Wang

OPINION AND ORDER

Defendant James Horio petitions the court to find and certify that he was an employee of the United States, acting within the course and scope of his employment, at the time of the incidents from which this case arises. If the petition is granted, the results are that the action then proceeds as an action against the United States; the United States is substituted as the party defendant, and can then raise all defenses which it could raise if it had been sued separately. This procedure and result were recently added to the United States Code in 28 U.S.C. § 2679 (d)(3) (Nov. 18, 1988, Pub.L. 100-694 §§ 5.6, 102 Stat. 4564 ). There are as yet no reported decisions interpreting this section or defining the procedures to be followed, so this court is writing on a clean slate.

The petition by Horio is opposed by the United States and by the plaintiffs. The court determined that an evidentiary hearing was required in order to determine the necessary factual issues. The evidentiary hearing was conducted, and the matter was submitted to the court for decision.

The court has reviewed the testimony and the exhibits presented at the hearing, the arguments of counsel, the…