FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  August 1, 2008
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court
                      UNITED STATES COURT OF APPEALS

                                 TENTH CIRCUIT


 NICHOLAS HARRISON,

          Plaintiff-Appellant,
                                                        No. 07-6301
 v.                                               (D.C. No. CIV-06-431-R)
                                                        (W.D. Okla.)
 UNITED STATES OF AMERICA,

          Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before O’BRIEN, EBEL, and GORSUCH, Circuit Judges.


      Plaintiff-Appellant Nicholas Harrison appeals from the district court’s

decision denying his request to remand his claims against Lieutenant Colonel

Stuart Jolly to Oklahoma state court. Harrison also appeals the district court’s

refusal to resubstitute Jolly as the defendant in this case. We find neither claim

convincing, and pursuant to our appellate jurisdiction under 28 U.S.C. § 1291, we


      *
        After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
order and judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
AFFIRM the district court’s decisions. In addition, we GRANT Harrison’s

motion to proceed in forma pauperis.

      Harrison was enrolled as a student at the University of Central Oklahoma

where he was a participant in the United States Army Reserve Officers’ Training

Corps (“ROTC”) Program. Lieutenant Colonel Jolly was Harrison’s commanding

officer in the ROTC program. After Harrison failed to complete several ROTC

program requirements, Jolly recommended that the Army remove Harrison from

the program. The Army agreed and ordered Harrison’s removal.

      After his removal, Harrison filed suit against Jolly in state court. The

United States Attorney then certified, pursuant to 28 U.S.C. § 2679, that Jolly

acted within the scope of his employment during the incidents alleged in

Harrison’s complaint. As a result of this certification, the case was removed to

federal court and the United States was substituted for Jolly as the defendant. See

28 U.S.C. § 2679(d)(2). After Harrison returned from active military duty

service, the district court denied his motion to remand and dismissed his claims.

Liberally construing his pro se brief, as we must, Harrison contends on appeal

that the district court erred by failing to remand his case to state court and by

failing to substitute Jolly for the United States.

      Title 28, section 2679(d)(2) of the United States Code squarely dictates that

once the Attorney General has certified that the government employee was acting

within the scope of his employment, a district court may not remand the case to

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state court. 1 See Osborn v. Haley, ___ U.S. ___, 

, 894 (2007). As

the Supreme Court explained, “Congress gave district courts no authority to

return cases to state courts on the ground that the Attorney General’s certification

was unwarranted. . . . For purposes of establishing a forum to adjudicate the

case . . . § 2679(d)(2) renders the Attorney General’s certification dispositive.”

district court properly denied Harrison’s motion to remand

the case to state court because it was powerless to do so.

      Section 2679(d)(2)’s bar on remand, however, does not prevent the district

court from resubstituting the federal official as the defendant for purposes of trial

if the certification was improper. 

de novo the district court’s legal

determination that the Attorney General’s certification was proper. See Richman

v. Straley, 

, 1145 (10th Cir. 1995); see also Council on Am. Islamic

Relations v. Ballenger, 

, 664 (D.C. Cir. 2006). We refer to

Oklahoma state law to determine whether Jolly acted within the scope of his

employment. See 

; see also 

.

Under Oklahoma law, an employee acts within the scope of his employment if he

is “engaged in work assigned, or if [he is] doing that which is proper, necessary




      1
       Section 2679(d)(2) states, in pertinent part, “This certification of the
Attorney General shall conclusively establish scope of office or employment for
purposes of removal.” 28 U.S.C. § 2679(d)(2).


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and usual to accomplish the work assigned.” Nail v. City of Henryetta, 

, 917 (Okla. 1996).

      Turning to the instant case, our analysis begins with the Attorney General’s

certification, which provides us with prima facie evidence that Jolly acted within

the scope of his employment. 

. Harrison bears the

burden of overcoming the presumption this prima facie evidence creates. 

attempt to meet this burden, Harrison argues that Jolly acted beyond the scope

of his employment because Jolly’s actions were malicious, willful, and wanton.

Harrison, however, provides us only with this conclusory argument. Without

more, he has failed to rebut the presumption the certification created, and

accordingly, the district court properly declined his invitation to resubstitute Jolly

as the defendant.

      For the foregoing reasons, we AFFIRM the district court’s decision to deny

Harrison’s requests to remand the case to state court and to resubstitute Jolly as

the defendant. In addition, we GRANT Harrison’s motion to proceed in forma

pauperis.



                                        ENTERED FOR THE COURT



                                        David M. Ebel
                                        Circuit Judge


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