Caseflicks

Court of Appeals for the Ninth Circuit • 2010

Xue Lu v. Powell

621 F.3d 944 | 2010 U.S. App. LEXIS 18368

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Takeaway

In short, an employee’s corrupt use of job-conferred authority may fall within the scope of employment under California law, even when the employer did not authorize it; separate FTCA exceptions still limit which claims may proceed.

Background

Xue Lu and Jie Hao applied for asylum and were interviewed by asylum officer Thomas Powell. According to their complaint, Powell later met each woman at her home and sought money or sexual favors in exchange for a favorable decision. He also touched them without consent. Lu and Hao sued the United States under the Federal Tort Claims Act (FTCA), among other defendants and claims.

The district court dismissed the FTCA claims, concluding that Powell had acted outside the scope of his employment. The women appealed.

Issues

Issue #1

Whether Powell acted within the scope of his employment under California law when he used his authority over asylum applications to demand money and sexual favors.

Holding

Yes. The alleged coercive demands could support FTCA claims for infliction of emotional distress and interference with civil rights.

Reasoning

The FTCA makes the United States liable only where a private employer would be liable under the law of the place of the tort. California does not require an employee’s misconduct to serve the employer’s interests. Even criminal conduct can fall within the scope of employment when it is a generally foreseeable risk arising from the employer’s enterprise.

Powell’s demands were tied to the decision-making power his job gave him. He interviewed the applicants, assessed their claims, and offered to use his discretion in their favor. Like a loan broker who submits fraudulent paperwork through an employer’s business, Powell allegedly exploited the process he was employed to carry out. The majority did not rest its conclusion merely on the applicants’ vulnerability or on the fact that his job brought them together.

The FTCA bars claims arising from an employee’s assault or battery. But the women could seek damages for emotional distress caused by Powell’s demands for money or sexual favors, an injury distinct from the alleged touchings. Their allegations also stated a claim under California Civil Code § 52.1 for attempted interference, through threats or coercion, with their rights in the asylum process.

Issue #2

Whether the FTCA permitted a claim that the United States negligently supervised Powell.

Holding

No. The discretionary-function exception barred that claim.

Reasoning

The women pointed to evidence that Powell had kept an asylum file longer than regulations allowed. But they identified no mandatory rule requiring his supervisor to discipline him for that violation.

Because the supervisor’s response was discretionary, the FTCA did not permit a negligence claim against the United States based on that response.

Dissents

Judge Bybee

Reasoning

Judge Bybee agreed that the assault, battery, and negligent-supervision claims could not proceed, but would have dismissed the remaining claims too. In his view, California’s decisions on employee sexual misconduct showed that Powell’s personal pursuit of sex and money was a substantial departure from his duties, not a risk sufficiently incidental to the asylum process.