If Rideout's intent had been material or dispositive to his scope of employment, then an evidentiary hearing would have been required to the extent that Plaintiffs’ evidence—including circumstantial evidence—established an issue of material fact. See McAdams , 64 F.3d at 1145 (requiring an evidentiary hearing to resolve "material fact issues in dispute" for substitution of the government); Brown , 949 F.2d at 1012 ; Heuton , 75 F.3d at 361 (vacating and remanding substitution decision where district court failed "to determine all the facts relevant" to scope of employment issue); Larsen v. Frederiksen , 277 F.3d 1040, 1041 (8th Cir. 2002) (stating a plaintiff challenging the scope-of-employment certification "bears the burden of coming forward with specific facts rebutting the certification" (quoting Lawson , 103 F.3d at 60 )); Hirani , 824 F.3d at 747 ("Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence." (quoting Desert Palace, Inc. v. Costa , 539 U.S. 90, 100, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003) )); Hirani , 824 F.3d at 747 (concluding circumstantial evidence is "just as probative as direct evidence" to show willfulness in denaturalization proceeding).
Additionally, “the constitutionality of [28 U.S.C.] § 1442, the federal officer removal statute, is well-established.” Larsen v. Frederiksen, 277 F.3d 1040, 1041 (8th Cir. 2002).
Heuton, 75 F.3d at 359.Larsen v. Frederiksen, 277 F.3d 1040, 1041 (8th Cir. 2002) (citing Lawson v. United States, 103 F.3d 59, 60 (8th Cir. 1996)); Brown, 949 F.2d at 1012. Under Arkansas law, the conduct of an employee is within the scope of employment if (1) the employees is engaged in the employer's services, (2) the act pertains to the particular duties of that employment, and (3) it is for the benefit of the employer.
Additionally, although Hayes may challenge the scope-of-employment certification, the burden is on Vaughan to come forward with specific facts rebutting the certification. Larsen v. Frederiksen, 277 F.3d 1040 (8th Cir. 2002). Vaughan may defeat the certification and the subsequent motion to dismiss by providing the Court with evidence that raises a genuine issue of material fact regarding whether Hayes was acting within the scope of his employment.
The party challenging the certification is required to present evidence disproving the Attorney General's certification by a preponderance of the evidence. Billings v. U.S., 57 F.3d 797, 800 (9th Cir. 1995); see alsoLarsen v. Fredericksen, 277 F.3d 1040, 1041 (8th Cir. 2002) (a party challenging the Attorney General's certification has the burden of coming forward with specific facts rebutting the certification). The plaintiff, however, may not be able to "discharge this burden without some opportunity for discovery."
The party challenging the certification is required to present evidence disproving the Attorney General's certification by a preponderance of the evidence. See Billings v. U.S., 57 F.3d 797, 800 (9th Cir. 1995); see also Larsen v. Fredericksen, 277 F.3d 1040, 1041 (8th Cir. 2002) (holding that the party challenging the Attorney General's certification has the burden of coming forward with specific facts rebutting the certification). Here, Assistant U.S. Attorney Joann Swanson has certified that Lifelong is a federally deemed health center.
" The Eighth Circuit Court of Appeals (the court that handles appeals from this Court's decisions) has held that this statute is constitutional. Larsen v. Frederiksen, 277 F.3d 1040, 1041 (8th Cir. 2002). Mr. Brumbaugh sued the Director of the Office of National Drug Control Policy to challenge America's drug laws.
John v. United States, 240 F.3d 671, 676 (8th Cir. 2000); see also, Primeaux v. United States, 181 F.3d 876, 880 n. 4 (8th Cir. 1999), cert. denied, 528 U.S. 1154 (2000); Anthony v. Runyon, 76 F.3d 210, 212-13 (8th Cir. 1996). Title 28 U.S.C. § 2679(d)(1) provides that, if an action is commenced against an individual employee of a Federal agency, rather than against the United States, the Attorney General is charged with making the initial determination of whether that employee was acting within the scope of his employment, see,Heuton v. Anderson, 75 F.3d 357, 359-60 (8th Cir. 1996), and the United States may be substituted for the named defendant, based upon a scope of employment certification by the Attorney General. See, Osborne v. Haley, ___ U.S. ___, 127 S.Ct. 881, 894, 166 L.Ed.2d 819 (2007);Smith v. Wintersteen, 97 Fed.Appx. 69, 69 (8th Cir. 2004); Larsen v. Frederiksen, 277 F.3d 1040, 1041 (8th Cir. 2002); Lawson v. United States, 103 F.3d 59, 60 (8th Cir. 1996). The certification by the Attorney General, that the employee was acting within the scope of his employment, "does not conclusively establish as correct the substitution of the United States as defendant in place of the employee," see, McAdams v. Reno, 64 F.3d 1137, 1145 (8th Cir. 1995), as our Court of Appeals requires "at least limited judicial review of the * * * scope of employment before substituting the United States as a defendant."
John v. United States, 240 F.3d 671, 676 (8th Cir. 2000); see also, Primeaux v. United States, 181 F.3d 876, 880 n. 4 (8th Cir. 1999), cert. denied, 528 U.S. 1154 (2000); Anthony v. Runyon, 76 F.3d 210, 212-13 (8th Cir. 1996). Title 28 U.S.C. § 2679(d)(1) provides that, if an action is commenced against an individual employee of a Federal agency, rather than against the United States, the Attorney General is charged with making the initial determination of whether that employee was acting within the scope of his employment, see,Heuton v. Anderson, 75 F.3d 357, 359-60 (8th Cir. 1996), and the United States may be substituted for the named defendant, based upon a scope of employment certification by the Attorney General. See, Osborne v. Haley, ___ U.S. ___, 127 S.Ct. 881, 894 (2007);Smith v. Wintersteen, 97 Fed.Appx. 69, 69 (8th Cir. 2004); Larsen v. Frederiksen, 277 F.3d 1040, 1041 (8th Cir. 2002); Lawson v. United States, 103 F.3d 59, 60 (8th Cir. 1996). The certification by the Attorney General, that the employee was acting within the scope of his employment, "does not conclusively establish as correct the substitution of the United States as defendant in place of the employee," see, McAdams v. Reno, 64 F.3d 1137, 1145 (8th Cir. 1995), as our Court of Appeals requires "at least limited judicial review of the * * * scope of employment before substituting the United States as a defendant."
To contest the propriety of substitution based on a certification issued pursuant to section 2679, a plaintiff must produce evidence that demonstrates that each such employee was not in fact acting within the scope of his or her employment. Singleton v. United States, 277 F.3d 864, 871 (6th Cir. 2002); Larsen v. Frederiksen, 277 F.3d 1040, 1041 (8th Cir. 2002). A claim that the certifier is "a known liar" is irrelevant to this determination.