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May 30, 2003


The opinion of the court was delivered by: Wayne Andersen, District Judge


This matter is before the court on the motion of the United States of America to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. For the following reasons, the motion is treated as a motion for summary judgment and granted.


Plaintiff Edward Boutkowski, a federal prisoner incarcerated in Florida) filed this suit on October 9, 1998, against Elena Bontkowski, his ex-wife, also known as Elena Bront, and FBI agent Brian Smith. Bontkowski alleged that Smith and Bront conspired to have Bontkowski prosecuted on false charges and to deprive Bontkowski of certain valuable works of art.

After the case was initially dismissed for want of prosecution and reinstated, Smith moved to dismiss the suit. On October 31, 2000, the court granted the motion because Bontkowski had sought declaratory and injunctive relief without alleging facts that would justify either. The court also believed its jurisdiction depended on a federal constitutional claim that was barred by the applicants two-year limitations period. Bontkowski's motion to reconsider was denied.

On September 26, 2002, the Court of Appeals reversed and remanded, stating that this court had "buried [this suit] prematurely because a few faint signs of life remained." Bontkowski v. Smith, 305 F.3d 757, 759 (7th Cir. 2002). The Court of Appeals agreed that Bontkowski had not shown a basis for declaratory or injunctive relief, id., at 760-61, but held that this court erred in failing to consider whether Bontkowski might be entitled to other relief, such as a constructive trust. Id. at 761-62. The court held that its intervening decision in Newsome v. McCabe, 256 F.3d 747 (7th Cir. 2001), barred any constitutional claim for malicious prosecution, id., at 760, but that Bontkowski had stated a claim for conversion under Illinois law and had adequately invoked federal diversity jurisdiction under 28 U.S.C. § 1332. Id. at 763.


After this case was remanded, the United States filed a "Notice of Substitution" to substitute the United States for Smith as party defendant under the Westfall Act, 28 U.S.C. § 2679 (d)(1), together with a certification by the Attorney General that Smith had been acting within the scope of his employment by the United States at the time of the incidents giving rise to the complaint. Simultaneously, the United States moved to dismiss Bontkowski's claims for lack of subject-matter jurisdiction. The United States contends that Bontkowski's sole remedy is a claim against the United States under the Federal Tort Claims Act (FTCA), and Bontkowski has not exhausted administrative remedies prior to filing suit, a jurisdictional requirement of the FTCA.

The motion can be granted only if the United States is property substituted for Smith. It would appear from the statutory language that the Attorney General's certification is conclusive: "[u]pon 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 United States district court shall be deemed an action against the United States . . . and the United States shall be substituted as the party defendant." 28 U.S.C. § 2679 (d)(1). Nevertheless, the Supreme Court has held that the scope-of-employment certification by the Attorney General may be challenged by the plaintiff and is subject to review by the district court. Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995).

Because certification does not necessarily result in substitution, the United States' "Notice of Substitution" is effectively a motion to substitute. A motion to substitute may resemble either a motion to dismiss or a motion for summary judgment, in that it may either accept the allegations of the complaint as true for purposes of the motion, or it may attempt to show, through evidence outside the pleadings, that there is no genuine dispute that the plaintiff was acting within the scope of his employment. Taboas v. Mlynczak, 149 F.3d 576, 580-81 (7th Cir. 1998). Nevertheless, a motion to substitute differs in one critical respect from either a motion to dismiss or a motion for summary judgment: the plaintiff opposing substitution, rather than the movant, bears the burden of persuasion. Id. at 582; Snodgrass v. Jones, 957 F.2d 482, 487 n. 3 (7th Cir. 1992).

Bontkowski contends that Smith's alleged acts fell outside the scope of his employment as a matter of Illinois law. Bontkowski is correct that the scope of Smith's employment is determined by state law. Taboas, 149 F.3d at 582. Under Illinois law, an employee's action falls within the scope of employment if "(a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; (c) it is actuated, at least in part, by a purpose to serve the master." Id. (quoting Pyne v. Witmer, 129 Ill.2d 351, 543 N.E.2d 1304, 1308 (1989)).

In his opposition to the motion, Bontkowski asserts that two allegedly tortious actions by Smith lay outside the scope of his employment: Smith's instructing Bront to make false statements to the Arlington Heights police, resulting in Bontkowski's prosecution, and Smith's intervention with both the Arlington Heights and Chicago police departments, causing them to cease their investigation of Bontkowski's theft complaints against Bront.

Although Bontkowski recites the foregoing three factors defining the scope of employment under Illinois law, he does not explain which of them has not been met. Bontkowski does not contest that Smith's actions occurred substantially within authorized time and space limitations. As the Court of Appeals noted, "Smith was in charge of an investigation that resulted in criminal charges of fraud that have led to Bontkowski's being imprisoned." Bontkowski, 305 F.3d at 760. Smith's contacting Bront (the former Mrs. Bontkowski), developing a relationship with her, and obtaining information for use against Bontkowski was within the scope of that investigation.

Apparently addressing the first factor, the kind of actions Smith was employed to perform, Bontkowski points out that giving a false report of a crime, as Smith allegedly induced Bront to do, is itself a crime under Illinois law and violates public policy. The test, however, is not whether the employee has been authorized to perform the alleged actions, it is whether they are of the kind he was employed to perform. "[A]ctions having an intimate bearing on the duties normally assigned to the office of employment, even though usurped or misused, ...

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