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VAZQUEZ FAJARDO v. Marco Rico, Defendant-Appellee. (2019)

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United States Court of Appeals, Ninth Circuit.

Bertha VAZQUEZ FAJARDO, an individual; Blanca Uriostegui, an individual, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant, Marco Rico, Defendant-Appellee.

No. 18-56510

Decided: November 29, 2019

Before: MURGUIA and HURWITZ, Circuit Judges, and GUIROLA,* District Judge. Doc Anthony Anderson, III, Esquire, Counsel, Law Office of DOC Anthony Anderson, III, San Diego, CA, for Plaintiffs-Appellees Dennis Fan, Attorney, DOJ - U.S. Department of Justice, Washington, DC, for Defendant-Appellant United States of America Knut Sveinbjorn Johnson, Esquire, Law Office of Knut S. Johnson, San Diego, CA, Daniel S. Crowley, Hannon Law Group, LLP, Washington, DC, for Defendant-Appellee Marco Rico


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 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.


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