BLD-185                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 10-1186
                                       ___________

                               MARCELLAS HOFFMAN,
                                          Appellant

                                             v.

                                ROBERTO RASHID;
                       CINGULAR WIRELESS THE NEW AT&T
                       ____________________________________

                       Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                                (D.C. Civil No. 07-cv-3159)
                      District Judge: Honorable Eduardo C. Robreno
                       ____________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    April 29, 2010

      Before: McKEE, Chief Judge, RENDELL and CHAGARES , Circuit Judges.

                                  (Filed: July 28, 2010 )
                                        ________

                               OPINION OF THE COURT
                                     _________

PER CURIAM

       Marcellas Hoffman was convicted in the United States District Court for the

Eastern District of Pennsylvania of crimes for his role in a “multi-million dollar cocaine
and heroin organization.” United States v. Hoffman, 271 F. App’x 227, 228 (3d Cir.

2008). He was sentenced to an aggregate term of sixty-five years of imprisonment. In

August 2007, Hoffman filed this lawsuit against Roberto Rashid, a government witness

during Hoffman’s criminal trial, and Rashid’s employer, AT&T. In his complaint,

Hoffman claimed that Rashid gave false and/or misleading testimony concerning

Hoffman’s cellular telephone records.1 In addition, Hoffman claimed that AT&T’s

practice of publishing certain “routing numbers” in its telephone records violated some

unspecified provision of the Federal Communications Act (“FCA”).2

       Rashid and AT&T moved to dismiss Hoffman’s complaint under, inter alia, Rule

12(b)(6) of the Federal Rules of Civil Procedure. The District Court granted the motion.

The District Court determined that because the FCA contains a two-year statute of

limitations, Hoffman’s claims under that statute were time-barred. The District Court

determined that even if Hoffman’s claims under the FCA were timely, he failed to “allege

a violation of the FCA upon which this Court may grant relief.” The District Court also



  1
    Specifically, Hoffman claimed that “[it] was the willful misconduct by Mr. Roberto
Rashid, and his reckless disregard for the consequences of his acts or omission by not
[explaining] in more specific detail that AT&T ‘routing’ numbers were improperly listed
on Plaintiff’s telephone records and bills . . ..”
  2
    According to Hoffman, “[i]t was because of [AT&T and] Mr. Roberto Rashid’s
failure to render accurate service to Plaintiff by having ‘improper routing’ information in
Plaintiff’s telephone records and bills that cause Plaintiff’s trial Judge and Jury to
erroneously believe that ‘routing’ numbers were unlawfully used in a criminal drug
conspiracy.” Hoffman later specified which provisions of the FCA he believed had been
violated.

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determined that under Pennsylvania law, Rashid was entitled to absolute testimonial

immunity from civil liability and, by extension, AT&T could not be held liable under a

theory of respondeat superior. Hoffman appealed.3

       Having granted Hoffman leave to proceed in forma pauperis, we must dismiss his

appeal pursuant to 28 U.S.C. § 1915(e)(2)(B) if it has no arguable basis in law. See

Neitzke v. Williams, 

, 325 (1989). Alternatively, we may take summary

action if it clearly appears that Hoffman’s appeal presents no substantial questions. See

LAR 27.4; I.O.P. 10.6. We may affirm the District Court on any basis that finds support

in the record. See Tourscher v. McCullough, 

, 240 (3d Cir. 1999).

       The only relief sought by Hoffman in his complaint is monetary damages. We thus

agree with the District Court that Rashid is immune from civil liability since, as a witness

who provided testimony at Hoffman’s trial, he is cloaked with absolute immunity from

liability. Both Pennsylvania law and federal law command this result. See Hughes v.

Long, 

, 125 (3d Cir. 2001) (“Witnesses, including public officials and

private citizens, are immune from civil damages based upon their testimony.”) (citing

Briscoe v. LaHue, 

, 341, 345-46 (1983)); Pelagatti v. Cohen, 

,

1342 (Pa. Super. Ct. 1987) (Under Pennsylvania law, “it is well settled that private

witnesses, as well as counsel, are absolutely immune from damages liability for



  3
    The District Court exercised diversity jurisdiction pursuant to 28 U.S.C. § 1332. Our
jurisdiction arises under 28 U.S.C. § 1291. We review the District Court’s decision de
novo. See Capogrosso v. Supreme Court of N.J., 

, 184 (3d Cir. 2009).

                                             3
testimony, albeit false, given or used in judicial proceedings.”) (citations omitted).4

       Furthermore, even assuming, arguendo, that his claims were timely raised, we

conclude that Hoffman’s claims under §§ 201(b), 206, 206, 217, and 220(e) of the FCA

are not viable because they do not demonstrate conduct by AT&T that could form the

basis of an FCA violation.

       Under the FCA, business practices of common carriers like AT&T cannot be

“unjust or unreasonable.” 47 U.S.C. § 201(b). Hoffman ostensibly claims that AT&T’s

alleged practice of including “routing information” in telephone records is either unjust or

unreasonable. However, it is within the purview of the Federal Communications

Commission, not Hoffman, “to determine whether a particular practice constitutes a

violation for which there is a private right to compensation.” North County Commc’ns

Corp. v. California Catalog & Tech., 

, 1158 (9th Cir. 2010); see also

Global Crossing Telecomms., Inc. v. Metrophones Telecomms., Inc., 

, 49, 53

(2007); Prometheus Radio Project v. F.C.C., 

, 391 (3d Cir. 2004).

       Section 220(e) criminalizes, inter alia, “willfully mak[ing] any false entry in the

accounts of any book of account or in any record or memoranda kept by any such

[common] carrier.” 47 U.S.C. § 220(e); see, e.g., United States v. Rigas, 

,



  4
    Pennsylvania follows the common law doctrine of respondeat superior. See Solomon
v. Gibson, 

, 371 (Pa. Super Ct. 1992). Because Rashid is immune from
liability, there is no liability to impute to AT&T under a respondeat superior theory.
See Restatement (Third) of Agency § 2.04 (2006) (“An employer is subject to liability for
torts committed by employees while acting within the scope of their employment.”).

                                              4
112 (2d Cir. 2009). Even assuming that a common carrier’s conduct in violation of

§ 220(e) could form the basis of a civil suit under the FCA, Hoffman cannot point to

anything in the record to demonstrate impropriety in AT&T’s record-keeping practice, or

that such impropriety was specifically intended by AT&T or one of its employees.

       Because he cannot independently show that AT&T violated § 201(b) or § 220(e)

of the FCA, §§ 206 and 207 do not apply. See Core Commc’ns, Inc. v. Verizon

Pennsylvania, Inc., 

, 340 (3d Cir. 2007) (“Divorced from any provision of

the [FCA], it appears that §§ 206 and 207, which make common carriers liable for

damages ‘under the provisions of this chapter,’ do not apply.”); see also Global Crossing

Telecomms, 

(“the purpose of § 207 is to allow persons injured by §

201(b) violations to bring federal-court damages actions.”). And because Hoffman has

failed to show that Rashid committed an FCA violation, § 217, the FCA’s vicarious

liability provision, also does not apply.

       Accordingly, because this appeal presents no substantial question, we will

summarily affirm the District Court’s judgment. Hoffman’s motion for appointment of

counsel is denied.




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