Cooper v. Raines et al

Filing 15

ORDER & REASONS: granting 4 Motion to Dismiss for Lack of Jurisdiction; FURTHER ORDERED that the Plaintiff's claims are DISMISSED WITH PREJUDICE. Signed by Judge Carl Barbier on 2/17/17. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

GREGORY COOPER

CIVIL ACTION

VERSUS

NO: 16-15414

UNITED STATES OF AMERICA

SECTION: “J” (5)

ORDER AND REASONS
Before

the

Court

is

a

Motion

Jurisdiction (Rec. Doc. 4) filed by

to

Dismiss

for

Lack

of

the United States of America

(“Government”), an opposition thereto (Rec. Doc. 6) filed by
Gregory Cooper (“Plaintiff”), and a reply (Rec. Doc. 13) filed by
the Government.

Having considered the motion and legal memoranda,

the record, and the applicable law, the Court finds that the
Government’s motion should be GRANTED.
BACKGROUND
According to the petition, Plaintiff was and is a Machinery
Technician Petty Officer Second Class in the United States Coast
Guard (“Coast Guard”).

(Rec. Doc. 1-1, at 1.)

2014, charges were preferred 1 against Plaintiff.

On November 14,
Id.

The charges

included sexual assault and other uniquely military offenses,
including disobedience of a lawful order, cruelty to a subordinate,
adultery,

and

false

official

statement.

1

Id.

Following

a

According to the petition, a preferral in military law “is similar to filing
a bill of information.” (Rec. Doc. 1-1, at 3.)

1

preliminary investigation, charges were referred to a General
Court-Martial (“court-martial”).

Id. at 3-4.

The court-martial

was held on September 1st and 2nd, 2015 in New Orleans, Louisiana.
Id. at 4. Plaintiff was found guilty of violating a fraternization
order, and was found not guilty of the other charges.

Id.

The

instant suit emanates from circumstances surrounding that courtmartial.
At the court-martial, two women testified against Plaintiff.
The first was Defendant Amanda Raines.
in the Coast Guard.

Id. at 1.

Raines is a former Fireman

Plaintiff and Raines had engaged

in an intimate relationship from April 12, 2013 until December 30,
2013.

Id. at 2-3.

Raines was administratively discharged from

the Coast Guard on November 12, 2013. Id. at 3.

Thus, Raines was

not employed by the Coast Guard when she testified at the courtmartial, and she testified pursuant to a subpoena by the Coast
Guard.

See (Rec. Doc. 13, at 9.)

The other person who testified

at the court-martial was Defendant Jacqueline Smith.

Smith was,

and still is, a Yeoman Petty Officer Second Class in the Coast
Guard.

(Rec. Doc. 1-1, at 1-2.)

Plaintiff and Smith had a sexual

encounter on June 29, 2011, which Plaintiff alleges was consensual.
Id. at 1.
Plaintiff filed suit on August 23, 2016 in the Civil District
Court for the Parish of Orleans against Raines and Smith, alleging
that the two defendants falsely accused him of sexual assault.
2

See (Rec. Doc. 6, at 5.)

Plaintiff brought state law claims for

defamation, intentional infliction of emotional distress (IIED),
malicious prosecution, and abuse of process against both Raines
and Smith.

(Rec. Doc. 1-1, at 5-7.)

On October 11, 2016, the matter was removed by United States
Attorney Kenneth Polite, acting on behalf of the Attorney General,
pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §
2679(d)(2) (i.e., the “Westfall Act”).

(Rec. Doc. 1, at 1.)

This

decision to remove the case is unreviewable, and the parties agree
that the matter is to remain in federal district court.
v. United States, 88 F.3d 318, 327 (5th Cir. 1996).

See Garcia

However, the

United States Attorney also certified that Raines and Smith were
acting

within

the

course

and

scope

of

their

employment,

and

therefore dismissed them as defendants and substituted the United
States as sole defendant.

This decision by the United States

Attorney is reviewable, and Plaintiff objects to it.
urges

the

Court

to

set

aside

the

United

States

Plaintiff
Attorney’s

certification and find that Raines and Smith were not acting in
the course and scope of their employment when they testified at
Plaintiff’s court-martial.
On October 18, 2016, the Government filed the instant Motion
to Dismiss for Lack of Subject Matter Jurisdiction (Rec. Doc. 4).
The Court heard oral argument on the motion on December 7, 2016
and took the matter under advisement.
3

PARTIES’ ARGUMENTS
Plaintiff contends that the United States Attorney erred in
finding that Raines and Smith were working within the scope of
their employment. In particular, Plaintiff argues that both Raines
and Smith were not acting within the scope of their employment
because they testified untruthfully, and such untruthful testimony
does not constitute the performance of a duty required by their
employer.

Additionally, Plaintiff asserts that Smith’s motivation

for testifying falsely was to avoid her husband from learning that
she had engaged in consensual sexual activity with Plaintiff.
Although Plaintiff suggests that Raines may also have had an
ulterior motivation for testifying, his main argument regarding
Raines is that she was no longer in the Coast Guard when she
testified at the court-martial and could therefore not be acting
within the scope of her employment.

For these reasons, Plaintiff

argues that the United States Attorney’s determination that Raines
and

Smith

were

acting

within

the

course

and

scope

of

their

employment was wrong and should be set aside.
The Government makes three arguments.

First, the Government

argues that Plaintiff has not met his burden of proving that Raines
and Smith were not acting within the scope of their employment by
testifying falsely.

Second, the Government argues that even if

the testimony of Raines and Smith was defamatory, the testimony
occurred within the scope of their employment.
4

Finally, the

Government argues that the even though Raines was no longer a
member of the Coast Guard when she testified at the court-martial,
the transaction underlying her testimony occurred while she was a
federal employee.

For that reason, and also because Raines was

compelled to testify pursuant to a Coast Guard subpoena, the
Government contends that Raines’ testimony was within the course
and scope of her employment.
APPLICABLE LAW
In deciding a motion to dismiss for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1), “the
district court is ‘free to weigh the evidence and resolve factual
disputes in order to satisfy itself that it has the power to hear
the case.’” Krim v. pcOrder.com, Inc., 402 F.3d 489, 494 (5th Cir.
2005). The party asserting jurisdiction must carry the burden of
proof for a Rule 12(b)(1) motion to dismiss. Randall D. Wolcott,
M.D., P.A. v. Sebelius, 635 F.3d 757, 762 (5th Cir. 2011). The
standard of review for a facial challenge to a motion to dismiss
under Rule 12(b)(1) is the same as that for a motion to dismiss
pursuant to Rule 12(b)(6). Benton v. United States, 960 F.2d 19,
21 (5th Cir. 1992); see also 13 Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 3522 (3d ed. 2008).
The Government brings its Rule 12(b)(1) motion pursuant to
the Federal Employees Liability Reform and Tort Compensation Act
of 1988, commonly referred to as the “Westfall Act.”
5

28 U.S.C.§

2679.

The

Westfall

Act

“accords

federal

employees

absolute

immunity from common-law tort claims arising out of acts they
undertake in the course of their official duties.”
Haley, 549 U.S. 225, 229 (2007); § 2679(b)(1).
employee

is

sued

for

wrongful

or

negligent

Osborn v.

“When a federal
conduct,

the

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.’”
(quoting § 2679(d)(1), (2)).
the

Attorney

General,

he

is

Id. at 229–30

Once the employee is certified by
dismissed

from

the

case

and

is

substituted by the United States. Id. at 230. “Upon substitution,
the case falls under the Federal Tort Claims Act (FTCA).”

Counts

v. Guevara, 328 F.3d 212, 214 (5th Cir. 2003).
The Court reviews an Attorney General’s scope of employment
certification

de

novo,

General’s findings.
Cir. 1996).

giving

no

deference

to

the

Attorney

Palmer v. Flaggman, 93 F.3d 196, 198-99 (5th

However, the plaintiff has the burden of proving that

the Attorney General’s decision was wrong.

Lanausse v. Federal

Correctional Institution at Three Rivers, 34 F. App’x 150, 2002 WL
494365, at *1 (5th Cir. 2002) (unpublished opinion).

To prevail,

the plaintiff must demonstrate “that the employee, in fact, and
not simply as alleged by the plaintiff, engaged in conduct beyond
the scope of his employment.”

Osborn, 549 U.S. at 231 (emphasis

in original).
6

To determine whether a federal employee was working within
the scope of her employment for purposes of FTCA, courts look to
the laws of the state where the tortious conduct occurred. Garcia,
62 F.3d at 127.

The parties do not dispute that the conduct in

question occurred in Louisiana, so Louisiana law will dictate the
course and scope of employment analysis in this case.
In Louisiana, an employer can be held vicariously liable for
the tortious conduct of an employee only when “the tortious conduct
of the [employee is] so closely connected in time, place, and
causation to his employment duties as to be regarded as a risk of
harm fairly attributable to the employer’s business, as compared
with the conduct instituted by purely personal considerations
entirely extraneous to the employer’s interest.”

Baumeister v.

Plunkett,

2d

“Conduct

95-C-2270,
motivated

p.

by

3

(La.

purely

1996);

personal

673

So.

994,

considerations

996.

entirely

extraneous to the employer’s interest” is not considered within
the scope of employment.

Aaron v. New Orleans Riverwalk Ass’n,

580 So. 2d 1119, 121-22 (La. Ct. App. 4 Cir. 1991).

Courts look

to the following four factors, but not all are necessary for a
finding that the employee was working within his course and scope:
“(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
7

of employment.”

White v. United States, 419 F. App’x 439, 442

(5th Cir. 2011) (citing Baumaster, 673 So. 2d at 996).
DISCUSSION
I.

Allegations that Smith and Raines testified falsely
Plaintiff argues that Smith and Raines acted outside the

course and scope of their employment by testifying falsely at
Plaintiff’s
fabricated

court-martial.
an

allegation

of

Plaintiff
sexual

argues

assault

that

against

because Plaintiff terminated their relationship.

Raines

Plaintiff

In support,

Plaintiff has attached a list of text messages between him and
Raines which do not clearly suggest that Raines falsely accused
Plaintiff

of

assault. 2

sexual

(Rec.

Doc.

6-1,

at

7-8.)

Additionally, Plaintiff argues that Smith lied about being raped
by Plaintiff to avoid having to disclose a sexual encounter she
had with Plaintiff to her husband.

Plaintiff has attached the

sworn statement of Coast Guard member Brandon Moore to support
this allegation.

(Rec. Doc. 6-1, at 3.)

that

Moore

Smith

Plaintiff.

told

Id. at 2.

that

she

had

Moore’s statement says

sexual

intercourse

with

Moore’s statement also states that Smith

told Moore that she told her husband she was raped by a colleague
in her former unit.

Id.

Moore’s statement does not explicitly

2 In the exchange of text messages, Raines sent a text message stating, “If you
never would have raped me that night in the motel room none of this would have
ever happened.” (Rec. Doc. 6-1, at 7.) No other text messages sent by Raines
in this exchange clearly indicate that her assertion that Plaintiff raped her
was untruthful.

8

accuse Smith of lying about being raped, but does express concern
about the possibility that Plaintiff could “be wrongfully accused
of rape just to allow [Smith] to save her marriage.”

Id.

Plaintiff also contends that he was acquitted of the sexual
assault charge in the court-martial because both the hearing
officer and the military judge “accepted” the defense theory that
Smith “falsified the allegations to prevent her husband from
finding out about the consensual activity.”

(Rec. Doc. 6 at 9.)

The United States disputes this statement, arguing that “in no
point in the investigation or court-martial did the Coast Guard
determine that either FN Raines or YN3 Smith testified falsely.”
(Rec. Doc. 13, at 5-6.)

Thus, it is not clear from the evidence

provided that those presiding over the court-martial definitively
determined that Smith or Raines testified falsely.
“A plaintiff who challenges the Government’s certification
has the burden to prove that the employee’s conduct was not within
the scope of his employment.”

Counts, 328 F.3d at 214.

The Fifth

Circuit has stated that “speculative allegations do not meet this
burden,” White, F. App’x at 439, and Plaintiff’s argument here
relies upon speculative allegations.

Moore’s sworn statement and

the text messages exchanged between Plaintiff and Raines do not
lead to the necessary conclusion that Raines and Smith testified
untruthfully at the court-martial.

Furthermore, Plaintiff has

failed to prove that the reason he was acquitted at the court9

martial was because Smith or Raines lied.

By contrast, the Court

is persuaded by the Government’s assertion that neither the hearing
officer nor the military judge found that Raines or Smith testified
untruthfully.
Plaintiff argues that Raines and Smith were motivated to
testify “by purely personal considerations entirely extraneous to
the employer’s interest,” and that such actions fall outside the
scope of employment.

See Aaron, 580 So. 2d at 1121.

reasons outlined above, this argument is unavailing.

For the

The evidence

presented by Plaintiff does not demonstrate that Raines and Smith
“in fact, and not simply as alleged” by Plaintiff acted outside
the scope of their employment.
II.

See Osborn, 549 U.S. at 231.

Raines’ testimony after she left the Coast Guard

Plaintiff’s main argument regarding Raines is that she was no
longer a member of the Coast Guard when she testified at the courtmartial.

Therefore, Plaintiff argues, she could not have been

acting within the scope of her employment.

For the reasons

described below, this argument also fails.
According

to

Plaintiff’s

petition,

Raines

and

Plaintiff

engaged in an intimate sexual relationship from April 12, 2013
until December 30, 2013.
Guard

when

the

Raines was an active member of the Coast

relationship

began.

However,

Raines

was

administratively discharged from the Coast Guard on November 12,
2013.

On January 3, 2014, which was after Raines had been
10

discharged from the Coast Guard and also after the relationship
between she and Plaintiff had terminated, Raines made an accusation
through text message that Plaintiff had raped her on April 12,
2013.

Neither party asserts that Raines gave testimony at the

court-martial

that

was

materially

distinguishable

from

accusation she made through text message on April 12, 2013.

the
Thus,

the underlying event, the accused rape of Raines by Plaintiff,
occurred while Raines was a member of the Coast Guard.
The Louisiana Supreme Court has made clear that the course
and scope determination “is largely based on policy.”
House of Décor, Inc., 468 So. 2d 1159, 1162 (La. 1985).

Reed v.
“The risks

which are generated by an employee’s activities while serving his
employer’s interests are properly allocated to the employer as a
cost of engaging in the enterprise.”

Id.

The Government asserts,

and Plaintiff does not dispute, that Coast Guard Eighth District
Commander, acting as the Convening Authority, referred the charges
against Plaintiff to a court-martial.

(Rec. Doc. 4-1 at 3.)

Therefore, it can reasonably be assumed that it was in the Coast
Guard’s interest to proceed with a court-martial.

Furthermore,

Raines testified at Plaintiff’s court-martial pursuant to a Coast
Guard subpoena, providing further evidence that her testimony
served the Coast Guard’s interest.

Id. at 4.

The public policy

position of the Louisiana Supreme Court supports relating Raines’
allegedly tortious post-employment behavior back to the period of
11

employment.

Accordingly, Raines’ post-employment testimony was

within the course and scope of her employment with the Coast Guard.
The Court’s confidence in this conclusion is reinforced by a
recent decision in this District.
3d 538 (E.D. La. 2015).

See West v. Rieth, 152 F. Supp.

In West, the court addressed a motion to

substitute the Government as defendant and dismiss the defendants
named by the plaintiff.

Id. at 541.

There, the plaintiff was a

United States Marine Corps (“Marine Corps”) service member who
brought suit against four defendants for allegedly conspiring to
lodge false complaints and accusations of sexual harassment and
sexual assault against him.

Id.

Three of the four defendants

were active Marine Corps service members at the time of the courtmartial.

Id.

However, one of the defendants was an active service

member when she first made allegations against the plaintiff, but
her employment with the Marine Corps ended before she testified at
the court-martial against the defendant. Id. at 546-47. The court
held

that

this

defendant’s

“post-employment

conduct

was

also

within the course and scope of her former employment as part of
the entirely allegedly tortious ‘transaction.’”

Id. at 548.

The

court was persuaded by the fact that the defendant first made her
allegations while employed by the Marine Corps and that she was
compelled to testify at the court-martial by a subpoena.
Thus,

the

court

noted

that

its

12

holding

was

“consistent

Id.
with

Louisiana’s policy of allocating risk for purposes of determining
course and scope of employment.”

Id.

Only slight factual distinctions exist in the present case.
Whereas the defendant in West made an accusation against the
plaintiff while employed by the Marine Corps, Raines made her first
accusation against Plaintiff nearly two months after she was
discharged from the Coast Guard.

Accordingly, it is not the case

that Raines made her first allegedly tortious action while employed
by the Coast Guard.

However, employer liability in Louisiana can

extend to tortious acts that occur after the term of employment,
particularly when they “arise out of a single transaction” that
began during the alleged tortfeasor’s employment.

See Cowart v.

Lakewood Quarters Ltd. P’Ship, 2006-CA-1530, p. 4-5 (La. App. 1
Cir. 5/4/07); 961 So. 2d 1212, 1215 (holding that employee who
attacked
supervisor

supervisor
was

employment).

immediately

working

within

after
the

being

course

and

fired
scope

by

that

of

her

Here, the allegation that Raines acted tortiously

through her accusation and testimony at the court-martial is
connected

to

an

encounter

between

underlying
Plaintiff

event,
and

Raines was in the Coast Guard.

namely

Raines,

the
which

April

12,

occurred

2013
while

More importantly, this case is

similar to West in that Raines testified at the court-martial
pursuant to a Coast Guard subpoena.

Raines did not prefer the

charges against Plaintiff; rather, she participated in the court13

martial

because

her

former

employer

preferred

the

charges.

Therefore, the public policy behind Louisiana’s course and scope
of employment scheme supports holding that the risks generated by
Raines’ testimony at the court-martial are properly allocated to
the Coast Guard.

See Reed, 468 So. 2d at 1162.

III. Federal Tort Claims Act
Because the Court concurs with the United States Attorney’s
certification and decision to substitute the United States as the
sole defendant, this matter now falls under the FTCA.

See Counts,

328 F.3d at 214; see also 28 U.S.C. § 2679(d)(2) (stating that
after the United States is substituted as defendant, the matter
“shall be deemed an action or proceeding brought against the United
States under the provisions of [the FTCA]”).
Plaintiff’s

claims

are

now

“subject

exceptions applicable to” the FTCA.

to

This means that

the

limitation

§ 2679(d)(4).

and

The FTCA

provides a “limited waiver of sovereign immunity” that in some
cases makes the Government liable for actions committed by federal
employees acting within the scope of their employment.

United

States v. Orleans, 425 U.S. 807, 813 (1976). However, this limited
waiver of sovereign immunity does not extend to Plaintiff’s claims.
See § 2675(a).

In particular, the FTCA’s waiver of sovereign

immunity does not extend to intentional torts, including “any claim
arising out of malicious prosecution, abuse of process, libel,
slander,

misrepresentation,

[or]
14

deceit.”

§

2680(h).

Thus,

Plaintiff’s

claims

for

defamation,

malicious

prosecution,

abuse of process may not be brought under the FTCA.
v. Gilley, 500 U.S. 226, 233-34 (1991).

and

See Siegert

Plaintiff’s intentional

infliction of emotional distress (IIED) claim arises out of the
same conduct underlying the other claims and, therefore, must also
be dismissed.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that the Government’s Motion to Dismiss
for Lack of Jurisdiction (Rec. Doc. 4) is GRANTED.
IT

IS

FURTHER

ORDERED

that

the

Plaintiff’s

claims

are

DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, this 17th day of February, 2017.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

15