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Fajardo v. United States Department of State

United States District Court, S.D. California

May 25, 2018

BERTHA VAZQUEZ FAJARDO, et al., Plaintiffs,



         After 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.

         This 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 order.

         Factual Background

         The 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.

         Rico is 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.

         Eventually, 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.

         Rico 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.


         Rico 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.

         The 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).

         The 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.

         But for 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.

         In that 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 ...

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