Opinion
03 Civ. 0579 (HB)
October 30, 2003
OPINION ORDER
Defendants United States Department of Justice (hereinafter "USDOJ") and the Immigration and Naturalization Service (hereinafter "INS") (collectively "the Government"), move for reconsideration of my Opinion and Order dated August 29, 2003 that recognized plaintiff Ashwani Goel's (hereinafter "Goel" or "plaintiff) claim against the Government for breach of confidentiality. Subsequently, Goel filed an additional motion, alleging continuing breaches of fiduciary duty by the INS ("motion to amend"). For the foregoing reasons, defendants' motion is granted and plaintiffs remaining claims against the Government, raised in both his original filing and his subsequent motion, are dismissed.
I. BACKGROUND
A. Relevant Facts
Indotronix International Corporation (hereinafter "IIC") hired Goel for the position of preparing and filing visa petitions for its foreign workers. Goel alleges that IIC provided him false information to submit in these petitions. Goel claims that he refused to work on false visa petitions and subsequently reported to INS that IIC knowingly hired aliens unauthorized to work in the United States. Several years after Goel first submitted his allegations, in or around April 2000, INS initiated an investigation. After completing their investigation, INS evidently determined that it had insufficient grounds to take action against IIC. Goel alleges that on November 20, 2000, IIC retaliated against him for his participation in the INS investigation, by terminating his employment.
Goel further contends that INS breached its duty of confidentiality — that had arisen when INS Executive Associate Commissioner Michael Pearson (hereinafter "Pearson") assured him "full confidentiality and agency responsibility against employer retaliation for any kind of loss for [his] participation in [the] INS federal investigation against IIC. Amended Complaint (hereinafter "Am. Compl.") at 5. Goel claims that despite these assurances, INS agents both contacted him and left repeated messages for him at his workplace, in order to attain information and documents substantiating his claim. These assurances, coupled with Pearson's allegedly unjust conduct, led this Court to conclude that there was sufficient pleading to establish a claim of breach of fiduciary duty by the INS.
B. Procedural History
On August 29, 2003, this Court dismissed all of Goel's claims against the Government, except for his claim under the Federal Tort Claims Act (hereinafter "FTCA") for breach of fiduciary duty. The Government filed its motion for reconsideration on September 15, 2003, requesting that this Court reconsider the portion of its August 29, 2003 decision, maintaining Goel's FTCA claim against the INS for breach of fiduciary duty, and ultimately dismiss this claim for lack of subject matter jurisdiction and failure to state a claim under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), respectively. On September 29, 2003, Goel filed his motion to amend. By letter dated October 22, 2003, Michael H. Sussman, Goel's attorney (hired subsequent to the submission of the government's fully-briefed motion for reconsideration and Goel's motion to amend), withdrew Goel's motion to amend and, as permitted by this Court's memo-endorsement of October 15, 2003, submitted an additional opposition to the government's motion for reconsideration.
II. DISCUSSION
A. Standard of ReviewLocal Rule 6.3 of the Southern District of New York, governing motions for reconsideration, states in relevant part that "there shall be served with the notice of motion [for reconsideration] a memorandum setting forth concisely the matters or controlling decisions which counsel believes the court has overlooked." See also Shamis v. Ambassador Factors Corp., 187 F.R.D. 148, 151 (S.D.N.Y. 1999). Motions for reconsideration are not vehicles for repetitive arguments or invitations to advance new facts or concepts. Id. Rather, when confronted with a motion for reconsideration, the district court has discretion to re-evaluate a prior decision, that upon further reflection, appears to be incorrect. Id.
B. Governmental Tort Liability Under the FTCA
The INS' alleged breach of confidence is a serious offense, not surprisingly, a view shared by plaintiffs attorney is his well-reasoned response. Unfortunately, his response misses the mark. Upon reconsideration, I conclude that the breach is more properly cast as a breach of an implied contract, and therefore, is not cognizable under the FTCA. The FTCA waives sovereign immunity and provides for district court jurisdiction in suits against the United States alleging "injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b). Succinctly, the FTCA provides a vehicle through which to bring suit against the government for its commission of a tort.
It is black-letter law that in the absence of a duty, there can be no liability in tort. Goel alleges that the Government inherited a duty to maintain his confidentiality when Pearson made assurances regarding the protection of Goel's privacy. In my August 29, 2003 Opinion, I explained that under New York law, "a fiduciary relationship exists when confidence is reposed on one side and there is resulting superiority and influence on the other." 8/29/03 Op. at 8, citing Northeast Gen. Corp. v. Wellington Adver., Inc., 82 N.Y.2d 158, 173 (1993). Under this theory, I concluded that after drawing all reasonable inferences in Goel's favor, "the alleged breach of fiduciary duty arising from the breach of confidentiality may stand as a cognizable basis for recovery under the FTCA." 8/29/03 Op. at 8. However, under New York law, "the mere communication of confidential information [is not] sufficient in and of itself to create a fiduciary relationship" between individuals who are not already associated in such a manner. Wiener v. Lazard Freres Co., 672 N.Y.S.2d 8, 14 (1st Dep't 1998). Consequently, Goel's FTCA claim against the INS is not sustainable. While Goel's action under the FTCA is improper, he may raise this claim under the Tucker Act, 28 U.S.C. § 1346(a)(2), 1491(a)(1), in the United States Court of Federal Claims — the court with exclusive jurisdiction over contract actions against the United States for damages in excess of $10,000.
C. Policy Considerations Favoring Duty to Informants
While I come out this way, and assuming some truth to plaintiffs assertions, the actions of the INS agents are at least disheartening, and at worst reprehensible. It is important to underscore that despite the Government's arguments to the contrary, New York, while not yet recognizing a fiduciary relationship in the fact pattern here at issue, has acknowledged the importance of "encourag[ing] the reporting of possible violations of the law by protecting the anonymity of informants," and has even created a public interest privilege that protects such disclosures from discovery in the course of litigation. Klein v. Lake George Park Comm'n, 261 A.D.2d 774, 783 (3d Dep't 1999) (public interest privilege protects the disclosure of the identity of an informant who notified the Commission that individuals were discharging raw sewage into the lake in a case where the Commission found insufficient evidence to support the charge). The public interest privilege allows public officials to protect from disclosure, information presented to them "where the public interest requires that such confidential communications or the sources should not be divulged." See World Trade Ctr. Bombing Litig. v. Port Auth. of New York and New Jersey, 93 N.Y.2d 1, 8 (1999). "It is just about universally true that an investigator is able to encourage such free communication only if he can give assurance that the communication and the identity of its maker will be kept confidential." City of New York v. Bustop Shelters, Inc., 428 N.Y.S.2d 784, 791 (N.Y. Co. Sup.Ct. 1980). Although this protection only exists in the context of discovery, the policy rationale behind the privilege speaks directly to God's claims, and forecasts that protections at other stages may ensue in the near future.
III. CONCLUSION
For the foregoing reasons, the Government's motion for reconsideration is granted and Goel's remaining claim against the INS for breach of confidentiality under the FTCA is dismissed for lack of subject matter jurisdiction and failure to state a claim. The Clerk of the Court is requested to close this motion and any remaining motions, and remove this case from my docket.