General that the defendant was acting within the scope of his employment at the time of the incident out of which the claim arose, the action is deemed one against the United States and the United States shall be substituted as a party defendant. 28 U.S.C. § 2679(d)(1). Therefore, in support of their motion to dismiss and substitute, the federal defendants attached the certification of Thomas P. Walsh, Chief of the Civil Division, who has the delegated authority pursuant to 28 C.F.R. § 15.3(a), to certify that Bobko, Kinsella, Abbott and Sandy were acting within the scope of their federal employment at the time of the incidents alleged in the complaint. Based on the foregoing, we conclude that the United States must be substituted as defendant in Count II for the individual defendants.
Though plaintiffs did not file a response to the federal defendants' objections, we have considered the arguments raised in their underlying brief in support of their Rule 59(e) motion. We are not persuaded by plaintiffs' argument that because they were arrested for violating a municipal ordinance, CPD attest reports were completed, and they were placed in CPD cells, the individual defendants were not acting within the scope of their federal employment. This position wholly ignores the terms of the Task Force Agreement. Under the Task Force Agreement, the individual defendants were performing duties regarding the detection of illegal narcotics activity in the Chicago area by, among other things, engaging in traditional methods of investigation in order to effectively prosecute criminal conduct in the United States' courts and the courts of Illinois. We agree with the federal defendants that an attest for a municipal code violation incident to activities in connection with the joint task force, does not convert defendants' status to that of state actors. As a result, we sustain the federal defendants' first objection.
For their second objection, the federal defendants challenge the Magistrate Judge's conclusion that plaintiffs stated a viable Section 1983 claim against them. This objection is closely related to the first. Essentially, the federal defendants contend that simply because plaintiffs were arrested for disorderly conduct this action does not automatically convert the defendant officers into state actors operating under color of state law. As previously discussed in this opinion, the purpose of the joint task force was to stymie drug trafficking. In order to effectuate the goals of the joint task force it makes logical sense that the officers would target locations such as train stations. Thus, when the plaintiffs were stopped by the defendants at Union Station, this activity was conducted as a result of the federal mission of these officers. In our view, these officers were acting as federal agents because their activities were conducted as part of a federal investigation. See, e.g., Hughes v. Meyer, 880 F.2d 967, 971 (7th Cir. 1989), cert. denied, 495 U.S. 931, 109 L. Ed. 2d 501, 110 S. Ct. 2172 (1990); Askew v. Bloemker, 548 F.2d 673, 677-78 (7th Cir. 1976).
Equally important, it is legally inconsistent to allow simultaneous claims for violations of Section 1983 and Bivens against the same defendants. The defendant officers are either state actors or federal actors -- they cannot be both. We find that they are federal actors. Accordingly, we sustain the federal defendants' second objection. Count I was properly dismissed for lack of subject matter jurisdiction.
C. The City's Objections
For its first line of attack, the City argues that the Magistrate Judge failed to adequately address the loaned servant doctrine. The City contends that a loaned servant relationship existed among defendants Bobko, Kinsella and Abbott and the United States by virtue of the written agreement entered into by the DEA and CPD. According to the City, because these officers were under the direct supervision and control of DEA supervisory personnel, they were acting as agents of the United States, not the City, at the time of the incident giving rise to this lawsuit. In the City's view, the Magistrate Judge place excessive emphasis on the City's admission that Bobko, Kinsella and Abbott were on the City's payroll for the time in question. We agree.
Paragraph 7 of the Task Force Agreement unequivocally provides that, "the CPD will remain responsible for establishing the salary and benefits, including overtime, of the 39 officers assigned to the Task Force. . . ." Clearly, the City was complying with its obligation under the Task Force Agreement. Payment of wages alone, will not defeat the finding of a loaned servant relationship. See, e.g., A.J. Johnson Paving Co. v. Industrial Comm., 82 Ill. 2d 341, 412 N.E.2d 477, 481 ( Ill. 1980, 45 Ill. Dec. 126 ); Haight v. Aldridge Elec. Co., Inc., 215 Ill. App. 3d 353, 159 Ill. Dec. 14, 575 N.E.2d 243, 252 (Ill. App. Ct. 1991). In fact, after careful consideration of the unambiguous terms of the Task Force Agreement, we conclude that a loaned servant relationship did exist among Bobko, Kinsella, Abbott and the United States. We sustain the City's objection on this point.
As its second avenue of attack, the City argues that the Magistrate Judge erroneously concluded that this court substituted the United States for the City as party defendant in Count II. (Report and Recommendation, p. 2.) On July 23, 1991, this court granted the federal defendants' motion to substitute the United States for the individual defendants pursuant to 28 U.S.C. § 2679(d)(1). In other words, the United States was substituted for the individual defendants, not the City. Accordingly, we sustain the City's objection on this point.
For the reasons stated more fully in this opinion, we reject the Magistrate Judge's Report and Recommendation dated March 25, 1992, and deny plaintiffs' motion for reconsideration pursuant to Federal Rule of Civil Procedure 59(e).
JAMES H. ALESIA
United States District Judge
Date: JUN 10 1992