Rabbi v. Huycke et al

Filing 11

ORDER re 2 Notice (other) filed by Ahmed Awab, Mark W Huycke, Anna Lisa Neill, John Tompkins, Feroz Maqbool, Jean Keddissi. For the reasons set forth herein, the United States is hereby substituted for the individual Defendants pursuant to the above-referenced statute, as more fully set out. Signed by Honorable David L. Russell on 2/25/15. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
JAMAL RABBI

)
)
Plaintiff,
)
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v.
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MARK W. JUYCKE, JEAN
)
KEDDISSI, AHMED AWAB, JOHN )
TOMPKINS, FEROZ MAQBOOL, )
and ANNA LISA NEILL,
)
)
Defendants.
)

CIV-15-0060-R

ORDER
On January 20, 2015, the United States filed a Notice of Substitution pursuant to 28
U.S.C. § 2679(d)(2). In response to an order by the Court, Plaintiff objected to the
substitution, and the United States has filed a reply in support of its position. For the reasons
set forth herein, the United States is hereby substituted for the individual Defendants
pursuant to the above-referenced statute.
28 U.S.C. § 2679(d)(2) provides:
Upon certification by the Attorney General that the defendant employee was
acting within the scope of his office or employment at the time of the incident
out of which the claim arose, any civil action or proceeding commenced upon
such claim in a State court shall be removed without bond at any time before
trial by the Attorney General to the district court of the United States for the
district and division embracing the place in which the action or proceeding is
pending. Such action or proceeding shall be deemed to be an action or
proceeding brought against the United States under the provisions of this title
and all references thereto, and the United States shall be substituted as the
party defendant. This certification of the Attorney General shall conclusively
establish scope of office or employment for purposes of removal.

In the instant case, the certification by the United States Attorney for the Western District of
Oklahoma was appended to the notice of removal. Plaintiff contends the Court should make
a judicial determination based on the facts rather than relying on the statutory substitution
provision.
The Federal Employees Liability Reform and Tort Compensation Act of 1988, 28
U.S.C. § 2679, known as the Westfall Act, “accords federal employees absolute immunity
from common-law tort claims arising out of acts they undertake in the course of their official
duties.” Osborn v. Haley, 549 U.S. 225, 229 (2007) (citing 28 U.S.C. § 2679(b)(1)). In
Fowler v. United States, 647 F.3d 1232, 1235 (10th Cir. 2011), the court noted that if
certification pursuant to § 2679(d)(3) is granted by the Attorney General, or his designee, that
the United States is substituted as defendant in place of the employee. This statement follows
from the Supreme Court's decision in Osborn:
Section 2679(d)(2) does not preclude a district court from resubstituting the
federal official as defendant for purposes of trial if the court determines,
postremoval, that the Attorney General's scope-of-employment certification
was incorrect.
Id. at 242. Accordingly, the Court interprets the statute as mandating substitution upon
certification, with the understanding that "the Attorney General's certification that a federal
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."
Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434 (1995). Rather, Plaintiff may chose
to challenge the decision by submitting evidence to rebut the certification, which operates

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as prima facie evidence that the individuals were acting within the scope of their federal
employment.
Plaintiff herein presents no facts to support his contention that the individually named
Defendants were not acting within the scope of their employment or that the certification was
in any manner improper. Rather, he asks that the Court defer substitution, set a status
conference and then determine whether the individuals were acting within the scope of their
employment after the presentation of evidence, which was not identified. Thereafter, Plaintiff
proposes, the Court may determine whether substitution is proper. Plaintiff contends this will
streamline the process, because if the Court determines the individuals were acting outside
the scope of their employment by deliberately and intentionally misrepresenting facts to a
VA patient regarding Plaintiff, that only damages will remain for consideration, liability
having been established.
The Court disagrees with Plaintiff's approach, in part, because it interprets the
substitution provisions as self-executing. See Fowler v. United States, 2007 WL 1894282
(W.D.Tex. 2007)("Whether Flower agrees or not, as it now stands, the Government is the
defendant in lieu of Gonzales by operation of law by virtue of the Government's certification
of scope of employment of Gonzales under 28 U.S.C. § 2679(d)(2). . . ."). The certification
creates a rebuttable presumption that the individuals were acting within the scope of their
employment, thereby making substitution appropriate until such time as Plaintiff presents
evidence to establish otherwise.

See Schiefer v. United States, 2007 WL 1391391

(S.D.Ga.2007)(on motion to reconsider substitution Court concluded certain individual
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defendants were not acting within the scope of employment and vacated substitution). The
Court therefore orders that the Clerk of Court substitute the United States as Defendant.1
IT IS SO ORDERED this 25th day of February, 2015.

1

In light of Plaintiff's failure to meet his burden at this juncture the Court declines to consider the
argument of the United States that by virtue of Plaintiff's Standard Form 95, submitted to the Department of
Veteran's Affairs, that Plaintiff conceded the employees were acting within the scope of their employment.

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