UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BERTHA VAZQUEZ FAJARDO, an 

individual; BLANCA URIOSTEGUI, an 

individual, 

Plaintiffs-Appellees, 

 v. 

UNITED STATES OF AMERICA, 

Defendant-Appellant, 

MARCO RICO, 

Defendant-Appellee.

No. 18-56510 

D.C. No. 

3:16-cv-02980-LAB-MDD 

Southern District of California, 

San Diego 

ORDER

Before: MURGUIA and HURWITZ, Circuit Judges, and GUIROLA,* District 

Judge.

The memorandum disposition filed November 29, 2019, is amended as set 

out in the attached Amended Memorandum Disposition. 

With that amendment, the panel has voted to deny the petition for panel 

rehearing. 

The petition for panel rehearing is DENIED (Doc. 50). 

No further petitions shall be entertained. 

* The Honorable Louis Guirola, Jr., United States District Judge for the 

Southern District of Mississippi, sitting by designation.

FILED

JAN 31 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BERTHA VAZQUEZ FAJARDO, an 

individual; BLANCA URIOSTEGUI, an 

individual, 

Plaintiffs-Appellees, 

 v. 

UNITED STATES OF AMERICA, 

Defendant-Appellant, 

MARCO RICO, 

Defendant-Appellee.

No. 18-56510 

D.C. No. 

3:16-cv-02980-LAB-MDD 

AMENDED MEMORANDUM*

Appeal from the United States District Court

for the Southern District of California

Larry A. Burns, District Judge, Presiding

Argued and Submitted November 5, 2019

Pasadena, California

Before: MURGUIA and HURWITZ, Circuit Judges, and GUIROLA,** District 

Judge.

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Louis Guirola, Jr., United States District Judge for the 

Southern District of Mississippi, sitting by designation.

FILED

JAN 31 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

The government appeals the district court’s order granting a petition for 

certification filed by Marco Rico under 28 U.S.C. § 2679(d)(3). The sole question 

in this interlocutory appeal is whether the district court erred in finding that Rico 

acted within the scope of his federal employment when engaging in the actions that 

form the basis of claims under the Federal Tort Claims Act (“FTCA”) by Plaintiffs 

Bertha Vazquez Fajardo and Blanca Uriostegui (Fajardo’s daughter). We have 

jurisdiction under 28 U.S.C. § 1292(b) and affirm.

“The Attorney General’s decision regarding scope of employment 

certification is subject to de novo review in both the district court and on appeal. 

Where facts relevant to this inquiry are in dispute, however, we review the district 

court’s factual findings for clear error.” Kashin v. Kent, 457 F.3d 1033, 1036 (9th 

Cir. 2006) (quoting Green v. Hall, 8 F.3d 695, 698 (9th Cir. 1993) (per curiam)). 

We evaluate whether Rico acted within the scope of his employment by 

applying “the principles of respondeat superior of the state in which the alleged tort 

occurred.” Saleh v. Bush, 848 F.3d 880, 888 (9th Cir. 2017) (quoting Pelletier v. 

Fed. Home Loan Bank of S.F., 968 F.2d 865, 876 (9th Cir. 1992)). The events at 

issue in this case took place in California.

Applying this Court’s decision in Xue Lu v. Powell, 621 F.3d 944 (9th Cir. 

2010), the district court did not err in holding that Rico acted within the scope of his 

employment when he allegedly assaulted Fajardo at her home. In Powell, this Court 
3 

held that an asylum officer acted within the scope of his employment when he 

traveled to two asylum applicants’ homes to discuss their asylum cases and sexually 

assaulted them during those home visits. Id. at 946, 948–49. Here, Rico met Fajardo 

during an official passport fraud investigation when he was a Special Agent at the 

U.S. Department of State. During the course of that investigation, Rico instructed 

Fajardo to call him if she learned any relevant information about the investigation. 

Fajardo subsequently called him, and Rico then traveled to Fajardo’s home. 

Therefore, under Powell, Rico acted within the scope of his employment when he 

allegedly engaged in the actions that form the basis of the Plaintiffs’ FTCA claims. 

AFFIRMED.