holding 28 U.S.C. § 2679 (d)(3)—which states a federal employee may “petition the court to find and certify that the employee was acting within the scope of his office or employment”—means that a court should “conduct an evidentiary hearing and make -4- all findings necessary” to determine the scope of employment when material facts are disputed
How later courts described this case
- holding 28 U.S.C. § 2679 (d)(3)—which states a federal employee may “petition the court to find and certify that the employee was acting within the scope of his office or employment”—means that a court should “conduct an evidentiary hearing and make -4- all findings necessary” to determine the scope of employment when material facts are disputed
- holding that “if there is a genuine issue of fact material to the scope of employment question, the district court should permit discovery and conduct a hearing, if necessary” (emphasis added)
- holding that “Congress intended federal employees to have a right to a court determination of all aspects of the immunity issue prior to trial”
- stating that “evidence of ‘conservative treatment’ is sufficient 14 to discount a claimant’s testimony regarding severity of an impairment”
Written by the judges who cited it.
The opinion
SUR PETITION FOR REHEARING
February 15, 1994
Before: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN, NYGAARD, and ROTH, Circuit Judges.
The petition for rehearing filed by appel-lees in the above-entitled case having been submitted to the judges who participated in the decision of this Court and to all the other available circuit judges of the circuit iii regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in bane, the petition for rehearing is denied.