Xue Lu v. Powell

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

XUE LU; JIE HAO, 

Plaintiffs-Appellants,

No. 08-56421

v.

D.C. No.

THOMAS POWELL; ROBERT LOONEY,

Defendants,  2:01-cv-01758-

CBM-E

and

OPINION

UNITED STATES OF AMERICA,

Defendant-Appellee.



Appeal from the United States District Court

for the Central District of California

Consuelo B. Marshall, District Judge, Presiding

Argued and Submitted

May 7, 2010—Pasadena, California

Filed September 2, 2010

Before: John T. Noonan, Richard R. Clifton and

Jay S. Bybee, Circuit Judges.

Opinion by Judge Noonan;

Partial Concurrence and Partial Dissent by Judge Bybee

13345

13348 LU v. POWELL

COUNSEL

Vincent J. DeSimone, Venice, California, for the plaintiffs-

appellants.

Henry C. Whitaker, Washington, D.C., for the defendant-

appellee.

OPINION

NOONAN, Circuit Judge:

Xue Lu (Lu) and Jie Hao (Hao) appeal the judgment of the

district court dismissing their suit under the Federal Tort

Claims Act (FTCA), 28 U.S.C. § 1346(b), and other claims

against the United States and various officials. The FTCA

LU v. POWELL 13349

incorporates the law of the state in which the tort is alleged

to have occurred, in this case California, so that we are bound

to interpret and apply the law California would apply to a pri-

vate employer. We affirm in part, reverse in part, and remand

for further proceedings.

FACTS

We take the facts alleged by the plaintiffs as true for the

purposes of this opinion. Nurse v. United States, 226 F.3d

996, 1000 (9th Cir. 2000).

Lu and Hao are each citizens of the People’s Republic of

China. Each was lawfully admitted to the United States as a

non-immigrant, and each filed an application for asylum on

political grounds. Each received an initial interview with

Thomas A. Powell, Jr. What happened thereafter is the basis

for their suit.

On February 15, 2000, Lu was interviewed by Powell, aged

58, who had served seven years as an Asylum Officer in the

Immigration and Naturalization Service in Los Angeles. An

asylum officer had the authority to grant Lu’s request for asy-

lum. See 8 C.F.R. § 208.14(b). If the asylum officer did not

decide to grant the request, Lu’s case would be referred to a

hearing before an immigration judge. See 8 C.F.R.

§ 208.14(c)(1). Powell’s exercise of authority in her favor

could avoid such a hearing and confer upon her the benefit of

indefinite lawful asylee status. See 8 C.F.R. § 208.14(e).

Approximately a week after her interview, Powell tele-

phoned Lu and told her that he would meet her at her resi-

dence in Monterey Park. No one else should be present. On

February 26, Powell appeared at her apartment and began dis-

cussion of her case, stating that he had helped others and

could help her. Payment made to him, he insinuated, would

make him approve her application. He then attempted to unzip

and remove her pants. When she rebuffed him, he told her

13350 LU v. POWELL

that her application for asylum would be denied. On March 1,

2000, he issued the denial.

Lu informed her lawyer of Powell’s offer and overtures. By

chance, her lawyer was also representing Hao, who had her

initial interview with Powell on May 22, 2000. Three days

after the interview, Powell telephoned Hao, stating that he

would like to confer with her alone at her residence regarding

the details of her application. He said he had an offer for her

that had to be kept secret between them. She agreed to meet

him on June 4.

Before the meeting, Hao called her lawyer. Already alerted

by Lu, the lawyer contacted the Justice Department, which in

turn arranged for Hao to be wired for her meeting with Pow-

ell.

On June 4, Powell arrived at Hao’s residence. He began to

tell her of problems in her application for asylum. Powell said

they could be solved if she paid him $2,000. He offensively

touched private parts of her body. They agreed to meet again

on June 8 for Powell to collect the money. On June 8, Hao

was again wired. Powell returned to get the $2,000 and

received it. He again engaged in sexual molestation of the

asylum applicant.

As a result of the sting, the United States indicted Powell

for his misconduct with both women. August 10, 2004, Pow-

ell was convicted by a jury of deprivation of Lu’s civil rights

under color of law in violation of 18 U.S.C. § 242 and on

November 20 was sentenced to imprisonment of one year. He

was also convicted of seeking bribes from both Lu and Hao

in violation of 18 U.S.C. § 201(B)(2)(A) and was sentenced

to a term of three years and nine months, to run concurrently

with the first sentence. Powell died in prison not long after his

incarceration and prior to the resolution of his appeal. As a

result, his conviction was vacated and the indictment against

him was dismissed.

LU v. POWELL 13351

PROCEEDINGS

February 23, 2001, Lu and Hao filed this action against

Powell; his supervisor, Robert Looney; his employer, the

United States; and ten unknown agents of the United States.

The district court dismissed several counts, giving plaintiffs

leave to amend. The action was stayed during the pendency

of the criminal case against Powell. After further amendments

by the plaintiffs and rulings by the district court, Looney set-

tled, the unknown agents were dismissed by stipulation, and

on July 1, 2008, the district court entered final judgment

against the plaintiffs for failure to state a cause of action

under the FTCA.

August 27, 2008, this appeal followed.

ANALYSIS

Jurisdiction and standard of review. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo the dismissal for

failure to state a claim. Cervantes v. United States, 330 F.3d

1186, 1187 (9th Cir. 2003).

[1] Criteria. Under the FTCA, the United States is only

liable “under circumstances where the United States, if a pri-

vate person, would be liable to the claimant in accordance

with the law of the place where the act or omission occurred.”

28 U.S.C. § 1346(b)(1). Both sides discuss Mary M. v. City of

Los Angeles, 814 P.2d 1341 (Cal. 1991), which involved a

Los Angeles police officer who, while on duty, raped a

woman. Because it involved a public employer, Mary M.

“provides less than compelling precedent,” Lisa M. v. Henry

Mayo Newhall Mem’l Hosp., 907 P.2d 358, 366 (Cal. 1995),

for weighing the liability of private employers, as we must

under 28 U.S.C. § 1346(b)(1). A public-entity case, however,

can offer some guidance, to the extent it illuminates general

principles of respondeat superior liability that apply in Cali-

fornia to public and private employers alike. See Mary M.,

13352 LU v. POWELL

814 P.2d at 1344 (“[T]he Legislature incorporated general

standards of tort liability as the primary basis for respondeat

superior liability of public entities” and “[c]ourts have con-

strued the term ‘scope of employment’ [in public-entity cases]

as broadly as in private tort litigation”) (internal quotation

marks omitted). We do not rely on Mary M. here, because lia-

bility in that case depended on “the unique authority vested in

police officers.” Lisa M., 907 P.2d at 366 (quoting Mary M.,

814 P.2d at 1350 n.11). We must look, instead, to principles

of respondeat superior liability that apply to private entities.

See United States v. Olson, 546 U.S. 43, 45-46 (2005).

[2] According to the statute governing the liability of the

United States, the United States is liable “in the same manner

and to the same extent as a private individual under like cir-

cumstances.” 28 U.S.C. § 2674. “Like circumstances” are not

“identical circumstances.” Congress did not require a claimant

to point to a private person performing a governmental func-

tion. Indian Towing Co. v. United States, 350 U.S. 61, 64-65

(1955) (plaintiff suing the United States for negligent opera-

tion of lighthouse does not need to find a private person oper-

ating a lighthouse; all the plaintiff needs is an analogous

situation where a private person undertakes to warn the public

of danger, inducing reliance on this undertaking). So in

United States v. Olson it was held sufficient to state a claim

under the FTCA that analogies to federal mine inspectors

existed in private persons who are employed to conduct safety

inspections. Olson, 546 U.S. at 47. Analogy not identity of

circumstance is key.

[3] The jurisdictional statute does require that acts for

which the United States as employer is to be held liable be

performed by an employee “acting within the scope of his

office or employment.” 28 U.S.C. § 1346(b)(1). This phrase

must be applied according to the law of the state where the

alleged tort occurred. Williams v. United States, 350 U.S. 857

(1955).

LU v. POWELL 13353

[4] The scope of Powell’s employment. The nub of the dis-

trict court’s decision to dismiss was its conclusion that Powell

in his interactions with Lu and Hao was not acting within the

scope of his employment as an asylum officer. Obviously the

United States had not employed him to prey on asylum peti-

tioners or seek graft from their perilous predicaments. Self-

evidently, it may have seemed, an asylum officer gone bad

had stepped out of his assigned job in order to become a pred-

ator.

[5] The district court correctly stated the traditional rule.

See Restatement (Second) of Agency § 228 (1958). The dis-

trict court, however, took insufficient account of the Califor-

nia variation of the general rule. As put by Justice Werdegar:

“California no longer follows the traditional rule that an

employee’s actions are within the scope of employment only

if motivated, in whole or part, by a desire to serve the employ-

er’s interests. “ Lisa M., 907 P.2d at 361. Although “some-

what surprising on first encounter,” the principle is “well

established” that “an employee’s willful, malicious and even

criminal torts may fall within the scope of his or her employ-

ment for purposes of respondeat superior, even though the

employer has not authorized the employee to commit crimes

or intentional torts.” Id. at 360-61.

[6] The resulting rule in California has been formulated as

a form of enterprise liability. The court looks to the foreseea-

bility of the employee’s conduct, whether it be authorized or

unauthorized, tortious or criminal, because the California rule

“reflects the central justification for respondeat superior [lia-

bility]: that losses fairly attributable to an enterprise — those

which foreseeably result from the conduct of the enterprise —

should be allocated to the enterprise as a cost of doing busi-

ness.” Farmers Ins. Group v. County of Santa Clara, 906 P.2d

440, 448 (Cal. 1995).

The authoritative statement of the California rule was made

by Justice Traynor in Carr v. Wm. C. Crowell Co., 171 P.2d

13354 LU v. POWELL

5 (Cal. 1946). The employer was held liable for the actions of

an employee who threw a hammer at the head of a fellow

worker whose conduct had irritated him. Id. at 7. “Such inju-

ries,” Justice Traynor wrote, “are one of the risks of the enter-

prise.” Id. When employing others, the employer takes on

associations with them that “include the faults and derelic-

tions of human beings.” Id. “ ‘The risks of such associations

and conditions were risks of the employment.’ ” Id. (citing

Judge Benjamin Cardozo in Leonbruno v. Champlain Silk

Mills, 128 N.E. 711, 711 (N.Y. 1920)).

A nexus must exist between the employment and the tort if

the employer is fairly to be held liable. As put by Justice

Werdegar in Lisa M., the tort must be “generally foreseeable”

or “engendered by” or “arise from” the employment. Lisa M.,

907 P.2d at 362. No employer instructs an employee to throw

a hammer at a co-worker who displeases him. The tort in Carr

grew out of the situation in which the work was performed,

the jostle of one man on another, and the uncontrolled anger

of the tortfeasor, motivated by no end other than to vent his

anger. See Carr, 171 P.2d at 7.

Lisa M. itself draws a helpful line. In that case a technician

employed by the hospital to give a pregnant patient an ultra-

sound examination of her abdomen completed the examina-

tion and then returned to the patient’s room and molested her

sexually. Lisa M., 907 P.2d at 360. As a matter of law, the

technician’s assault did not create liability on the part of the

hospital which employed him. Id. at 363-64.

Lisa M. rejected as an argument for the hospital’s liability

that the abused patient was especially vulnerable in the way

that all hospitalized patients are helplessly in the hands of

those attending them. Lisa M., 907 P.2d at 365 n.6. For that

reason we do not emphasize the particular vulnerability of Lu

and Hao, foreigners fearing persecution if sent back. The lia-

bility of a private employer in California does not turn on the

LU v. POWELL 13355

vulnerability of the victim but on the extent to which the tort

of the employee is incident to his employment. See id. at 362.

In reaching the conclusion in Lisa M., Justice Werdegar set

out the three considerations of policy that support the rule of

respondeat superior: (1) to increase the vigilance and precau-

tions of the employer; (2) to insure compensation for the

injury; and (3) to spread the risk of loss. Id. at 366. The court

was unable to say that those goals would be realized by

imposing liability on the hospital. Id. Two justices (Mosk and

Kennard) disagreed with this conclusion and would have gone

further to posit liability. Id. at 368-73.

Reversing a trial court’s holding that a licensed real estate

broker’s submission of a fraudulent loan application was not

within the scope of his employment, a California court of

appeal applied Lisa M., quoting verbatim its statement that the

employee’s actions need not benefit the employer in order to

create vicarious liability. Inter Mountain Mortgage, Inc. v.

Sulimen, 93 Cal. Rptr. 2d 790, 794 (Cal. Ct. App. 2006). The

court of appeal noted that throughout the transaction the bro-

ker, acting to enrich himself, represented himself as the agent

of the employer providing the documentation necessary for

the loan. Id. at 796. The risk of a fraudulent application was

“a generally foreseeable risk inherent and incidental to defen-

dants’ mortgage loan brokerage business.” Id.

[7] Like the loan broker, Powell was part of a process in

which he was expected to participate in a lawful way, review-

ing the documentation of the asylum applicant, interviewing

her, and assessing the credibility of her claims. Like the loan

broker, Powell abused his powers for his own benefit. In

doing so, he acted within the scope of his employment as

defined by California. To compensate his victims, spread the

loss, and stimulate the government to greater vigilance in con-

trolling aberrant behavior, California law makes the United

States bear the cost of Powell’s conduct, unauthorized but

incidental to the asylum system.

13356 LU v. POWELL

The viable tort claims. The plaintiffs point to two causes of

action where a private party would be liable for the wrongful

act of his employee, one under California common law, the

other under a California statute. We consider them in turn.

The dissent focuses on torts against employees engaging in

“sexual misconduct.” The torts for which the plaintiffs may be

compensated by Powell’s employer are the infliction of emo-

tional distress and interference with their civil rights.

[8] (1) Infliction of emotional distress. This tort at com-

mon law is distinct from assault or battery. It may be commit-

ted intentionally or recklessly. See Cervantez v. J. C. Penney

Co., 595 P.2d 975, 983 (Cal. 1979); Tekle v. United States,

511 F.3d 839, 855 (9th Cir. 2007). An employer can be held

liable for its infliction by an employee in the course of his

employment. See Flores v. Autozone West, Inc., 74 Cal. Rptr.

3d 178, 179-180, 188 (Cal. Ct. App. 2008). In our case, if the

alleged facts are proved, it was committed by Powell in each

instance in which he demanded money or sexual gratification

from Lu or Hao as a condition for exercising his discretion in

favor of asylum.

The United States is immune from liability for an assault or

battery by its employee. 28 U.S.C. § 2680(h). The alleged

touchings of the women were batteries and the sexual charac-

ter of these offenses may not change their gravamen. We need

not decide that question. The emotional distress suffered as a

result of the demand for sexual favors is an injury distinct

from the battery and may be proved by the plaintiffs.

[9] (2) Interference with the civil rights of the plaintiffs.

California Civil Code § 52.1 provides that if a person inter-

feres, or attempts to interfere, by threats, intimidation, or

coercion with the exercise or enjoyment of the constitutional

or statutory rights of any individual, the individual may sue

for damages independently of any other action that is avail-

able. Cal. Civil Code § 52.1(a)-(b); Stamps v. Superior Court,

LU v. POWELL 13357

39 Cal. Rptr. 3d 706, 707-08 (Cal. Ct. App. 2006) (suit

against private employer). On the facts alleged, Powell

attempted such interference with the plaintiffs’ right to asy-

lum.

[10] The claims barred by the FTCA. The plaintiffs allege

that the United States was negligent in its employment of

Powell. They point to the deposition of another employee in

the asylum office stating that Powell, contrary to regulations,

retained an asylum file for over 400 days. The deposition is

not enough to show that the United States was negligent in

not detecting Powell’s predatory conduct. The United States

cannot be held liable under the FTCA “based upon the exer-

cise or performance or the failure to exercise or perform a dis-

cretionary function or duty on the part of a federal agency or

an employee of the Government.” 28 U.S.C. § 2680(a); see

Terbush v. United States, 526 F.3d 1125, 1128-29 (9th Cir.

2008). The treatment of Powell for his violation of the regula-

tion lay within the discretion of his supervisor. The United

States is not liable for the exercise of that discretion. Nurse v.

United States, 226 F.3d 996, 1001-02 (9th Cir. 2000). The

discretionary function exception does not apply to “[a]n

action specifically prescribed by a federal statute, regulation,

or policy,” because such an action is not within an agent’s dis-

cretion. Marlys Bear Med. v. United States, 241 F.3d 1208,

1213 (9th Cir. 2001) (internal quotation omitted). The plain-

tiffs have not identified any mandatory duty to discipline

Powell for retaining the file. Nor have they pointed to any

specific duty under the Fifth Amendment or any specific pol-

icy to support a claim of unconstitutional policymaking. See

Nurse, 226 F.3d at 1002.

[11] The plaintiffs’ claim under 8 C.F.R. § 208.9 was

properly dismissed; it was not a claim for which California

law would provide a remedy against a private party. The

plaintiffs’ claim under Article 1 § 7 of the California Consti-

tution does not state a claim for damages under California

13358 LU v. POWELL

law. Katzberg v. Regents of University of California, 58 P.3d

339, 358 (Cal. 2002).

CONCLUSION

For the reasons stated, the order of the district court is

AFFIRMED in part, REVERSED in part, and REMANDED

for further proceedings.

BYBEE, Circuit Judge, concurring in part, dissenting in part:

I agree with the majority that “[t]he United States is

immune from liability for an assault or battery by its employ-

ee,” Maj. Op. at 13356, and that the district court therefore

properly dismissed Lu’s assault and battery claims against the

United States. In addition, I agree with the majority that 28

U.S.C. § 2680(a), the Federal Tort Claims Act discretionary

function exception, bars Lu’s claim that the United States was

negligent in its employment of Powell because the “treatment

of Powell for his violation of the regulation lay within the dis-

cretion of his supervisor[, and t]he United States is not liable

for the exercise of that discretion.” Maj. Op. at 13357.

I disagree, however, with the majority’s conclusion that

when Powell solicited sex and money from Lu in exchange

for asylum, he acted within the scope of his employment

under California law. The California Supreme Court has held

that a deputy sheriff who “lewdly propositioned and offen-

sively touched” a co-worker was not within the “scope of his

. . . employment as an employee of [a] public entity,” Farm-

ers Ins. Group v. Santa Clara, 906 P.2d 440, 444 (Cal. 1995),

and California has generally refused to hold employers liable

for the sexual misconduct of their employees. See, e.g., Lisa

M. v. Henry Mayo Newhall Mem’l Hosp., 907 P.2d 358 (Cal.

1995); M.P. v. City of Sacramento, 98 Cal. Rptr. 3d 812, 814

(Ct. App. 2009). Because I do not believe that California

LU v. POWELL 13359

would hold an employer liable under the circumstances of this

case, under the Federal Tort Claims Act (FTCA), the United

States is not liable “in accordance with the law of the place

where the act or omission occurred.” 28 U.S.C. § 1346(b)(1).

I respectfully dissent from the majority’s decision to allow

Lu’s intentional infliction of emotional distress and California

Civil Code § 52.1 claims to go forward.

I

The FTCA provides a limited waiver of the sovereign

immunity of the United States “for injury or loss of property

. . . caused by the negligent or wrongful act or omission of

any employee of the Government while acting within the

scope of his office or employment, under circumstances

where the United States, if a private person, would be liable

to the claimant in accordance with the law of the place where

the act or omission occurred.” 28 U.S.C. § 1346(b)(1). Under

28 U.S.C. § 2680(h), however, the United States is not liable

for “[a]ny claim arising out of assault, battery, false imprison-

ment, false arrest, malicious prosecution, abuse of process,

libel, slander, misrepresentation, deceit, or interference with

contract rights.” Notably absent from this list, for our pur-

poses, is intentional infliction of emotional distress. Although

“a claim based on conduct constituting the tort of intentional

infliction of emotional distress is not excluded . . . by

§ 2680(h),” it is barred by § 2680(h) if “in substance the con-

duct relied upon constituted a specifically excluded tort.”

Sheehan v. United States, 896 F.2d 1168, 1172 (9th Cir.

1990); see also Sabow v. United States, 93 F.3d 1445, 1456

(9th Cir. 1996) (“We focus our § 2680(h) inquiry on whether

conduct that constitutes an enumerated tort is ‘essential’ to a

plaintiff’s claim.”).

In order for the United States to be vicariously liable for

Powell’s actions, Powell must have intentionally inflicted

emotional distress1 on Lu or deprived her of rights secured by

1

In the vast majority of cases, the claim of intentional infliction of emo-

tional distress will arise from one of the barred enumerated torts like

13360 LU v. POWELL

the Constitution or the laws of the United States, Cal. Civ.

Code § 52.1(a), “while acting within the scope of his office or

employment” as an asylum officer “under circumstances

where the United States, if a private person, would be liable

to the claimant in accordance with the law of the place where

the act or omission occurred.” 28 U.S.C. § 1346(b)(1). In this

case, Powell’s actions occurred in California, so California’s

principles of respondeat superior control. See Id. The majority

holds that the United States, if it were a California employer,

would be liable for Powell’s actions. I respectfully disagree

with the majority’s assessment of California’s law.

Under California law, an employer can be held liable for

the wilful and malicious torts committed by its employees if

an employee commits the tort in the scope of his or her

employment. This is true even if the tort was not done as “a

means, or for the purpose of performing the work [the

employee] was employed to do.” Carr v. Wm. C. Crowell Co.,

171 P.2d 5, 7 (Cal. 1946). In Carr, the California Supreme

Court held that an employer was liable for injury caused when

its employee threw a hammer at a co-worker. Id. The court

concluded that by “bringing men together” the employer had

“create[d] occasions for lapses into carelessness, and for fun-

making and emotional flareup. . . . These expressions of

human nature are incidents inseparable from working

together. They involve risks of injury and these risks are

inherent in the working environment.” Id. at 8.

assault, battery, false arrest, libel, deceit, or misrepresentation and there-

fore be barred under the FTCA as well. But this case presents a unique set

of facts. Even though Lu abandoned her suit against the United States

based on Powell’s alleged battery and sexual assault, on appeal, Lu argues

that her claim of intentional infliction of emotional distress is still viable

because it is grounded on Powell’s request for money and sexual favors.

Reply Br. at 4 n.1. Because bribery by a public official is not listed in 28

U.S.C. § 2680(h) and does not fairly fall within any of the excluded cate-

gories, I agree with the majority that Lu’s claim that Powell intended to

cause her emotional distress by requesting sex and money in return for

asylum is not statutorily barred by 28 U.S.C. § 2680(h).

LU v. POWELL 13361

Carr’s virtually unworkable holding—that is, “boys will be

boys” and the employer is responsible for their “expressions

of human nature” because the employer created a “working

environment”—has been explained and modified by more

recent California Supreme Court decisions.

“[N]otwithstanding the generally broad view given to scope

of employment determinations,” the California Supreme

Court has said, “the law is clear that an employer is not

strictly liable for all actions of its employees during working

hours. Significantly, an employer will not be held vicariously

liable for an employee’s malicious or tortious conduct if the

employee substantially deviates from the employment duties

for personal purposes.” Farmers Ins. Group, 906 P.2d at 449

(emphasis omitted). In Lisa M., the court explained that the

principle of respondeat superior is limited by the element of

foreseeability: An employer is only liable when, considering

the enterprise’s operations, the risk of injury is generally fore-

seeable:

the employer will not be held liable for an assault or

other intentional tort that did not have a causal nexus

to the employee’s work. . . . An act serving only the

employee’s personal interest is less likely to arise

from or be engendered by the employment than an

act that, even if misguided, was intended to serve the

employer in some way. . . . That the employment

brought tortfeasor and victim together in time and

place is not enough. . . . [T]he risk of tortious injury

must be inherent in the working environment or typi-

cal of or broadly incidental to the enterprise the

employer has undertaken.

Lisa M., 907 P.2d at 361-62 (quotation marks omitted). Lisa

M. involved a sexual tort, and with respect to sexual torts in

particular, the court held that “a sexual tort will not be consid-

ered engendered by the employment unless its motivating

emotions were fairly attributable to work-related events or

conditions. . . . If the assault was . . . the result of only propin-

13362 LU v. POWELL

quity and lust, there should be no liability.” Id. at 364 (quota-

tion marks and omission omitted).

With the foregoing principles in mind, I turn to the question

of whether Powell acted within the scope of his employment

when he traveled to Lu’s home and requested sexual favors

and money in return for recommending that the United States

grant her asylum. As an asylum officer, Powell’s duties were

set out in (then) INS’s regulations. Such officers were “dele-

gated the authority to hear and adjudicate credible fear of per-

secution determinations . . . [and] applications for asylum

. . . .” 8 C.F.R. § 103.1(g)(3)(ii) (2000). “An asylum officer

may grant asylum in the exercise of discretion to an applicant

who qualifies as a refugee . . . . [T]he asylum officer shall

either grant asylum or refer the application to an immigration

judge for adjudication in deportation, exclusion, or removal

proceedings. An asylum officer may refer such an application

after an interview. . . .” 8 C.F.R. § 208.14(b) (2000). An asy-

lum officer must “conduct the interview in a nonadversarial

manner and, except at the request of the applicant, separate

and apart from the general public.” 8 C.F.R. § 208.9(b)(2000).

During the interview, an asylum officer has “authority to

administer oaths, verify the identify of the applicant . . . pres-

ent and receive evidence, and question the applicant and any

witnesses.” Id. § 208.9(c). In considering whether to grant an

applicant asylum, “[t]he asylum officer shall consider evi-

dence submitted by the applicant together with his or her asy-

lum application . . . .” Id. § 208.9(e).

Powell’s actions (well described by the majority) were

plainly outside his regular duties, and for that, Powell was

convicted of bribery by a public official under 18 U.S.C.

§ 201(b)(2)(A) and deprivation of rights under color of law

under 18 U.S.C. § 242. Notwithstanding the fact that Powell’s

employer, the United States, brought charges against Powell

and convicted him of two felonies, Lu argues that Powell was

acting within the scope of his employment when he commit-

ted his criminal acts. Intuitively, I cannot see how an act crim-

LU v. POWELL 13363

inally punishable by the United States can possibly be

considered within the scope of Powell’s employment as an

asylum officer. Moreover, I do not think California’s law is

to the contrary. I thus agree with the majority that “Powell

abused his powers for his own benefit,” but I disagree that

“[i]n doing so, he acted within the scope of his employment

as defined by California.” Maj. Op. at 13355.

II

California has had substantial experience with suits against

employers based on employee sexual misconduct. In Lisa M.,

an ultrasound technician sexually assaulted a patient ten min-

utes after conducting the patient’s ultrasound examination.

907 P.2d at 359. The California Supreme Court held that the

hospital was not vicariously liable for the technician’s assault.

The court reasoned that the ultrasound technician was not act-

ing within the scope of his employment when he assaulted the

patient because “the technician’s decision to engage in con-

scious exploitation of the patient did not arise out of the per-

formance of the examination, although the circumstances of

the examination made it possible.” Id. at 364 (emphasis omit-

ted). The technician’s “personal motivations” to assault the

patient “were not generated by or an outgrowth of workplace

responsibilities, conditions or events.” Id.

In Farmers Insurance Group, the California Supreme Court

similarly held that a sheriff’s “lewd[ ] proposition[s to] and

offensive[ ] touch[ings]” of a co-worker did not arise within

the “scope of his . . . employment as an employee of [a] pub-

lic entity.” 906 P.2d at 444. The court in Farmers Insurance

Group found that the deputy sheriff was not acting within the

scope of his employment when he asked his subordinate for

sexual favors and offensively touched her because “the delib-

erate targeting of an individual employee by another

employee for inappropriate touching and requests for sexual

favors is not a risk that may fairly be regarded as typical of

or broadly incidental to the operation of a county jail.” Id.

13364 LU v. POWELL

Even though there was evidence that sexually explicit banter

was common among employees at the jail, the court refused

to hold that the deputy’s requests for sex from a subordinate

were “broadly incidental” to his tasks and duties. Id. at 454.

These cases are typical of the host of California cases

where the court refused to hold employers—public2 and

private—liable for the sexual torts committed by their

employees. See, e.g., M.P., 98 Cal. Rptr. 3d at 815 (City of

Sacramento not vicariously liable for claims of assault, bat-

tery, and intentional infliction of emotional distress after two

firefighters (one on-duty at the time) assaulted a woman dur-

ing the Porn Star Costume Ball); Maria D. v. Westec Residen-

tial Sec., Inc., 102 Cal. Rptr. 2d 326 (Ct. App. 2000) (security

company not vicariously liable for on-duty security guard’s

rape of a motorist); Jeffrey E. v. Cent. Baptist Church, 243

Cal. Rptr. 128 (Ct. App. 1988) (protestant church not vicari-

ously liable for assault, battery, and intentional infliction of

emotional distress of a minor after Sunday school teacher

molested minor); Rita M. v. Roman Catholic Archbishop, 232

Cal. Rptr. 685 (Ct. App. 1986) (archbishop not vicariously

liable for sexual relations between seven priests and minor

parishioner); Alma W. v. Oakland Unified Sch. Dist., 176 Cal.

Rptr. 287 (Ct. App. 1981) (school district not vicariously lia-

ble for rape of a student by a janitor). In a few cases, Califor-

2

The majority suggests that California’s public entity respondeat supe-

rior cases are not analogous to private employer respondeat superior cases.

See Maj. Op. at 13351 (“Because it involved a public employer, Mary M.

provides less than compelling precedent.” (citation and quotation marks

omitted)). I see no discernable difference in California’s treatment of pub-

lic and private employers. In both private sector and public employer

cases, California courts have applied general principles of respondeat

superior. See Mary M. v. City of Los Angeles, 814 P.2d 1341, 1344 (Cal.

1991) (“[T]he Legislature incorporated general standards of tort liability

as the primary basis for respondeat superior liability of public entities,”

and “[c]ourts have construed the term ‘scope of employment’ in section

815.2 [the section that makes public entities liable for the torts of an

employee] as broadly as in private tort litigation.” 814 P.2d 1341, 1344

(Cal. 1991) (quotation marks omitted).

LU v. POWELL 13365

nia courts have held that an employee’s sexual propositions or

sexual assault were “broadly incidental” to the employee’s

duties, but the courts in these cases focused on the unique

authority of police officers or the special relationship between

clients and therapists. See, e.g., Mary M. v. City of Los

Angeles, 814 P.2d 1341 (Cal. 1991) (city could be vicariously

liable for an on-duty police officer’s rape of a woman); Rich-

ard H. v. Larry D., 243 Cal. Rptr. 807 (Ct. App. 1988) (clinic

could be vicariously liable for fraud, negligence, and negli-

gent infliction of emotional distress where marriage therapist

who was the head of the psychiatric department had sexual

relations with the wife of a couple he was counseling); White

v. County of Orange, 212 Cal. Rptr. 493 (1985) (county could

be vicariously liable for deputy sheriff’s threats to rape a motor-

ist).3

3

There is, admittedly, some tension between the California Supreme

Court’s decision in, Mary M., 814 P.2d 1341, and its subsequent decisions

—tension that has been noted by the California courts themselves. In Mary

M., the California Supreme Court held that rape was within the scope of

an on-duty police officer’s employment and that the city was liable. The

court “stress[ed] that [its] conclusion . . . flow[ed] from the unique author-

ity vested in police officers. Employees who do not have this authority and

who commit sexual assaults may be acting outside the scope of their

employment as a matter of law.” Id. at 1350 n.11. The California Supreme

Court seemed to limit Mary M.’s holding to sexual assault by on-duty

police officers in Farmers Insurance Group, 906 P.2d at 450. See id.

(“[E]xcept where sexual misconduct by on-duty police officers against

members of the public is involved, the employer is not vicariously liable

to the third party for such misconduct.” (citation omitted)); see also Lisa

M., 907 P.2d at 366 (stating that Mary M. provides “less than compelling

precedent for liability” because the court “expressly limited [Mary M.’s]

holding” to on-duty police officers); M.P., 98 Cal. Rptr. 3d at 814-15 (“It

is questionable whether the holding in Mary M. is still viable. . . . [W]e

conclude that the Mary M. holding that a public employer of a police offi-

cer may be vicariously liable for a sex crime committed by the officer

against a person detained by the officer while on duty is, at best, limited

to such acts by an on-duty police officer and does not extend to any other

form of employment.”). Because Powell was not a police officer acting

within the scope of his employment, Mary M. has little relevance to the

present case.

13366 LU v. POWELL

The majority relies on Inter Mountain Mortgage, Inc. v.

Sulimen, 93 Cal. Rptr. 2d 790 (Ct. App. 2000), to hold that

Powell acted within the scope of his employment when he

requested sex and money from Lu. Maj. Op. at 13355. In Suli-

men, the court held a mortgage company vicariously liable for

an employee’s fraud. The employee, a mortgage broker, sub-

mitted fraudulent paperwork under the name of the employer

and represented to the client that he was fulfilling his job

duties as a loan broker in submitting the paperwork. Id. at

795. The court found that because he held himself out as an

employee of his employer when he committed the fraud, a tri-

able issue of fact existed as to whether he was acting within

the scope of his employment. Id. at 796. The court reasoned,

“the risk of one of defendants’ loan representatives submitting

a fraudulent loan application . . . was a generally foreseeable

risk inherent and incidental to defendants’ mortgage loan bro-

kerage business.” Id.

Although Sulimen could be read to support the argument

that Powell was acting within the scope of his employment

when he solicited sex and money from an asylum applicant,

I do not believe such a reading is necessary. Powell’s request

is not a “generally foreseeable risk inherent and incidental” to

the United States asylum system. Id. Again, the California

Supreme Court sexual misconduct cases are more directly on

point here. Just as it was not a generally foreseeable risk that

an ultrasound technician would exploit a patient ten minutes

after finishing her examination, it was not foreseeable that

Powell would exploit an asylum applicant several days after

conducting her official asylum interview. His actions of going

to Lu’s house and requesting sex and money for asylum were

unrelated to his responsibility to only “consider evidence sub-

mitted by the applicant” in deciding whether to grant asylum.

8 C.F.R. § 208.9(e) (2000). Like the deputy sheriff in Farm-

ers Insurance Group who “lewdly propositioned” a subordi-

nate, Powell “lewdly propositioned” an asylum applicant, but

such actions were for his own personal reasons and not within

the scope of his employment as an asylum officer. On the

LU v. POWELL 13367

whole, California cases support the conclusion that when

Powell requested that Lu give him money or sex in exchange

for asylum, he substantially deviated from his duties as an

asylum officer and acted as a “result of only propinquity and

lust.” Lisa M., 907 P.2d at 364.

III

California cases also make clear that Powell was not acting

within the scope of his employment by the mere fact that his

position as an asylum officer brought him into contact with

Lu. “If an employee’s tort is personal in nature, mere presence

at the place of employment and attendance to occupational

duties prior or subsequent to the offense will not give rise to

a cause of action against the employer under the doctrine of

respondeat superior.” Farmers Ins. Group, 906 P.2d at 450

(quotation marks and alteration omitted). In Lisa M., the court

concluded that even though the “hospital, by employing the

technician and providing the ultrasound room may have set

the stage for [the technician’s] misconduct, . . . the script was

entirely of his own, independent invention” and that it would

be “unfair and inconsistent with the basic rationale of

respondeat superior to impose liability on [the] [h]ospital irre-

spective of its own negligence.” Lisa M., 907 P.2d at 367.

Even though Powell had the opportunity to exploit Lu by vir-

tue of his position as an asylum officer, that fact alone does

not make his personal request for sex and money fall within

the scope of his employment.

In addition, although Powell had the authority to grant Lu

asylum, this authority was not enough to bring his tortious

action within the scope of his employment under California

case law. In John R. v. Oakland Unified School District, 769

P.2d 948 (Cal. Ct. App. 1989), parents of a fourteen year-old

junior high school student sued the school district under the

doctrine of respondeat superior when one of its school teach-

ers sexually molested the student while the student was at the

teacher’s apartment participating in an officially sanctioned

13368 LU v. POWELL

extracurricular program. The parents argued that the teacher

acted within the scope of his employment because “the

teacher used his authority to obtain [their son’s] participation

in the extracurricular program and thereby obtained the boy’s

presence at the teacher’s home away from other eyes.” Id. at

955. Despite the fact that the teacher invoked his authority to

get the boy alone at his house for an approved extracurricular

program and told the boy that sex was part of the teacher-

student relationship, the court refused to find that the teacher

acted within the scope of his employment. The court con-

cluded, “[t]he teacher’s authority . . . is simply not great

enough to persuade us that vicarious liability should attach

here for the teacher’s tort.” Id. at 956-57.

Here, Powell arguably asserted his authority as an asylum

officer to request sex and money in exchange for granting

asylum. But his authority to grant or deny Lu’s asylum appli-

cation does not persuade me that vicarious liability should

attach to the United States for Powell’s lewd and selfish con-

duct. Even though the teacher in John R. lured a student to the

teacher’s house under the auspices of an official extracurricu-

lar program, the court declined to find that the teacher acted

within the scope of his employment. Likewise, the fact that

Powell used his authority to come over to the Lu’s home does

not make his subsequent criminal activity fall within the

scope of his employment.

IV

Because Powell was not acting within the scope of his

employment, the United States is not vicariously liable for

Lu’s claims that Powell inflicted emotional distress on her or

that he interfered with her rights under California Civil Code

§ 52.1. I respectfully dissent from that portion of the majori-

ty’s opinion and judgment.