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GODBOUT v. PARIZEK

February 5, 2004.

DAVID GODBOUT, Plaintiff,
v.
DENNIS PARIZEK and UNITED STATES OF AMERICA, Defendants



The opinion of the court was delivered by: JOHN GRADY, Senior District Judge

MEMORANDUM OPINION

Before the court, is plaintiff's motion to remand. For the reasons set forth below, the motion is denied.

BACKGROUND

  This suit, brought by pro se plaintiff David Godbout against defendant Dennis Parizek, an Internal Revenue Service employee, originally was filed in DuPage County, Illinois small claims court. The underlying facts, at least that can be gleaned from the complaint, are rather elusive. The complaint alleges, in its entirely, that:

  [Parizek] willful[y], deliberate[ly], and with malice performed the following action against the plaintiff: aided and/or concealed the deliberate destruction and attempted destruction or alteration o [sic] documents, violated the plaintiff's constitutional due process rights, improperly required prema-facie [sic] evidence when it was known to the defendant that this is improper, refused to allow the plaintiff rights that are assigned to the Page 2 plaintiff. The pattern of conduct is misconduct as understood under Illinois and this misconduct has resulted in to [sic] a financial burden being placed upon the plaintiff that is not justified or warranted. The total sum of which the defendant has been indebted due to the defendant's acts is over five thousand dollars.

  On April 29, 2003, the United States filed the following with this court: (i) a certification by the United States Attorney for the Northern District of Illinois that Parizek was "acting within the scope of his employment . . . at the time [of] the incidents out of which plaintiff's claims arose," pursuant to 28 U.S.C. § 2679(d)(2); (ii) a notice of substitution of the United States for Parizek as the sole defendant, also pursuant to 28 U.S.C. § 2679(d)(2); and (iii) a notice of removal pursuant to 28 U.S.C. § 2679(d)(2), 1441 and 1442(a)(1). Shortly thereafter, Godbout filed a motion to remand.

  Before turning to the merits of Godbout's motion, we note that the government's pleadings provide some much-needed context to the complaint's otherwise opaque allegations. Suffice it to say, Godbout's claim appears to arise out of his contact with the IRS regarding his personal tax liability. We will not delve any further because all we really need to know to resolve Godbout's motion is that Parizek is a federal employee, and moreover, Godbout will have another opportunity to plead his claim (more on that below) and, at least at this stage, we defer to his version of events. Page 3

  DISCUSSION

  This is a "Westfall Act" case. The Westfall Act, or the federal Employees Liability Reform and Tort Compensation Act of 1988 ( 28 U.S.C. § 2679) (the "Act"), established "standards to govern the immunity of Federal employees who have allegedly committed state common law torts."*fn1 H.R.Rep. No. 100-700, 100th Cong., 2d Sess. 4, reprinted in 1988 U.S.C.C.A.N. 5945, 5947 (1988). Under the Act, when a federal employee is sued for a wrongful or negligent act, the United States Attorney General or its delegate may certify that the employee was acting at the time within the scope of his or her employment.*fn2 See 28 U.S.C. § 2679 (d)(2).

  In this case, the United States Attorney's "scope Page 4 certification" hag three consequences under the Act: (i) because the action was initially filed in state court, the United States Attorney is required to remove the suit to federal court; (ii) the United States is substituted as the sole defendant in place of Parizek; and (iii) the action proceeds as a claim against the United States under the FTCA. See. id., Thus, while Godbout may be surprised to find that his small claims action against, Parizek has metamorphosed into a federal case against the United States, that is precisely what is contemplated by the Act.

  In his motion to remand, Godbout. argues that the United States Attorney's scope certification is in error, i.e., Parizek was not acting within the scope oil his employment, at the time of his alleged unlawful conduct. According to Godbout, then, both the removal and the substitution of the United States as defendant are likewise erroneous.

  We take the removal question first, and on that score, Godbout's argument is a nonstarter. Even if the United States Attorney's scope of employment determination is wrong, the plain language of the Act. forecloses judicial review. "[the] certification of the Attorney General shall conclusively establish scope of office or employment for purposes of removal." 28 U.S.C. § 2679 (d)(2) (emphasis added); see. Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995) (confirming section 2679(d)(2)'s literal meaning). Therefore, when Page 5 the Attorney General certifies that a federal employee was acting within the scope of employment, Congress has "conclusively" authorized federal jurisdiction, and this court has no authority to remand on the ground that the scope certification is erroneous.*fn3 See 28 U.S.C. § 2679(d)(2).

  Unlike the removal query, the Act does not: provide a clear-cut answer to the substitution question. While section 2679(d)(2) states explicitly that certification "shall conclusively establish scope or office or employment for purposes of removal," the section contains no such statement with regard to substitution. See id. (emphasis added). in Lamagno, the Supreme Court found meaning in the omission and held, settling what had been the law of this circuit since Hamrick v. Franklin, 931 F.2d 1209, 1211 (7th Cir. 1991), that the Attorney General's scope certification is subject to judicial review on the issue of substitution. See Lamagno, 515 U.S. at 436-37. The Court stated:

  Congress spoke in discrete sentences in § 2679(d)(2) first of removal, then of substitution. Next, Congress made the Attorney General's certificate conclusive solely for purposes of removal, and notably not for purposes of substitution. It follows . . ., that the scope-of-employment Page 6 judgment determinative of substitution can and properly should be checked by the court, i.e., the Attorney General's ...


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