PER CURIAM Opinion; Concurrence by Judge REINHARDT; Concurrence by Judge KLEINFELD; Concurrence by Judge BERZON; Dissent by Judge GOULD.
We examine whether a false imprisonment that caused the victim to lose employment and employment opportunities is an injury to "business or property" within the meaning of RICO.
Diaz claims to be a victim of the Los Angeles Police Department's infamous Rampart scandal. He sued over two hundred people connected with the Los Angeles Police Department (LAPD) or Los Angeles city government under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968, alleging that LAPD officers had "fabricated evidence" that he had committed assault with a deadly weapon, and that they had "tampered with witnesses and conspired to obtain [a] false conviction" against him, Compl. ¶ 16. As a consequence, Diaz claims, "[a]mong other forms of injury, [he] lost employment, employment opportunities, and the wages and other compensation associated with said business, employment and opportunities, in that [he] was rendered unable to pursue gainful employment while defending himself against unjust charges and while unjustly incarcerated." Compl. ¶ 31.
Defendant Parks moved to dismiss, arguing, among other things, that Diaz lacked standing because he did not allege an injury to "business or property" as required by RICO. See 18 U.S.C. § 1964(c). The district judge agreed and dismissed without prejudice and with leave to amend. Diaz did not amend, and the district judge then dismissed with prejudice. A divided panel of our court affirmed. Diaz v. Gates, 380 F.3d 480 (9th Cir.2004). We took the case en banc. Diaz v. Gates, 389 F.3d 869 (9th Cir.2004).
Intervening caselaw, which the district judge obviously did not have access to, has clarified the Oscar standard. A month after the district judge dismissed Diaz's complaint, we decided Mendoza v. Zirkle Fruit Co., 301 F.3d 1163 (9th Cir.2002), where a class of agricultural laborers alleged that their employers had depressed their wages by illegally hiring undocumented workers at below-market wages. The agricultural workers could not "show a `property right' in the lost wages, by showing that they were promised or contracted for higher wages." But they did allege an injury to a property interest, the "legal entitlement to business relations unhampered by schemes prohibited by the RICO predicate statutes." See id. at 1168 n. 4. We held this property interest sufficient to provide standing under RICO. See id. at 1168. Diaz has alleged just such an interference with his business relations.
Doe sued her divorce attorney Roe under RICO, alleging that Roe had defrauded her and misused his position to coerce her into having sex with him over a period of several years. Doe, who had little money, had left her original divorce attorney and retained Roe on the understanding that her (soon to be ex-) husband would pay any fees beyond the retainer fee she had already paid. She acceded to his sexual overtures because she was afraid that he would otherwise stop working on her case, leaving her unable to afford a new lawyer. Doe's husband eventually caught Doe and Roe in the act and, understandably, refused to pay any of Roe's fees. Roe nonetheless demanded full payment for his legal services, but forgave Doe's debts to him in exchange for continuing sexual relations. Id. at 765-66.
Doe argued that Roe's wrongful exaction of sexual services was an injury to property and could therefore support her RICO claim. The Seventh Circuit disagreed: "[W]hether a particular interest amounts to property is quintessentially a question of state law." Id. at 768. And "`sexual labor' has no legal value in Illinois, where the courts have long held that contracts for sexual services are unenforceable as a matter of public policy." Id. Thus, the requisite business or property interest was missing. Doe clearly doesn't stand for the proposition that employment cannot be property under RICO, or it would have been superfluous for the Seventh Circuit to hold that employment as a provider of sexual services was not property under state law.
Doe had another theory. After the relationship with Roe turned sour, she alleged, Roe threatened her safety, which made her invest in a home security system and miss several days of work. Id. at 769-70: see also Doe v. Roe, 756 F.Supp. 353, 356. 359 (N.D.Ill.1991). Naturally, she also hired a new lawyer. Doe argued that the loss of wages, the costs of the security system and the new lawyer, and other "miscellaneous expenditures," 958 F.2d at 769, were injuries to property. Here, too, the court disagreed:
Id. at 770. Again, although Doe alleged "loss of earnings," this was deemed insufficient to qualify as a business or property interest under RICO "as construed by Illinois law." Id. Thus, no injury to a business or property interest was actually alleged.
We agree with the Seventh Circuit. Without a harm to a specific business or property interest — a categorical inquiry typically determined by reference to state law — there is no injury to business or property within the meaning of RICO.
Contrary to the dissent's suggestion, dissent at 914, our approach does not create RICO liability for every loss of wages resulting from a personal injury. Doe, unlike Oscar, suffered some tangible financial losses as a result of her emotional distress, but, like Oscar, failed to allege harm to any property interest valid under state law. Diaz, on the other hand, has alleged both the property interest and the financial loss. The harms he alleges amount to intentional interference with contract and interference with prospective business relations, both of which are established torts under California law. See Della Penna v. Toyota Motor Sales, U.S.A., Inc., 11 Cal.4th 376, 45 Cal.Rptr.2d 436, 902 P.2d 740, 750-51 (1995) (discussing torts of "interference with an existing business contract" and "interference with commercial relations"); see also Restatement (Second) of Torts § 766A & cmt. e (intentional interference with another's performance of his own contract); id. § 766B & cmts. c-d (intentional interference with prospective contractual relations); Reeves v. Hanlon, 33 Cal.4th 1140, 17 Cal.Rptr.3d 289, 95 P.3d 513, 517 (2004) (interference with performance of contract is intentional if defendant knew "that the interference was certain or substantially certain to occur as a result of his or her action"). And his claimed financial loss? He could not fulfill his employment contract or pursue valuable employment opportunities because he was in jail.
Similarly, the dissent seeks to distinguish Mendoza on the theory that the farm workers' loss of wages was the "direct target" of the conspiracy, while Diaz's injury was "merely derived from," and a "secondary effect" of, his false imprisonment. See dissent at 907, 909, 911, 914. But this distinction founders on the language of the statute: The only requirement for RICO standing is that one be a "person injured in his business or property by reason of a violation of section 1962." 18 U.S.C. § 1964(c). And the Supreme Court has already told us that "by reason of" incorporates a proximate cause standard, see Holmes v. Sec. Investor Prot. Corp., 503 U.S. 258, 265-68, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992), which is generous enough to include the unintended, though foreseeable, consequences of RICO predicate acts, see Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99, 100-01 (1928).
Though the dissent is wrong to suggest that our approach would confer standing on any plaintiff RICO-suave enough to allege lost employment, it is right to point out that our approach allows more claims to go forward than its more restrictive theory. See dissent at 913-914. But these policy consequences, assuming they are undesirable, cannot blind us to the statutory language. In Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985), the Supreme Court examined the Second Circuit's narrow interpretation of RICO, which, "[i]n response to what it perceived to be misuse of civil RICO by private plaintiffs," read various limitations into section 1964(c), including the requirement that the racketeering activity have produced a "`racketeering injury.'" Id. at 481, 105 S.Ct. 3275. "Racketeering activity" is a broad concept, which "consists of no more and no less than commission of a predicate act." Id. at 495, 105 S.Ct. 3275. By contrast, a "racketeering injury," under the Second Circuit's definition, was an injury "different in kind from that occurring as a result of the predicate acts themselves, or not simply caused by the predicate acts, but also caused by an activity which RICO was designed to deter." Sedima, S.P.R.L. v. Imrex Co., 741 F.2d 482, 496 (2d Cir.1984). While the Supreme Court "underst[ood] the [Second Circuit's] concern over the consequences of an unbridled reading of the statute," which had expanded far beyond the mob-related concerns that had originally inspired it, see 473 U.S. at 481, 499, 105 S.Ct. 3275, it rejected such a construction:
Id. at 495, 105 S.Ct. 3275.
There is similarly no room in the statutory language for an additional, amorphous requirement that, for an injury to be to business or property, the business or property interest have been the "direct target" of the predicate act. The statute is broad, but that is the statute we have. Were the standard as the dissent claims, we would have the anomalous result that one could be liable under RICO for destroying a business if one aimed a bomb at it, but not if one aimed at the business owner, missed and hit the business by accident, or if one
The dissent's flawed approach is similar to that of Grogan v. Platt, 835 F.2d 844 (11th Cir.1988). In Grogan, FBI agents wounded and slain in a shootout sued the criminal suspects responsible for their injuries and deaths. The Eleventh Circuit denied recovery, even though the plaintiffs had apparently alleged "lost employment opportunities" as one of their forms of injury, id. at 848:
Id. The Eleventh Circuit's "most properly understood as part of" test is subject to the same critique as the dissent's "direct target" test. Diaz suffered two types of injuries: (1) the personal injury of false imprisonment and (2) the property injury of interference with current or prospective contractual relations. Treating the two as separate, and denying recovery for the first but letting the suit go forward on the second, is both analytically cleaner and truer to the language of the statute.
Whether these allegations of section 1962 violations are adequate is a matter on which we express no view.
REINHARDT, Circuit Judge, concurring:
I concur in the court's per curiam opinion as well as in Judge Kleinfeld's separate concurrence. I share Judge Kleinfeld's view that, given the construction that RICO has been afforded by the Supreme Court, we are no longer free to read it as an anti-racketeering statute. Rather, starting with Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496-500, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985), it has been stretched both in scope and meaning far beyond that which Congress originally intended and has become, through judicial construction, a wide ranging act that provides treble damages for all kinds of conduct unrelated to the racketeering activity that Congress sought to control. Although I disagree with this construction, we must follow the law as it is determined by the Supreme Court. In my view, however, it is well past the time for our lawmakers to take another look at RICO and consider amending the statute so as to limit it to its original purpose.
KLEINFELD, Circuit Judge, with whom REINHARDT and BERZON, Circuit Judges, join, concurring:
I concur in the result. I write separately because my analysis differs from that in the majority unauthored opinion. I focus on the language of the statute. Mendoza v. Zirkle Fruit Co.
The RICO statute tells us what kinds of injuries give rise to RICO claims. Some are in the nature of "personal injury" claims, and some are not. The section stating what gives rise to a claim, section 1964, says "Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court."
Section 1962, which section 1964 tells us defines the violations giving rise to civil claims, says "It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt."
The phrase "racketeering activity" is defined in section 1961. That extensive definition includes both direct injury to tangible property, such as "arson," and also various kinds of wrongdoing that constitute "personal injury." Among the "personal injury" wrongs that can constitute "racketeering activity" are "murder" and "kidnapping." "Murder" is not an injury to business or property. It is a personal injury to a human being. Likewise kidnapping is also a personal injury to a human being. Murder and kidnapping fall within the "personal injury" torts of "wrongful death" and "false imprisonment." There is no legitimate way to read the statute to exclude traditional personal injuries from actionable RICO racketeering conduct, because traditional personal injuries, including murder and kidnapping, are expressly listed in section 1961 as "racketeering" conduct that can give rise to claims under the statute.
Here is the plain and express logic of the statute: (1) section 1964 establishes a civil cause of action for a violation of section 1962; (2) section 1962 uses a term of art defined in section 1961 to denote violations; (3) section 1961 expressly provides that various personal injuries, as well as other kinds of wrongdoing, constitute the misconduct giving rise to a cause of action. I see no way around this plain language of the statute. That is why I part ways from Grogan and Doe, the Seventh and Eleventh Circuit cases holding that personal injury claims cannot give rise to RICO standing. If they were right, then the words "murder" and "kidnapping" in the statute would have to be wrong, which is impossible. Our tools of statutory construction do not include an eraser.
That is not the end of the standing inquiry. Conduct "by reason of" a section 1962 violation is necessary, but not sufficient, for standing.
Murder or kidnapping can cause injury to business or property, as well as personal injury. Suppose America suffered the frequent kidnapping for ransom of business executives that some countries do. If the business pays the ransom, it has been injured by the kidnapping. Or imagine that a person whom a business needs to function is murdered — perhaps a medical researcher who employs himself through an incorporated laboratory and obtains millions of dollars in research grants and contracts, and employs dozens of other people. The murder may well destroy the business, make it unable to pay its debts, and put all the employees out of work, giving them claims against the business for breach of their employment contracts. The laboratory corporation is a "person injured in his business" "by reason of" a section 1962 violation — murder. In these hypotheticals, I assume, of course, that a racketeering enterprise committed the wrongful conduct and that the section 1962 conduct caused the harm. The significance of the hypothetical cases is to illustrate that section 1962 personal injuries, such as murder and kidnapping, may indeed give rise to "injury to business or property" under section 1964.
Diaz's claim to be a "person injured in his business or property" is more tenuous than the victims' claims in these hypothetical cases, but sufficient nonetheless. He pleads that, as a result of the putative RICO wrong, he lost the chance to get employment because he was in jail or absorbed with defending himself against the criminal charges he claims were the fraudulent result of police racketeering. That states a claim that he was "injured in his business."
A person does not have to wear a suit and tie to be engaged in "business." A salaried employee might or might not, in ordinary speech, be characterized as a "businessman," but a sole proprietor of a service business unquestionably runs a "business." For example, the owner of "AAA Snowplowing" is a businessman who owns a service business, and makes his living from it when he comes around with a blade on the front of his pickup truck after a snowfall. Dentists and lawyers are also businessmen who own and run businesses. So is a person who stands on a corner and waits to get picked up to do odd jobs as an independent contractor. There is no principled way to sort out who among sole proprietors has a "business" and who does not. They all do.
What about people who seek only to be employed, in the common law sense of a master-servant relationship, by someone else? Diaz's complaint is not clear on whether this is all he meant to do, or whether he meant to sell his services as a sole proprietor. Sound statutory construction proceeds from "attributing a rational purpose to Congress."
The manifest statutory purpose of requiring not only injury "by reason of" section 1962 misconduct, but also injury to "business or property," is to exclude claims for other kinds of injuries, even those arising from denoted racketeering conduct. For example, a person who suffered physical injury and mental distress, but no injury to his business or property, on account of racketeering misconduct of the sort denoted in sections 1962 and 1961, could not state a claim upon which relief could be granted under section 1964. Congress likely chose to address this sort of harm in order to focus upon the harm racketeering does to interstate commerce.
As for our en banc decision in Oscar v. University Students Co-operative Association,
Judge Gould makes the sensible point that claims such as this one for police misconduct ordinarily are and should be brought under 42 U.S.C. § 1983. I do not disagree, but I also do not see much risk of opening any floodgates by taking the words of the RICO statute to mean what the Supreme Court has told us they mean.
The lower courts have repeatedly adopted non-literal narrowing interpretations of RICO, so that it would apply only
BERZON, Circuit Judge, concurring:
I concur in the court's per curiam opinion as well as in Judge Kleinfeld's separate concurrence.
GOULD, Circuit Judge, with whom SCHROEDER, Chief Judge, BYBEE and CALLAHAN, Circuit Judges, join, dissenting:
I respectfully dissent, and would affirm the district court's decision that there was no standing under RICO because Diaz's complaint did not sufficiently allege an "injury to business or property" within the meaning of the statute.
The majority acknowledges that the district court "reasonably applied the law of RICO standing as it existed at the time," Maj. Op. at 898, but then concludes that the reasoning of our intervening decision in Mendoza v. Zirkle Fruit Co., 301 F.3d 1163 (9th Cir.2002), now requires reversal. Mendoza's determination of standing was understandable on its facts, where the conspiracy challenged under RICO was aimed directly at suppressing the wages of farm workers. There the plaintiffs, legal agricultural laborers in eastern Washington, the heartland of Washington's fruit industry, in their RICO complaint had pleaded that the defendant fruit growers' scheme was illegally and systematically to hire undocumented immigrants in order to depress the wages of documented workers. Id. at 1166-67. But in that case we did not address the situation we face here, where the alleged loss of employment is merely an indirect and secondary effect of a non-compensable personal injury, Diaz's alleged "false" imprisonment.
I would hold that Diaz's claim of employment loss was derived from, and a secondary effect of, his alleged false imprisonment, and any economic losses are part of Diaz's injury to his person, not distinct injuries to his business or property within the meaning of RICO. By extending Mendoza, the majority creates a split with the Eleventh Circuit decision in Grogan v. Platt, 835 F.2d 844 (11th Cir.1988), and the Seventh Circuit decision in Doe v. Roe, 958 F.2d 763 (7th Cir.1992), both of which held that pecuniary losses incurred as a result of personal injuries were non-compensable under RICO.
The Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-68, provides a civil remedy of treble damages to "[a]ny person injured in his business or property by reason of a violation of section 1962 of this chapter." Id. at § 1964(c). See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985) ("[T]he plaintiff only has standing if, and can only recover to the extent that, he has been injured in his business or property by the conduct constituting the violation."). It is well-established that not all injuries are compensable under RICO, id. at 496-97, 105 S.Ct. 3275, and a previous en banc panel of our court held that the language of 18 U.S.C. § 1964(c) excluded recovery for personal injuries, Oscar v. Univ. Students Co-op. Ass'n, 965 F.2d 783, 785 (9th Cir.1992) (en banc) ("[I]t is clear that personal injuries are not compensable under RICO.").
Second, we concluded that the tenants' injury was not an injury to their property; rather, the injury asserted was for "the personal discomfort and annoyance" of the defendants' nuisance activities, which, as a "personal injury action," was not actionable under RICO. Id. at 787-88 ("It is clear, however, that any injury [the plaintiffs have] suffered is at core an intangible personal injury, not a financial loss to property."). We held that a personal injury action like nuisance is not actionable, "even when it flows from a valuable property interest." Id.
Under Oscar, then, a claim of false arrest and imprisonment, as a personal injury, is not compensable at all in a RICO action. See, e.g., Owens v. Okure, 488 U.S. 235, 240-41, 251, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989) (explaining that § 1983 claims based on false arrest and imprisonment are "best characterized as personal injury actions" and are subject to a state's statute of limitations for personal injuries); Black's Law Dictionary 790 (7th ed.1999) (defining "personal injury" to include "false imprisonment"). Diaz's allegation of lost employment wages, even construed most favorably to Diaz,
In our prior en banc decision in Oscar, as in Mendoza, we did not directly address this question. However, in Oscar we did cite approvingly two cases from sister circuits that had answered this question by concluding that a plaintiff's allegations of lost employment were insufficient for RICO standing if they were derived from non-compensable personal injuries. See Oscar, 965 F.2d at 786 (citing Grogan, 835 F.2d at 846-47); id. at 788 (citing Doe, 958 F.2d at 770).
In Grogan, the estates of deceased federal agents involved in a shootout with criminal suspects brought an action against the suspects seeking damages under RICO. The appellants argued that "injury to business or property" included the economic damages that resulted from the injury to the person, such as lost employment or wages. The Eleventh Circuit concluded that the surviving relatives could not recover under RICO for the loss of earning power or employment resulting from their wrongful death claim, holding that the predicate RICO act of the killing of the officers (murder or wrongful death) was a personal injury, not an injury to their "business or property" for purposes of RICO, even though there were tangible economic consequences that resulted from the deaths. Id. at 847 ("In our view, the ordinary meaning of the phrase, `injured in his business or property' excludes personal injuries, including the pecuniary losses therefrom."). The Eleventh Circuit in Grogan concluded that if Congress had intended the derivative economic damages like the loss of employment to be recoverable under a civil RICO suit, it would not have used the restrictive "business or property" language of 18 U.S.C. § 1964(c). Id. ("Had Congress intended to create a federal treble damages remedy for cases involving bodily injury, injury to reputation, mental or emotional anguish, or the like, all of which will cause some financial loss, it could have enacted a statute referring to injury generally, without any restrictive language.") (quoting Morrison v. Syntex Labs., Inc., 101 F.R.D. 743, 744 (D.D.C.1984)).
In Doe, the Seventh Circuit considered a case in which a female client had sued her former divorce attorney under RICO for damages stemming from misuse of his position to coerce and intimidate her into having sexual relations with him. 958 F.2d at 765-67. The plaintiff alleged injury to her business and property through, inter alia, a loss of employment wages, which she alleged were cognizable injuries to her property under RICO. Id. at 766, 769-70. The Seventh Circuit disagreed, holding that the plaintiff's claim of lost employment pay stemmed from emotional distress, a personal injury, and that "[t]he terms `business or property' are, of course, words of limitation which preclude recovery for personal injuries and the pecuniary losses incurred therefrom." Id. at 767, 770. The court concluded:
Id. at 770.
Because we cited both Grogan and Doe favorably in our previous precedent,
In Mendoza, the documented farm workers who brought suit asserted a RICO claim alleging that the eastern Washington fruit grower defendants had conspired to hire undocumented workers in order to depress the documented workers' wages. Id. at 1166-67. The farm workers' complaint alleged that the fruit growers knowingly hired illegal alien workers because they knew that the undocumented workers would be forced to accept wages significantly lower than that which would otherwise be paid to legally authorized workers. Id. We held that the plaintiff farm workers sufficiently alleged an injury to their property in the form of lost employment wages. Id. at 1168 & n. 4.
Although we said in Mendoza that "[t]he employees allege[d] an injury to their property in the form of lost wages," in that case the loss of the farm workers' employment wages was the direct target of the RICO predicate act, a scheme designed to drive down farm labor prices by using illegal workers. 301 F.3d at 1168-69 ("[T]he employees allege that the illegal hiring scheme was divined in order to depress the normal labor market."), id. at 1170 ("[T]he alleged scheme here was intended to give the growers a contract advantage at the expense of the documented workers, a direct . . . injury."). It was not a case, like Diaz's, where the alleged loss of employment was solely an indirect effect of a personal injury to Diaz (his false imprisonment). Stated another way, the lost income to laborers in Mendoza was not a secondary or derivative consequence of a personal injury to the farm workers, but rather the direct result of the scheme that aimed at lowering their wages. Diaz has not alleged (nor can he) that his false imprisonment was in any way related to, or directed at, his business or property.
The majority acknowledges that in Mendoza we did not "elaborate" on the question at bar, "relegating its discussion of the nature of the injury to a footnote." Maj. Op. at 899. As I have explained above, that case should not be interpreted to apply, especially where doing so creates a circuit split, runs against the declared aims of Congress, and is in tension with Congress's language of RICO. Instead of extending Mendoza to the case of Diaz so unlike it, I would simply follow the Seventh and Eleventh Circuits by holding that Diaz's claim of employment loss was derived from, and a secondary effect of, his allegedly false imprisonment, and any economic losses are part of Diaz's injury to his person, not distinct injuries to his business or property within the meaning of RICO. See Grogan, 835 F.2d at 847 (holding that intertwined economic consequences of personal injuries "are so fundamentally a part of personal injuries that they should be considered something other than injury to `business or property'"); see also Oscar, 965 F.2d at 791 (Kleinfeld, J., dissenting) (citing Grogan for the proposition that "murder is personal injury, not injury to property, and pecuniary losses flowing from the wrongful death could not transform personal injury into injury to property").
Realizing that Mendoza alone cannot support its holding, the majority purports to rely on Doe, describing the Seventh Circuit's approach as the "best-reasoned" one. Maj. Op. at 899. The majority's reliance is misplaced, and its reading of Doe selective and incorrect. The plaintiff in Doe alleged several different injuries to her business or property, all of which were found to be non-compensable by the Seventh Circuit. The Seventh Circuit affirmed the district court's dismissal of some of Doe's claims because the court determined that, as an initial matter, the injuries alleged were not injuries to a business or property interest, as determined by the applicable state law. Doe, 958 F.2d at 767-68 (affirming the district court's dismissal of Doe's allegation of injury to her business or property from her divorce lawyer's coercive extraction of her sexual services because "sexual labor has no legal value in Illinois," and thus Doe's sexual relations with her former attorney was not an injury to her business or property for purposes RICO). However, Doe also alleged
The majority denies it creates a circuit split with Grogan, attempting to disguise, distract, or detract from the circuit split by claiming that the plaintiffs in Grogan might not have alleged a loss of employment recognized as property under the applicable state law. Maj. Op. at 902 n. 2. The same critique can be made of Diaz: We have no clue from Diaz's complaint what "employment" Diaz has alleged to have lost, if any, while he was "unjustly" incarcerated, and whether that employment would be considered property or business under California law, or not. By comparison, we can say with some certainty what loss of employment wages was alleged in Grogan because, unlike in this case, we know for a fact that the plaintiffs in that case were gainfully employed: They were former agents of the Federal Bureau of Investigation who narrowly escaped death in a gun battle with suspected bank robbers, and the estates of those FBI agents who were not so fortunate. Grogan, 835 F.2d at 845. The majority should concede that FBI employment would qualify as a state-protected property interest under its own test, and this undermines the majority's argument, resting on the incorrect premise that in Grogan no valid state property right was alleged, involved, or evoked.
In Oscar, we concluded by quoting with approval from the Seventh Circuit's Doe: "Perhaps the economic aspects of [a fundamentally personal injury] could, as a theoretical matter, be viewed as injuries to `business or property,' but engaging in such metaphysical speculation is a task best left to philosophers, not the federal judiciary." Oscar, 965 F.2d at 788 (quoting
The dissent speculates that Diaz must be in the same position as Grogan, because "[w]e have no clue from Diaz's complaint what `employment' Diaz has alleged to have lost." Dissent at 913. That misses the point. We may not know precisely what type of employment Diaz alleges to have lost, but we know that Diaz alleges that his lost employment is an injury to a property interest as defined by state law. Reading Grogan, we know nothing about how Florida law treated the right to earn wages at the time Grogan brought his lawsuit, nor whether he claimed that his loss amounted to a property interest.