Erlinda Ubaldo Clamor v. United States

Opinion by Judge HAWKINS; Dissent by Judge TALLMAN.

MICHAEL DALY HAWKINS, Circuit Judge:

Erlinda Clamor appeals the district court’s dismissal of her tort claim which arose from a car accident on the Pearl Harbor Naval Base with James Karagior-gis, a civilian employee. The district court concluded that Karagiorgis had been acting within the scope of his employment as a federal employee at the time of the accident, and that therefore the case was governed by the Federal Tort Claims Act (“FTCA”). The district court dismissed the case because Clamor had failed to exhaust her administrative remedies under the FTCA. Because we conclude that Kar-agiorgis was not acting within the scope of his employment at the time of the accident, we reverse and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

James Karagiorgis is a civilian employee of the United States Navy who is ordinarily assigned to the Naval Sea System Command (“NAVSEA”) in Washington, D.C. For a few weeks in 1996, Karagiorgis was temporarily assigned to perform an “engineering reliability backfit” on the USS Los Angeles, which was moored at the Pearl Harbor Naval Base in Hawaii. Because no government quarters were available on the base, Karagiorgis arranged commercial lodging through a government travel agent and procured a rental car for use while in Hawaii. The cost of both the car and hotel were reimbursed by the Navy.

On January 24, 1996, James Karagiorgis finished his day’s work on the USS Los Angeles, left the ship and began driving toward the exit of the base, which was some distance from the ship where he had been working. While still just inside the base, he rear-ended a car that was stopped in traffic, injui'ing Clamor.

After first exhausting her no-fault benefits as required by Hawaii state law, Clam- or filed a complaint against Karagiorgis in Hawaii state court. The United States Attorney for the District of Hawaii certified that Karagiorgis was acting within the scope of his employment at the time of the accident, removed the case to federal court, and substituted the United States as defendant pursuant to 28 U.S.C. § 2679(d). The United States then moved to dismiss the case for lack of subject matter jurisdiction because Clamor had not exhausted her administrative remedies as required by the FTCA. 28 U.S.C. § 2675(a). The district court concluded that Karagiorgis had been acting within the scope of his employment and that therefore the certification, removal and substitution had been proper. The district court granted the United States’ motion to dismiss.

STANDARD OF REVIEW

A scope of employment certification pursuant to 28 U.S.C. § 2679(d)(2) is re*1217viewed de novo by this court, Wilson v. Drake, 87 F.3d 1073, 1076 (9th Cir.1996), as it was by the district court. Pelletier v. Federal Home Loan Bank of San Francisco, 968 F.2d 865, 875 (9th Cir.1992).

DISCUSSION

In reviewing a scope of employment determination under the FTCA, we look to the principles of respondeat superi- or as articulated in the law of the place where the alleged tort occurred. Id. at 876. Therefore, in this case, we look to Hawaii law.1

Hawaii courts follow the Restatement (Second) of Agency § 228. Henderson v. Prof'l Coatings Corp., 72 Haw. 387, 819 P.2d 84, 88 (1991). Under this test, an employee’s conduct is within the scope of employment only if:

(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits; [and]
(c) it is actuated, at least in part, by a purpose to serve the master....

Id.

Karagiorgis was temporarily assigned to perform a special engineering project on the U.S.S. Los Angeles. At the time of the accident, however, Karagiorgis was off duty and was leaving the base to drive to his temporary home. This is not conduct “of the kind he was employed to perform,” and was not “actuated by a purpose to serve the master.” Hawaii courts have specifically rejected the notion that any action by an employee on temporary assignment can give rise to respondeat superior liability:

We do not believe that the respondeat superior doctrine is so pliant that where an employee is hired in one locality and relocated to another by his employer for an indefinite period of time, any act of the employee before, during or after his working hours is one within the scope of his employment as long as he works for the employer in the latter locality.

Kang v. Charles Pankow Assoc., 5 Haw. App. 1, 675 P.2d 803, 809 (1984).

If Karagiorgis had been on call around the clock or working until “his head hit the pillow,” we might reach a different result. Cf. Garcia v. United States, 88 F.3d 318, 321 (5th Cir.1996). Karagiorgis, however, was not working the entire time he was in Hawaii, and was, in fact, off duty when the accident occurred. He was not engaged in any errand for his employer, but was leaving work and free to do whatever he wished. The fact that the United States reimbursed the cost of his rental car is more indicative of the inconvenience of working on an island in the middle of the Pacific Ocean (which makes it difficult for a temporary employee to bring his own car to work) than an indication that the employer considered all actions taken while driving that car to be within the scope of employment. The United States derived no benefit from Karagiorgis’ activities once he stopped working on the U.S.S. Los Angeles and left for the day, any more than it does when any other employee departs for the evening. Sep Wong-Leong v. Hawaiian Indep. Refinery, Inc., 76 Hawaii 433, 879 P.2d 538, 546 (1994) (test is whether conduct was related to employment or if enterprise derived benefit from the activity). Accordingly, Karagiorgis was not acting within the scope of his employment under Hawaii law.

Because we hold that the scope of employment certification was erroneous, Kar-agiorgis must be substituted back as a defendant; therefore, the FTCA does not govern this case and it was error for the district court to dismiss the action. We recognize that our decision may have some effect on whether diversity or federal question jurisdiction still pertains, and *1218whether this case remains in federal court or is remanded to state court. Compare Garcia, 88 F.3d at 325 (once removed, federal court cannot remand case to state court even if certification was erroneous), with Haddon v. United States, 68 F.3d 1420, 1427 (D.C.Cir.1995) (federal court must remand to state court if certification was erroneous). The district court has not yet addressed these questions, and we intimate no view on these possible issues. They may be addressed, if necessary, in the first instance in district court.

REVERSED AND REMANDED for further proceedings consistent with this opinion.

. In this respect, we believe the dissent's reliance on Wilkinson v. United States, 677 F.2d 998 (4th Cir.1982), is misplaced. Wilkinson did not apply Hawaii law, as we are required to do.