Luke West v. Carrie Rieth, 705 F. App'x 211

Luke West, a former Marine Gunnery Sergeant, was accused by fellow Marines of sexual harassment/assault after a Marine Corps Ball; an investigation involved SAPR employees and NCIS.
West was court-martialed in Nov. 2014; acquitted of the most serious charges but convicted of obstruction, maltreatment, and indecent language; sentenced to 30 days and reduction in rank.
West sued the accusers and SAPR employees in July 2015, alleging they coordinated false accusations and improperly influenced NCIS.
The U.S. Attorney certified the federal employees acted within the scope of employment under the Westfall Act; the district court substituted the United States as defendant and dismissed the individual federal employees.
West amended complaints to assert Bivens claims; the district court dismissed those claims and denied his Rule 59(e) motion for reconsideration.
West appealed, arguing (1) he rebutted the scope-of-employment certification, (2) the dismissal of Bivens claims was erroneous, and (3) denial of reconsideration was an abuse of discretion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Validity of Westfall Act substitution (scope-of-employment)	West argued his proffered evidence raised genuine issues that employees acted outside scope (accusations were false; forensic inconsistencies)	U.S. Attorney certified employees acted within scope; substitution proper unless certification rebutted by preponderance	Court: Plaintiff failed to rebut certification by a preponderance; substitution affirmed
Standard/ burden to defeat U.S. Atty certification	West argued district court should credit his allegations/evidence to defeat certification	Government argued plaintiff must present evidence disproving certification; certification stands unless disproved in fact	Court: Adopted preponderance standard; plaintiff must show in fact conduct was outside scope; West failed
Availability of Bivens remedy	West argued injuries were not incident to military service so Bivens claims should proceed	Government argued military-related context bars Bivens (Feres/Stanley principles)	Court: Bivens claims barred because injuries were incident to service under three-factor test; dismissal affirmed
Denial of Rule 59(e) motion for reconsideration	West argued reconsideration warranted based on alleged errors/new evidence	Government argued West presented no manifest error and no new evidence unavailable earlier	Court: Denial not an abuse of discretion; motion did not meet narrow Rule 59(e) standard

Osborn v. Haley, 549 U.S. 225 (recognition that scope-of-employment certification is judicially reviewable but not overturned simply because plaintiff alleges different facts)
Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (Westfall Act substitution procedure explained)
Jackson v. Tate, 648 F.3d 729 (9th Cir.) (plaintiff bears burden to rebut scope-of-employment certification by a preponderance)
Borneman v. United States, 213 F.3d 819 (4th Cir.) (same—burden to disprove certification)
United States v. Stanley, 483 U.S. 669 (military-related injuries generally preclude Bivens relief)
Regan v. Starcraft Marine, 524 F.3d 627 (5th Cir.) (three-factor test for whether injury is incident to service)
Abate v. Southern Pacific Transp. Co., 993 F.2d 107 (5th Cir.) (describing Bivens remedy requirements)
Waltman v. Int’l Paper Co., 875 F.2d 468 (5th Cir.) (Rule 59(e) narrow purposes—manifest errors or newly discovered evidence)
Templet v. Hydrochem Inc., 367 F.3d 473 (5th Cir.) (evidence available earlier cannot be presented on reconsideration)