Summary
finding FECA was exclusive remedy to federal employee alleging assault and battery on the job, and stating that "[t]he FECA covers liability created both by negligent and intentional acts of the Government"
Summary of this case from Bates v. ElwoodOpinion
No. 90-9114.
August 13, 1992.
Arthur Frank Millard, Atlanta, Ga., for plaintiff-appellant.
Sharon Douglas Stokes, Asst. U.S. Atty., Atlanta, Ga., Lisa S. Farringer, Civ. Div., Dept. of Justice, Mark W. Pennak, Barbara L. Herwig, Washington, D.C., for defendants-appellees.
Appeal from the United States District Court for the Northern District of Georgia, Vining, District Judge Presiding.
ON PETITION FOR REHEARING
On petition for rehearing, the government calls into question the remand portion of our opinion in its penultimate paragraph. See 954 F.2d 694. (11th Cir.) We withdraw the last full paragraph of the opinion and substitute the following:
We therefore remand the case for a determination by the district court of whether the alleged assault and battery was work related. If the district court finds that the assault and battery occurred within the scope of Hill's employment, it must dismiss this case. If it finds that the acts occurred outside the scope of employment, it is within the district court's discretion to continue its jurisdiction over the case and adjudicate the controversy. On the other hand, the court may elect to remand the assault and battery issue to the state court. For an identical situation, see Nadler v. Mann, 951 F.2d 301, 306 n. 9 (11th Cir. 1992).