Moore, William G. v. United States

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 13, 2000 Decided June 2, 2000

No. 99-5197

William G. Moore, Jr.,

Appellant

v.

United States of America,

Appellee

No. 99-5198

William G. Moore, Jr.,

Appellant

v.

Joseph B. Valder,

Appellee

Appeals from the United States District Court

for the District of Columbia

(92cv02288)

(93cv00324)

---------

Paul M. Pohl argued the cause for appellant. With him on

the briefs were Bryan D. Kocher, Daniel H. Bromberg, and

James E. Anklam.

Richard Montague, Trial Attorney, U.S. Department of

Justice, argued the cause for appellees. With him on the

brief were David W. Ogden, Acting Assistant Attorney Gen-

eral, Andrea W. McCarthy, Senior Trial Counsel, and Wilma

A. Lewis, U.S. Attorney.

Before: Silberman, Randolph, and Rogers, Circuit Judges.

Opinion for the Court filed by Circuit Judge Randolph.

Randolph, Circuit Judge: Our first opinion in this case

affirmed in part and reversed in part the district court's

dismissal of William G. Moore, Jr.'s complaint against a

prosecutor and postal inspectors and his complaint against

the United States. See Moore v. Valder, 65 F.3d 189 (D.C.

Cir. 1995). On remand, the district court again dismissed the

claims against the prosecutor, Joseph B. Valder, and granted

judgment on the pleadings in favor of the government, rulings

from which Moore now appeals.

I.

Moore's basic grievance is that he was unjustly prosecuted

on charges concerning his dealings with the United States

Postal Service. In the early 1980s, the company Moore

headed--REI--wanted to sell the Postal Service multiple-line

scanners, but the Service declined. Moore publicly criticized

the decision. A Postal Service governor--Peter Voss--sug-

gested to REI that it hire the consulting firm GAI to promote

its product. REI did so. Voss had a side deal with GAI:

thirty percent of the fees REI paid to the consulting firm

were kicked back to Voss. After their crimes were discover-

ed, Voss and several GAI officials plead guilty. William A.

Spartin, GAI's president, negotiated an immunity deal in

return for his cooperation.

Postal inspectors and prosecutor Valder, seeking to estab-

lish that Moore and REI knew of the kickback scheme, were

told instead by each of five of the admitted conspirators,

including Spartin, that no one at REI had such knowledge.

The postal inspectors later drafted, and the prosecutor pre-

sented to the grand jury, "witness statements" for these

individuals, but without this exculpatory information. Spar-

tin's refusal to implicate Moore prompted Valder to tear up

his immunity agreement and threaten to prosecute Spartin's

son. Valder and the postal inspectors showed Spartin the

government-drafted statements of the other witnesses.

(Moore alleges this disclosure was a violation of grand jury

secrecy rules.) Spartin continued to deny that he had per-

sonal knowledge of Moore's involvement, repeating the point

nineteen times during a polygraph test. Spartin then said "I

have no knowledge of that at all.... But, you know, I read

that goddam[n] testimony and I'm not a lawyer but Jesus,

there's enough there to seem to me to hang REI from the

yardarm." Spartin then testified before the grand jury that

in his "opinion" Moore knew of the kickback scheme.

Postal inspectors also provided witness interview state-

ments and lab results to Paul Carlin, a former Postmaster

General dismissed by the Board of Governors during the

scanner controversy. Then, weeks before an indictment was

returned against Moore, the inspectors passed along a draft

indictment to Carlin. Carlin later filed a civil RICO claim

against Moore, alleging that Moore conspired to have the

Board dismiss him.

Moore, REI Vice President Robert Reedy, and REI were

indicted by a federal grand jury in the District of Columbia in

October 1988 for conspiracy to defraud the United States,

theft, receipt of stolen property, mail fraud and wire fraud.

Despite a court order to turn over even "borderline" Brady

evidence, Valder failed to provide the defense with exculpato-

ry material, including the Spartin lie detector results and the

amended statement of one witness denying any knowledge

that REI officials were aware of the kickbacks. The district

court granted Moore's motion for judgment of acquittal at the

close of the government's case, stating that "[m]uch of what

the government characterizes as incriminatory evidence is not

persuasive of guilt when viewed in its full context [and] some

of the government's evidence is exculpatory and points to-

ward innocent conduct...." United States v. Recognition

Equip., Inc., 725 F. Supp. 587, 587-88 (D.D.C. 1989).

Moore then brought his suits against Valder and the postal

inspectors under Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388 (1971), and against

the United States under the Federal Torts Claims Act

(FTCA), see 28 U.S.C. ss 2671-2680. After proceedings

unnecessary to recount, the district court dismissed the com-

plaints and Moore appealed. This court considered whether,

as the district court determined, Valder enjoyed absolute

immunity from civil liability for malicious prosecution and for

retaliatory prosecution.1 See Moore, 65 F.3d at 192-95. Re-

lying on the Supreme Court's distinction between a prosecu-

tor's role as an advocate and his conduct as an investigator,

see Imbler v. Pachtman, 424 U.S. 409 (1976), Burns v. Reed,

500 U.S. 478 (1991), Buckley v. Fitzsimmons, 509 U.S. 259

(1993), the court decided that absolute immunity shielded

some, but not all, of Valder's conduct. Absolute immunity

protected Valder from liability for his "decision to prosecute

Moore," "for allegedly concealing exculpatory evidence from

the grand jury," "for allegedly manipulating evidence before

the grand jury to create a false impression of what Moore

knew about the alleged fraudulent schemes," and for failing to

disclose exculpatory material before trial. 65 F.3d at 194.

But absolute immunity did not apply to Valder's "[i]ntimidat-

ing and coercing witnesses into changing their testimony" or

"disclosing grand jury information to unauthorized third par-

ties." Id. at 194-95.

With respect to Moore's claims under the Federal Tort

Claims Act, the court took note of the FTCA's "discretionary

__________

1 Moore did not appeal the dismissal of his other Bivens claims.

See 65 F.3d at 191 n.3.

function" exception, which protects the government from

liability for "the exercise or performance or the failure to

exercise or perform a discretionary function or duty on the

part of a federal agency or an employee of the Govern-

ment...." 28 U.S.C. s 2680(a). The following alleged con-

duct fell within the exception: "Deciding whether to prose-

cute, assessing a witness's credibility to ensure that he is

giving an accurate and complete account of what he knows,

identifying the evidence to submit to the grand jury and

determining whether information is 'exculpatory' and 'materi-

al' and therefore must be disclosed pursuant to a Brady

request." 65 F.3d at 197. "Disclosing grand jury testimony

to unauthorized third parties, however, is not a discretionary

activity nor is it inextricably tied to matters requiring the

exercise of discretion." Id.

On remand, Valder moved for summary judgment on the

retaliatory prosecution claim, contending that Moore could

not make out an essential element--that he brought the

prosecution at least in part to retaliate against Moore's First

Amendment activity--because absolute immunity protected

his decision to prosecute Moore. The district court agreed

and granted Valder's motion. See Moore v. Valder, No.

92CV-2288, memorandum opinion at 17-24 (D.D.C. Feb. 5,

1998) ("mem. op.").

As to the FTCA claims, the district court determined that

only one aspect of Moore's complaint survived this court's

application of the discretionary function exception--namely,

the claim that "AUSA Valder and the Postal Inspectors

violated Federal Rule of Criminal Procedure 6(e)(2) ... by

giving Spartin and former Postmaster General Paul Carlin

access to the Grand Jury testimony of other witnesses for the

purpose of influencing Spartin's testimony and for the appar-

ent purpose of assisting Carlin, a private plaintiff, to pursue

civil litigation...." FTCA Complaint p 26. Moore argued

that these two grand jury disclosures were sufficient to make

out his malicious prosecution and abuse-of-process claims.

Under the FTCA, however, claims of malicious prosecution

and abuse of process can only arise from the conduct of

"investigative or law enforcement officers of the United

States government." See 28 U.S.C. s 2680(h). " '[I]nvestiga-

tive or law enforcement officer' means any officer of the

United States who is empowered by law to execute searches,

to seize evidence, or to make arrests for violations of Federal

law." Id. Postal inspectors are so empowered, see 39 C.F.R.

s 233.1, but the district court concluded that federal prosecu-

tors are not, see mem. op. at 32 & n.21 (citing Bernard v.

United States, 25 F.3d 98 (2d Cir. 1994); Gray v. Bell, 542

F. Supp. 927, 932 (D.D.C. 1982), aff'd, 712 F.2d 490 (D.C. Cir.

1983)). The district court then ruled that the unprotected

conduct of the postal inspectors did not establish a malicious

prosecution or abuse-of-process claim and granted judgment

in favor of the United States under Federal Rule of Civil

Procedure 12(c). See mem. op. at 32-43.

II.

Two of the elements of a claim of retaliatory prosecution

are "first, that the conduct allegedly retaliated against or

sought to be deterred was constitutionally protected, and,

second, that the State's bringing of the criminal prosecution

was motivated at least in part by a purpose to retaliate for or

to deter that conduct." Haynesworth v. Miller, 820 F.2d

1245, 1256 n.93 (D.C. Cir. 1987) (quoting Wilson v. Thomp-

son, 593 F.2d 1375, 1387 (5th Cir. 1979)). Moore thinks the

ground of the district court's dismissal of his claim--that

absolute immunity protected Valder with respect to his deci-

sion to prosecute--contravened this court's initial decision, in

violation of the mandate. See LaShawn A. v. Barry, 87 F.3d

1389, 1393 n.3 (D.C. Cir. 1996) (en banc). The prior opinion

did hold that some of Valder's conduct was not protected by

absolute immunity and the court did remand the retaliatory

prosecution claim. But that opinion said nothing about the

elements of such a claim, or whether Moore could succeed on

his complaint. Rather than dealing with those subjects, the

opinion focused on the type of prosecutorial conduct for which

there would be absolute immunity. One such type of conduct,

of course, was "the decision to prosecute Moore." 65 F.3d at

192. In his brief for that appeal, Valder had argued that if he

had immunity for his prosecutorial decision, then Moore's

retaliatory prosecution claim could not go forward. But it is

clear to us that the court did not pass judgment on the

argument, explicitly or implicitly. It follows that the district

court did not contravene the mandate of this court.

According to Moore the district court erred for another

reason. As he sees it, his retaliatory prosecution claim is not

predicated upon Valder's decision to prosecute him. Just as a

police officer can be liable for malicious prosecution as a

result of his investigatory conduct leading to the prosecution,

so too, Moore contends, should a prosecutor be liable if his

investigatory conduct leads to the prosecution. See infra

Part IIIA. The problem for Moore is that we rejected this

very argument in Dellums v. Powell, 660 F.2d 802, 805-07

(D.C. Cir. 1981) ("Dellums II"). A "prosecutorial official," we

ruled, could not be "held liable for causing a prosecution to be

brought," despite the fact that Imbler v. Pachtman, 424 U.S.

409, 430-31 (1976), extended only qualified immunity to prose-

cutors acting in an investigatory capacity.2 660 F.2d at 806.

Moore believes the law has changed since Dellums II, but he

cites no cases in which a prosecutor has been held liable for

malicious or retaliatory prosecution. If a prosecutor cannot

be sued for malicious or retaliatory prosecution, Moore asks,

why would the Supreme Court continue to devote its time to

discerning which prosecutorial actions are protected by abso-

lute immunity and which are not? See Kalina v. Fletcher,

522 U.S. 118 (1997); Buckley v. Fitzsimmons, 509 U.S. 259

(1993); Burns v. Reed, 500 U.S. 478 (1991). The answer is

that there are potential causes of actions against prosecutors

__________

2 It may seem odd that the only official who could not be held

liable for malicious or retaliatory prosecution is the prosecutor. A

similar point was made in Imbler, to which the Court responded

with a quotation: "As is so often the case, the answer must be

found in a balance between the evils inevitable in either alternative.

In this instance it has been thought in the end better to leave

unredressed the wrongs done by dishonest officers than to subject

those who try to do their duty to the constant dread of retaliation."

Imbler, 424 U.S. at 428 (quoting Gregoire v. Biddle, 177 F.2d 579,

581 (2d Cir. 1949) (Hand, J.)).

that do not rely on the decision to prosecute. A violation of

the Fourth Amendment is one of the more obvious examples.

We therefore will affirm the dismissal of Moore's Bivens

claim against Valder.3

III.

With respect to Moore's FTCA action against the United

States for malicious prosecution and abuse of process, "the

law of the place where the act or omission occurred" is

controlling. 28 U.S.C. s 1346(b). All agree that District of

Columbia law must be consulted. See Tarpeh-Doe v. United

States, 28 F.3d 120, 123 (D.C. Cir. 1994).

A. Malicious Prosecution

Under local law four elements make up the tort of mali-

cious prosecution: (1) the defendant's initiation or procure-

ment of a criminal proceeding against the plaintiff; (2) ab-

sence of probable cause for the proceeding; (3) malicious

intent on the part of the defendant; and (4) termination of

the proceeding in favor of the plaintiff. See Davis v. Giles,

769 F.2d 813, 814-15 (D.C. Cir. 1985) (citing Restatement

(Second) of Torts s 653 (1977)). As the first element indi-

cates, in theory not only the prosecutor who initiates criminal

proceedings, but also a person who "procures" a criminal

proceeding may be liable for malicious prosecution. See also

Restatement (Second) of Torts s 653. In fact, those who

procure malicious prosecutions are usually the only potential

defendants because, as here, prosecutors enjoy absolute im-

munity. See W. Page Keeton et al., Prosser and Keeton on

Torts s 119, at 873 (5th ed. 1984). To succeed in this case,

Moore must rely on the procurement component of the first

element, focusing on the conduct of the postal inspectors in

disclosing grand jury material. The remainder of the postal

__________

3 Moore also contends that the district court improperly denied

his request for discovery. But a district court may deny discovery

requests when additional facts are not necessary to resolve the

summary judgment motion. See White v. Fraternal Order of

Police, 909 F.2d 512, 516-17 (D.C. Cir. 1990) (en banc).

inspectors' conduct fell within the FTCA's discretionary func-

tion exception, see 65 F.3d at 197, and none of Valder's

conduct can be the basis for a malicious prosecution claim

against the government because he is not an investigative or

law enforcement officer, see 28 U.S.C. s 2680(h).

In order to find that a defendant procured a prosecution,

the plaintiff must establish "a chain of causation" linking the

defendant's actions with the initiation of criminal proceedings.

Dellums v. Powell, 566 F.2d 167, 192 (D.C. Cir. 1977) ("Del-

lums I"). Moore's chain consisted of the postal inspectors'

releasing of grand jury testimony to Spartin, which caused

Spartin to incriminate him, which led to his indictment and

then his prosecution.4 See mem. op. at 36; FTCA Complaint

p 26.

It may be helpful at this point to look more closely at

Dellums I and the chain of causation there held sufficient to

establish procurement of a prosecution. Plaintiffs had won a

verdict against Powell, the D.C. Police Chief, for his role in

bringing about criminal charges against anti-war demonstra-

tors. See 566 F.2d at 173-75, 193. The court noted that the

"chain of causation" would have been broken if the decision to

prosecute was "independent of any pressure or influence

exerted by Powell and of any knowing misstatements which

__________

4 In his brief, Moore stated only that Valder disclosed grand jury

material to Spartin, though he mentions that the inspectors were

present at the time. See Brief for Appellant at 10. The govern-

ment jumps on this to argue that Moore's claim had to be dismissed

because a malicious prosecution claim under the FTCA can rely

only on the conduct of investigative or law enforcement officers and

Valder is not one. Moore's complaint, however, alleged that

"AUSA Valder and the Postal Inspectors violated Federal Rule of

Criminal Procedure 6(e)(2) ... by giving Spartin and former Post-

master General Carlin access to the Grand Jury testimony of other

witnesses...." FTCA Complaint p 26 (italics added). We there-

fore assume that the postal inspectors did play a role in presenting

grand jury materials to Spartin.

Powell may have made" to the prosecutors. Id. at 192-93.

But Powell had knowingly misled the prosecutors when he

failed to disclose the fact that the demonstrators were "peace-

ful" and "not that disorderly." Id. at 193. This was suffi-

cient evidence "from which the jury could have concluded that

Chief Powell had procured the filing of informations...."5

Id.

We see two distinctions between Moore's case and Dellums

I. The first is that the postal inspectors themselves did not

make the misrepresentations, but allegedly caused Spartin to

make them. The district court did not rely on this distinction

and we think its effect is only to require Moore to prove an

additional link: but for the postal inspectors' disclosure of

grand jury testimony to Spartin, he would not have implicat-

ed Moore before the grand jury. See Keeton et al. s 119, at

873 (stating that significant "second-hand" involvement in

instigating a prosecution is sufficient).

The second distinction is that the misleading information

was presented to the grand jury. The district court made

much of this: "Moore has alleged only that the postal inspec-

tors influenced the grand jury's decision to indict ... Moore's

allegations ignore the fact that malicious prosecution requires

the initiation of a prosecution by the Executive Branch, not

the grand jury. Even if this Court could determine that

Spartin's testimony 'caused' the indictment, this would not

satisfy the first element because a grand jury indictment

cannot by itself initiate a prosecution." Mem. op. at 36-37

(footnotes omitted). We do not believe this accurately re-

flects District of Columbia law set forth in Davis v. Giles. A

criminal proceeding is a prerequisite to the malicious prosecu-

tion tort. If the proceeding starts with a grand jury indict-

ment and the defendant procured the indictment, the first

element of the tort is satisfied. When "an indictment is found

by a grand jury ... the return of the indictment ... marks

the institution of the proceedings." Restatement (Second) of

Torts s 654 cmt. c; see Keeton et al. s 119, at 871-72 ("The

__________

5 The court ordered a new trial, however, because of improper

jury instructions. See id.

initial step is of course a matter of the procedure of the

particular jurisdiction; and where prosecution is begun by an

indictment, or an information filed by the prosecuting attor-

ney, it seems clear that this should be enough, since it

constitutes official action and sets the law in motion.").

The government argues that because later actions--the

presentation of evidence to the grand jury, for instance--

were protected, Moore's case collapses. The district court

seemed to agree. See mem. op. at 37. If this were enough to

break the chain of causation, if the "discretionary function" of

presenting evidence to the grand jury or prosecuting the

plaintiff shielded prior misconduct from liability, a plaintiff

would never be able to make out a malicious prosecution

claim against the government. Yet the FTCA specifically

recognizes the tort of malicious prosecution. See 28 U.S.C.

s 2680(h). We think it follows that although a plaintiff may

not rely on an official's alleged misconduct during the exer-

cise of discretionary functions, this does not immunize earlier,

unprotected misconduct from ordinary principles of tort liabil-

ity. Cf. Jones v. City of Chicago, 856 F.2d 985, 994 (7th Cir.

1988); Restatement (Second) of Torts s 653 cmt. g.

For similar reasons we disagree with the district court that

Valder's continuation of the prosecution after the indictment

came down constituted an independent act that broke the

causal chain. See mem. op. at 37. Without the indictment

the prosecution could not have continued. See Fed. R. Crim.

P. 7(a). As we have said, if a prosecutor's continuation of a

prosecution automatically immunizes prior steps in the prose-

cution, then the whole notion of liability for maliciously "pro-

curing" a prosecution would disappear. "[A] prosecutor's

decision to charge, a grand jury's decision to indict, a prose-

cutor's decision not to drop charges but to proceed to trial--

none of these decisions will shield a police officer who deliber-

ately supplied misleading information that influenced the

decision." Jones v. City of Chicago, 856 F.2d at 994 (citing,

among other cases, Dellums I, 566 F.2d at 192-94); accord

Restatement (Second) of Torts s 653 cmt. g. On the other

hand, if Moore would have been indicted and prosecuted

anyway, even without the postal inspectors' alleged miscon-

duct and Spartin's testimony, then the United States cannot

be held liable. See Jones, 856 F.2d at 993. Since the case is

still at the pleading stage, there is no telling how the evidence

will turn out. All that concerns us now is that the complaint

sufficiently set forth the first element of the malicious prose-

cution tort. See Krieger v. Fadely, 2000 WL 489428, at *2

(D.C. Cir. May 5, 2000).

B. Abuse of Process

Under District of Columbia law, abuse of process occurs

when "process has been used to accomplish some end which is

without the regular purview of the process, or which compels

the party against whom it is used to do some collateral thing

which he could not legally and regularly be required to do."

Jacobson v. Thrifty Paper Boxes, Inc., 230 A.2d 710, 711

(D.C. 1967) (citing 1 Am. Jur. 2d Abuse of Process s 4 (1962)).

Local courts have emphasized that "[t]he critical concern in

abuse of process cases is whether process was used to accom-

plish an end unintended by law...." Morowitz v. Marvel,

423 A.2d 196, 198 (D.C. 1980); accord Bown v. Hamilton, 601

A.2d 1074, 1079 (D.C. 1992); see also Heck v. Humphrey, 512

U.S. 477, 486 n.5 (1994); Scott v. District of Columbia, 101

F.3d 748, 755 (D.C. Cir. 1997) ("The essence of the tort of

abuse of process is the use of the legal system 'to accomplish

some end which is without the regular purview of the pro-

cess....' " (quoting Bown v. Hamilton, 601 A.2d 1074, 1079

(D.C. 1992)). The Restatement also focuses on this element

of the tort: "For abuse of process to occur there must be use

of the process for an immediate purpose other than that for

which it was designed and intended." Restatement (Second)

of Torts s 682 cmt. b.

Moore's complaint failed to allege this critical element of

the abuse-of-process tort and, for this reason, the district

court properly rendered a judgment on the pleadings in favor

of the government. The only paragraph in the complaint

dealing with this tort alleged the following: "AUSA Valder

and the Postal Inspectors violated Federal Rule of Criminal

Procedure 6(e)(2), which protects the secrecy of Grand Jury

proceedings, by giving Spartin and former Postmaster Gener-

al Carlin access to the Grand Jury testimony of other wit-

nesses for the purpose of influencing Spartin's testimony and

for the apparent purpose of assisting Carlin, a private plain-

tiff, to pursue civil litigation in connection with his dismissal

from the Postal Service. The Postal Inspectors even gave

Carlin a copy of a draft indictment for his review." FTCA

Complaint p 26. As Moore sees it, his allegations regarding

Carlin are sufficient to make out a cause of action. But

nothing in paragraph 26 of the complaint speaks of using the

grand jury process for the purpose, immediate or otherwise,

of obtaining evidence to assist Carlin in bringing a civil suit.

The paragraph alleges only that the postal inspectors dis-

closed witness testimony and the draft indictment to Carlin.6

Disclosing information is a far cry from using the grand jury

to assist Carlin's civil litigation. If the complaint is true, the

postal inspectors violated the secrecy of the grand jury. But

that does not, in itself, constitute abuse of process. The

"process" here is the grand jury and the tort is made out only

if the grand jury is misused. Because Moore does not allege

the "critical concern" of abuse-of-process law--that the in-

spectors used the grand jury for an improper purpose--we

affirm the judgment of the district court.7

__________

6 Given that the indictment became public, we do not see how

letting Carlin look at the draft could have damaged Moore unless

the draft contained information omitted from the final version. We

shall assume that the draft contained such information and that it

was grand jury material.

7 We recognize that on Rule 12(c) motions "[w]e 'view the facts

presented in the pleadings and the inferences to be drawn there-

from in the light most favorable to the nonmoving party.' " Peters

v. National R.R. Passenger Corp., 966 F.2d 1483, 1485 (D.C. Cir.

1992) (quoting Jablonski v. Pan American Worldways, Inc., 863

F.2d 289, 290-91 (3d Cir. 1988)). Even if we were to stretch this

principle beyond its ordinary confines and infer that the postal

inspectors somehow used the grand jury process for the purpose of

obtaining evidence that they passed along to Carlin, Moore still

could not make out an abuse-of-process claim. For one thing,

Moore cannot base his abuse-of-process claim on the presentation of

Affirmed in part and reversed in part.

__________

evidence to the grand jury--that is a discretionary function immune

from suit under the FTCA. See Moore, 65 F.3d at 197; see also

Doe v. Stephens, 851 F.2d 1457, 1462-63 (D.C. Cir. 1988) (causing a

grand jury subpoena to issue falls within discretionary function

exception). For another, prosecutors, not postal inspectors, con-

vene and conduct grand jury proceedings--and the actions of a

prosecutor cannot give rise to an abuse-of-process claim under the

FTCA. See mem. op. at 32 & n.21 (citing 28 U.S.C. s 2680(h)).