                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 30 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

LUKE KIRK,                                      No.    19-35508

                Plaintiff-Appellant,            D.C. No. 3:18-cv-00223-HZ

 v.
                                                MEMORANDUM*
UNITED STATES OF AMERICA,

                Defendant-Appellee.

                  Appeal from the United States District Court
                           for the District of Oregon
               Marco A. Hernandez, Chief District Judge, Presiding

                        Argued and Submitted June 3, 2020
                                Portland, Oregon

Before: BERZON and COLLINS, Circuit Judges, and CHOE-GROVES,** Judge.

      Luke Kirk appeals an adverse grant of summary judgment in his claim under

the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671–80, alleging

that a licensed social worker at the Portland Veterans Affairs Medical Center

(“VAMC”), Ami Phillips, was professionally negligent. Oregon law governs this


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Jennifer Choe-Groves, Judge for the United States
Court of International Trade, sitting by designation.
FTCA action. See id. § 2674. We review a grant of summary judgment de novo.

Shelley v. Geren, 666 F.3d 599, 604 (9th Cir. 2012). We affirm in part, reverse in

part, and remand to the district court for further proceedings consistent with this

memorandum.

      1. The district court did not err in applying the traditional Chesterman

scope-of-employment test to Kirk’s professional negligence claim. Fearing’s

scope-of-employment test is “specifically applicable to intentional torts.” Doe v.

Holy See, 557 F.3d 1066, 1082 (9th Cir. 2009). Because Kirk alleged professional

negligence, the district court concluded correctly that Fearing does not apply to

Kirk’s claim.

      2. The district court erred in granting summary judgment to Defendant. The

district court ruled that “[w]ithout Fearing, Plaintiff cannot show that the negligent

acts were ‘of a kind’ that Phillips was hired to perform.” Viewing the evidence in

the light most favorable to Kirk, the record supports Kirk’s allegations that Phillips

negligently provided counseling.

      Kirk met regularly with Phillips for counseling sessions and the record

contains numerous examples of instances in which the counseling that Phillips

provided fell below the applicable standard of care. For example, during

counseling sessions, Kirk and Phillips discussed marriage, raising an adoptive

child, and spending time together outside of sessions. Phillips directed Kirk to


                                          2
touch various parts of her person and express how he felt as therapy to help Kirk

“be closer to people.” Also during sessions, Phillips sat with her legs over Kirk’s

lap and Kirk rested his head on Phillips’ chest. Kirk and Phillips kissed and

hugged during the last counseling session. In our view, a reasonable factfinder

could conclude that these actions were both counseling and negligent.

      A number of Phillips’ actions that took place outside the counseling room

could also be characterized as counseling. For example, many of Kirk and

Phillips’ text messages concerned the same or substantially similar subject matter

as the counseling sessions, such as Kirk’s therapy, his childhood and relationship

with his father, and Kirk’s expressed suicidal ideations. A reasonable factfinder

could conclude that some of Phillips’ text messages constituted negligent

counseling—i.e., that they were actions “of a kind” that Phillips was hired to

perform and that she performed them negligently. Likewise, we conclude that core

allegations relating to the events of May 20, 2016 survive summary judgment.

That day, Kirk expressed suicidal ideations to Phillips. In response, Phillips

arranged an overnight bed for Kirk at the VAMC so that medical professionals

could take care of Kirk. Kirk rebuffed the offer and Phillips mentioned her

obligation to call the police unless she could confirm his safety. However, after

Kirk continued to refuse treatment, Phillips did not call the police. Instead, she

promised to not call the police and she visited Kirk’s apartment. A reasonable


                                          3
factfinder could conclude that Phillips was negligent in the performance of these

counseling actions, which were of a kind she was hired to perform. The fact that

Phillips conducted her counseling badly does not mean that it was not counseling.

      By contrast, we agree with the district court that some of the actions

allegedly taken by Phillips occurred outside of any counseling session and did not

in any sense constitute counseling activities. For example, we affirm the district

court’s grant of summary judgment with respect to the false police report, the

beach trip, the alleged “edit[ing] [of] information that would damage [Kirk’s]

character” in order to help with a legal issue, and the various visits to Kirk’s

apartment during which Phillips allegedly committed acts of a sexual nature.

      We thus affirm in part and reverse in part the district court’s grant of

summary judgment. On remand, the district court should limit Kirk’s negligence

claim to those specific actions that constitute the negligent performance of

counseling actions.

      Costs on appeal are awarded to Kirk. See Fed. R. App. P. 39(a)(4).

      AFFIRMED in part, REVERSED in part, and REMANDED.




                                           4
