Vidro v. United States, No. 12-4268 (2d Cir. 2013)
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Plaintiff filed suit under the Federal Tort Claims Act (FTCA), 28 U.S.C. 2671 et seq., alleging that two federal law enforcement officers caused the tortious intentional infliction of emotional distress when they maliciously and falsely testified before a federal grand jury about his involvement in a drug conspiracy. Although the court disagreed with the district court about the need to evaluate the possible ambiguity of section 2674, the court affirmed the district court's conclusion that, in FTCA suits, the United States could assert common law defenses available to private individuals under relevant state law. The court also concluded that, were Connecticut courts to consider the matter, they would find statements made under oath by federal grand jury witnesses to be privileged.
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12-4268-cv Vidro v. United States 1 2 UNITED STATES COURT OF APPEALS 3 FOR THE SECOND CIRCUIT 4 August Term 2012 5 (Argued: April 8, 2013 Decided: June 21, 2013) 6 7 Docket No. 12-4268-cv -----------------------------------------------------x 8 MONSERRATE VIDRO, 9 Plaintiff-Appellant, 10 11 -- v. -UNITED STATES OF AMERICA, 12 Defendant-Appellee. 13 -----------------------------------------------------x 14 B e f o r e : 15 WALKER, CHIN, Circuit Judges, RESTANI,1 Judge. Monserrate Vidro appeals from the October 18, 2012 judgment of 16 the District Court for the District of Connecticut (Underhill, 17 Judge) granting the government s motion to dismiss his FTCA suit at 18 the pleading stage. Vidro alleged that two federal law enforcement 19 officers maliciously and falsely testified before a federal grand 20 jury about his involvement in a drug conspiracy, causing the 21 tortious intentional infliction of emotional distress. However, 22 because Connecticut would recognize an absolute privilege for grand 23 jury witness testimony and the officers would not be liable in tort 1 The Honorable Jane A. Restani, of the United States Court of International Trade, sitting by designation. 1 for their statements, the United States is not vicariously liable 2 under the FTCA. AFFIRMED. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 JOHN R. WILLIAMS, John R. Williams and Associates LLC, 51 Elm St., New Haven, CT, for Plaintiff-Appellant. SANDRA S. GLOVER (Alan M. Soloway, on the brief), Assistant United States Attorneys, of counsel to David B. Fein, United States Attorney, District of Connecticut, New Haven, CT, for DefendantAppellee. JOHN M. WALKER, JR., Circuit Judge: 17 In the October 18, 2012 judgment of the District Court for the 18 District of Connecticut (Underhill, Judge), Monserrate Vidro s 19 Federal Tort Claims Act ( FTCA ), 28 U.S.C. § 2671 et seq., suit 20 was dismissed at the pleading stage.2 Vidro had alleged that two 21 federal law enforcement officers maliciously and falsely testified 22 before a federal grand jury about his involvement in a drug 23 conspiracy, causing the tortious intentional infliction of 24 emotional distress. 25 We must address two questions of first impression in this 26 circuit: (1) whether, in FTCA suits, the United States may assert 27 all defenses available to private persons; and (2) whether grand 28 jury witness testimony is absolutely privileged under Connecticut 2 Under the FTCA, the United States assumes responsibility for government employees state law torts. See, e.g., Devlin v. United States, 352 F.3d 525, 532 (2d Cir. 2003). 2 1 law. Although our analysis is different from that of the district 2 court, we concur with its ultimate conclusion that, if its agents 3 would enjoy immunity from suit under state tort law, the United 4 States may also assert immunity in FTCA actions. Further, because 5 Connecticut would recognize an absolute privilege for grand jury 6 witness testimony, the United States is not vicariously liable 7 under the FTCA for the officers statements before the federal 8 grand jury. The district court s order of dismissal is affirmed. 9 10 BACKGROUND In his September 6, 2011 federal complaint for the state tort 11 of intentional infliction of emotional distress, Vidro alleges that 12 two law enforcement officers intentionally and falsely testified 13 before a federal grand jury about his involvement in a drug 14 conspiracy. Vidro further alleges that this resulted in his 15 subsequent indictment, four-month detention, and attendant 16 injuries. Specifically, Vidro states that he suffered 17 imprisonment, loss of liberty, public humiliation and disgrace, 18 severe emotional distress and economic losses. J.A. 10-11. 19 On December 6, the government moved to dismiss the complaint 20 on the grounds that it should be construed as a claim for false 21 imprisonment and that it failed to make out such a claim. Vidro 22 opposed the motion, arguing that the complaint properly stated a 23 claim for intentional infliction of emotional distress. The 24 government then filed a supplemental memorandum noting that the 3 1 Supreme Court s recent decision in Rehberg v. Paulk, 132 S. Ct. 2 1497 (2012), might be relevant insofar as it discussed 3 justifications for grand jury witness immunity. At the district 4 court s request, the parties then filed supplemental memoranda 5 addressing the meaning of the FTCA phrase judicial or legislative 6 immunity. 28 U.S.C. § 2674. 7 On September 26, 2012, the district court granted the 8 government s motion to dismiss the complaint on the basis that the 9 United States was immune from suit. After finding § 2674 ambiguous 10 and examining the limited legislative history, the district court 11 concluded that the provision was meant to preserve all common law 12 protections for officers. It further found that Connecticut common 13 law implicitly recognizes absolute immunity for grand jury witness 14 testimony and that the United States could therefore not be held 15 liable for the officers statements. This appeal followed. 16 DISCUSSION 17 We review a district court s grant of a motion to dismiss on 18 the pleadings de novo, accept all factual claims in the complaint 19 as true, and draw all reasonable inferences in the plaintiff s 20 favor. Anschutz Corp. v. Merrill Lynch & Co., 690 F.3d 98, 107 (2d 21 Cir. 2012). 22 23 Vidro first argues that § 2674 is not ambiguous. In relevant part, the debated provision states: 4 1 2 3 4 5 6 7 8 9 With respect to any claim under this chapter, the United States shall be entitled to assert any defense based upon judicial or legislative immunity which otherwise would have been available to the employee of the United States whose act or omission gave rise to the claim, as well as any other defenses to which the United States is entitled. 28 U.S.C. § 2674. The district court determined that the phrase 10 judicial or legislative immunity was ambiguous, as it might refer 11 either to judges and legislators common law immunity from suit or 12 to any judicially or legislatively created immunities. 13 If § 2674 is read in the context of the entire statute, 14 however, there is no need to address the potential ambiguity of the 15 debated phrase. Through the FTCA, the United States has waived its 16 sovereign immunity for certain actions of its employees under 17 circumstances where the United States, if a private person, would 18 be liable to the claimant in accordance with the law of the place 19 where the act or omission occurred. Id. § 1346(b)(1) (providing 20 for district court jurisdiction over the United States in tort 21 actions). The United States is liable for these tort claims in the 22 same manner and to the same extent as a private individual under 23 like circumstances. Id. § 2674. 24 As immunities and defenses are defined by the same body of law 25 that creates the cause of action, the defenses available to the 26 United States in FTCA suits are those that would be available to a 27 private person under the relevant state law. See id. ( [T]he United 28 States shall be entitled to assert . . . any other defenses to 5 1 which [it] is entitled. ); Napolitano v. Flynn, 949 F.2d 617, 621 2 (2d Cir. 1991) (recognizing that state law defining a cause of 3 action must also be the law defining the corresponding immunities 4 and defenses); see also In re FEMA Trailer Formaldehyde Prods. 5 Liab. Litig., 668 F.3d 281, 288 (5th Cir. 2012). Therefore, 6 although we disagree with the district court about the need to 7 evaluate the possible ambiguity of § 2674, we affirm its ultimate 8 conclusion: In FTCA suits, the United States may assert common law 9 defenses available to private individuals under relevant state law. 10 Vidro next asserts that Connecticut would not grant grand jury 11 witness testimony absolute immunity. There is no directly relevant 12 state case law, largely because grand juries as commonly understood 13 were abolished in Connecticut by a constitutional amendment that 14 took effect in November 1983. See Connecticut v. Sanabria, 474 A.2d 15 760, 774-75 (Conn. 1984). Vidro also argues that, at the very 16 least, this issue should be certified to the Connecticut Supreme 17 Court. 18 We nonetheless conclude that, were Connecticut courts to 19 consider the matter, they would find statements made under oath by 20 federal grand jury witnesses to be privileged. Connecticut courts 21 have long held that [p]articipants in a judicial process must be 22 able to testify . . . without being hampered by fear of actions 23 seeking damages for statements made . . . in the course of the 24 judicial proceeding. Gallo v. Barile, 935 A.2d 103, 108 (Conn. 6 1 2007) (quotation marks and alterations omitted). This immunity is 2 based on Connecticut s conclusion that the public interest in 3 having people speak freely outweighs the risk that individuals will 4 occasionally abuse the privilege by making false and malicious 5 statements. Id. Accordingly, Connecticut courts have long 6 recognized an absolute privilege for witness testimony in judicial 7 or quasi-judicial proceedings, provided that the statements are 8 relevant to the subject of the controversy. See, e.g., id. 9 (applying this protection to claims of intentional infliction of 10 emotional distress); Simms v. Seaman, --- A.3d ---, No. 18839, 2013 11 WL 1943336, at *6-7 (Conn. May 21, 2013) (tracing the historical 12 development of this privilege in Connecticut law). 13 Judicial proceedings have been defined to include any 14 hearing before a tribunal which performs a judicial function, ex 15 parte or otherwise, and whether the hearing is public or not. 16 Craig v. Stafford Constr., Inc., 856 A.2d 372, 376 (Conn. 2004) 17 (quotation marks omitted). Although what constitutes a judicial or 18 quasi-judicial proceeding has not been defined with precision, it 19 has been interpreted broadly. See id. at 376-77 (observing that 20 such proceedings include lunacy, bankruptcy, or naturalization 21 proceedings, and an election contest [and] extends also to the 22 proceedings of many administrative officers, such as boards and 23 commissions, so far as they have powers of discretion in applying 24 the law to the facts which are regarded as judicial or quasi- 7 1 judicial, in character (quotation marks omitted)). If a proceeding 2 is not clearly judicial in nature, the Connecticut Supreme Court 3 has outlined factors relevant to determining whether it is quasi- 4 judicial: 5 6 7 8 9 10 11 These factors include whether the body has the power to: (1) exercise judgment and discretion; (2) hear and determine or to ascertain facts and decide; (3) make binding orders and judgments; (4) affect the personal property rights of private persons; (5) examine witnesses and hear the litigation of the issues on a hearing; and (6) enforce decisions or impose penalties. 12 13 Id. at 377 (quotation marks omitted). Whether a statement is taken 14 under oath is also relevant to whether it deserves an absolute 15 privilege. See id.; Chadha v. Charlotte Hungerford Hosp., 865 A.2d 16 1163, 1171-72 (Conn. 2005) (discussing whether, under specific 17 circumstances, affidavits qualify for the privilege). 18 Grand jury proceedings are unquestionably judicial or quasi- 19 judicial in nature, see Abrahams v. Young & Rubicam Inc., 79 F.3d 20 234, 240 (2d Cir. 1996) (describing statements made to a grand jury 21 as statements made in a judicial proceeding), and witness testimony 22 under oath in such proceedings is certainly relevant to the 23 tribunal s fact-finding process. Accordingly, we can conclude with 24 confidence that Connecticut courts would extend the state s 25 longstanding and well-established protections of statements made in 26 such proceedings to grand jury witness testimony. As sufficient 27 precedents exist for us to make a determination, there is no need 8 1 to certify this question to the Connecticut Supreme Court. Amerex 2 Grp., Inc. v. Lexington Ins. Co., 678 F.3d 193, 200 (2d Cir. 2012) 3 (quotation marks and alteration omitted). 4 Our conclusion is bolstered by the fact that the public policy 5 justifications underlying Connecticut s absolute immunity defense 6 for statements made in judicial and quasi-judicial proceedings 7 apply to federal grand jury testimony. See Gallo, 935 A.2d at 111 8 ( Ultimately, . . . the issue [in evaluating whether certain 9 statements deserve absolute immunity] is whether the public 10 interest is advanced. ). As discussed in Rehberg, 132 S. Ct. 1497, 11 there are strong policy justifications for absolute immunity for 12 witness testimony in grand jury proceedings. First, a witness 13 fear of retaliatory litigation may deprive the tribunal of critical 14 evidence. Id. at 1505. Second, the possibility of civil liability 15 [is] not needed to deter false testimony . . . because other 16 sanctions . . . provid[e] a sufficient deterrent. Id. 17 Additionally, the public s interest in preserving grand jury 18 secrecy counsels against anything less than absolute immunity for 19 witness testimony, as the jurors identities might be disclosed in 20 the course of discovery in subsequent suits. Id. at 1509. 21 Based on Gallo, 935 A.2d 103, in which the Connecticut Supreme 22 Court found that witness statements to an investigating police 23 officer received only qualified immunity, Vidro argues that 24 Connecticut courts are restricting the privilege. We disagree. 9 1 Under Connecticut law, statements with an attenuated 2 connection to judicial proceedings receive only qualified immunity 3 if they do not affect the fact-finding process of a tribunal. See 4 Petyan v. Ellis, 510 A.2d 1337, 1341-42 (Conn. 1986) (noting that 5 police officers sued for false arrests or complaining witnesses 6 who initiate prosecutions are entitled only to qualified immunity). 7 Accordingly, the Gallo court s holding was grounded in its 8 determination that the public policy justifications for granting 9 absolute immunity to statements made in judicial proceedings did 10 not apply with equal force to statements made in the course of a 11 police investigation. 935 A.2d at 111 ( There is no benefit to 12 society or the administration of justice in protecting those who 13 make intentionally false and malicious defamatory statements to the 14 police. ); see also id. at 112-13 (distinguishing Craig, 856 A.2d 15 372). As described above, however, there are significantly stronger 16 policy reasons for protecting grand jury testimony. See Rehberg, 17 132 S. Ct. at 1507-09 (reasoning that the customary grant of only 18 qualified immunity to complaining witnesses is irrelevant in the 19 federal grand jury context). 20 Furthermore, as evidenced by the Connecticut Supreme Court s 21 recent decision in Simms, 2013 WL 1943336 (holding that attorneys 22 enjoy absolute immunity from suits for fraud or intentional 23 infliction of emotional distress based on their conduct during 10 1 judicial proceedings), Connecticut courts show no intention of 2 restricting the privilege s traditionally broad scope. 3 4 5 CONCLUSION For the foregoing reasons, the district court s dismissal of Vidro s complaint is AFFIRMED. 11
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