Jie Hao v. Powell

Decision Date02 September 2010
Docket NumberNo. 08-56421.,08-56421.
Citation621 F.3d 944
PartiesXUE LU; Jie Hao, Plaintiffs-Appellants, v. Thomas POWELL; Robert Looney, Defendants, and United States of America, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit


Vincent J. DeSimone, Venice, CA, for the plaintiffs-appellants.

Henry C. Whitaker and Thomas M. Bondy, Washington, D.C., for the defendant-appellee.

Appeal from the United States District Court for the Central District of California, Consuelo B. Marshall, District Judge, Presiding. D.C. No. 2:01-cv-01758-CBM-E.

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.


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 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 private employer. We affirm in part, reverse in part, and remand for further proceedings.


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 asylum. 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 telephoned Lu and told her that he would meet her at her residence in Monterey Park. No one else should be present. On February 26, Powell appeared at her apartment and began discussion 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 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 Powell.

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, Powell 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.


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 settled, 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.


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).

Criteria. Under the FTCA, the United States is only liable “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). Both sides discuss Mary M. v. City of Los Angeles, 54 Cal.3d 202, 285 Cal.Rptr. 99, 814 P.2d 1341 (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., 12 Cal.4th 291, 48 Cal.Rptr.2d 510, 907 P.2d 358, 366 (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 California to public and private employers alike. See Mary M., 285 Cal.Rptr. 99, 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 construed 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 liability in that case depended on “the unique authority vested in police officers.” Lisa M., 48 Cal.Rptr.2d 510, 907 P.2d at 366 (quoting Mary M., 285 Cal.Rptr. 99, 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, 126 S.Ct. 510, 163 L.Ed.2d 306 (2005).

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 circumstances.” 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 function. Indian Towing Co. v. United States, 350 U.S. 61, 64-65, 76 S.Ct. 122, 100 L.Ed. 48 (1955) (plaintiff suing the United States for negligent operation of lighthouse does not need to find a private person operating 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, 126 S.Ct. 510. Analogy not identity of circumstance is key.

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, 76 S.Ct. 100, 100 L.Ed. 761 (1955).

The scope of Powell's employment. The nub of the district 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 petitioners 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 predator.

The district court correctly stated the traditional rule. See Restatement (Second) of Agency § 228 (1958). The district court, however, took insufficient account of the California 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 employer's interests.” Lisa M., 48 Cal.Rptr.2d 510, 907 P.2d at 361. Although “somewhat 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 employment for purposes of respondeat superior, even though the employer has not authorized the employee to commit crimes or intentional torts.” Id., 48 Cal.Rptr.2d 510, 907 P.2d at 360-61.


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