UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
XUE LU; JIE HAO, ü
THOMAS POWELL; ROBERT LOONEY,
UNITED STATES OF AMERICA,
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
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13348 LU v. POWELL
Henry C. Whitaker, Washington, D.C., for the defendant-
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
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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 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
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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 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
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.
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LU v. POWELL 13351
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, 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 California
to public and private employers alike. See Mary M.,
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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 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., 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).
 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
(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. 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
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LU v. POWELL 13353
 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., 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. at 360-61.
 The resulting rule in California has been formulated as
a form of enterprise liability. The court looks to the foreseeability
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 [liability]:
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 business."
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
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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 injuries,"
Justice Traynor wrote, "are one of the risks of the enterprise."
Id. When employing others, the employer takes on
associations with them that "include the faults and derelictions
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 ultrasound
examination of her abdomen completed the examination
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 liability
of a private employer in California does not turn on the
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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 precautions
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 broker,
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 defendants'
mortgage loan brokerage business." Id.
 Like the loan broker, Powell was part of a process in
which he was expected to participate in a lawful way, reviewing
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 controlling
aberrant behavior, California law makes the United
States bear the cost of Powell's conduct, unauthorized but
incidental to the asylum system.
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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 emotional
distress and interference with their civil rights.
 (1) Infliction of emotional distress. This tort at common
law is distinct from assault or battery. It may be committed
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 character
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.
 (2) Interference with the civil rights of the plaintiffs.
California Civil Code § 52.1 provides that if a person interferes,
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 available.
Cal. Civil Code § 52.1(a)-(b); Stamps v. Superior Court,
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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 asylum.
 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 exercise
or performance or the failure to exercise or perform a discretionary
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 regulation
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 discretion.
Marlys Bear Med. v. United States, 241 F.3d 1208,
1213 (9th Cir. 2001) (internal quotation omitted). The plaintiffs
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 policy
to support a claim of unconstitutional policymaking. See
Nurse, 226 F.3d at 1002.
 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 Constitution
does not state a claim for damages under California
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13358 LU v. POWELL
law. Katzberg v. Regents of University of California, 58 P.3d
339, 358 (Cal. 2002).
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 employee,"
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 discretion
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 offensively
touched" a co-worker was not within the "scope of his
. . . employment as an employee of [a] public entity," Farmers
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
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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.
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 imprisonment,
false arrest, malicious prosecution, abuse of process,
libel, slander, misrepresentation, deceit, or interference with
contract rights." Notably absent from this list, for our purposes,
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 conduct
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
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
1In the vast majority of cases, the claim of intentional infliction of emotional
distress will arise from one of the barred enumerated torts like
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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 therefore
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 categories,
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).
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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 foreseeable:
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 typical
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 considered
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
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13362 LU v. POWELL
equity and lust, there should be no liability." Id. at 364 (quotation
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 "delegated
the authority to hear and adjudicate credible fear of persecution
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 asylum
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 . . . present
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 evidence
submitted by the applicant together with his or her asylum
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 committed
his criminal acts. Intuitively, I cannot see how an act crim
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LU v. POWELL 13363
Finally 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.
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 minutes
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 acting
within the scope of his employment when he assaulted the
patient because "the technician's decision to engage in conscious
exploitation of the patient did not arise out of the performance
of the examination, although the circumstances of
the examination made it possible." Id. at 364 (emphasis omitted).
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] public
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 deliberate
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.
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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, battery,
and intentional infliction of emotional distress after two
firefighters (one on-duty at the time) assaulted a woman during
the Porn Star Costume Ball); Maria D. v. Westec Residential
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 vicariously
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 liable
for rape of a student by a janitor). In a few cases, Califor
2The majority suggests that California's public entity respondeat superior
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 discernible difference in California's treatment of public
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).
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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); Richard
H. v. Larry D., 243 Cal. Rptr. 807 (Ct. App. 1988) (clinic
could be vicariously liable for fraud, negligence, and negligent
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 motorist).
3There 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 authority
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 officer
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
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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 Sulimen,
the court held a mortgage company vicariously liable for
an employee's fraud. The employee, a mortgage broker, submitted
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 triable
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 brokerage
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 submitted
by the applicant" in deciding whether to grant asylum.
8 C.F.R. § 208.9(e) (2000). Like the deputy sheriff in Farmers
Insurance Group who "lewdly propositioned" a subordinate,
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
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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.
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 irrespective
of its own negligence." Lisa M., 907 P.2d at 367.
Even though Powell had the opportunity to exploit Lu by virtue
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 teachers
sexually molested the student while the student was at the
teacher's apartment participating in an officially sanctioned
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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 concluded,
"[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 application
does not persuade me that vicarious liability should
attach to the United States for Powell's lewd and selfish conduct.
Even though the teacher in John R. lured a student to the
teacher's house under the auspices of an official extracurricular
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.
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 majority's
opinion and judgment.