Bertha Fajardo v. United States ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 29 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BERTHA VAZQUEZ FAJARDO, an No. 18-56510
individual; BLANCA URIOSTEGUI, an
individual, D.C. No.
3:16-cv-02980-LAB-MDD
Plaintiffs-Appellees,
v. MEMORANDUM*
UNITED STATES OF AMERICA,
Defendant-Appellant,
MARCO RICO,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted November 5, 2019
Pasadena, California
Before: MURGUIA and HURWITZ, Circuit Judges, and GUIROLA,** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Louis Guirola, Jr., United States District Judge for the
Southern District of Mississippi, sitting by designation.
The government appeals the district court’s order granting a petition for
certification filed by Marco Rico under 28 U.S.C. § 2679(d)(3). The sole question
in this interlocutory appeal is whether the district court erred in finding that Rico
acted within the scope of his federal employment when engaging in the actions that
form the basis of claims under the Federal Tort Claims Act (“FTCA”) by Plaintiffs
Bertha Vazquez Fajardo and Blanca Uriostegui (Fajardo’s daughter). We have
jurisdiction under 28 U.S.C. § 1292(b) and affirm.
“The Attorney General’s decision regarding scope of employment
certification is subject to de novo review in both the district court and on appeal.
Where facts relevant to this inquiry are in dispute, however, we review the district
court’s factual findings for clear error.” Kashin v. Kent, 457 F.3d 1033, 1036 (9th
Cir. 2006) (quoting Green v. Hall, 8 F.3d 695, 698 (9th Cir. 1993) (per curiam)).
We evaluate whether Rico acted within the scope of his employment by
applying “the principles of respondeat superior of the state in which the alleged tort
occurred.” Saleh v. Bush, 848 F.3d 880, 888 (9th Cir. 2017) (quoting Pelletier v.
Fed. Home Loan Bank of S.F., 968 F.2d 865, 876 (9th Cir. 1992)). The events at
issue in this case took place in California.
Applying this Court’s decision in Xue Lu v. Powell, 621 F.3d 944 (9th Cir.
2010), the district court did not err in holding that Rico acted within the scope of his
employment. In Powell, this Court held that an asylum officer acted within the scope
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of his employment when he traveled to two asylum applicants’ homes to discuss
their asylum cases and sexually assaulted them during those home visits. Id. at 946,
948–49. Here, Plaintiffs similarly allege that Rico assaulted Fajardo when he visited
the Plaintiffs’ home to discuss a passport fraud investigation. It is undisputed that
Rico was a Special Agent of the Department of State at all relevant times, that
Fajardo invited Rico over to her home to discuss the passport fraud investigation,
and that Rico was involved in the investigation as part of his official duties as a
federal employee. Therefore, under Powell, Rico acted within the scope of his
employment when he allegedly engaged in the actions that form the basis of the
Plaintiffs’ FTCA claims.
AFFIRMED.
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