Bertha Fajardo v. United States

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 29, 2019
• Docket: 18-56510
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 29 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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

2 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.