tort action
Appellant had filed involving the same set of facts. The district court
denied both of these motions.

Appellant noted a timely appeal and reasserted both of these
motions, adding a request that the United States Attorney be enjoined
from seeking substitution of the United States as a defendant in the
second state tort claim. To the extent that Appellant's motion for
injunction seeks to restrain a federal officer from acting, we interpret
it as a petition for a writ of mandamus. We deny this petition because
the United States Attorney is under no clear duty to refrain from seek-
ing either removal or substitution under 28 U.S.C.§ 2679. Therefore,
we have no power to compel this action. See Central S.C. Chapter,
Soc'y of Professional Journalists v. United States Dist. Court, 551
F.2d 559, 561-62 (4th Cir. 1977).

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Turning to the merits of the claim before this Court, we grant
Appellant's motion for leave to proceed in forma pauperis and vacate
and remand his claim to the district court. The district court cited
Johnson v. Carter, 983 F.2d 1316 (4th Cir. 1993) (en banc), cert.
denied, ___ U.S. ___, 62 U.S.L.W. 3244 (U.S. Oct. 4, 1993) (No. 92-
1591), for the proposition that the United States Attorney's certifica-
tion of scope of employment was conclusive for purposes of both
removal and substitution. Johnson, however, has recently been over-
ruled by the United States Supreme Court in Gutierrez de Martinez
v. Lamagno, ___ U.S. ___, 63 U.S.L.W. 4584, (U.S. June 14, 1995)
(No. 94-167). In Gutierrez, the Court held that in a case originally
brought in state court, as was this one, a certificate is conclusive for
purposes of removal only--not substitution. Id. at 4589. Since the dis-
trict court erroneously believed itself to be bound by the United States
Attorney's certification, it never conducted a judicial review of the
scope of employment issue. Therefore we grant leave to proceed in
forma pauperis on appeal and remand to allow the district court to
review this issue in accordance with Gutierrez . We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.

VACATED AND REMANDED

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