     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                           Docket No. 12-4268-cv
7    -----------------------------------------------------x

8    MONSERRATE VIDRO,

9          Plaintiff-Appellant,

10                               -- v. --

11   UNITED STATES OF AMERICA,

12         Defendant-Appellee.

13   -----------------------------------------------------x

14   B e f o r e :     WALKER, CHIN, Circuit Judges, RESTANI,1 Judge.

15         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                                  JOHN R. WILLIAMS, John R. Williams
 5                                  and Associates LLC, 51 Elm St., New
 6                                  Haven, CT, for Plaintiff-Appellant.
 7
 8                                  SANDRA S. GLOVER (Alan M. Soloway,
 9                                  on the brief), Assistant United
10                                  States Attorneys, of counsel to
11                                  David B. Fein, United States
12                                  Attorney, District of Connecticut,
13                                  New Haven, CT, for Defendant-
14                                  Appellee.
15

16   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                                BACKGROUND

10        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

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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        Vidro first argues that § 2674 is not ambiguous. In relevant

23   part, the debated provision states:


                                        4
1         With respect to any claim under this chapter, the United
2         States shall be entitled to assert any defense based upon
3         judicial or legislative immunity which otherwise would
4         have been available to the employee of the United States
5         whose act or omission gave rise to the claim, as well as
6         any other defenses to which the United States is
7         entitled.
8
9    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        These factors include whether the body has the power to:
 6        (1) exercise judgment and discretion; (2) hear and
 7        determine or to ascertain facts and decide; (3) make
 8        binding orders and judgments; (4) affect the personal
 9        property rights of private persons; (5) examine witnesses
10        and hear the litigation of the issues on a hearing; and
11        (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



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1   judicial proceedings), Connecticut courts show no intention of

2   restricting the privilege’s traditionally broad scope.

3                               CONCLUSION

4        For the foregoing reasons, the district court’s dismissal of

5   Vidro’s complaint is AFFIRMED.




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