Vidro v.

12-4268-cv
Vidro v. United States
1
UNITED STATES COURT OF APPEALS 2
FOR THE SECOND CIRCUIT 3
August Term 2012 4
(Argued: April 8, 2013 Decided: June 21, 2013) 5
Docket No. 12-4268-cv 6
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MONSERRATE VIDRO, 8
Plaintiff-Appellant, 9
-- v. -- 10
UNITED STATES OF AMERICA, 11
Defendant-Appellee. 12
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B e f o r e : WALKER, CHIN, Circuit Judges, RESTANI,1 Judge. 14
Monserrate Vidro appeals from the October 18, 2012 judgment of 15
the District Court for the District of Connecticut (Underhill, 16
Judge) granting the government’s motion to dismiss his FTCA suit at 17
the pleading stage. Vidro alleged that two federal law enforcement 18
officers maliciously and falsely testified before a federal grand 19
jury about his involvement in a drug conspiracy, causing the 20
tortious intentional infliction of emotional distress. However, 21
because Connecticut would recognize an absolute privilege for grand 22
jury witness testimony and the officers would not be liable in tort 23
1 The Honorable Jane A. Restani, of the United States Court of
International Trade, sitting by designation.

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2
for their statements, the United States is not vicariously liable 1
under the FTCA. AFFIRMED. 2
3
JOHN R. WILLIAMS, John R. Williams 4
and Associates LLC, 51 Elm St., New 5
Haven, CT, for Plaintiff-Appellant. 6
7
SANDRA S. GLOVER (Alan M. Soloway, 8
on the brief), Assistant United 9
States Attorneys, of counsel to 10
David B. Fein, United States 11
Attorney, District of Connecticut, 12
New Haven, CT, for Defendant- 13
Appellee. 14
15
JOHN M. WALKER, JR., Circuit Judge: 16
In the October 18, 2012 judgment of the District Court for the 17
District of Connecticut (Underhill, Judge), Monserrate Vidro’s 18
Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq., suit 19
was dismissed at the pleading stage.2 Vidro had alleged that two 20
federal law enforcement officers maliciously and falsely testified 21
before a federal grand jury about his involvement in a drug 22
conspiracy, causing the tortious intentional infliction of 23
emotional distress. 24
We must address two questions of first impression in this 25
circuit: (1) whether, in FTCA suits, the United States may assert 26
all defenses available to private persons; and (2) whether grand 27
jury witness testimony is absolutely privileged under Connecticut 28
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).

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3
law. Although our analysis is different from that of the district 1
court, we concur with its ultimate conclusion that, if its agents 2
would enjoy immunity from suit under state tort law, the United 3
States may also assert immunity in FTCA actions. Further, because 4
Connecticut would recognize an absolute privilege for grand jury 5
witness testimony, the United States is not vicariously liable 6
under the FTCA for the officers’ statements before the federal 7
grand jury. The district court’s order of dismissal is affirmed. 8
BACKGROUND 9
In his September 6, 2011 federal complaint for the state tort 10
of intentional infliction of emotional distress, Vidro alleges that 11
two law enforcement officers intentionally and falsely testified 12
before a federal grand jury about his involvement in a drug 13
conspiracy. Vidro further alleges that this resulted in his 14
subsequent indictment, four-month detention, and attendant 15
injuries. Specifically, Vidro states that he “suffered 16
imprisonment, loss of liberty, public humiliation and disgrace, 17
severe emotional distress and economic losses.” J.A. 10-11. 18
On December 6, the government moved to dismiss the complaint 19
on the grounds that it should be construed as a claim for false 20
imprisonment and that it failed to make out such a claim. Vidro 21
opposed the motion, arguing that the complaint properly stated a 22
claim for intentional infliction of emotional distress. The 23
government then filed a supplemental memorandum noting that the 24

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4
Supreme Court’s recent decision in Rehberg v. Paulk, 132 S. Ct. 1
1497 (2012), might be relevant insofar as it discussed 2
justifications for grand jury witness immunity. At the district 3
court’s request, the parties then filed supplemental memoranda 4
addressing the meaning of the FTCA phrase “judicial or legislative 5
immunity.” 28 U.S.C. § 2674. 6
On September 26, 2012, the district court granted the 7
government’s motion to dismiss the complaint on the basis that the 8
United States was immune from suit. After finding § 2674 ambiguous 9
and examining the limited legislative history, the district court 10
concluded that the provision was meant to preserve all common law 11
protections for officers. It further found that Connecticut common 12
law implicitly recognizes absolute immunity for grand jury witness 13
testimony and that the United States could therefore not be held 14
liable for the officers’ statements. This appeal followed. 15
DISCUSSION 16
We review a district court’s grant of a motion to dismiss on 17
the pleadings de novo, accept all factual claims in the complaint 18
as true, and draw all reasonable inferences in the plaintiff’s 19
favor. Anschutz Corp. v. Merrill Lynch & Co., 690 F.3d 98, 107 (2d 20
Cir. 2012). 21
Vidro first argues that § 2674 is not ambiguous. In relevant 22
part, the debated provision states: 23

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5
With respect to any claim under this chapter, the United 1
States shall be entitled to assert any defense based upon 2
judicial or legislative immunity which otherwise would 3
have been available to the employee of the United States 4
whose act or omission gave rise to the claim, as well as 5
any other defenses to which the United States is 6
entitled. 7
8
28 U.S.C. § 2674. The district court determined that the phrase 9
“judicial or legislative immunity” was ambiguous, as it might refer 10
either to judges’ and legislators’ common law immunity from suit or 11
to any judicially or legislatively created immunities. 12
If § 2674 is read in the context of the entire statute, 13
however, there is no need to address the potential ambiguity of the 14
debated phrase. Through the FTCA, the United States has waived its 15
sovereign immunity for certain actions of its employees “under 16
circumstances where the United States, if a private person, would 17
be liable to the claimant in accordance with the law of the place 18
where the act or omission occurred.” Id. § 1346(b)(1) (providing 19
for district court jurisdiction over the United States in tort 20
actions). The United States is liable for these tort claims “in the 21
same manner and to the same extent as a private individual under 22
like circumstances.” Id. § 2674. 23
As immunities and defenses are defined by the same body of law 24
that creates the cause of action, the defenses available to the 25
United States in FTCA suits are those that would be available to a 26
private person under the relevant state law. See id. (“[T]he United 27
States shall be entitled to assert . . . any other defenses to 28

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which [it] is entitled.”); Napolitano v. Flynn, 949 F.2d 617, 621 1
(2d Cir. 1991) (recognizing that state law defining a cause of 2
action must also be the law defining the corresponding immunities 3
and defenses); see also In re FEMA Trailer Formaldehyde Prods. 4
Liab. Litig., 668 F.3d 281, 288 (5th Cir. 2012). Therefore, 5
although we disagree with the district court about the need to 6
evaluate the possible ambiguity of § 2674, we affirm its ultimate 7
conclusion: In FTCA suits, the United States may assert common law 8
defenses available to private individuals under relevant state law. 9
Vidro next asserts that Connecticut would not grant grand jury 10
witness testimony absolute immunity. There is no directly relevant 11
state case law, largely because grand juries as commonly understood 12
were abolished in Connecticut by a constitutional amendment that 13
took effect in November 1983. See Connecticut v. Sanabria, 474 A.2d 14
760, 774-75 (Conn. 1984). Vidro also argues that, at the very 15
least, this issue should be certified to the Connecticut Supreme 16
Court. 17
We nonetheless conclude that, were Connecticut courts to 18
consider the matter, they would find statements made under oath by 19
federal grand jury witnesses to be privileged. Connecticut courts 20
have long held that “[p]articipants in a judicial process must be 21
able to testify . . . without being hampered by fear of actions 22
seeking damages for statements made . . . in the course of the 23
judicial proceeding.” Gallo v. Barile, 935 A.2d 103, 108 (Conn. 24

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2007) (quotation marks and alterations omitted). This immunity is 1
based on Connecticut’s conclusion that “the public interest in 2
having people speak freely outweighs the risk that individuals will 3
occasionally abuse the privilege by making false and malicious 4
statements.” Id. Accordingly, Connecticut courts have long 5
recognized an absolute privilege for witness testimony in judicial 6
or quasi-judicial proceedings, provided that the statements are 7
relevant to the subject of the controversy. See, e.g., id. 8
(applying this protection to claims of intentional infliction of 9
emotional distress); Simms v. Seaman, --- A.3d ---, No. 18839, 2013 10
WL 1943336, at *6-7 (Conn. May 21, 2013) (tracing the historical 11
development of this privilege in Connecticut law). 12
“Judicial proceedings” have been defined to include “any 13
hearing before a tribunal which performs a judicial function, ex 14
parte or otherwise, and whether the hearing is public or not.” 15
Craig v. Stafford Constr., Inc., 856 A.2d 372, 376 (Conn. 2004) 16
(quotation marks omitted). Although what constitutes a judicial or 17
quasi-judicial proceeding has not been defined with precision, it 18
has been interpreted broadly. See id. at 376-77 (observing that 19
such proceedings include “lunacy, bankruptcy, or naturalization 20
proceedings, and an election contest [and] extends also to the 21
proceedings of many administrative officers, such as boards and 22
commissions, so far as they have powers of discretion in applying 23
the law to the facts which are regarded as judicial or quasi- 24

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8
judicial, in character” (quotation marks omitted)). If a proceeding 1
is not clearly judicial in nature, the Connecticut Supreme Court 2
has outlined factors relevant to determining whether it is quasi- 3
judicial: 4
These factors include whether the body has the power to: 5
(1) exercise judgment and discretion; (2) hear and 6
determine or to ascertain facts and decide; (3) make 7
binding orders and judgments; (4) affect the personal 8
property rights of private persons; (5) examine witnesses 9
and hear the litigation of the issues on a hearing; and 10
(6) enforce decisions or impose penalties. 11
12
Id. at 377 (quotation marks omitted). Whether a statement is taken 13
under oath is also relevant to whether it deserves an absolute 14
privilege. See id.; Chadha v. Charlotte Hungerford Hosp., 865 A.2d 15
1163, 1171-72 (Conn. 2005) (discussing whether, under specific 16
circumstances, affidavits qualify for the privilege). 17
Grand jury proceedings are unquestionably judicial or quasi- 18
judicial in nature, see Abrahams v. Young & Rubicam Inc., 79 F.3d 19
234, 240 (2d Cir. 1996) (describing statements made to a grand jury 20
as statements made in a judicial proceeding), and witness testimony 21
under oath in such proceedings is certainly relevant to the 22
tribunal’s fact-finding process. Accordingly, we can conclude with 23
confidence that Connecticut courts would extend the state’s 24
longstanding and well-established protections of statements made in 25
such proceedings to grand jury witness testimony. As “sufficient 26
precedents exist for us to make a determination,” there is no need 27

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to certify this question to the Connecticut Supreme Court. Amerex 1
Grp., Inc. v. Lexington Ins. Co., 678 F.3d 193, 200 (2d Cir. 2012) 2
(quotation marks and alteration omitted). 3
Our conclusion is bolstered by the fact that the public policy 4
justifications underlying Connecticut’s absolute immunity defense 5
for statements made in judicial and quasi-judicial proceedings 6
apply to federal grand jury testimony. See Gallo, 935 A.2d at 111 7
(“Ultimately, . . . the issue [in evaluating whether certain 8
statements deserve absolute immunity] is whether the public 9
interest is advanced.”). As discussed in Rehberg, 132 S. Ct. 1497, 10
there are strong policy justifications for absolute immunity for 11
witness testimony in grand jury proceedings. First, “a witness’ 12
fear of retaliatory litigation may deprive the tribunal of critical 13
evidence.” Id. at 1505. Second, “the possibility of civil liability 14
[is] not needed to deter false testimony . . . because other 15
sanctions . . . provid[e] a sufficient deterrent.” Id. 16
Additionally, the public’s interest in preserving grand jury 17
secrecy counsels against anything less than absolute immunity for 18
witness testimony, as the jurors’ identities might be disclosed in 19
the course of discovery in subsequent suits. Id. at 1509. 20
Based on Gallo, 935 A.2d 103, in which the Connecticut Supreme 21
Court found that witness statements to an investigating police 22
officer received only qualified immunity, Vidro argues that 23
Connecticut courts are restricting the privilege. We disagree. 24

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10
Under Connecticut law, statements with an attenuated 1
connection to judicial proceedings receive only qualified immunity 2
if they do not affect the fact-finding process of a tribunal. See 3
Petyan v. Ellis, 510 A.2d 1337, 1341-42 (Conn. 1986) (noting that 4
police officers sued for false arrests or “complaining witnesses” 5
who initiate prosecutions are entitled only to qualified immunity). 6
Accordingly, the Gallo court’s holding was grounded in its 7
determination that the public policy justifications for granting 8
absolute immunity to statements made in judicial proceedings did 9
not apply with equal force to statements made in the course of a 10
police investigation. 935 A.2d at 111 (“There is no benefit to 11
society or the administration of justice in protecting those who 12
make intentionally false and malicious defamatory statements to the 13
police.”); see also id. at 112-13 (distinguishing Craig, 856 A.2d 14
372). As described above, however, there are significantly stronger 15
policy reasons for protecting grand jury testimony. See Rehberg, 16
132 S. Ct. at 1507-09 (reasoning that the customary grant of only 17
qualified immunity to “complaining witnesses” is irrelevant in the 18
federal grand jury context). 19
Furthermore, as evidenced by the Connecticut Supreme Court’s 20
recent decision in Simms, 2013 WL 1943336 (holding that attorneys 21
enjoy absolute immunity from suits for fraud or intentional 22
infliction of emotional distress based on their conduct during 23

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judicial proceedings), Connecticut courts show no intention of 1
restricting the privilege’s traditionally broad scope. 2
CONCLUSION 3
For the foregoing reasons, the district court’s dismissal of 4
Vidro’s complaint is AFFIRMED. 5

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