United States District Court, S.D. California
ORDER GRANTING PETITION TO CERTIFY THAT AGENT RICO
WAS ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT
HONORABLE LARRY ALAN BURNS UNITED STATES DISTRICT JUDGE
the Attorney General refused to certify that Agent Marco Rico
was acting within the scope of his employment, so as to bring
the claims in this case within the Federal Tort Claims Act
(FTCA), Rico filed a petition for certification under 28
U.S.C. § 2679(d)(3). The government filed an opposition,
and the Court held argument, at which Rico, the government,
and Plaintiffs appeared through counsel. Plaintiffs did not
file an opposition, but agreed with the Court's tentative
conclusion that Rico was acting within the scope of his
employment. Based on undisputed evidence included in the
briefing, and concessions during argument, the Court
concludes that no evidentiary hearing is necessary.
order supplements the facts and legal arguments discussed at
the hearing. While it relies on and repeats some of those
facts and arguments, it is not intended as a complete
memorialization of the hearing. The Court's ruling is
based on the briefing, the hearing, and its analysis in this
following is a general factual background, taken primarily
from the government's opposition. Besides these facts,
the Court relies on undisputed facts and evidence included
with the briefing or discussed at the hearing.
a special agent for the State Department. Rico and another
officer were sent to Plaintiff Bertha Vazquez Fajardo's
home as part of an investigation of a fraudulent passport
application in Texas by a third party. During the
investigation, agents learned that Fajardo was present in the
United States illegally. Fajardo was told by ICE agents that
she would likely be deported within a week. Rico gave her his
business card and asked her to call if she had any more
information about the passport information. Fajardo called
him and left a voicemail. He then called her, but when she
did not answer, he sent a text using his government cell
phone. This turned into a long series of texts that, among
other things, suggested he had sexual intentions toward her
and would be willing to help with her immigration problem in
return for sexual favors from her.
on November 7, 2014, he came to her home by himself, contrary
to his office's policy. What happened there is disputed.
She alleges he exposed himself and assaulted her. He says she
talked with him about her immigration problems and tried to
reassure her without promising to do anything other than
“make calls.” After this, he left.
was investigated and admitted some of what Fajardo alleges.
For example, he admitted texting her, though he said her
texts to him had been deleted, so as to create the appearance
that he was flirting with her rather than she with him. He
also admits going alone to her home, contrary to his
office's policy. At the hearing, the government confirmed
that he is still employed with the department.
bears the burden of presenting evidence and disproving the
Attorney General's decision by a preponderance of the
evidence. See Kashin v. Kent, 457 F.3d 1033, 1036
(9th Cir. 2006); Green v. Hall, 8 F.3d 695, 698 (9th
Cir. 1993). But review of the decision is de novo.
Meridian Int'l Logistics, Inc. v. United States,
939 F.2d 740, 745 (9th Cir. 1991). Here, there is no
important dispute about the facts; the real dispute is about
what the legal standard is, and how to apply it to the facts.
FTCA provides that the United States can be liable to the
same extent as a private person would. When deciding whether
a federal officer was acting within the scope of his
employment, the Court looks to respondeat superior
principles that would govern private entities, not
public entities. See United States v. Olson, 546
U.S. 43, 46 (2005). But the Court may consider decisions
dealing with public entities too, provided the policies are
equally applicable to private parties. See Dugard v.
United States, 835 F.3d 915, 920 (9th Cir. 2016);
Xue Lu v. Powell, 621 F.3d 944, 947 (9th Cir. 2010).
leading California cases support the government's
position. For example, Lisa M. v. Henry Newhall Mem'l
Hosp., 12 Cal.4th 291, 299 (1995), dealt with a case
where a hospital's ultrasound technician sexually
molested a patient under the pretext of carrying out an
ultrasound exam. The California Supreme Court evaluated
whether the intentional tort was “engendered” by
the employment, or whether it was “a generally
foreseeable consequence” of the employer's
enterprise. Id. at 300-01. Importantly, Lisa
M. provided a rule for intentional sexual torts: "a
sexual tort will not be considered engendered by the
employment unless its motivating emotions were fairly
attributable to work-related events or conditions."
Id. at 301. In that case, although the nature of the
technician's job gave him an opportunity to commit the
tort, “his motivating emotions were not causally
attributable to his employment.” Id. The court
also analyzed the tort in terms of foreseeability. A tort
would be foreseeable if the employment “predictably
[created] the risk that employees would commit torts of the
type for which liability is sought.” Id. at
302. The principles set forth in the California Supreme
Court's decision appear to lead to the conclusion that
Rico was not acting within the scope of his employment.
the Ninth Circuit's holding in Xue Lu v. Powell,
621 F.3d 944 (9th Cir. 2010), this would be an
easy issue. Xue Lu, which was a split decision,
interprets and applies Lisa M. to a case that
appears to be analogous to this one.
case, a federal asylum officer solicited bribes from two
asylum-seekers, and sexually assaulted them. In the case of
one plaintiff, Lu, the officer interviewed her, then about a
week later arranged to come to her apartment. He solicited a
bribe, then attempted to unzip and remove her pants. When she
rebuffed him, he told her that her asylum application would
be denied. The same officer ...