Immunity granted to those bearing false witness at arbitration

By Bergstein & Ullrich, LLP
Feb 25, 2008

If your employment dispute goes to an arbitration hearing and your boss lies and slanders you under oath, can you sue him under 42 U.S.C. sec. 1983? The Court of Appeals today said No.

The case is Rolon v. Henneman, decided on February 25. This case arose from the long-standing dispute between police officers and their supervisors in Town of Wallkill, Orange County. Rolon was the police officer, Henneman the police chief. When Henneman served Rolon with disciplinary charges, the case was heard by an arbitrator. Henneman and another police officer, Moskowitz, testified against Rolon. So far, nothing out of the ordinary about this case.

Then things got extraordinary. When Moskowitz testified at the hearing, he was asked to produce his personal notebooks. Moskowitz left the hearing, telling everyone that the notebooks were at home. He never returned to the hearing. The arbitrator ended up striking all of Moskowitz's testimony. While Henneman stuck around for his testimony, the arbitrator for the most part ruled in Rolon's favor, finding that Henneman and Moskowitz both testified untruthfully and that Henneman's personal hostility towards Rolon motivated him to bring the disciplinary charges against him.

Rolon's section 1983 case against Henneman and Moskowitz fails, however. The problem for Rolon is that the Second Circuit in 1990 ruled that arbitrators, like judges, enjoy immunity from suit for their actions in resolving these disputes. In addition, in Briscoe v. LaHue, 460 U.S. 325 (1983), the Supreme Court held that witnesses in court proceedings cannot be sued over their testimony. The reasoning in Briscoe applies with equal force to arbitrations, since both proceedings rely on sworn testimony and endeavor to find the truth. Testimony is less reliable if the witness tailors his testimony to avoid a lawsuit. Since the arbitration in this case was comparable to a judicial proceeding, Henneman cannot be sued over his allegedly false testimony.

Moskowitz wins the case for a different reason: the Court of Appeals ruled in 2004 that you can't sue someone for malicious prosecution arising from a civil proceeding, only a criminal proceeding. While Rolon also sued Moskowitz for fabricating evidence against him, his claim for humiliation and emotional distress is more properly brought as a state-law defamation claim. The "fabrication of evidence" claim under the Due Process Clause also fails because Rolon does not allege a necessary predicate: the deprivation of a property interest. According to the court, Rolon only alleged in conclusory fashion that he suffered economic losses as a result of Moskowitz's false testimony.