United States District Court, N.D. Illinois, Eastern Division
November 7, 2005.
RICHARD CARLSON Plaintiff,
J. DAVID HOOD, JAMES HANDLEY, NORBERT KIESZKOWSKI, and THE GENERAL SERVICES ADMINISTRATION, Defendants.
The opinion of the court was delivered by: HARRY LEINENWEBER, District Judge
MEMORANDUM OPINION AND ORDER
On February 24, 2004, the General Service Administration
(hereinafter, "GSA") and Plaintiff Richard Carlson (hereinafter,
"Carlson") entered into a settlement agreement concerning
Carlson's alleged wrongful termination of employment with the
GSA. The United States Merit Systems Protection Board (the
"MSPB") dismissed Carlson's appeal for wrongful termination and
approved the parties' settlement on February 26, 2005.
Thereafter, GSA employee J. David Hood ("Hood"), an individual
Defendant, sent an e-mail to certain other GSA employees
apprizing them of the details of the settlement with Plaintiff,
which is the subject of this action. Plaintiff alleges six
counts: Counts One through Four against the GSA under the Federal
Privacy Act; Count Five against the GSA and GSA employees Hood,
James Handley, and Norbert Kieszkowski under Illinois common-law defamation, and Count Six against the GSA and
Hood under Illinois common-law breach of contract.
Before the Court is the government's Motion to Substitute the
United States as sole Defendant for the GSA and GSA employees in
Counts Five and Six pursuant to the Federal Tort Claims Act (the
"FTCA"). The government has also filed a Motion to Dismiss the
same counts under FED. R. CIV. P. 12(b) (1) for lack of
subject-matter jurisdiction. For the following reasons, the Court
grants the government's motions on all stated grounds.
A. Motion to Substitute the United States as Defendant
The United States argues that the GSA and other individual
defendants are not the proper defendants for Counts Five and Six.
The United States requests substitution as the sole Defendant for
those counts pursuant to 28 U.S.C. § 2679. A plaintiff may only
bring an FTCA claim against "the United States and not against
the agencies and their employees," "absent explicit authorization
to the contrary." Russ v. United States, 62 F.3d 201, 203 n. 1
(7th Cir. 1995); see also, Hughes v. United States,
701 F.2d 56, 58 (7th Cir. 1982) ("[A] governmental agency cannot be sued
in its own name"); Stewart v. United States, 655 F.2d 741, 742
(7th Cir. 1981) ("Plaintiff has no cause of action against an
The GSA is a government agency that falls within the purview of
§ 2679(a) of the FTCA. A federal agency is defined broadly and includes the "executive departments, the judicial and legislative
branches, the military departments, independent establishments of
the United States, and corporations primarily acting as
instrumentalities or agencies of the United States."
28 U.S.C. § 2671. Pursuant to the requirements for substitution of § 2679 (d)
(1), the U.S. Attorney General's office certified that Hood,
Handley, and Kieszkowski are GSA employees who were acting within
the scope of their employment as employees of the United States
at the time of the incidents that relate to this action. A party
may challenge the U.S. Attorney General's certification, but the
challenging party carries the burden of proving the certification
was made in error. United States v. Jarrett, 133 F.3d 519, 540
(7th Cir. 1998).
Plaintiff challenges the Attorney General's certification of
Hood, Handley, and Kieszkowski as acting within the scope of
their employment at the time of the events set forth in the
complaint. The determination of whether a defendant's actions
fall within the scope of his or her employment is subject to
state law. Snodgrass v. Jones, 957 F.2d 482, 484 (7th Cir.
1992). Under Illinois law, "[n]o precise definition has been
accorded the term `scope of employment,' but broad criteria have
been enunciated." Taboas v. Mlynczak, 149 F.3d 576, 582 (7th
Cir. 1998). Illinois uses the following criteria in determining
whether an act is within the scope of employment: (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.
(2) Conduct of a servant is not within the scope of
employment if it is different in kind from that
authorized, far beyond the authorized time or space
limits, or too little actuated by a purpose to serve
Pyne v. Witmer, 543 N.E.2d 1304, 1308 (Ill. 1989) (citing
Restatement (Second) of Agency § 228 (1958)).
Plaintiff argues that Hood sent the e-mail concerning Carlson's
settlement outside the time limits of his employment because
Hood's e-mail was sent two hours and thirty-eight minutes outside
of GSA's official business hours. This argument is meritless.
Appendix A of the GSA order announces basic work requirements but
does not impose a strict limitation on when a workday ends. (Pl.
Mtn., Exh. 4). While the official business hours of 8:00 a.m. to
4:30 p.m. provide guidance to the public, the hours are not
designations as to when a specific employee's workday is
Plaintiff also argues that the circulation of information
regarding personnel falls outside the scope of employment because
it is not specifically enumerated in Defendants' job
descriptions. "No precise definition has been accorded the term
`scope of employment,'" and job descriptions will not be held to
exclusively define the scope of employment. Taboas, 149 F.3d at 582. While
Plaintiff worked at GSA, Hood was his supervisor. A supervisory
role includes the discretion to share information as necessary to
further the purposes of the United States. Hood was acting within
that purpose when he shared the details and rationale of the
Carlson settlement with other GSA employees. Accordingly, the
Court grants the Government's Motion and substitutes the United
States as Defendant for the purpose of resolving Counts Five and
B. Motion to Dismiss Counts Five and Six for Lack of
1. Sovereign Immunity
The United States also seeks to dismiss Counts Five and Six
under FED. R. CIV. P. 12 (b) (1) for lack of subject-matter
jurisdiction. When deciding a Rule 12 (b) (1) motion, a district
court accepts as true all well-pleaded factual allegations and
draws reasonable inferences in favor of the plaintiff. United
Transp. Union v. Gateway W. Ry. Co., 78 F.3d 1208, 1210 (7th
Cir. 1996). Defendant argues that Plaintiff's defamation and
breach of contract claims are barred because the FTCA's limited
waiver of sovereign immunity does not apply to "[a]ny claim
arising out of assault, battery, false imprisonment, false
arrest, malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract rights."
28 U.S.C. § 2680 (h). It is well established that the United
States does not relinquish sovereign immunity except when there is an express
statutory cede of that immunity. Calderon v. United States,
123 F.3d 947, 948 (7th Cir. 1997) ("While the FTCA on its face is a
`broad waiver' of sovereign immunity that provides for
governmental liability commensurate with that of private parties,
its waiver of immunity is far from absolute; many important
classes of tort claims are excepted from the Act's coverage.").
The torts of defamation and breach of contract against the United
States fall outside the waiver of sovereign immunity.
28 U.S.C. § 2680 (h); Henderson v. Harris, 672 F. Supp. 1054, 1064 (N.D.
Ill. 1987) (holding that under the FTCA the court lacked
subject-matter jurisdiction to hear plaintiff's defamation
claim.); Fed. Deposit Ins. Corp. v. Miller, 781 F. Supp. 1280,
1286 (N.D. Ill. 1991) (holding the plaintiff's "interference with
contract claim is barred by the plain language of § 2680 (h)").
Accordingly, Counts Five and Six are dismissed for lack of
2. Alternative Grounds
The government submits two alternative grounds for
subject-matter dismissal of Counts Five and Six. Although
sovereign immunity is a clear bar to jurisdiction, both counts
also lack jurisdiction on the alternative grounds. Counts Five
and Six are barred because Plaintiff has not presented his claims
to the appropriate agency, the GSA, as the FTCA requires.
28 U.S.C. § 2675 (a); Best Bearings Co. v. United States,
463 F.2d 1177, 1179 (7th Cir. 1972). Additionally, Count Six is barred because
Plaintiff did not complete the administrative process for
enforcement of the parties' settlement agreement in the MSPB as
set out in the Civil Services Reform Act, 5 U.S.C. § 1101 et
seq. See Blaney v. United States, 34 F.3d 509, 512 (7th Cir.
For the reasons stated herein, the United States' Motion to
Substitute itself as sole Defendant for Counts Five and Six is
granted, and its Motion to Dismiss those Counts for lack of
subject-matter jurisdiction is granted as well.
IT IS SO ORDERED.
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