was brought along to assist details of his spanish speaking abilities then days later after receiving a voicemail he turned his concededly personal objectives in testing and visiting her california law controls here in circuit this course decision course alou did not decide that discord couldn't rely on subsequent decisions of the california court of appeals that were directly analogous to the situation and i just want to point out how close the facts of zeevi are to this precise case and then i'm happy also to go and discuss why lew is on its face distinguishable and also why even taking the framework in lieu why i think we still prevail in this case  but usually certification is reserved when there's a kind of question of law that's at issue and here this is more a question of whether there is a factually on point california decision i think you had there was a life here a social worker who was not directly assigned to the case at hand that social worker brought a minor to a foster home and that was the end of their duties later that night the social worker  called under vague eyes of picking up some paperwork and a minor expressed some dissatisfaction with the news foster home the social worker then went to the foster home picked the minor up and then committed sexual assault now the california and said i have some information for you and then whether he went on a frolic or detour after that phone call is a separate issue but the fact that she contacted him and asked him to perform duties related to his job distinguish the case i'm dissatisfied and so that was the communication it was in essence initiated by the minors i don't think that's a material distinction in any event and as your honor pointed out the fact that after doing that you turn to concededly personal factual ways i think lou is very distinguishable from this case lou st of all involved an instance where where the employee the asylum officer had control of this entire process there that the nd meeting when the asylum officer went back to the home of back to there's a nd plaintiff in lieu as well how that involved discussing her case and they regarded the details of the application and each of those cases so the idea that in lieu was that this island officer in those cases was still acting even in some kind of perverse way in engaging with the asylum applicant asylum officer in that case said well if you do certain things if you give me money if you exchange in sexual favors i might grant or i might deny your asylum application that is still engaging with the asylum process whereas here there's nothing that rico was doing that was engaging in one of his actual duties and california courts that make clear that you can't is always he was on duty i mean he was he wasn't supposed to go to the house by himself but he was on duty and he was investigating a fraud passport fr investigation so this record here is what do you mean he wasn't i mean why did you what he show up in the st place well he makes it pretty clear why he showed up in the st place he can see is the state department that's a gator's on page seventy three and seventy six for the record that this was  st meeting in this case as you recall and then several days later is when she texts him at some point says i have additional information regarding this there's a lot of other information apparently that's being taxed but i have additional information regarding this case in this crime and he says ok i'll come by and get whatever information i think it was a take it was taken additional statement or she said she had something she was yeah those actually those words are never used if you look at page ninety two is when information i regard in the investigation that's why i'm trying to what you just said previously and that statement seems very different and if in fact he was engaged in some type of passport interview this would be an entirely different case but  at the record he says that's why he that's why he responded to her call and that's why he went to her house he may have decided on the way that rather than doing a passport interview and of course this is all denied with a whether it assault occurred but and seventy four you look at the what a private party what the liability for private parties would be and so this court in lieu rejected that you would be looking to marianne in similar cases and that's clearly be confusing about this california courts have generally the same vicarious liability law it seems for private and public entities they've carved out an exception for that general rule in this unique context of police and i do want to turn to lou now that you bring it up into more directly answer judge her workers st question regarding lou even taking lou at face value if you look on page forty nine i believe have to take it of course you have to take it well es foreseeability right and we should be guided by some policy principles preventing future injuries assuring compensation with victims and spreading the losses caused by the any enterprise equitably and it looks like california instructions to look at the three policy rationales in deciding whether the employee should be liable so it doesn't holding the government accountable for rico's tort here  advance those policy principles i mean for example holding the united states accountable encourages the government to her behavior so the three policy pencils are deterrents spreading the loss and and that in at least and we sat in john r which is another california supreme court case that preceded that they thought that you know the idea of spreading the loss wasn't actually directly applicable in these sort of circumstances and those policy princip certainly guide the analysis but if you look and we said and preceding that you had essentially what is the legal standard which is that this has to personal conduct that substantially deviates from your actual employment responsibilities has to be what should we do what do we do about the fact that all these california cases that you're pointing to i don't know that i necessarily disagree yeah i'm not sure about the california law but all these california cases were decided before lou so not all that work i mean zeevi was decided after lou so i think that the main ones are the ones that i would consider you know your primary authority were decided before we issued a decision and lou judge by he issued a very clear dissent and you did not go on bonk not get changed in any way and i'm just trying to figure out how do we in the face of the current posture not follow luke so i think there's three ways again to try to distinguish st of all in the last point i do want to make is it least this court in re watch has said that if there are intermediate state court decision that contradict decisions of this court a less there's a good reason to believe that the california supreme court would in adopt those position such as in zeevi then we should be following what essentially is the best exposition of california law and that is the decision in zeevi that is the most recent is the most directly  bringing an emotional distress claim does that change our analysis we don't know we don't think that actually changes the scope of employment i mean the scope the importance of sort of an antecedent question of why is the employee acting as part of the employer's business at the time and so it's an all or nothing inquiry and then you go into the individual claims against the employee once you say he's within the scope what kind of claims can i bring in here again it's sort concededly personal purposes so i'd like to my name is daniel crowley for the appellee marco rico i want to start by well as i was preparing for today's argument began to realize that in a really important respect i think the parties have missed the point in in one respect we've sort of gotten lost in this public private dichotomy but that actually has no application to this case and it's clear from the text of the statute why there's the plaintiff claims arise under the federal tort claims act but this case involves the westfall act which amended the f t c to provide immunity for certain employees if dca of course came st and it provides that the government is liable for any act or omission of any employee of the government while acting within the scope of his office or employment under the circumstances where the united states if a private person would be liable to the claimant in accordance with the law the place where the act or a mission occurred and i know that's a mouthful but it's that that if a private person would be liable a language that's what the court have held requires a reference to a private person an allowance but the westfall act which came later doesn't include similar language the westfall acts as that if the employee was acting within the scope of his office or employment at the time of the incident out which the claim arose and skipping ahead the united states shall be substituted as the party defend the westfall act makes no limitation for a private person analog and there's nothing in the text of the statute that suggests that should be interpreted that way all of the cases the parties cite that discuss the private person analog are all f t c cases they're all cases that are deciding the ultimate question of whether the government is liable for the plaintiff's claims the westfall act cases that the parties cite and there aren't many because you're really just adopting another jurisdiction's somes to the law when you apply it but the cases are  wall act we still apply california law to deter absolutely well but there is no limitation on whether it's a public or private law that's being applied and i don't know if you did it would you discuss that you know ok we did not just occurred it's something that we realized and gone over this again preparing for this all right i wish it came out differently but this is the way it is so that the question then for the court is just whether or not applying california law agent rico was acting within the scope of his duties as a lot of those california law as i read it which is not all that favorable to you lou maybe more favorable to you than the california decisions doesn't distinguish between public and private employees in the course of in the course of the scope analysis except for police officers in that sort of situation where they are detaining someone so it does it make any difference well i mean we are in our brief that even if there was this dichotomy you could still look at the public employment source like myself as it may be so in that sense i don't think it for see the alleged sexual assault here was foreseeable consequence of mr rico's employment and i'm just trying to figure out how and under california law of lisa m there seems to be an extremely to note that and so i guess i'm just trying to figure out how was the assault foreseeable under lisa m on lisa m remember they specific or specifically distinguished mariam because the ultrasound technician and lisa and did not have the power and authority of a police officer and they held that this case is different than law enforcement cases but with respect to the government's argument that agent rico was not permitted to go and have this interview of  the government frankly overstates the evidence too much sun it was assumed he was permitted to go to the place to interview her they disregarded policy going away him self what do you do with a c v well he is a social worker who goes to the home of a minor where he's titled to go and assaults the minor well i'm sorry in the course you know i mean and the california court of appeal not the supreme court says it's not in the school course and scope of his employment how is that different that your client well there are couple of ways for one the social worker in zeevi really came up with a pretext in order to get the minor to meet with him and that's completely  that he wasn't titled under the law to go meet with a minor he could meet with a minor for any reason he wanted to he was a social worker he was allowed to but his purpose in doing it was purely pretext to all were agent rico met with mr hart because trial to take these facts is true with the intention of engaging in something improper well i don't you know again i think the government overstates the evidence in that regard and the district court didn't really make factual findings here in the your review in this novo so i think you're free to look at all of the evidence we don't have to accept all the plaintiff's allegations is true here we can look at the records there that he went to mr hart of home to perform an official function we know she called him sure to tell me what other evidence there is that he well to perform she called him and then after he received the call he had to organize the time to meet with her he put into the governor he took out a government vehicle he wrote in the log of the case number that he was going to t visit and all of this connects his investigation or his to his visit with ms bardot and then when he gets there she apparently secretly records this conversation and the transcript shows that they did talk about the investigation there is she asks information he says weren't you going to show me something and yes she goes and she changes the subject each time she deflector she talks about her immigration case and the government says well that shows that that he was really there just talking about the immigration case not the passport case but that ignores the fact that the came because of the question when he shows up and says weren't you going to show me something obviously he's talking about the passport case and in fact the police report when this full hard i went to the police they hadn't spoken to agent rigo but they looked at the transcript they talked to her and they put in the police report on page eighty seven dollars that they were talking about the passport case the fact that he did that though going there alone contrary to the policy of this department state that he should that i mean i mean you have to remember that lieut powells employer the government then prosecuted them i mean he wasn't obeying the his employer's walls when he was you know soliciting bribes and sexually harassing someone but with respect to the idea that mr rico was not allowed to go have this interview alone i don't think the record supports that the government points to two declarations they point to the declaration of agent agent gordon who is the one who to whom the case was assigned and aging gordon says that he was surprised when he learned that agent rico went alone and that's it he was surprised then they point to the the declaration of the supervisor and the supervisor says that when agents are assigned to that office they receive training that says they should do interviews in tandem that's it there's no policy there's no general order this is a a police department essentially this is a federal law enforcement agency none of the things that you would expect to see governing where how they conduct interviews is a great opportunity for me to engage in something improper because i really like or piece attractive and he does all the documentation as if he were going to get the information but he goes there with the sole intent to do the a proper act is that i know that's not your contents of the facts of this case would he be then in the course and scope of his employment i think the court would have to hold neven enduring hearing to determine what those of us those are all that's all the evidence that's all the evidence i think i think he would be pretext cases that the government sites and if you offer an official pretext for going to meet with someone then no then that does not bring the case within the scope of the point case so is why isn't that now my question is why isn't that essentially what this case and he went there not with the intention of investigating but with the intention of personal business so assume that he got the call but didn't go there to investigate went there to do the things that he that he did would that be in the course and scope of your of your point no because if he's not actually going in there to conduct an investigation then the his his claim that that's why he was gone there is protection ok so then what do you do with the government's contention that he admitted your views that he wasn't going there to do the investigation rather for personal purposes well again i don't think the record supports that what they cite in order to put to show that is a declaration from the department investigator who talked with agent rico after the fact after the truly is the police department decided th wasn't evidence to investigate the agency conducted its own investigation and as a result of that they haven't disciplined agent rico he's working full time and he still works that this is five years ago but the investigator put together a report and he said  i think it's on page seventy five dollars or seventy seven dollars of the record that agent rico initially said that he had gone to mr harkless home for official purposes but then upon further questioning he admitted that that wasn't really true and you know i think there are a whole lot of different ways to interpret that when you have when you're sitting in one of the interviews and investigators ask you over and over again well that's not really true is it and you know they put never port the question dancer that they get but you go also submitted a statement to that investigator at the same time or handwritten statement that's in the record that doesn't include any sort of mission which is here in your is your position that rico is a law enforcement officer or a police officer you know he's a federal law enforcement agent and he's army and the police officer case law applies to him absolutely and every all of the case of the government site the problem i think the big problem the government's case is that they don't cite any cases that involve analogous employment here and i mean it seems like those police officer cases seem best evidence or case showing that he was authorized to perform the functions in light of the case law in mary i'm sure so as i already mentioned a little bit i don't think that the declarations the government cites to show that even rico didn't have authority to conduct that investigation are strong enough but beyond that what we have is an agent gordon's declaration he explains that when he brought agent rico with him to conduct the initial investigation isn't rico gave mr hardy his business card with his office number on it and said please call agent rico if you think of anything else about this case and that's exactly what happened he authorized agent rico to receive more information and if you have to remember also the sequence of events here on november  they were told by ice that she might be deported within a week four days later on november th agent we can get this message on a friday and agent gordon is no round if they wait until next week she might be gone none of this is addressed in any of the declarations that the government's side saying he but i mean if we look at mary m then we have to confront this whole public private issue because it seems like lou tells us we can't apply mariam because the f t c a sovereign immunity waiver is limited to circumstances where the united states would be liable as a private person so i guess that's your best argument how we can apply marry him here well with respect to to lose act cases that we cite all say that because the statute just says you know you apply the law of the place where it occurred and that's how they leave it and there are no cases that we've been able to find and we've looked that apply the westfall act and that private but we have a certified question in the district court yes question for the district court was simply whether under california law not the west will act argument that whether under california law he was acting beyond that question to you to consider new arguments you've never raised to the district i don't think it's expanding the argument i'm asking you to apply california law and the government says that you have to ignore these certain cases what i'm saying is that that's not true i see that my time has run out thank you thank you is the bureau of diplomatic security's policy on page sixty eight dollars she says that agent gordon was in charge its investigation agent rico has no role in this investigation without gordon's approval and that i think underscores the fundamental distinction between our position in the position of rico's counsel which is this is not even rico's investigation this is nothing like lou where lou is where powell is the asylum officer in charge of the heaviest of that so it may not be him and may not be the lead on the investigation at all he's not a stranger to the right there are many you know there are there are several there it has been two people who are kind of like this while arises because she meets him when he's there during the investigation and leaves and make clear that the fact that time and place brought two individuals together doesn't make them within the scope of employment and i just want to address one last record point as my time and i realize i'm going over which is the idea that they could he couldn't anybody within the san diego office this really isn't a case where rico because of some sense of urgency had to assign him self a greater role in the investigation no going over bit so let's assume for a moment there's conflicting versions of the facts what do we do in the context so i don't think there really are significantly conflicting versions that just work right so this report at least said that the facts are undisputed in the context of this case was like determinations are made on a preponderance of the evidence standard in this court is reviewing to novo and so you know there this might be an entirely different case of rico actually had evidence that he at any point asked about the passport fraud investigation instead if you look on like page one hundred and nineteen where he says can you show me something in the next sentence that hard o states or at least two down says oh right i can put them on meaning my heels i don't think that is a passport fraud investigation at all i think what he's asking about there is something more akin to a sexual purpose i mean references to investigation while this other conversation is going on so it seems like there there are references but only in the context of she begins to talk about her deportation proceedings and agent rico the only time he actually mentions the word passport is the say i'm not part about your deportation proceedings i only two passports and the past four investigation belongs to gordon which is what he calls the the white guy but she the whole premise was that she said she had information regarding that so i mean it seems like they were all intertwined and i know you're trying to pick the that the parts of the conversation but there's other parts that seem to reference and spill over into the whole reason you know of the investigation but anyhow and maybe the this is the answer to argument presentation both of you for your excellent oral arguments here today the case of fargo and rico vs the united states of america is now submitted