Tracy Barker v. Ali Mokhtare

Filing 920090318

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-1560 TRACY BARKER; GALEN D. BARKER, Plaintiffs - Appellees, UNITED STATES OF AMERICA, Intervenor,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 Decided: March 18, 2009 Before WILKINSON and Senior Circuit Judge. MICHAEL, Circuit Judges, and HAMILTON, Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Ali denying his Mokhtare petition (2006). appeals for He the district court's 28 order U.S.C. in certification the under 2679(d)(3) argues district court erred 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, upon but which reviews the for clear error "any findings legal scope-of-employment determination rests." Gutierrez de Martinez v. Drug Enforcement Barker does Admin., 111 F.3d 1148, 1152 n.3 (4th Cir. 1997). not dispute Mokhtare's contention that the law of the District of Columbia applies to resolve the scope of Mokhtare's employment. employment stipulation). See id. at 1156 n.6 (applying state law to scope of determination In the based District solely of on the an parties' employee's Columbia, 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. denying with Accordingly, Mokhtare's oral we affirm for the district court's We legal order petition certification. the facts and dispense argument because contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 4

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