Tracy Barker v. Ali Mokhtare, No. 08-1560 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-1560 TRACY BARKER; GALEN D. BARKER, Plaintiffs - Appellees, UNITED STATES OF AMERICA, Intervenor, v. ALI MOKHTARE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:07-cv-01231-LMB-BRP) Submitted: February 24, 2009 Before WILKINSON and Senior Circuit Judge. MICHAEL, Decided: Circuit Judges, March 18, 2009 and HAMILTON, Affirmed by unpublished per curiam opinion. Joseph M. Hannon, Jr., Raeka Safai, HANNON LAW GROUP, LLP, Washington, D.C., for Appellant. Michael T. Conway, MICHAEL T. CONWAY AND CO., Brunswick, Ohio, for Appellees. Gregory G. Katsas, Assistant Attorney General, Chuck Rosenberg, United States Attorney, Barbara L. Herwig, Jonathan H. Levy, UNITED STATES DEPARTMENT OF JUSTICE, Washington D.C., for Intervenor. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Ali denying Mokhtare appeals his petition for § 2679(d)(3) (2006). He the district certification argues the court s under district 28 court order U.S.C. erred in failing to find that he was acting within the scope of his employment and that the court erred in denying his discovery request. For the reasons that follow, we affirm. This court reviews de novo a district court's scope of employment factual determination, findings upon but determination rests. reviews which the for legal clear error any scope-of-employment Gutierrez de Martinez v. Drug Enforcement Admin., 111 F.3d 1148, 1152 n.3 (4th Cir. 1997). Barker does not dispute Mokhtare s contention that the law of the District of Columbia applies to resolve the scope of Mokhtare s employment. See id. at 1156 n.6 (applying state law to scope of employment determination stipulation). In the based District solely of on Columbia, the an parties employee s conduct is within the scope of employment if: (a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; (c) it is actuated, at least in part, by a purpose to serve the master, and (d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master. 3 Wilson v. Libby, 535 F.3d 697, 711 (D.C. Cir. 2008) (quoting Restatement (Second) of Agency § 228(1) (1958)). Our review of the record in light of these standards leads us to conclude that the district court did not err in denying Mokhtare s petition for certification and his request for discovery. order denying dispense with Accordingly, Mokhtare s oral we affirm petition argument for because the district court s certification. the facts and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 4
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