642 F. App'x 73
2d Cir.2016Background
- Plaintiffs Philip and Gertrude Simone appealed a district-court judgment for the United States following a bench trial challenging actions surrounding Philip Simone’s arrest/prosecution and extradition-related proceedings.
- Plaintiffs asserted malicious prosecution against U.S. Marshals, negligence against Department of Justice Office of International Affairs (OIA) attorneys, and a negligent-investigation theory against the FBI.
- The district court found for the United States on all claims; plaintiffs appealed.
- Key factual findings (unchallenged on appeal) showed the Marshals did not institute the criminal proceedings and there was no extrinsic evidence of malice.
- The district court held OIA attorneys were not liable under the FTCA because their alleged conduct arose from false arrest/malicious prosecution, which § 2680(h) excepts for non-law-enforcement federal employees.
- The court declined to recognize a New Jersey negligent-investigation tort in these circumstances (attenuated investigation-to-prosecution facts).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Marshals instituted criminal proceedings / are liable for malicious prosecution | Marshals participated in and caused the prosecution / lacked probable cause and acted with malice | Marshals did not institute the criminal proceedings and lacked malice | Affirmed: Marshals did not institute proceedings; district court reasonably found no malice or extrinsic evidence of malice |
| Whether an extradition proceeding is a "criminal proceeding" for malicious prosecution | Extradition should count toward malicious prosecution analysis | Extradition not a criminal proceeding (district court treated it as such) | Court declined to decide the unsettled NJ-law question because resolution not necessary to outcome |
| Whether OIA attorneys are immune under FTCA § 2680(h) for negligence framed claims arising from alleged false arrest/malicious prosecution | Plaintiffs framed a negligence claim against OIA distinct from intentional torts | Government: § 2680(h) bars FTCA suits for claims arising out of false arrest/malicious prosecution by non-law-enforcement employees | Affirmed: Substantively the claim arose from intentional torts; OIA attorneys (not law-enforcement officers) are immune under § 2680(h) |
| Whether New Jersey law recognizes an independent negligent-investigation tort (FBI) in these facts | Plaintiffs urged recognition of negligent investigation as cognizable when investigation is temporally attenuated from arrest/prosecution | Government urged Brunson bars creation of independent negligent-investigation cause of action here | Affirmed: Court declined to create/recognize such a cause of action absent New Jersey authority; Brunson forecloses it |
Key Cases Cited
- In re Sept. 11 Litig., 802 F.3d 314 (2d Cir.) (appellate standard of review for bench trial findings)
- Trabal v. Wells Fargo Armored Serv. Corp., 269 F.3d 243 (3d Cir. 2001) (elements of malicious prosecution claim)
- Savino v. City of New York, 331 F.3d 63 (2d Cir. 2003) (collective-knowledge doctrine and its limits)
- Bernard v. United States, 25 F.3d 98 (2d Cir. 1994) (FTCA § 2680(h) and law-enforcement exception analysis)
- Brunson v. Affinity Fed. Credit Union, 972 A.2d 1112 (N.J. 2009) (New Jersey rejection of independent negligent-investigation tort)
- Guccione v. United States, 847 F.2d 1031 (2d Cir. 1988) (no broad affirmative-duty exception to § 2680(h))
- Dorking Genetics v. United States, 76 F.3d 1261 (2d Cir. 1996) (substance-over-labeling when assessing § 2680(h) applicability)