RICO Action Does Not Lie against Governmental Employee Acting within the Scope of His or Her Employment

It is well settled that governmental entities cannot be sued under RICO because they lack the necessary mens rea to commit the predicate crimes on which RICO liability depends. Joseph, Civil RICO: A Definitive Guide § 11 (2d ed. 2000). From this premise, the Ninth Circuit reasoned in Pesnell v. Arsenaut, 2008 U.S. App. LEXIS 13834 (9th Cir. July 1, 2008), that a Federal Tort Claims Act action against a federal government employee could not, by definition, include a RICO claim because the employee’s actions would by definition have to have been taken outside the course and scope of his or her employment:

The [present plaintiff’s] RICO claims were not brought in the [same plaintiff’s prior] FTCA action, nor could they have been. To bring an action under 28 U.S.C. § 1346, the wrongful act must be committed "while acting within the scope of his office or employment." Under the federal and state RICO statutes, the prohibited conduct involves an employee engaged in a pattern of racketeering activity. See 18 U.S.C. § 1962 and Ariz. Rev. Stat. 13-2314.04. An employee engaged in a pattern of racketeering activity, as required by the RICO counts, could not be doing so within the scope of his employment by the federal or state governments. Thus, the claims could not have been brought as an action under § 2646(b), as required by the judgment bar statute, 28 U.S.C. § 2676.

Nonetheless, the prior FTCA action and a prior Bivens action barred the subsequent RICO action in part:

Although Pesnell did not bring a RICO claim in his FTCA action, he did bring a claim for misrepresentation, which was dismissed as part of the judgment against Pesnell in the FTCA action. The Bivens action in California against the federal employees for state and federal RICO violations was based in part upon alleged misrepresentations by the federal employees. The judgment bar of § 2676 applies to "any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim" (emphasis added). In this case, Pesnell did not bring a claim for misrepresentation in the California action, but his RICO claims were based in part on the alleged misrepresentations of the federal employees, the same subject matter involved in the FTCA judgment. Thus, the aspect of the RICO claims based on the same alleged employees' misrepresentations is foreclosed by the judgment bar rule. Pesnell is free to pursue his RICO claims only to the extent that he can do so without reliance on the same allegations of misrepresentation.

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