Metropolitan News-Enterprise


Friday, September 3, 2010


Page 1


Divided Ninth Circuit Panel Revives Part of Lawsuit Against U.S. by Women Assaulted by Asylum Officer


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday reinstated a portion of a lawsuit seeking to hold the federal government responsible for the conduct of an asylum officer who asked two Chinese aliens for sex and money in exchange for a favorable resolution of their cases.

Senior Judge John T. Noonan Jr., writing for a divided panel, said Xue Lu and Jie Hoa pled viable claims for infliction of emotional distress and violation of their civil rights, but not for battery or negligent supervision. Judge Richard Clifton concurred, but Judge Jay Bybee said U.S. District Judge Consuelo B. Marshall of the Central District of California, now on senior status, was correct in dismissing the entire case.

The asylum officer, Thomas A. Powell Jr., was arrested in 2000 as a result of an investigation by the Justice Department. According to testimony at Powell’s subsequent trial, Douglas Ingraham, an attorney representing Lu and Hoa in separate cases tipped off the Justice Department after both women told similar stories about Powell.

Lu said that Powell called and asked for a meeting at her residence, about a week after he interviewed her. After insinuating that he could help her in exchange for money, he made sexual advances, which were rebuffed, after which he told her the application would be denied.

A notice of the denial came about a week later.

After Hoa told the attorney that Powell had asked her for a private meeting after her interview, he alerted the Justice Department, which arranged to secretly record the meeting. Powell asked the woman for $2,000, touched her sexually, and arranged for another meeting in order to collect the money, molesting her again.

Powell was convicted of deprivation of civil rights under color of law and seeking bribes, and sentenced to 45 months in prison. He died behind bars shortly after sentencing, and the conviction was vacated because his appeal had not yet been heard.

The women filed suit in 2001, but the action was stayed pending the outcome of the criminal case. Marshall eventually ruled that none of the claims were viable under the Federal Tort Claims Act, which excludes liability for some intentional torts and permits liability for others only to the extent that a private entity would be liable under applicable state law.

Noonan, writing for the appellate court, agreed that battery by a federal employee is one of the torts as to which the government is absolutely immune. He also concluded that the negligent supervision claim, which was based on an allegation that Powell should not have been allowed to continue hearing cases after he violated a regulation by holding files more than 400 days, was properly dismissed because enforcing that regulation was a discretionary function of his superiors, as to which absolute immunity attached.

But if Powell inflicted emotional distress upon the women by demanding sex from them in exchange for allowing them to remain in the country, Noonan explained, that was a separate tort from the battery.

If the allegations of the complaint are true, Noonan added, then Powell was acting within the role and scope of his employment as a matter of California law. While asylum officers are obviously not hired to seek bribes from, or to assault, the applicants, he explained, California would hold an employer liable for such misconduct by an employee when the employee foreseeably abuses his position.

“...Powell abused his powers for his own benefit,” the judge wrote. “In doing so, he acted within the scope of his employment as defined by California. To compensate [Powell’s] 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.”

Bybee argued in his dissent that Powell was not acting within the scope of his employment as defined by relevant decisions of the California Supreme Court, including Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, which held that a hospital was not vicariously liable for an ultrasound technician’s molestation of a patient during an examination.

The plaintiffs were represented by V. James DeSimone of Venice’s Schonbrun DeSimone Sephlow Harris & Hoffman. The government’s case was argued by Henry C. Whitaker of the Department of Justice.

The case is Lu v. United States, 08-56421.


Copyright 2010, Metropolitan News Company