there the district court erred and denying mr harris is that there's a certification of employment and failing to substitute the united states as a defendant or mr harris in the underlying ca and granting the united states motion to dismiss the matter so there are two areas and why the district court erred in that serve and failing to certify that mr harris was in the employee is in the course and scope of their employment if they are driving a vehicle owned by their employer and within the general employment of their employer at the time of the accident in this case mr harris was driving a u s p s to be a cole and was generally on the clock with the united states postal service at the time of the accident cell of the united states to rebut that presumption which they have not done in this case st mr harris would be are no guidelines under the united states postal service handbook that states where this that say i'm sorry when this break should take place only where it should take place there are two location mr harris was authorized to take his break in and he was at one of these locations when the accident occurred mr harris was helping a customer and going up above and beyond  in missouri further supports the fact that if even if the district court determined that mr harris was not in the course and scope of his employment because he had somehow deviated from his employment even though  very similar here mr harris was driving a vehicle for his employer just like in the american family case just as an american family the employer had a very strong say and how to create the routes that the drivers were supposed to stay on and just as an american family their route was slightly deviate boss to deliver the mail out of order however that does not apply under any postal service guidelines to actual break a mr here stated that at a certain point on his route he needed to use the restroom stop and get a bottle water or something like that he you know maybe in a place in a residential area where he can't do that he would be allowed to drive off his route go to a gap and take care of things and the same argument applies  to the personal break locations and in fact mr harris was may have deviated off his route to do things earlier in the day by at the actual time of the accident he was within his realm and  united states has just been cracked when it argues that this matter should be evaluated under the clearly erroneous standard as set forth in the briefing the clearly erroneous standard only applies when there are extraneous facts in dispute here are not we're not talking about extraneous facts here we're talking about facts that go directly to the heart of the case we're going to have an argument to what extent about those are in dispute but the clearly erroneous standard is meant for oral testimony was obviously did not occur here but because this is what we're discussing are facts that go directly to the heart of the case as the case law talks about facts that are of intertwined with the facts of the case that is the best argument we have here that at best for the united states this is something that should be determined by a jury at the same time and to determine scope of the ointment if the united states truly believes there are facts in issue then under the th circuit law what we're then supposed to do is we're going to have the jury decide these issues and that is something that missouri and missouri law we're talking about here does all the time there are a m a i think back multiple emmy that talk about agency and that address these very precise issues in this case so if the united states wants to argue that we have fact that issue ok then these issues should be decided by the jury under missouri m i a eyes and not by the court when it is trying to evaluate these issues i want to talk about point of d v i want to talk about point a deviation briefly to what the united states main keep in mind the testimony that mr harris that by he actually went to the bathroom up at the a more this supposedly point where the deviation occurred and he was only a couple of blocks off his route if you're talking about matter how how the different policies of the employers that are involved in determining the significance of a deviation generally specifically  re no and the reason why is is that there is no deviation from the overall policy that the post office had he was going to the bathroom route he was only going off his route for two blocks to go to the bathroom what even the post office designated representatives testify to is there is certainly some leeway when they are allowing their votes to go to the bathroom and not surprisingly now if you had gone  be gone to the bathroom troy well then we'd be having a different day but that's not what happened here he was he was two blocks off mediately went back to a comfort stop which he was authorized to do and then went to an authorized break location which he was authorized to do so even if the deviation had occurred that's not what's going on in life with these cases and you know i i want to go back very briefly to the standard review because i walked in here believe and that what we had was a noble review of the scope of employment decision or determination but the facts necessary because it's a mix question of fact and law we would view the facts found by the by the court and review those under the clearly erroneous status standard and that is are you saying that's wrong i believe that's incorrect your honor if you honor can you hear me yes we can't all right thank you good morning may please the court my name's nicol well and i'm appearing today on behalf of the united states as the proper party in place of the postal service pursuant to the federal tort claims act this case is about determining whether the district court was correct that it lacked jurisdiction to hear the case by finding that the united states did not waive sovereign immunity under the a because appellant harris was not acting within the course and scope of employment as a postal service carrier at the time that appellant harris injured mr owens by driving his postal vehicle into reasons to do a favor for a friend go shopping at kmart for him then stopping in a guest ation for a soda then delivering the purchase item to that friend in while there had a smoke with him and then before leaving the friend's residence injuring the friend with the postal vehicle before returning to the point where the deviation began and mail delivery could continue was certainly not authorized or permissible and that constitutes a marked deviation from the master's business the postal services business he violated postal service policies it's interesting that neither appellant harris nor appellant owens even address the postal service policies at the lower court nor at this court these strains are requirements among many other u s p s policies they serve the postal service as a culture of operations management cost efficiency safety as well as fulfilling expectations regarding timely delivery of mail mr harris a departure from the route for twenty five minutes for entirely personal business was anything but a slight or the burden of proof in this case always stays with the plaintiffs while there is a presumption in cases like this the burden of proof doesn't shift it's a matter of whether or not because if there was  presumption and the government did not provide any evidence then the case would be over they would be in the scope of employment but by presenting the evidence that the court weighed in is presumption in this case on skewed look at the evidence presented by the government was substantial and controverted the presumption and therefore the presumption disappeared as the district court d pointed out accident but here applying missouri law the district court in ewing said the scope of employment inquiries focused not on the time or motive of the conduct but rather on whether the act was done by virtue of the employment and in furtherance of the business or interest of the employer there's no it's in it simply to go shopping for a friend while you're doing your route it's not the purpose of the postal service the presumption in this is this is it doesn't matter that the location authorized brake stop and what they have here is with regard to the stops as they fill out a form and it is an approximate location the brakes are are taken along the route order as they are delivering the mail there are times and it was it was indicated in this case that he didn't take a break at his location during the inspection that occurred  the year before several months before and during that inspection he didn't go off his route anyway he took breaks at different locations that he indicated on the form that he that that we're talking about now however during that inspection he took them along the route in sequential order of the mail delivery interesting both brakes were exactly ten minutes when the supervisor was with riding along the st break was d at ten thirty two in the morning on main street not at five hundred and one maple street so he on during the inspection he had passed it that's not a violation he took his st break along the route that the issue presented by this case is that five a one main street five a one maple street were owens resided was one of the st stops along the route so that brings up the issue of backtracking in this case that  believe you indicated earlier judge it's backtracking is simply an xpect i mean not backtracking is simply an expectation that there that there is a pre determined set route in the  st place and even mr harris admitted that he was aware that he could not backtrack he sought authorisation from the supervisor if he intended backtracking on his route  postal service is not like backtracking even stated quote that way if someone downtown is watching your scanner or doing anything why did you go here or stop there when this should have been your next delivery but you went every day on their employees no they don't but they do use it and it came and it was used in this case to determine the route the specific route and the specific specific locations that mr harris had taken to the briefs from the other side quote this mr finch on a question of backtracking and they have him saying the assumption i guess it's an assumption when these are in there is that you take the brake when you're there meaning i guess while you're on the route but of course the other side says well he's just calling that an assumption as opposed to something that's written in a policy somewhere what do you have to say about that with regard to the the unwritten policy and is correct honor that fact tracking is an un written policy postal service has both written policies and unwritten policies mr finch testified that it's an official break location because you're there because you're at five o one maple delivering and you're done delivering you can take a ten minute break it's not so any time you feel like taking a break you can go back to five gal one right i know what finch said how is that so called on written policy communicated to the mail carriers i don't have i don't have an answer of how that is communicated to the mail carrier your honor only i only have the evidence of mr harrison self admittedly acknowledging that it was against policy to backtrack without authorization that's the only evidence that i have his admission that when he did backtrack or go back on his route or have to do something different than the delivery of his mail he would contact his supervisor so you think he that shows that he knew it was a policy and i believe so your honor i believe by him imaging that when he when he would have to and indicating that he knew that they watched his g p s system he also testified that he did it too he said he didn't have to backtrack every day but on the days he w happen he conceded that the rule was to get authorization to backtrack he would inform his supervisor because he understood the rule and in testified he stated i did it to cover me that way there's no questions asked and  that's the end inference that the district court can make from that type of evidence that there was an unwritten policy in place and that mr harris was aware of the written policies that the district court looked at called them the strict policies  the policy handbooks were explicit in their in their limitations regarding the use and deviation they prohibited the use of the postal vehicle for personal use the guidelines also re regiment a carrier's route and delivery order such that the deviations and backtracking without prior authorization are not permitted per minute harris intentionally deviated from its route whilst postal service to run it in minute personal errand it minute it was a personal errand and shop at kmart for owens and then deliver that purchase item to owens without the postal services knowledge permission or instruction and this was certainly beyond the postal services expectations and as such district court probably found that the evidence in this case indicates that harris deviated from his route without authorization using his postal vehicle to run a personal errand for a friend and that the and the postal service did not acquiesce to mr harris to use that vehicle to purchase and deliver dog food to a friend while delivering mail on his route defendant harris is proud of and hours of employment they were strictly set and monitored paris had not yet he had not even left owens residence when the accident occurred and he was not engaged in an act of service for his employer by shopping in kmart for a friend and delivering that before getting back to his job it and the district court probably found the defendant harris are mr harris had not yet returned to the point of thirty seven followed in the fifty's and then the sixty's but none of those have been overturned from the supreme court brown versus more a mark in deciding character and the evidence is not conflicting is a question of law for the court in in humphrey versus hogan the majority rule is that the relation of the master and servant is not resort until he  returned to the place where the deviation occurred or to a corresponding place some place where in the performance of his duty he should be mr finch testified he was wasn't where he was supposed to be delivering dog food to a friend is not conducting a postal service business and then you look at thomas st mcbride in the district court used all three of these cases these lines of the missouri law s turning aside from designated and customary routes where the sole motive is self interest that is the self interest here that's the sole motive it was unmixed with any intent to serve the master there was no intent to serve the postal service by driving to k mart pick up dog food for a friend and then go deliver to him and have a smoke with him tell separates the accounts of the plaintiffs in the cases seem to argue that that was consistent with the close to services argue that but that it's an outrageous argument to believe that the postal service is position is by price stating and that's the only testimony we have about this from mr ayres that he believes that i was going above and beyond for my customers it's it's outrageous to believe that the postal service would have a would would authorize its carriers to go run errands and favors for all the customers on their routes  and efficiency and even even dictated by the form three hundred and ninety nine dollars of the inspection route indicate that these are strict they are near taken by minutes and seconds it's order and if you finish it early you come back to the to the postal service and you do more work off the route i see that my time is almost up are there any other questions from the court  apply those facts to the scope of employment in this in found and properly filed under the facts of the case weighing all the evidence that mr harris was not in the sc stated that the court finds that an evidentiary hearing is not warranted in this action as there are not any material facts in dispute the ostler in case cited by the united states says that if there are no material facts in dispute the earlier was the civically were guarding the delivery of mail he said that he knew the mail had to be delivered in a specific order but that it was his understanding and i decided to testimony it was his understanding that he said we all have the same understanding that in our ten minute break we can do what we need to or what we want to do in our ten minute break and that's on the appendix page two hundred and sixty seven and  includes he said going tanning going home to lunch going and running errands and the issue of shopping at kmart was irrelevant because the break had deviation had ended at the point he went to a comfort