     Case: 10-31083 Document: 00511416092 Page: 1 Date Filed: 03/18/2011




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

                                                 FILED
                                                                          March 18, 2011
                                     No. 10-31083
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

CHARLOTTE N. WHITE,

               Plaintiff - Appellant

v.

UNITED STATES OF AMERICA,

               Defendant - Appellee


                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                             USDC No. 2:10-CV-3067



Before KING, BENAVIDES, and ELROD, Circuit Judges
FORTUNATO P. BENAVIDES, Circuit Judge:*
       Plaintiff Charlotte N. White brought this state law defamation action in
Louisiana     state   court    against    Sherae     Hunter,     a   constituent     service
representative for Senator Mary L. Landrieu. The Government substituted itself
as the named defendant and removed the action to federal court. The district
court dismissed the action on the ground that the Government has not waived


       *
         Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 10-31083

immunity to defamation claims. White appealed, asserting that the Government
is not the proper defendant because Hunter acted outside the scope of her
employment when she allegedly defamed White. We affirm.
                              I. BACKGROUND
      Plaintiff Charlotte White worked as an Administrative Law Judge with
the Social Security Administration. On April 20, 2009, White visited the office
of Senator Mary Landrieu to request assistance for a certain Dr. Dudley
Stewart, who was having difficulty obtaining Medicare coverage for a bone
marrow transplant.    White met with Sherae Hunter, a constituent service
representative, and allegedly requested “that Senator Landrieu’s office assist
Dr. Stewart regarding his problem with medicare, so that he could attain the
needed bone marrow transplants because Medicare law had changed and at the
time covered such a procedure.” Hunter thought the request was inappropriate,
and an argument ensued. The next day, Hunter wrote a letter to Joan Parks-
Saunders, Regional Chief Administrative Law Judge for the Social Security
Administration. The letter describes White’s visit to Senator’s Landrieu’s office
and concludes:
      As a representative of the Social Security Administration, Ms.
      White’s actions and behavior were less than professional or
      appropriate. She was in our office to advocate for someone else who,
      as we later discovered, is a physician who sometimes testifies for
      Ms. White in her social security cases. She was also demanding
      that a United States Senator overstep her jurisdiction and authority
      to compel an agency to go outside their policies and procedures. In
      addition, Ms. White violated privacy rights by going through a file
      containing personal information that she removed from a staffer’s
      personal work area and to which she had no authority.



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      As a federal employee, I believe it is my duty to bring this matter to
      your attention for your appropriate review.
The letter is written on Senate letterhead and signed by Hunter in her role as
“Constituent Service Representative, Office of United States Senator Mary L.
Landrieu.” According to White, the letter “was a personal vendetta concocted by
Hunter in her individual capacity along with the recipient of the letter” intended
to bring about the termination of White’s employment.
      In addition to the allegations in White’s complaint, White has produced an
affidavit stating that she attended a meeting led by Parks-Saunders shortly
before the incident at Senator Landrieu’s office. At the meeting, White allegedly
informed Parks-Saunders “that the agency’s practice of continuing to open
National Hearing Centers in the wake of an adverse and binding arbitration
ruling, made by an independent arbitrator, was illegal.”         Parks-Saunders
allegedly responded that she could terminate White’s employment. White’s
affidavit further asserts that “[a] friend . . . told affiant that . . . she was
working . . . with Sherae Hunter, when Hunter stated that she was a friend of
Joan Parks-Saunders . . . .”
      White filed a petition for defamation against Hunter in Louisiana state
court on June 15, 2010. The petition was filed against Hunter “in her individual
capacity, outside the course and scope of her official duties as a constituent
service representative.” On September 14, 2010, the United States Attorney for
the Eastern District of Louisiana certified that “Hunter was at all times acting
within the course and scope of her employment as an employee of the United
States Senate at the time of the conduct alleged in the petition.” The next day,
the Government substituted itself as the named defendant and removed the



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action to federal court. See 28 U.S.C. § 2679(d)(2).
      The Government moved to dismiss on two grounds: first, that the
Government has not waived immunity to defamation claims, see 28 U.S.C
§ 2680(h); and second, that White did not exhaust her administrative remedies
before filing this action, see 28 U.S.C. § 2675(a). Both theories turn on whether
Hunter acted within the scope of her employment when she sent the letter to
Parks-Saunders, and thus whether the Government is the proper defendant in
this action. The district court granted the Government’s motion to dismiss.
White appealed. We affirm.
                              II. DISCUSSION
      There is no dispute that White may not sue the Government for
defamation. See 28 U.S.C § 2680(h); Williams v. United States, 71 F.3d 502, 506
(5th Cir. 1995); El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836, 853
(D.C. Cir. 2010). The issue is whether the Government is the proper defendant
in this action.
      The Westfall Act provides that, upon certification by the Attorney General
or his designated representative that a government employee was acting within
the scope of his employment at the time of an allegedly tortious act, the United
States may substitute itself as the proper defendant in an action against the
employee and remove the action to federal court. 28 U.S.C. § 2679(d)(2); Counts
v. Guevara, 328 F.3d 212, 214 (5th Cir. 2003).         For purposes of removal
jurisdiction, the certification conclusively establishes the employee was acting
within the scope of his employment. Id.; Gutierrez de Martinez v. Lamagno, 515
U.S. 417, 432 (1995). For purposes of substitution, however, the certification is
judicially reviewable. Lamagno, 515 U.S. at 434-36. A plaintiff who challenges

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the Government’s certification bears the burden of showing the employee’s
conduct was not within the scope of his employment. Williams, 71 F.3d at 506.
“We review the district court’s legal conclusions of the scope-of-employment issue
de novo.” Counts, 328 F.3d at 214.
      Whether a federal employee acted within the scope of his employment is
determined by the law of the state in which the negligent or wrongful conduct
occurred. Garcia v. United States, 62 F.3d 126, 127 (5th Cir. 1995) (en banc).
Neither party disputes that Louisiana law applies to this case. In Louisiana,
“[g]enerally speaking, an employee’s conduct is within the course and scope of
his employment if the conduct is of the kind that he is employed to perform,
occurs substantially within the authorized limits of time and space, and is
activated at least in part by a purpose to serve the employer.” Orgeron v.
McDonald, 639 So.2d 224, 226-27 (La. 1994).        In other words, the issue is
whether “the tortious conduct of the [employee] was so closely connected in time,
place, and causation to his employment-duties as to be regarded a risk of harm
fairly attributable to the employer’s business.” Baumeister v. Plunkett, 673
So.2d 994, 997 (La. 1996). Louisiana courts tend to focus on four factors: (1)
whether the tortious act was primarily employment rooted; (2) whether the act
was reasonably incidental to the performance of the employee’s duties; (3)
whether the act occurred on the employer’s premises; and (4) whether it occurred
during the hours of employment. Manale v. City of New Orleans, Dep’t of Police,
673 F.2d 122, 126 (5th Cir. 1982). All four of these factors need not be met in a
particular case. Baumeister, 673 F.2d at 997. Moreover, an employee’s “conduct
may be considered within the scope of employment even though it is done in part
to serve the purposes of the servant or of a third person.” Ermert v. Hartford

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Ins. Co., 559 So.2d 467, 476-77 (La. 1990). That the “predominant motive of the
servant is to benefit himself or a third person does not prevent the act from
being within the scope of employment.” Id. Indeed, “[i]f the purpose of serving
the master’s business actuates the servant to any appreciable extent, the master
is subject to liability if the act is otherwise within the service.” Id.
      On its face, Hunter’s letter was within the scope of Hunter’s employment
as a constituent service representative for Senator Landrieu.              The events
described in the letter took place in Senator Landrieu’s office during working
hours. The events involved a request by a constituent (i.e., White) that Hunter
perform a service in her official capacity for another constituent (i.e., Stewart).
The letter was written on Senate letterhead and signed by Hunter in her official
capacity. And the letter specifically states Hunter believed it was her “duty” as
a “federal employee” to bring White’s request to Parks-Saunders’s attention. In
short, the letter appears to have been reasonably “incident to” Hunter’s
performance of constituent services, and “at least partly actuated” by Hunter’s
desire to protect the integrity of Senator Landrieu’s office. See Baumeister, 673
So.2d at 997.
      White alleges that Hunter’s letter “was a personal vendetta concocted by
Hunter in her individual capacity along with the recipient of the letter.” White’s
complaint, however, provides no factual support for this allegation. White has
produced an affidavit stating that she argued with Parks-Saunders shortly
before the incident at Senator Landrieu’s office, and also that Hunter and Parks-
Saunders may have been friends at one time. But these statements do not
plausibly suggest that Hunter had a personal vendetta against White. Nor do
the statements show that Hunter’s letter was not motivated, at least to an

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“appreciable extent,” by the purpose of serving Senator Landrieu. Ermert, 559
So.2d at 476-77.
      White asserts that she should be permitted limited discovery as to whether
Hunter acted outside the scope of her employment. But White has no right to
such discovery unless and until she alleges facts that plausibly suggest Hunter
acted outside the scope of her employment. See, e.g., Wuterich v. Murtha, 562
F.3d 375, 382 (D.C. Cir. 2009); Singleton v. United States, 277 F.3d 864, 871 (6th
Cir. 2002); Brumfield v. Sanders, 232 F.3d 376, 380 (3d Cir. 2000). For the
reasons already discussed, White’s speculative allegations do not meet this
burden. The district court therefore did not abuse its discretion in denying
discovery.   See, e.g., Singleton, 277 F.3d at 872 (affirming, under abuse of
discretion standard, district court’s refusal to allow further discovery before
substitution and dismissal); Gutierrez de Martinez v. Drug Enforcement Admin.,
111 F.3d 1148, 1155-56 (4th Cir. 1997) (same).
      Because White has not met her burden of showing that Hunter acted
outside the scope of her employment, the Government properly substituted itself
as the defendant in this action. And because the Government has not waived
immunity to defamation suits, White’s defamation action was properly
dismissed.
      AFFIRMED.




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