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DOE v. UNITED STATES

April 1, 1993

John Doe
v.
United States of America


CONBOY


The opinion of the court was delivered by: KENNETH CONBOY

The United States of America ("the Government") has moved for dismissal of this action, or, in the alternative, for summary judgment. For the reasons that follow, the Government's motion for summary judgment is granted.

 I. Background

 In his amended complaint, John Doe ("Doe"), a former attorney, alleges that he has been "operated" as a confidential informant by various, unspecified agencies of the United States. Doe also alleges that two agents of the Federal Bureau of Investigation ("the FBI") prepared an FBI "302 Report" that mentioned Doe's confidential informant status. Doe further asserts that during the course of a criminal prosecution of former clients of his, this 302 Report was "wrongfully, willfully, and wantonly" provided to each of the defendants counsel in that action by the Government. The factual circumstances of the complained-of disclosure are not alleged in the amended complaint other than to aver that the disclosure was not pursuant to any court order directing the government to disclose plaintiff's identity. Instead, the amended complaint alleges conclusorily that the disclosure was made at some unspecified time "during the pendency of the aforesaid criminal case" by

 
agents of the Federal Bureau of Investigation and/or agents of the United States Department of Justice, including agents of the United State's Attorney's Office . . . ."

 These "agents" are nowhere identified in the amended complaint.

 The Government's Rule 3(g) statement and various declarations submitted by the Government with the instant motion make clear the circumstances in which the Government published the 302 report. Doe has not submitted a Rule 3(g) statement, affidavits, or any other documents that controvert the facts as set forth in the Government's 3(g) statement and other papers. Therefore, all of the facts set forth by the Government in its 3(g) statement are deemed admitted. See Local Rule 3(g).

 The uncontroverted facts establish that the disclosure of the FBI 302 Report at issue here occurred in connection with a prosecution of Richard Roe and others. The disclosure was made for two purposes. First, the 302 Report was submitted by the Government prosecutors to Roe in opposition to a suppression motion by Roe that had challenged the admissibility of the Report. Second, the 302 Report, which summarized an interview between FBI agents and Roe, was submitted in order to discharge the prosecutor's obligation pursuant to Fed. R. Crim. Proc. 16(a)(1)(A) to provide Roe with all of his prior statements.

 In his amended complaint, Doe alleges, inter alia, that the disclosure of the 302 report has exposed him and his family to possible retaliation. Moreover, Doe asserts that from the time he learned of the disclosure of his name, he has suffered emotional distress and anxiety from his fear of possible retaliation. Doe brought this suit against the Government under the Federal Tort Claims Act ("FTCA").

 II. Legal Analysis

 Section 2674 of the FTCA provides that

 
with respect to any claim under this chapter, the United States shall he 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.A. ยง 2674 (West Supp. 1992) (emphasis added). *fn1" Though we have found no cases that interpret the meaning of the emphasized passage, we believe that by adding this passage Congress intended to make clear that one of the defenses to which the government is entitled under the FTCA is prosecutorial immunity.

 Sound public policy supports this interpretation. In the Bivens and the Section 1983 context, the Supreme Court has indicated three policy reasons behind the availability of absolute immunity for prosecutors: (i) to ensure that prosecutorial decisions are made free from the fear of personal liability; (ii) to save prosecutors from the oppressive burden of having to defend in court the many discretionary decisions made by prosecutors as part of the advocacy process; (iii) to ensure that post-trial decision makers, e.g., appellate judges, reviewing criminal cases are not influenced by the fact that "a post-trial decision in favor of the accused might result in the prosecutor's being called upon to respond in damages for his error or mistaken judgment." See Imbler v. Pachtman, 424 U.S. 409, 424-27, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976); see also Schloss v. Bouse, 876 F.2d 287, 290 (2d Cir. 1989) (Because a prosecutor is responsible for scores of indictments, and because each prosecution necessarily involves many separate decisions, "forcing him to defend these decisions could impose intolerable burdens"). *fn2" While the first and third reasons for prosecutorial ...


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