     Case: 16-30919      Document: 00514065541         Page: 1    Date Filed: 07/10/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals

                                      No. 16-30919
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            July 10, 2017

LUKE T. WEST,                                                              Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

CARRIE L. RIETH; ERIN E. PARROTT; RACHEL J. ALLEN; KENDRA L.
JOHNSON; PEGGY CUEVAS; LINDSAY BARTUCCO; SHANDA
STUCKER; UNITED STATES OF AMERICA,

              Defendants - Appellees




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:15-CV-2512


Before HIGGINBOTHAM, GRAVES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Appellant Luke West appeals the district court’s substitution of the
United States as defendant into the present suit in accordance with the
Westfall Act provisions of the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §
2679(d)(1). He also claims that the district court erred by dismissing his Bivens




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 16-30919
claims and abused its discretion by denying his motion for reconsideration. We
AFFIRM the district court’s judgments.


                               BACKGROUND
      From August 2010 until March 2015, West, a former United States
Marine Corps Gunnery Sergeant, worked in the Marine Forces Reserves
Finance Section in New Orleans, Louisiana. He contends that in June 2013,
fellow Marines Carrie Rieth, Erin Parrott, Rachel Allen, and Kendra Johnson
coordinated to falsely accuse him of sexual harassment and assault after a
Marine Corps Ball. Their purpose, he claims, was “to take general advantage
of the political climate surrounding the handling of such allegations in the
military and specific advantage of certain benefits under the Department of
Defense and Marine Corps Sexual Assault Prevention and Response (SAPR)
Program and the Marine Corps Equal Opportunity (EO) Program.”
      West also contends that, during the ensuing sexual misconduct
investigation, SAPR employees Peggy Cuevas, Lindsay Bartucco, and Shanda
Stucker “exerted significant improper influence over Naval Criminal
Investigative Services (NCIS), the civil law enforcement agency of the United
States Navy” by “prevent[ing] NCIS from investigating evidence and
information exculpatory to [West]” and “caus[ing] NCIS to attempt to
improperly intimidate [West] and [West’s] witnesses, with threats of
obstructing justice investigations.”
      In November 2014, West was court martialed on the sexual misconduct
and related charges. Though West was acquitted on the most serious charges,
he was convicted of obstruction of justice, maltreatment of a subordinate, and
use of indecent language. He was sentenced to 30 days confinement and a
reduction in rank.


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                                   No. 16-30919
        On July 9, 2015, West sued Reith, Parrott, Allen, and Johnson for their
role in reporting the alleged sexual misconduct. Shortly after, the district court
granted the United States’ motion to substitute itself for the original
defendants under the Westfall Act. West moved for the court to reconsider the
substitution, but that motion was denied. West then amended his complaint
twice, bringing Bivens actions against the original defendants and SAPR
employees who investigated the sexual misconduct claims. On June 24, 2016,
the district court dismissed West’s Bivens claims. West timely appeals from
the district court’s judgments.


                           STANDARD OF REVIEW
        We reviews dismissals under Fed. R. Civ. P. 12(b)(1) and 12(b)(6) de novo.
Wolcott v. Sebelius, 635 F.3d 757, 762 (5th Cir. 2011); Johnson v. Cty. of
Beaumont Police Dep’t, 958 F.2d 616, 618 (5th Cir. 1992). We review the denial
of a motion for reconsideration for abuse of discretion. Edward H. Bohlin Co.,
Inc. v. Banning Co., Inc., 6 F.3d 350, 353 (5th Cir. 1993).


                                  DISCUSSION
        West contends that the district court erred when it found that his
proffered evidence did not sufficiently rebut the United States Attorney’s
scope-of-employment certification. He also contends that the district court
erred by dismissing his Bivens claims and abused its discretion by denying his
motion for reconsideration. We find none of these arguments persuasive.


   I.      West failed to prove by a preponderance of the evidence that
           the United States could not substitute itself as defendant


        West’s evidence was insufficient to rebut the U.S. Attorney’s scope-of-
employment certification. “[F]ederal employees [have] absolute immunity from
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                                  No. 16-30919
common-law tort claims arising out of acts they undertake in the course of their
official duties.” Osborn v. Haley, 549 U.S. 225, 229 (2007). “When a federal
employee is sued for a wrongful or negligent act, the Federal Employees
Liability Reform and Tort Compensation Act of 1988 (commonly known as the
Westfall Act) empowers the Attorney General to certify that the employee ‘was
acting within the scope of his office or employment at the time of the incident
out of which the claim arose . . . .’” Gutierrez de Martinez v. Lamagno, 515 U.S.
417, 419-20 (1995) (quoting § 2679(d)(1)). “Upon certification, the employee is
dismissed from the action and the United States is substituted as defendant.”
Id. at 420.
      West argues that he proffered sufficient evidence to defeat the U.S.
Attorney’s certification by “rais[ing] a genuine issue of material fact as to the
falsity of the accuser defendants’ allegations.” While the Attorney General’s (or
in this case, U.S. Attorney’s) “scope-of-employment certification is subject to
judicial review,” the Supreme Court has held that “[s]ubstitution of the United
States is not improper simply because the [U.S. Attorney]’s certification rests
on an understanding of the facts that differs from the plaintiff’s allegations.”
Osborn, 549 U.S. at 230, 231. Instead,
              The United States . . . must remain the federal
              defendant in the action unless and until the District
              Court determines that the employee, in fact, and not
              simply as alleged by the plaintiff, engaged in conduct
              beyond the scope of his employment.

Id. at 231. The Fifth Circuit has not previously examined the correct quantum
of proof to refute a U.S. Attorney’s scope-of-employment certification. But given
that a plaintiff must show “in fact, and not simply as alleged by the plaintiff,
[that the employee] engaged in conduct beyond the scope of his employment”
to refute scope-of-employment certification, we are persuaded by our sister
circuits that “the party seeking review of the [U.S. Attorney’s] decision to grant
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                                      No. 16-30919
scope-of-employment certification, bears the burden of presenting evidence and
disproving [that] decision . . . by a preponderance of the evidence.” See Jackson
v. Tate, 648 F.3d 729, 735 (9th Cir. 2011) (quotations omitted); Kanaby v. U.S.
Army Corps of Eng’rs, 53 F. App’x 776, 778 (7th Cir. 2002) (same); Borneman
v. United States, 213 F.3d 819, 827 (4th Cir. 2000) (same). The district court
correctly determined that West had not proved by a preponderance of the
evidence that the U.S. Attorney’s certification was incorrect. As the court
stated, “the evidence West actually submitted in opposition to the
government’s motion is thin” and is mostly a list of “purported weaknesses or
‘material inconsistenc[ies]’ in the statements and testimony of the Federal
Defendants.” Furthermore,
               [I]t is notable that West has not submitted an affidavit
               or sworn statement denying the allegations against
               him. The assertions that the allegations were false are
               contained in his complaint, amended complaint, and
               briefing, none of which are sworn or verified.

Because West’s evidence did not disprove the U.S. Attorney’s scope-of-
employment certification by a preponderance of the evidence, the district court
did not err. 1 See Jackson, 648 F.3d at 735.


   II.       The district court properly dismissed West’s Bivens claims


         The district court did not err when it dismissed West’s Bivens claims.
“Bivens affords the victim of unconstitutional conduct by a federal actor or
agent a direct remedy under the Constitution.” Abate v. Southern Pacific



         In his reply brief, West contends that the fact that he was acquitted on the most
         1

serious charges of sexual misconduct at his court martial refutes the U.S. Attorney’s scope-
of-employment certification by a preponderance of the evidence. However, West has waived
this argument by raising it for the first time in his reply brief. See Stephens v. C.I.T.
Grp./Equip. Fin., Inc., 955 F.2d 1023, 1026 (5th Cir. 1992).
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Transp. Co., 993 F.2d 107, 110 (5th Cir. 1993). “To recover damages under
Bivens, the injured party must show the existence of a valid constitutional
violation.” Id. However, “congressionally uninvited intrusion into military
affairs by the judiciary is inappropriate,” and thus, “no Bivens remedy is
available for injuries that arise out of or are in the course of activity incident
to service.” United States v. Stanley, 483 U.S. 669, 683, 684 (1987) (quotations
omitted).
      West maintains that his injuries were not incident to military service;
thus his Bivens claims should have been allowed to proceed. This argument is
unpersuasive. To determine whether an injury is incident to military service,
we look to the three-factor Feres test, which examines: “(1) duty status, (2) site
of injury, and (3) activity being performed.” See Regan v. Starcraft Marine,
LLC, 524 F.3d 627, 637 (5th Cir. 2008). All three factors weigh against West
and in favor of dismissal.
      First, “what is relevant about the status of an active duty service member
at the time of injury is where that status is on a continuum between performing
the tasks of an assigned mission to being on extended leave from duty.” Id.
“Duty status has sometimes been described as the most important of the
factors for whether an activity was incident to service.” Id. West’s duty status
weighs in favor of dismissal because, as the district court noted, “at all relevant
times, [the parties] . . . were employed by the Marines, and plaintiff does not
allege that he or any other party was on extended leave.”
      Second, the site of West’s purported injuries also weighs in favor of
dismissal. “[I]n the Fifth Circuit, the physical location of the injury is relevant
for the incident to service issue. . . . The purpose of this factor is to determine
where the service member was at the time of the injury” and whether he “was
engaged in an activity incident to service.” Id. at 640. Here, the site of West’s
injury was within the framework of his military employment and the military
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                                  No. 16-30919
discipline process. Consequently, he “was engaged in an activity incident to
service.” Id.
      Third, “the activity being performed at the time of the injury” suggests
that West’s injuries were incident to military service. Id. The purpose of the
third prong is to determine whether the activity giving rise to the injury
“served some military function.” Id. Here, the activity about which West
complains was a formal Marine investigation into allegations of sexual
misconduct. This investigation undoubtedly served “some military function.”
Id. Given that all Feres factors weigh in favor of dismissal, the district court
did not err. Id.


   III.   The district court did not abuse its discretion by denying
          West’s motion for reconsideration


      The district court did not err in denying West’s motion for
reconsideration. A motion to alter or amend a judgment filed pursuant to Rule
59(e) “serve[s] the narrow purpose of allowing a party to correct manifest errors
of law or fact or to present newly discovered evidence.” Waltman v. Int’l Paper
Co., 875 F.2d 468, 473 (5th Cir. 1989) (quotations omitted). West’s motion for
reconsideration did not “serve [this] narrow purpose:” First, he identified no
“manifest errors of law or fact.” Id. Second, all evidence presented in the motion
was available to West when he filed his initial brief. See Templet v. Hydrochem
Inc., 367 F.3d 473, 479 (5th Cir. 2004) (“[A]n unexcused failure to present
evidence available at the time of summary judgment provides a valid basis for
denying a subsequent motion for reconsideration.”). Because West’s motion for
reconsideration did not “serve the narrow purpose” of Rule 59(e), the district
court did not abuse its discretion. See Waltman, 875 F.3d at 473.



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                           No. 16-30919
                         CONCLUSION
 For the reasons stated above, we AFFIRM the district court’s judgments.




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