IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-30388
Summary Calendar
James Gautreaux
Plaintiff-Appellant,
versus
Anne Lauderdale; et al
Defendants,
Unidentified Party: United States
of America
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
(97-CV-2789-D)
December 8, 1998
Before HIGGINBOTHAM, JONES and DENNIS, Circuit Judges.
PER CURIAM:*
Gautreaux appeals the district court’s grant of a motion to
dismiss in favor of the United States. We affirm.
Gautreaux filed a lawsuit in state court against Anne
Lauderdale alleging libel, slander and invasion of privacy.
*
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this opinion should not be published and is not precedent except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.
Gautreaux and Lauderdale were both employees of the United States
Army Corps of Engineers-- New Orleans District. Shortly before the
state trial, the U.S. Attorney certified that Lauderdale, an
employee of the United States, was acting within the scope of her
employment. Pursuant to the Westfall Act, the United States, the
appellee in this action, was substituted for the federal employee
as a party defendant. 28 U.S.C. §§ 2671-80.
The United States removed the case to federal district court.
The district court properly denied Gautreaux’s motion to remand.
Under subpart (d)(2) of the Westfall Act remand is not permitted,
where, as here, an action is brought in state court against the
federal employee and the Attorney General certifies scope, the
action "shall be removed", "the United States shall be
substituted", and the "certification ... shall conclusively
establish scope ... for purposes of removal." Garcia v. United
States, 88 F.3d 318, 322 (5th Cir. 1996). After reviewing the
certification under Louisiana law, the district court ruled that
Lauderdale was acting within the course and scope of her federal
employment. Specifically, the district court agreed with the
United States that Lauderdale’s conduct constituted
“whistleblowing” and was within her scope of employment.
Therefore, the district court denied Gautreaux’s motion to remand
and granted the United States’ motion to dismiss on sovereign
immunity grounds.
This court conducts a de novo review of an Attorney General's
certification of scope of employment. Garcia, 88 F.3d at 320-21.
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We, like the district court, give no judicial deference to the
Attorney General's findings. Williams v. United States, 71 F.3d
502, 505-06 (5th Cir.1995). Nonetheless, the burden of proof lies
with the plaintiff to show that the Attorney General's initial
decision was incorrect. Palmer v. Flaggman, 93 F.3d 196, 199 (5th
Cir. 1996).
Under Louisiana law, an employee’s conduct is within the
course and scope of her employment if the conduct is of the kind
that she is employed to perform, occurs substantially within the
authorized limits of time and space, and is activated at least in
part by purpose to serve her employer. Orgeron v. McDonald, 639
So.2d 224, 226-27 (La. 1994). The following factors are used by
Louisiana courts in assessing whether an employee’s conduct is
within the scope of her employment:
(1) whether the tortious act was primarily employment rooted;
(2) whether the conduct 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.
Baumeister v. Plunkett, 673 So.2d 994, 996-997 (La. 1996)
All four of these factors do not need to be met before liability
may be found. Id. at 997. Instead, the particular facts pertaining
to Lauderdale’s actions must be analyzed to determine whether her
conduct was within the scope of her employment. Id.
The Government claims that Lauderdale's alleged actions of
invasion of privacy and libelous or slanderous communication
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constituted "whistleblowing" activity authorized by Congress.
According to Section 2302 of Title 5 of the United States Code, any
employee who has authority to take personnel action, like Gautreax,
shall not threaten to take a personnel action against another
employee for a disclosure of information which the second employee
reasonably believes evidences gross mismanagement or an abuse of
authority. 5 U.S.C. § 2302(b)(8)(A)(ii).
In this case, after retrieving some notes from Gautreaux’s
desk while he was on vacation, Lauderdale reported what she
believed was an abuse of authority by Gautreaux when she disclosed
his notes about an employee survey. Among other comments,
Gautreaux’s notes stated, “From here on, when I ask for some work
3 times & I don’t get it, people are going to be miserable.” The
Government maintains that Lauderdale’s disclosure of an abuse of
power by a federal employee is attributable to the business of the
federal government.
In contrast, Gautreaux argues that Lauderdale’s act of
invasion violated Army regulations and was done purely out of
animosity. Furthermore, Gautreaux claims that Lauderdale’s act
does not constitute whistleblowing because he did not make
“retaliatory threats” as defined by 5 U.S.C. § 2302. Gautreaux,
however, bears the burden of proof to show that the Attorney
General's initial decision was incorrect. Palmer, 93 F.3d at 199.
After reviewing Gautreaux’s claims and the facts of this case,
we agree with the district court that Gautreaux has failed to carry
his burden of proof. Applying the four Louisiana scope of
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employment factors, we find that Lauderdale’s conduct was primarily
employment rooted because the whistleblowing disclosure was
attributable to the federal government’s business of maintaining
control over its employees. In addition, the conduct was closely
related in time and place as it occurred during work hours at the
Corps’ office. Accordingly, the judgment of the district court is
AFFIRMED.
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