Petition — Gray v. Bell

g3-933

In THE

ALEXANDER L. STEVASs

CLERK

Supreme Court of the United States

OCTOBER TERM, 1983

| L. PATRICK GRAY, III,

V.

Petitioner,

GRIFFIN BELL, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

FINLEY, KUMBLE, WAGNER,

HEINE, UNDERBERG,

MANLEY & CASEY

1120 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 857-4000

Alan I. Baron*®

Ellen Scalettar

Attorneys for Petitioner

*Counsel of Record

QUESTIONS PRESENTED

te Whether federal prosecutors and other

Department of Justice attorneys are acting

in an investigative capacity entitling

them to qualified immunity, or whether

they are acting in an advocatory capacity

entitling them to absolute immunity, when

they intentionally or recklessly present

false and misleading evidence to investi-

gating grand juries. ie

II. Whether federal prosecutors and other

Department of Justice attorneys violate

well-established constitutional rights of

which they should be aware when they

conduct a willfully misleading or grossly

negligent and inept investigation and

thereby prevent independent and informed

deliberation by investigating and indicting

grand juries.

III. Whether the willfull, malicious,

reckless and grossly negligent conduct of

federal prosecutors and other Department

of Justice attorneys in carrying out a

broad-scale, wide-ranging investigation

and presenting the results of that

investigation to investigating grand

juries falls within the discretionary

function exception of the Federal Tort

Claims Act, 28 U.S.C. §2680(a).

Iv. Whether the discretionary function

exception of the Federal Tort Claims Act,

28 U.S.C. §2680(a), applies to intentional

tort claims brought pursuant to the

Federal Tort Claims Act, 28 U.S.C.

§2680(h).

ii

PARTIES BEFORE THE UNITED STATES

COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

L. Patrick Gray, III, appellant

below, petitioner herein;

Griffin Bell, Benjamin Civiletti,

Paul R. Boucher, Dennis Dimsey, Daniel

S. FPriedman, William L. Gardner, Paul R.

Hoeber, John P. Lydick, Francis J. Martin,

Brian Murtaugh, Ira C. Pollack, J. Stanley

Pottinger, James C. Savage, Barnet D.

Skolnik, Janis Sposato, Breckinridge L.

Willcox and the United States of America,

appellees below, respondents herein.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED . ....-s. -»

TABLE OF AUTHORITIES .....

OPINIONS BELOW .... ++ «© @ «

JURISDICTION . . «© «© © © © © «© «

CONSTITUTIONAL AND STATUTORY

PROVIS IONS . * . . . . . . . . .

STATEMENT OF THE CASE... .

A. Jurisdiction of the District

Court and Procedural History

De Cen a ee eo 8 One ee ©

REASONS FOR GRANTING THE WRIT. .

A. Both Prior To And Since

This Court's Decision in

Imbler v. Pachtman, 424

U.S. 409 (19/6), Federal

Courts Have Been Unable

To Reach A Consensus On

The Proper Characterization

Of Various Forms Of

Prosecutorial Conduct ...

B. The Decisions Below Dis-

tort The Balance Achieved

By This Court's Recent

Statement Of The Test For

Qualified Immunity .....

C. Federal Courts Remain Unable

To Agree On The Proper

Scope Of The Discretionary

iv

av Ww w&

13

15

25

Function Exception Of The

Federal Tort Claims Act,

28 < R § 2680 (a) . . . . . 30

D. This Court Has Never Con-

sidered The Issue of

Whether The Discretionary

Function Exception Of

28 U.S.C. §2680(a) Applies

To Intentional Tort Actions

Permissible Under §2680(h) . 36

CONCLUS ION . . . . . . . . . . . 40

APPENDIX:

Opinion of the Court of

Appeals ..+«-+«-e«e-eee © © « A-1

Denial of Suggestion for

Rehearing En Banc . ....-e-s A-54

Denial of Petition for

Rehearing . «sees eevee e A-56

Opinion of the District

Court . . . . . . . . . . . >. . A-57

TABLE OF AUTHORITIES

Cases:

Blessing v. United States, 447

F.Supp. 11600 (B.D. pa. 1978) .. 35

Briggs v. Goodwin, 569 F.2d 10,

cert. denied, 437 U.S. 904 (1978) 18, 19,

20, 21, 22,

23, 24

Caban v. United States, 671 F.2d

& Ze . >. . .* . >. .

Dalehite v. United States, 346

U.S. a9 (1953) . . . . . . . .

Gray v. Bell, et al. 712 F.2d

134 a ais Met 6 «04 ‘so *

Harlow v. Fitzgerald, 457 U.S.

, eCBe (1982) . . .

Imbler v. Pachtman, 424 U.S.

6) . . . . . . . . . . .

Rodriguez v. Ritchey, 556 F.2d

Tiss (5th Cir. 37), cert.

denied, 434 U.S. 1947 . . . . .

Sami v. United States, 617 F.2d

.* >. Ze . . . . . .

Townsend v. Carmel, 494 F.Supp.

eDeGe . . . . . . . .

United States v. Ciambrone, 601

. Gale . >. . .

United States v. Dionisio, 410

U.s. 1 (1973) . . . . . . . a .

United States v. Gold, 470 F.Supp.

. . -~-* ) . *_ *

Wood v. Georgia, 370 U.S. 375

ok 6s 6-9, 08,8 oes

vi

29

27

16,

38

Constitutional Provision:

Fifth Amendment to the

Constitution of the United

States . o . . 7 . . . . . . . . 3e 27

Statutes:

Federal Tort Claims Act, 28

U.S.C., Sections 2671, et seq.,

(1976) (as amended) ....+.s-s 3-5,

14, 30,

31, 36,

37

Miscellaneous:

Reynolds, The Discretionary

Function Exception of the

Federal Tort Claims Act,

. . . . » . . . 35-36

vii

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

No.

L. PATRICK GRAY, III,

Petitioner

Vv.

GRIFFIN BELL, et al.,

Respondents

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

L. Patrick Gray, III, former acting

director of the Federal Bureau of Investi-

gation, by his counsel, respectfully prays

that a writ of certiorari issue to review

the decision of the United States Court

of Appeals for the District of Columbia

Circuit entered in this case on June 2l,

1983.

OPINIONS BELOW

The opinion of the United States

Court of Appeals for the District of

Columbia Circuit is published at 712 F.2d

490 (D.D.Cir. 1983) and appears in the

Appendix at A-l - A-53. (All references

hereafter to the Appendix shall be noted

by Appendix page number: A-__.) The

denial by the Court of Appeals of

petitioner's Petition for Rehearing and

Suggestion for Rehearing En Banc appears

at A-54 =- A-56, The opinion of the

United States District Court for the

District of Columbia is published at

542 F.Supp. 927 (D.D.C. 1982) and appears

at A-57 = A-79.

JURISDICTION

On June 21, 1983, a panel of the

United States Court of Appeals for the

District of Columbia Circuit affirmed the

district court's dismissal of petitioner's

amended compléint. Petitioner thereafter

?

2

timely filed a Petition for Rehearing and

Suggestion for Rehearing En Banc, which

was denied on August 18, 1983. A-54

- A-56. This petition is filed within

ninety (90) days of that date, pursuant

to Rules 29.2 and 20.4 of the Rules of

this Court, and pursuant to 28 U.S.C.

§210l(c). This Court's jurisdiction is

invoked under 28 U.S.C. §1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOKED

l. The Fifth Amendment to the

Constitution of the United States

provides, in pertinent part:

"([N]o person shall be held to

answer for a capital, or other-

wise infamous crime, unless on

a presentment or an indictment

of a Grand Jury .. . nor shall

any person .. . be deprived of

life, liberty or property

without due process of law."

2. The Federal Tort Claims Act,

28 U.S.C. §§2671, et seg., provides, in

pertinent part:

"The United States shall be

liable, respecting the pro-

visions of this title relating

to tort claims, in the same

manner and to the same extent

as a private individual under

like circumstances, but shall

not be liable for interest

prior to judgment or for

punitive damages."

28 U.S.C. §2674.

* * *

"The provisions of this chapter

- - « Shall not apply to-

(a) any claim... . based upon

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

Government, whether or not the

discretion involved be abused.

* * 2

(h) any claim arising out of

assault, battery, false imprison-

ment, false arrest, malicious

prosecution, abuse of process,

libel, slander, misrepresentation,

deceit or interference with

contract rights. Provided, That

with regard to acts or omissions

of investigativ™ or law enforce-

ment officers ox the United

States Government, the provisions

of this chapter and Section 1346(b)

4

of this Title shall apply to

any Claim arising, on or after

the date of the enactment of

this proviso, out of assault,

battery, false imprisonment,

false arrest, abuse of process

or malicious prosecution. For

the purposes of this subsection,

‘investigative or law enforce-

ment 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."

28 U.S.C. §§2680(a) and (h).

STATEMENT OF THE CASE

A. Jurisdiction Of The District Court

And Procedural History

This action was originally filed in

the United States District Court for the

District of Columbia. Subject matter

jurisdiction in that court was based upon

28 U.S.C. §1331(a) and 28 U.S.C. §1346(b).

The district court granted defendants’

motion to dismiss plaintiff's amended

complaint, A-79, and the United States

Court of Appeals for the District of

Columbia affirmed that dismissal. In

5

light of this procedural history, the

well-pleaded allegations of the amended

complaint are taken as true, Gray v. Bell,

et al., 712 F.2d 490, 493 (D.C. Cir. 1983),

citing Gardner v. Toilet Goods Ass'n, 387

U.S. 167, 172 (1967), and form the factual

basis for this Petition.

B. Facts

In April, 1976, the United States

Department of Justice initiated a broad-

scale investigation to determine whether

members of the Federal Bureau of Investi-

gation ("FBI") had engaged in unlawful

activity in efforts to apprehend certain

fugitives belonging to the so-called

"Weatherman" organization. In particular,

the investigation sought to determine

whether there had been warrantless, sur-

cepeltious eateries into the homes of

friends and relatives of those fugitives

and, if such entries had occurred, who was

responsible for their authorization and

6

execution.

On April 10, 1978, approximately two

years after the inception of this investi-

gation, a grand jury sitting in the

District of Columbia returned an

indictment charging petitioner L. Patrick

Gray, III and others with having conspired

to deprive relatives and acquaintances of

the Weatherman fugitives of certain con-

stitutional rights. Mr. Gray had served

as Acting Director of the FBI from May 3,

1972 to April 27, 1973.

On December 10, 1980, over two and a

half years after the indictment was

returned, the Government filed a Nolle

Prosequi in the United States District

Court for the District of Columbia,

acknowledging that the case against Gray

should be dismissed because the evidence

against Gray was, in the Government's

words, “unconvincing”.

-

The respondents in this case, either

directly or in supervisory roles, con-

ducted the lengthy and far-flung investi-

gation which resulted in Gray's indictment

and they were responsible for the pre-

sentation of evidence to the grand juries

which investigated the allegations of FBI

misconduct.

In their investigation, respondents

did not find any evidence that Gray had

any knowledge of the specific entries which

were the subject matter of the indictment.

Indeed, Gray did not know of the entries

until years after he had returned to

private life. The theory of the prosecu-

tion, rather, was that Gray had given

generic authoritization for the use of sur-

reptitious entries ("bag jobs" in FBI

argot) into the residences of friends and

relatives of the Weatherman fugitives.

According to the indictment, this generic

authorization allegedly occurred at two

conferences of Special Agents in Charge

("SAC conferences") held in September,

1972.

In fact, however, documents reviewed

and obtained by respondents themselves

during their investigation demonstrated

that Gray never gave any such generic

authorization at the September SAC con-

ferences. Respondents never revealed

those documents, or their contents, to the

grand juries. Respondents likewise with-

held from the grand juries testimony and

witnesses exonerating Gray from having

given generic authorization for Weatherman

bag jobs at the SAC conferences.

Respondents not only withheld from

the grand juries overwhelming evidence of

Gray's innocence or tending to exonerate

Gray, which evidence was in their pos-

session or control. They also refused

9

to accept or acknowledge further such

evidence which was made available to them

during the course of their wide-ranging

investigation.

Gray's amended complaint includes

several specific examples of respondents'

grossly negligent and willfull misconduct.

In summary, the facts establish that

respondents gathered information and pre-

sented "evidence" to investigating grand

juries in a wholly distorted and misleading

fashion; that virtually no reliable

information tending to incriminate Gray was

presented to the grand juries; that

respondents presented voluminous false and

misleading information tending to incrimate

Gray; and that respondents withheld over-

whelming evidence of Gray's innocence or

tending to exonerate him from inferences

of wrongdoing.

10

After the Government filed its Nolle

Prosequi dismissing the criminal case

against him, Gray filed this lawsuit

against respondents herein for violation of

his constitutional rights to due process of

law and to be free from indictment except

by an independent, impartial and well-

informed grand jury. Gray's amended

complaint includes four counts. The

gravamen of Count I is that the constitu-

tional violations resulted from respondents'

reckless, grossly negligent and inept in-

vestigation of possible illegal activity by

the FBI or its agents which led to the pre-

sentation of false and misleading information

to the grand juries. Count II alleges that

respondents willfully and maliciously

violated Gray's constitutional rights by

intentionally and maliciously failing to

obtain or develop and by concealing relevant

evidence favorable to Gray during the course

ll

of respondents’ investigation, and in

knowingly and maliciously presenting false,

incomplete, and inaccurate information to

federal grand juries. Count III realleges

the claims of Counts I, II and IV, as

against the United States of America,

pursuant to the Federal Tort Claims Act,

and Count IV states a claim for malicious

prosecution.

Respondents moved to dismiss the case

and on duly 9, 1962, Chief Judes Jobe

Lewis Smith, Jr. granted their motion.

Petitioner timely filed an appeal in the

United States Court of Appeals for the

District of Columbia. After briefing

and oral argument, the Court of Appeals

affirmed the district court's dismissal

on four grounds, which, as discussed in

the following section, merit the con-

sideration of this Cour.

12

REASONS FOR GRANTING THE WRIT

The Court of Appeals decided four

important questions of federal law which

have not been, but should be, settled by

this Court. The appellate court held

that:

1. All conduct of the respondents

before the various grand juries was

"advocatory and therefore entitled to

absolute immunity," A-23;

2. Assuming, but not deciding, that

only qualified immunity applied to

respondents’ pre-indictment investigation,

Gray could not overcome that immunity

because respondents had not violated any

"clearly established constitutional or

statutory requirement in conducting their

pre-indictment investigation," A-29;

3. Respondents’ investigation and

presentation of evidence to the various

grand juries were discretionary acts

13

within the meaning of the Federal Tort

Claims Act, 28 U.S.C. §2680(a), and were

therefore not within the FTCA waiver of

sovereign immunity, A-46 - A-53; and

4. The discretionary function

exception of 28 U.S.C. §2680(a) applies to

the intentional tort proviso of 28 U.S.C.

§2680(h) and therefore bars Gray's

malicious prosecution claim as well as his

constitutional tort claims, A- 33 - A-35,

These rulings expand the protection

of federal officials and of the United

States previously afforded by this Court,

and correspondingly reduce the remedies

available to those injured by wrongful

governmental conduct. The rulings leave

Gray and others similarly situated without

redress of any kind for injuries caused by

willfull and malicious conduct of federal

officials.

14

A. Both Prior To And Since

This Court's Decision In

Imbler v. Pachtman, 424 U.S.

6), Federal Courts

Have Been Unable To Reach A

Consensus On The Proper

Characterization Of Various

Forms of Prosecutorial Conduct.

In Imbler v. Pachtman, 424 U.S. 409

(1976), this Court held that prosecutors

are immune from civil suits for damages

based upon their “initiating a prosecution

and .. . presenting the State's case. .

- «" 424 U.S. at 431. The Imbler Court

did not "consider whether like or similar

reasons require immunity for those aspects

of the prosecutor's responsibility that

cast him in the role of an administrative

Or investigative officer, rather than that

of an advocate,” 424 U.S. at 430-31, but

noted that such a distinction had been

recognized by various federal courts.

424 U.S. at 430.

Since the Imbler decision, federal

courts have continued to recognize that the

15

degree of immunity afforded a prosecutor

depends upon a functional analysis of the

conduct giving rise to a civil claim

against him. E.g., Gray v. Bell, et al.,

712 F.2d at 499, 500; A-16 - A-18. Those

courts have also found that "[(d)elineation

of the precise scope of protected advocatory

conduct beyond the boundaries established

in Imbler has proved to be exceedingly

difficult." 712 F.2d at 499; A-17.

The Circuit Court panel which decided

this case stated that the absence of a

“clear consensus on how to properly

characterize all of the various forms of

prosecutorial conduct ... . is plainly

attributable to an absence of any settled

approach to determining when absolute

immunity applies." 712 F.2d at 500

(emphasis added); A-18.

In footnote 24, the Circuit Court gave

concrete examples of conflicting line-

16

drawing among federal courts:

"24. Compare Atkins v. Lanning,

556 F.2d 485 (supervision of

police dragnet operation that

resulted in plaintiff's illegal

arrest held to be advocatory)

with Apton v. Wilson, 506 F.2d

83 (supervision of police

activities resulting in

plaintiff's illegal urrest at

May Day demonstration held to

be non-advocatory); Heidleber

v. Hammer, 577 F.2d 429 (7th

Cir. 1978) (destruction of

evidence held to be advocatory)

with Henderson v. Fisher, 631

F.2d IIIS (3d Cir. 1580) (per

curiam) (knowing failure to

preserve exculpatory evidence

held to be non-advocatory)

and Wilkinson v. Ellis, 484

F.Supp. 1072 (destruction of

evidence held to be non-advoca-

tory); Daniels v. Keiser, 586

F.2d 64 (direction of material

witness' illegal detention held

to be advocatory) with Redcross

v. County of Rensselaer, 511

F.Supp. tea (N.D.N.Y. 1981)

(direction of material witness'

illegal detention held to be

non-advocatory).”

712 F.2d at 500; A-18.

The instant case is a further example

of inconsistent line-drawing: here within

the District of Columbia Circuit itself.

The Circuit Court opinion in this case is

17

in direct conflict with its earlier

decision in Briggs v. Goodwin, 569 F.2d

10 (D.C. Cir. 1977), cert. denied 437 U.S.

904 (1978). While conflicts within a

circuit may generally be less significant

than those among circuits, District of

Columbia precedent is extremely important

in this area of the law because of the

concentration of governmental activity

in that jurisdiction.

In Briggs, suit for deprivation of

constitutional rights was brought against

Goodwin, a Department of Justice attorney

who was “appointed to serve as a Special

Attorney for the investigation and pro-

secution of certain federal crimes which

had allegedly occurred" in Florida. 569

F.2d at 13.

On the day of Goodwin's appointment,

20 members of an anti-war organization,

VVAW/WSO, were served with subpoenas to

appear before a federal grand jury in

18

Florida. Counsel for certain of the

subpoenaed individuals, after learning of

recurrent rumors that their clients'

Organization had been infiltrated by

police and FBI agents, moved the local

federal district court to direct Goodwin

and his associates "to disclose any agents

or informers among those subpoenaed." Id.

In response, the court requested a list of

the witnesses and their counsel, which was

provided orally on the record in open court,

and which included a witness named Emerson

Poe.

The following day, the court held a

hearing on the motion during which it

directed Goodwin to take the witness stand,

and be sworn. The court then asked Goodwin

whether any of the witnesses represented by

counsel were government agents or inform-

ants. Goodwin replied in the negative and

was dismissed from the stand. Movants’

counsel were denied permission to question

Goodwin. Id. .

19

Indictments were returned against

various members of the VVAW for allegedly

conspiring to disrupt the 1972 Republican

National Convention, a trial was held, and

the defendants, plaintiffs in the civil

action against Goodwin, (hereinafter

“plaintiffs"), were acquitted. Between

the time of indictment and of trial,

plaintiffs learned that Emerson Poe was in

fact an FBI informant and that he had pro-

vided information to federal investigators

prior to and after the grand jury pro-

ceedings and indictments.

Plaintiffs brought suit against Goodwin

in the United States District Court for the

District of Columbia alleging violation of

constitutional rights and injury

"arising from [Goodwin's]

representation to the Florida

court that no informants were

among those individuals

ordered to appear before the

grand jury."

569 F.2d at 14. Goodwin moved to dismiss

the complaint stating, in pertinent part,

20

that as a special attorney of the United

States Department of Justice he was

absolutely immune from suit under the

doctrine of quasi-judicial immunity. The

motion was denied and the Court of Appeals

reviewed the issue pursuant to a certified

interlocutory challenge. 569 F.2d at 15.

Relying on Imbler v. Pachtman and on

a "series of federal decisions distinguish-

ing between a prosecutor's role as

advocate, on the one hand, and his function

as an administrative or investigative

officer, on the other," Briggs, 569 F.2d

at 16, the United States Court of Appeals

for the District of Columbia held that

Goodwin was entitled only to a qualified

immunity for the actions complained of by

plaintiffs.

Goodwin's activity was found to be

essentially investigative because, at the

time of his false statements to the court,

Goodwin's

2)

“primary task in Florida was

to determine whether any

violations of federal law

properly attributable to the

VVAW or its members had

occurred. If any such

federal crimes had been com-

mitted, Goodwin was to

ascertain the precise nature

of those crimes and the

identity of VVAW members to

whom criminal liability might

attach.”

Briggs v. Goodwin, 569 F.2d at 24.

Likewise, the gravamen of Gray's

complaint is that respondents acted in a

willfull, malicious and reckless manner

at a time when their "primary task", id.,

was to conduct "a broad-scale investigation

into possible illegal activity by the FBI

or its agents." (Amended Complaint, 442, 31.)

Furthermore, the only reasonable inference

to be drawn from the specific allegations

of Gray's complaint is that, as in Briggs,

if "any .. . federal crimes had been com-

mitted, [the respondents were] to ascertain

the precise nature of those crimes and the

identity of [FBI] members to whom criminal

22

liability might attach." 569 F.2d at 24,

The Briggs court specifically noted

that

"(t]he grand jury was to function

in the first instance as an

investigative tool, rather than

in its more familiar guise as a

deliberative body deciding

whether to return indictments

for specific crimes on the

basis of evidence gathered and

presented by a public prosecutor.

The grand jury proceeding in this

case was designed as a broad-

scale investigation into possible

illegal activity by the VVAW or

its members."

569 F.2d at 24.

As evidence of the investigative

nature of the grand jury, the Briggs court

relied on the “ongoing character of the

grand jury process," id., which was demon-

strated by the fact that certain plaintiffs

were indicted "more than three months after

[Goodwin's] investigation began". Id.

Likewise, in the instant case, the

grand juries were reviewing evidence for

two years before the indictment of Gray was

23

returned; several grand juries were

involved; and respondents “had embarked

On what was fundamentally a fact-finding

mission... ." Briggs, 569 F.2d at

24. Nevertheless, the Circuit Court held

that all conduct by respondents before the

grand juries over the two-year period was

advocatory and therefore protected by

absolute immunity. Gray v. Bell, 712 F.2d

at 503; A-24 - A-25. The proper character-

ization of prosecutorial conduct before

investigating grand juries, and the degree

of immunity properly afforded in that

context thus remain unsettled issues of

tremendous importance nationwide.

In Imbler, this Court recognized that

"Drawing a proper line between

{various prosecutorial]

functions may present difficult

questions, but this case does

not require us to anticipate

them.”

Imbler v. Pachtman, 424 U.S. at 43l, fn. 33.

24

It is respectfully suggested that the

instant case is the appropriate vehicle

for Supreme Court review of this difficult

question.

B. The Decisions Below Distort

The Balance Achieved By This

Court's Recent Statement Of

The Test For Qualified Immunity.

In Harlow v. Fitzgerald, 102 S.Ct.

2727 (1982), this Court restated the test

for qualified immunity of government

officials:

"(Glovernment officials per-

forming discretionary

functions are shielded from

liability for civil damages

insofar as their conduct

does not violate clearly

established statutory or

constitutional rights of

which a reasonable person

would have know.

102 S.Ct. at 2738.

The Circuit Court found that the

Harlow standard provided protection for

respondents in this case because “any

arguable ‘duty under the Fifth Amendment

25

to conduct a careful, thorough pre-

indictment investigation .. . was not

Clearly established at the time of [the

government's alleged] actions.'”" 712 F.2d

at 505; A-29, quoting the district court

Opinion, 542 F.Supp. at 931, n. 5; A-68,

This statement does not, however, apply the

Harlow test as enunciated by this Court.

The opinions below improperly shifted

the focus of the qualified immunity test.

Instead of asking whether respondents

violated any well-established constitutional

right, the courts asked whether the means

used to violate those rights were well-

established as unconstitutional. Although

the differences in these statements of the

test may appear minor, they can lead to

drastically different results.

In the instant case, petitioner has

claimed violation of his constitutional

right not to be indicted except by an

26

independent, well-informed grand jury.

That right is guaranteed by the Fifth

Amendment to the Constitution of the

United States:

"(N]o person shall be held to

answer for a capital, or

Otherwise infamous crime,

unless on a presentment or an

indictment of a Grand Jury

+ « « nor shall any person...

be deprived of life, liberty

Or property without due

process of law."

In a long line of cases, it has been

recognized that the Fifth Amendment grand

jury provision guarantees the right of an

individual to an unbiased, independent and

informed grand jury, standing between him

and the arbitrary actions of the state.

E.g., United States v. Dionisio, 410 U.S.

1, 16-17 (1973) (the mission of the grand

jury "is to clear the innocent, no less

than to bring to trial those who may be

guilty"); Wood v. Georgia, 370 U.S. 375,

390 (1962) (recognizing the "necessity to

society of an independent and informed

27

grand jury" and explaining that the grand

jury "has been regarded as a primary

security against hasty, malicious and

Oppressive prosecution ... .").

Violation of this well-established

constitutional right, whether by conduct

previously identified as wrongful or by

innovative means, defeats a claim of

qualified immunity. Thus, even assuming

that the courts below were correct in

Stating that there was no clearly estab-

lished duty to conduct a thorough pre-

indictment investigation, that statement

does not satisfy the Harlow test for

applying qualified immunity.

In any event, however, the prosecution

knew or should have known that their

conduct would violate well-established

constitutional rights. In practice and in

fact, respondents had the responsibility of

gathering and presenting to the grand

juries sufficient evidence for them to

28

properly function. Grand juries are almost

totally under the control of the federal

prosecutor. See, United States v. Ciambrone,

601 F.2d 616, 622 (2d Cir. 1979) ("As a

practical matter .. . [the grand jury]

must lean heavily upon the United States

Attorney as its investigator and legal

advisor to present to it such evidence as

it needs for its performance of its

functions and to furnish it with control-

ling legal principles.") See also, United

States v. Gold, 470 F.Supp. 1336, 1346

(N.D. Ill. 1979) ("{A] prosecutor who

presents a case to a grand jury has the

obligation of preserving fairness,

impartiality, and lack of bias of this

important governmental investigative body.

He cannot inflame or otherwise improperly

influence grand jurors against any

person... ."); Rodriguez v. Ritchey,

556 F.2d 1185, 1201, 1205, 1206, 1207 (Sth

Cir. 1977) (Goldberg, Circuit Judge, with

29

whom Brown, Chief Judge, Wisdom, Coleman,

Morgan and Rooney, Circuit Judges, join,

dissenting) (When prosecutors are acting

as investigators, they "[s]Jurely .

must exercise some care... . The

Constitution does impose a duty upon

government investigators,” to conduct

investigations reasonably and in goa

faith).

It is respectfully submitted that

this Court should grant the writ on this

issue in order to clarify the Harlow test

and to assure uniformity in its application.

C. Federal Courts Remain

Unable To Agree On The Proper

Scope Of The Discretionary

Function Exception Of The

Federal Tort Claims Act,

28 U.S.C. §2680(a).

In the Federal Tort Claims Act, 28

U.S.C. §§2671, et seg., the United States

waived its sovereign immunity, with certain

limitations. The most troublesome limi-

tation has been the discretionary function

30

exception, which provides, in pertinent

part

"The provisions of this chapter

. « « Shall not apply to-

(a) any claim... . based upon

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

Government, whether or not the

discretion involved be abused

"

28 U.S.C. §2680(a). According to the

United States Court of Appeals for the

Second Circuit:

"The discretionary function

exception to the FTCA has

presented the courts with

problems almost from the

time of its enactment in

1946. The principal dif-

ficulty is simply that all

federal employees exercise

a certain amount of discretion

in the discharge of their

responsibilities. In short,

no federal employee is a

robot. But if discretion

means what Webster's says it

means -- the ‘power of free

decision or latitude of choice

within certain legal bounds,'

Webster's Seventh New Collegiate

Dictionary 238 (7th ed. 1965) -=-

31

then this exception swallows the

general rule that waives the

United States' immunity to suits

arising out of its employees'

actions. Over the years, the

courts have drawn this elusive

line between protected and

unprotected activities with

varying degrees of success.

See, e.g., the discussion in

Hendry v. United States, 418

F.2d aL 780-62 (2G cir.

1969) ."

Caban v. United States, 671 F.2d 1230,

1232 (2d Cir. 1982).

In the instant case, the Court of

Appeals for the District of Columbia

likewise acknowledged that "the obscurity

of this area is matched only by its wealth

of conclusory analytical labels [and that]

wading through the relevant case law is

surprisingly difficult." 712 F.2d at 507;

A-32 - A-33. The court went on to conclude

that respondents' misconduct fell within

32

the discretionary function exception.

The court started with the malicious

prosecution count, which it characterized

as a challenge to the prosecutorial

decision “whether, when and against whom

to initiate prosecution ... ." 712 F.2d

at 513; A-47. The court found these to

be "quintessential examples of government-

al discretion." Id. The court then

excluded the constitutional tort claims

as barred by the exception because they

were “too intertwined with purely

discretionary decisions of the prosecutors

to be sufficiently separated from the

initial decision to prosecute." 712

F.2d at 515-516; A-5l.

The gravamen of Gray's amended

complaint, however, is not the decision

to prosecute. It is rather respondents'

investigatory, fact-finding activities,

which included the misrepresentation of

33

material facts to the investigating grand

juries, and which ultimately led to Gray's

indictment by a grand jury. Those

activities do not fall within the

exception as it has been applied in

several recent cases.

The District of Columbia circuit,

for example, previously defined discretion-

ary actions as those which are "fraught

with foreign relations or other public

policy considerations." Sami v. United

States, 617 F.2d 755, 767 (D.C.Cir. 1979).

Applying that test, it is conceivable that

the initial decision which may have been

made by one or more of the respondents

to conduct a broad-scale investigation of

the FBI could fall within the exception.

Gray does not, however, complain of that

initial decision; his claims are based

upon the improper, tortious, and con-

stitutionally defective manner in which

34

the investigation was carried out. There

is no evidence whatsoever in the record

that would bring those allegations within

the Sami interpretation of the exception.

Although this Court has considered

the discretionary function exception,

notably in Dalehite v. United States,

346 U.S. 15 (1953), courts and commentators

have found that the area remains confusing,

and that the exception is not applied in a

uniform manner. E.g., Blessing v. United

States, 447 F.Supp. i160, 1172 (E.D. Pa.

1978) ("Unfortunately, despite the Court's

efforts, Dalehite seems to have left the

meaning of the discretionary function

exception somewhat unclear, with the

result that lower court decisions since

Dalehite do not comprise a particularly

coherent body of case law"); Reynolds,

The Discretionary Function Exception of

the Federal Tort Claims Act, 57 Geo.L.J.

35

81, 126 ("The only Supreme Court

authority is the broad use of the

exception in Dalehite, now of questionable

authority").

The availability of relief from the

United States to those injured by wrongful

conduct by government employees or

officials should be uniform throughout the

country. A ruling by this Court on the

proper scope and interpretation of the

discretionary function exception would

advance that uniformity of application

and would decide an issue of tremendous

importance nationwide.

D. This Court Has Never

Considered The Issue Of

Whether The Discretionary

Function Exception of

28 U.S.C. §2680(a) Applies

To Intentional Tort Actions

Permissible Under §2680(h).

Although the FTCA specifically dis-

allows actions for certain intentional

torts in §2680(h), that section was amended

36

in 1974, to allow such claims in limited

circumstances:

"The provisions of this chapter

- « Shall not apply to--

* * *

(h) any claim arising out of

assault, battery, false

imprisonment, false arrest,

malicious prosecution, abuse

of process, libel, slander,

misrepresentation, deceit or

interference with contract

rights. Provided, That with

regard to acts or omissions

of investigative or law

enforcement officers of the

United States Government, the

provisions of this chapter

and Section 1346(b) of this

Title shall apply to any claim

arising, on or after the date

of the enactment of this proviso,

out of assault, battery, false

imprisonment, false arrest,

abuse of process or malicious

prosecution. For the purposes

of this subsection, ‘investi-

gative 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."

28 U.S.C. §2680(h).

The Circuit Court held that the

discretionary function exception of

37

§2680(a) was fully applicable to an

action brought under §2680(h). 712 F.2d

at 507-08, A-33 - A-35. Based upon its

Getermination that all conduc< complained

of was discretionary, the court concluded

that Gray's malicious prosecution claim

under §2680(h) was barred.

Unlike the Circuit Court opinion in

this case, the court in Sami v. United

States, 617 F.2d 755, 767-68, expressed

"some uncertainty as to

whether in enacting the law

enforcement proviso to the

§2680(h) exception Congress

meant to preserve the dis-

cretionary exception at all

for those enumerated torts

contained in the proviso.

See discussion in Boger,

Gitenstein & Verkuil, The

Federal Tort Claims Act

Intentional Torts Amendment:

An ao cergretara Analysis,

eGe . ev. , sae

(1976).

Neither the amendment nor the

Senate report is explicit as

to the applicability of

§2680(a) to §2680(h). The

amendment, speaking as it

does of assault, battery,

false impriso n $

38

arrest, abuse of process and

malicious prosecution, surely

envisioned at a minimum an

interpretation of §2680(a

that would not immunize the

wrongful or negligent carrying

out Of initial decisions to

search, arrest, detain,

prosecute or utilize legal

process. For example, the

anguage of the proviso would

not support an exemption for

reckless destruction of

property perpetrated in the

course of an otherwise legal

search." (Footnote omitted;

emphasis added.)

The United States District Court for the

District of Columbia has also expressed

doubt that the §2680(a) exception applies

to §2680(h) intentional tort claims.

Townsend v. Carmel, 494 F.Supp. 30, 36-37

(D.D.C. 1979).

Recovery for intentional torts under

§2680(h) may be severely limited by appli-

cation of the discretionary function

exception to that section. The appli-

cability of the exception is an issue

of crucial importance in applying the

39

intentional tort proviso of the FTCA and

merits review by this Court.

CONCLUSION

For all the foregoing reasons, a

writ of certiorari should issue to review

the judgment and opinion of the United

States Court of Appeals for the District

of Columbia in this case.

Respectfully submitted,

Alan I. Baron

(Counsel of Record)

Ellen Scalettar

FINLEY, KUMBLE, WAGNER,

HEINE, UNDERBERG,

MANLEY & CASEY

1120 Connecticut Ave.,

N.W.

Washington, D.C. 20036

(202) 857-4000

Attorneys for Petitioner

November 16, 1983

40

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

L. PATRICK GRAY, III

Petitioner

v.

GRIFFIN BELL, et al.

Respondents

APPENDIX

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No, 82-1838

L. PATRICK GRAY, III, APPELLANT

v.

GRIFFIN BELL, ET AL.

Appeal from the United States District Court

for the District of Columbia

(D.C, Civil Action No, 81-00836)

Argued February 23, 1983

Decided June 21, 1983

Alan I. Baron and Ellen Scalettar for appellant.

John Oliver Birch, Assistant United States Attorney,

with whom Stanley S. Harris, United States Attorney,

Royce C. Lamberth, R. Craig Lawrence and Valerie K.

Schurman, Assistant United States Attorneys, were on

the brief, for appellees.

Before: MIKVA, EDWARDS and SCALIA, Circuit Judges.

Opinion for the Court filed by Cirewit Judge EDWARDs.

Bills of costs must be filed within 14 days after entry of judgment. The

court looks with disfavor upon motions to file bills of costs out of time.

2

TABLE OF CONTENTS

Page

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PD RRP ere ee ene LEER aN SEE 3

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A. Introduction: The Basic Concept of Official

PIII cscccsstsetnstinsanaciahcesihine ini 9

B. Absolute Prosecutorial Immunity .........000000.. 12

1. The Rationale for According Absolute Im-

munity to Prosecutors ...........cccccccccccsccceeeceees 12

2. The Scope of Absolute Prosecutorial Im-

SRE cccnisinintactasseasncintbidublaiatichediinihidcsdic sien 14

C. Application of Official Immunity In This Case.. 22

1. Counts One and Two: The Constitutional

CORITEIIED. snssaissisinbiansnkicatssnanstsicnttadlemsilicbiniiidiekiabidiads 22

(a) Conduct Before the Grand Juries ........ 23

(b) Other Pre-Indictment Conduct ............ 28

2. Count Four: The Malicious Prosecution

IIIIED <sascconncssssiniisssachaaiiestadtnisdineampasnasdanacbaabece tires: 29

_, ar a en eet enrol $1

A. The “Investigative or Law Enforcement Officer”

Proviso to 28 U.S.C. § 2680 (h) 0... ccecccceeees 33

B. The Language and Legislative History of 28

Ros MON cic ttnnsncictinnininiametenisimsiiides 35

C. The Purpose of a Governmental Immunity for

I UD ccinicninsisnssacenitainctiaiaitahnanitashaueiinns 38

D. The Case Law Interpretation of the Discretion-

ary Function Exception ................ccccccccccsseesseeees 43

E. Application of the Discretionary Function Ex-

GUINEA TE TIS GI cestestencnssccnnincecsintnmsiccteenmetined 46

Re CI cccectcnttinitninssnnitsncinhebitniiniiniapinnindiniiatinns 58

A-2

3

EDWARDS, Circuit Judge: Beginning in the Spring of

1976, the Justice Department conducted a two-year in-

vestigation of alleged Federal Bureau of Investigation

(“FBI”) break-ins against various relatives and ac-

quaintances of suspected members of the Weatherman

Underground Organization. Following this investigation,

the appellant, L. Patrick Gray, III, who served as Act-

ing Director of the FBI during the Nixon administration,

was indicted by a federal Grand Jury for conspiracy to

violate the rights of citizens. Government prosecutors

subsequently acknowledged serious weaknesses in their

case and agreed to voluntary dismissal. Gray believed

that the indictment never should have been returned.

‘Alleging gross negligence and malice in the Justice De-

partment’s pre-indictment investigation and Grand Jury

presentations, he brought this suit for damages against

the United States, former Attorney General Griffin Bell

and certain other alleged participants in the prosecution.

The trial court dismissed the complaint, holding, inter

alia, that the individual defendants are protected by ab-

solute official immunity, and that the United States is

protected by the reservation of sovereign immunity in the

“discretionary function” exception to the Federal Tort

Claims Act (“FTCA”).' 542 F. Supp. 927. We affirm.

I. BACKGROUND

A. Facts

We take the following factual allegations to be true.?

In April 1976, the Justice Department commenced an in-

1 Act of Aug. 2, 1946, ch. 753, §§ 401-424, 60 Stat. 812,

842-47 (codified as amended in scattered sections of 28 U.S.C.).

In evaluating the propriety of the grant of a motion to

dismiss, we must of course accept all well pleaded allegations

of the complaint as true. See Gardner v. Toilet Goods Ass'n,

887 U.S, 167, 172 (1967). Dismissal is proper only if “it ap-

pears beyond doubt that the plaintiff can prove no set of facts

in support of his claim which would entitle him to relief.”

Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

A-3

4

vestigation into the FBI’s use of illegal break-ins against

family members and friends of Weatherman suspects.

During the course of and as part of this inquiry, prose-

cutors presented evidence to several Grand Juries. The

investigation culminated in April 1978 when a Grand

Jury sitting in Washington, D.C., indicted Gray and two

other high-ranking FBI officials, W. Mark Felt and Ed-

ward S. Miller, for having conspired to deprive certain

relatives and acquaintances of Weatherman fugitives of

their rights under 18 U.S.C. § 241 (1976).*

The Government’s case against Gray rested principally

on his alleged issuance of generic authorization of sur-

reptitious entries into the residences of friends and rela-

tives of Weatherman fugitives. According to the indict-

ment, Gray’s authorization was issued in September of

1972, during two conferences of FBI Special Agents in

Charge (“SAC”). In their Grand Jury presentations,

representatives of the Justice Department “claimed that

their investigation revealed that 67 persons attended

those two SAC conferences, that 9 persons could provide

testimony to support their ‘generic authorization’ theory,

and that the remaining 58 persons had no recall one way

or the other of relevant assertions by ([Gray].” Amended

Complaint and Demand for Jury Trial, reprinted in J.A.

9-10.

ae indictment charged that Gray, Felt and Miller con-

spi

to injure and oppress citizens of the United States who

were relatives and acquaintances of Weatherman fugi-

tives, in the free exercise and enjoyment of certain rights

and privileges secured to them by the Constitution and

laws of the United States, including the right secured to

them by the Fourth Amendment to the Constitution of the

United States to be secure in their homes, papers and

effects against unreasonable searches and seizures.

Amended Complaint and Demand for Jury Trial, Exhibit A,

reprinted in Joint Appendix (“J.A.”) 1, 36. Felt is a former

Acting Associate Director of the FBI, and Miller is a former

Assistant Director the FBI's Intelligence Division.

A-4

5

An independent post-indictment investigation by Gray’s

attorneys brought out serious gaps in the generic author-

ization theory and revealed the Justice Department’s in-

vestigation to have been incomplete in several important

respects. Government investigators failed to take ac-

count of a significant number of persons in attendance at

the SAC meetings who stated that they did not recall

Gray authorizing any surreptitious entries and that they

would not have likely forgotten such an instruction.

Furthermore, two of the nine witnesses whose testimony

purportedly supported the generic authorization theory

specifically said Gray had not given such a directive at

the September 1972 meetings. Government investigators

also had or could have obtained FBI Agents’ detailed

notes of what transpired at the SAC conferences and

these notes failed to show that Gray had authorized the

use of surreptitious entries.

Gray claims that, as a direct result of these investiga-

tive deficiencies, the prosecution’s presentation to the in-

dicting Grand Jury gave a wholly inaccurate and dis-

torted picture of what went on at the SAC conferences.

Prosecutors failed to call witnesses who, had they been

adequately interviewed or interviewed at all, would have

testified favorably to Gray. There was no attempt to

apprise the Grand Jury of the existence of contempora-

neous notes omitting mention of the alleged blanket au-

thorization. The testimony of the notetakers was not pre-

sented to the Grand Jury. And one witness who gave in-

criminating testimony later said that he would not have

so testified had his memory been refreshed by the notes.

Gray also contends that the prosecutors affirmatively

misled and presented what proved to be false evidence to

the indicting Grand Jury. For example, Gray asserts that

the prosecutors represented that: (1) the break-ins had

begun after Gray was appointed Acting Director, when

in fact break-ins had begun two years before Gray’s ap-

pointment; and (2) in October 1972 Gray had approved

A-5

6

a training lecture on the use of illegal break-ins as an

investigative technique, when in fact the agent who al-

legedly gave the lecture was suspended from duty at the

time the training course was supposed to have taken

place.

Gray forcefully urges that all of these cited investiga-

tive and prosecutorial omissions, deficiencies and misrep-

resentations resulted from either gross negligence or will-

ful and wanton disregard for his rights.

B. Judicial Proceedings

On March 5, 1979, District Court Judge Bryant sev-

ered Gray’s trial from the trial of Felt and Miller.

Gray’s trial was then scheduled to follow the trial of his

alleged compatriots. In August 1980, shortly before com-

mencement of the trial of Felt and Miller, Gray moved

to dismiss the indictment against him on the grounds of

prosecutorial misconduct in the Government’s investiga-

tion and Grand Jury presentations. The withholding of

exculpatory evidence and the presentation of false and

misleading evidence, he alleged, had denied him his Fifth

Amendment rights to due process and to a fair and im-

partial Grand Jury. The allegations of misconduct on

which the motion was based parallel Gray’s averments

here.

Judge Bryant denied Gray’s motion to dismiss on Oc-

tober 3, 1980, noting that “the exhaustive and admirable

investigation by counsel for Mr. Gray has revealed cer-

tain weaknesses in the case the government presented to

the grand jury,” but that “the factual lacunae attributed

to the prosecutors reflect an honest, albeit imperfect, at-

tempt to recreate past events.”* Prosecutors readily ac-

knowledged these weaknesses, but indicated that they ex-

pected the trial of Felt and Miller to reveal testimony

* United States v. Gray, Crim. No. 78-00179 (D.D.C. dis-

missed Dec. i0, 1980) (Memorandum and Order), reprinted

in Supplemental Appendix (“S.A.”) 14, 18.

A-6

7

substantiating the charges against Gray. Without that

testimony, prosecutors conceded, further proceedings

against Gray would be unwarranted. Felt and Miller

were convicted on November 6, 1980,° yet their trial failed

to bring out evidence strengthening the Government’s

case against Gray. Government prosecutors accordingly

filed a nolle prosequi on December 10, 1980, acknowledg-

ing that the charges against Gray were “unconvincing”

and voluntarily dismissing the indictment against him.

Gray filed this suit on April 9, 1981, seeking money

damages for injury to his personal and professional repu-

tation, extreme emotional distress and mental anguish,

and associated physical ailments. The United States,

former Attorney Genera] Bell, and various Justice De

partment attorneys who had allegedly participated in the

abortive prosecution against Gray were named as defend-

ants.* The singlecount complaint alleged that the de

fendants violated Gray’s Fifth Amendment rights to due

process and to an informed and impartial Grand Jury

by conducting a grossly negligent pre-indictment investi-

gation and, as a result, failing to present exculpatory

evidence and presenting false and misleading evidence to

the Grand Jury.

The Government moved to dismiss the complaint in

July 1981. While that motion was pending, an amended

5 President Reagan granted Felt and Miller full and un-

conditional pardons on March 27, 1981.

* In addition to the United States and Attorney General Bell,

the named defendants were Benjamin Civiletti, Assistant

Attorney General in charge of the Justice Department’s Crim-

inal Division; Barnet D. Skolnik, Special Counsel in the Crim-

inal Division; J. Stanley Pottinger, Director of the Justice

Department’s Civil Rights Division; and various Justice De-

partment prosecuting attorneys assigned to the FBI investi-

gation task force, including Paul R. Boucher, Dennis Dimsey,

Daniel S. Friedman, William L. Gardner, Paul R. Hoeber,

John P. Lydick, Francis P. Martin, Brian Murtaugh, James

C. Savage, Janis Sposato, and Breckinridge L. Willcox.

A-7

8

complaint filed in January 1982 added three counts. The

original allegations of gross negligence in the pre-indict-

ment investigation were reconstituted as Count One of the

amended complaint. In a new Count Two, Gray further

alleged that the defendants willfully, wantonly and ma-

liciously violated his Fifth Amendment rights by deliber-

ately presenting false and misleading evidence to and

withholding exculpatory evidence from the Grand Jury.

Count Three of the amended complaint alleged a claim

against the United States under the FTCA, incorporating

the allegations of Counts One, Two and Four. Count

Four averred a common law claim for malicious

prosecution.

The trial court granted the Government’s motion to

dismiss on July 9, 1982. As to Count One, the court ruled

that Government prosecutors had no duty to conduct their

investigation in a fair and thorough manner; even if there

was such a duty, the court explained, the individual de

fendants were entitled to absolute immunity because

their investigation had sufficiently focused on Gray, and,

thus, they were engaged in a quasi-judicial function. As

to Count Two, the court held that Government prosecu-

tors had at most a duty not to deliberately present false

evidence to the Grand Jury, and, in any event, presenta-

tion of evidence to a Grand Jury is clearly a quasi-judicial

function protected by absolute immunity.* As to Count

* The court supported dismissal of Count One on the alterna-

tive ground of qualified immunity: “Assuming that defend-

ants did owe Gray a duty under the Fifth Amendment to

conduct a careful, thorough pre-indictment investigation, that

duty was not clearly established at the time of their actions.”

542 F. Supp. at 931 n.5. The same alternative reasoning

appears to have been given as to Count Two, see id. at 932

n.6, although the court never explicitly addressed whether

Government prosecutors owed Gray a clearly established duty

under the Fifth Amendment not to knowingly present false

evidence or withhold exculpatory evidence from the Grand

Jury.

A-8

9

Three, the court found that the United States had not

waived its sovereign immunity under the FTCA because

the challenged conduct fell within the “discretionary

function” exception of 28 U.S.C. § 2680(a) and, in addi-

tion, the individual defendants were not “investigative

or law enforcement officers” within the meaning of 28

U.S.C. § 2680(h). Finally, the court held that the claim

under Count Four was barred because, whatever the

scope of the individual defendants’ immunity from suit

on the constitutional claims, absolute immunity precludes

suit against them for the common law tort of malicious

prosecution.

This appeal followed.

II. OFFICIAL IMMUNITY

A. Introduction: The Basie Concept of “Official

Immunity”

State and federal officials receive a judicially fashioned

immunity for all discretionary acts arguably within the

ambit of their authority. There are two basic forms of

official immunity. The first, absolute immunity, bars a

Suit at the outset and frees the defendant official of any

obligation to justify his actions. The second, qualified

immunity,’ is in the nature of an affirmative defense and

*In Harlow v. Fitzgerald, 102 S. Ct. 2727 (1982), the Court

stated the test for qualified immunity as follows:

[G]overnment officials performing discretionary functions

generally are shielded from liability for civil damages

insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable

person would have known....

Reliance on the objective reasonableness of an official’s

conduct, as measured by reference to clearly established

law, should avoid excessive disruption of government and

permit the resolution of many insubstantial claims on

summary judgment. On summary judgment, the judge

appropriately may determine, not only the currently ap-

A-9

10

protects an official from liability only if he can show that

his actions did not contravene clearly established statu-

tory or constitutional rights of which a reasonable person

in his position should have known. The levels of protec

tion afforded by these two forms of immunity, once

sharply different, are no longer so distinct. Qualified im-

munity remains an “affirmative defense that must be

pleaded by a defendant official,” Harlow v. Fitzgerald,

102 S. Ct. 2727, 2737 (1982), but subjective motivation

is no longer relevant and the defense—now “defin [ed]

. . . essentially in objective terms,” id. at 2739—may ap-

propriately be determined by the trial judge on summary

judgment, id. On the other hand, under the functional

analysis governing absolute immunity, see Butz v. Econo-

mou, 438 U.S. 478, 508-17 (1978), “a limited factual in-

quiry may in some cases be necessary to determine in

what role the challenged function was exercised,” For-

syth v. Kleindienst, 599 F.2d 1208, 1215 (8d Cir. 1979),

cert. denied, 453 U.S. 913 (1981), thus precluding on

occasion disposition at the Rule 12 stage.

Official immunity is principally justified as a “shield

against liability that will serve the public interest in the

plicable law, but whether that law was clearly established

at the time an action occurred. If the law at that time

was not clearly established, an official could not reasonably

be expected to anticipate subsequent legal developments,

nor could he fairly be said to “know” that the law for-

bade conduct not previously identified as unlawful. Until

this threshold immunity question is resolved, discovery

should not be allowed. If the law was clearly established,

the immunity defense ordinarily should fail, since a rea-

sonably competent public official should know the law

governing his conduct. Nevertheless, if the official plead-

ing the defense claims extraordinary circumstances and

can prove that he neither knew nor should have known

of the relevant legal standard, the defense should be sus-

tained. But again, the defense would turn primarily on

objective factors.

Id. at 2738-39 (citations and footnotes omitted).

A-10

1l

vigorous exercise of legitimate executive authority.”

Chagnon v. Bell, 642 F.2d 1248, 1256 (D.C. Cir. 1980),

cert, denied, 453 U.S. 911 (1981).° Additional reasons

for according official immunity, less frequently articu-

lated but no less important, include the need to minimize

the deterrent effect of potential personal liability on those

who otherwise might enter public office, the perceived

drain on valuable official time devoted to defense of myr-

iad suits, the inequity of exposing officials to vicarious

liability for the acts of subordinates, the notion that

government servants owe a duty to the public rather

than to the individual, and the idea that official account-

ability is more appropriately enforced through the ballot

and in criminal or removal proceedings than in private

civil suits.*°

In applying principles of official immunity, the Su-

preme Court has made it clear that absolute immunity

is only available if the claim is based on performance of

a governmental function so sensitive as to warrant com-

plete freedom from suit."* Over the past decade, the

* The Supreme Court has stated:

Among the most persuasive reasons supporting official

immunity is the prospect that damages liability may

render an official unduly cautious in the discharge of his

official duties. As Judge Learned Hand wrote... , “[t]he

justification for... [denying recovery] is that it is im-

possible to know whether the claim is well founded until

the case has been tried, and to submit all officials, the

innocent as well as the guilty, to the burden of trial and

the danger of its outcome would dampen the ardor of all

but the most resolute... .”

Nizon v. Fitzgerald, 102 S. Ct. 2690, 2708 n.32 (1982) (quot-

ing Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949),

cert. denied, 339 U.S. 949 (1950)).

%” See Robichaud v. Ronan, 351 F.2d 540, 535-36 (9th Cir.

1965). See also Note, 66 Harv. L. REV. 1285, 1295 n.54 (1953).

11 See Harlow v. Fitzgerald, 102 S. Ct. at 2733 (“For execu-

tive officials in general . . . qualified immunity represents the

A-1l

12

Court has sought to delimit the doctrine by identifying

certain functionally discrete areas of official conduct—

characterized by their unique importance or constitu-

tional status—that deserve absolute immunity from suit

for violations of federal law; among the positions so

identified are those of the President,* legislators,“

judges,’* and various executive officials exercising quasi-

judicial duties—including prosecutors.”

B. Absolute Prosecutorial Immunity

1. The Rationale for According Absolute Immunity

to Prosecutors

The justifications offered for according absolute im-

munity to prosecutors largely track those advanced in

norm,” but “the special functions of some officials might

require absolute immunity.”); Butz v. Economou, 438 U.S.

478, 508 (1978) (“Although a qualified immunity from dam-

ages liability should be the general rule for executive officials

charged with constitutional violations, .. . there are some

officials whose special functions require a full exemption from

liability.”’).

12 Nizon v. Fitzgerald, 102 S. Ct. 2690.

3 Bastland v. United States Servicemen’s Fund, 421 U.S.

491 (1975).

4 Stump v. Sparkman, 435 U.S. 349 (1978).

4 Imbler v. Pachtman, 424 U.S. 409 (1976). See Butz v.

Economou, 488 U.S. 478 (administrative law judges and

agency enforcement officials); Briscoe v. LaHue, 103 S. Ct

1108 (1983) (witnesses). See also International Union,

UAAAIW v. Greyhound Lines, Inc., 701 F.2d 1181 (6th Cir.

1983) (arbitrators); White v. Hegerhorst, 418 F.2d 894 (9th

Cir. 1969) (per curiam) (petit jurors), cert. denied, 398 U.S.

912 (1970) ; Martone v. McKeithen, 413 F.2d 1373 (5th Cir.

1969) (per curiam) (grand jurors); Henig v. Odorioso, 385

F.2d 491 (3d Cir. 1967) (court employees executing judicial

orders) , cert. denied, 390 U.S. 1016 (1968); Casto, /nnovations

in the Defense of Official Immunity Under Section 1983, 47

TENN. L. REV. 47, 84 n.182 (1979) (“a judge’s law clerk

should receive the same immunity as the judge”).

A-12

13

support of official immunity. Although, in many cases,

these justifications support only a qualified immunity,

the Supreme Court has identified certain factors that at

once distinguish the prosecutorial function from the func-

tions of other executive officials and justify an absolute

shield against the threat of suit.’*

First, it has been noted that a prosecutor is especially

vulnerable to retaliatory litigation.’7 A prosecutor almost

daily brings to bear the enormous power of the state

against individuals; the weight of that power and the

general opprobrium of the criminal sanction combine to

create a unique potential for vengeful counter suits. Ab-

solute immunity is thus justified “by the concern that

(prosecutors] . . .—required by law to make important

decisions regarding the initiation, conduct, and merit of

controversies which often excite ‘the deepest feelings’ of

the parties—would be intimidated in the exercise of their

discretion by the fear of retaliatory lawsuits brought by

angry defendants.” Marrero v. City of Hialeah, 625 F.2d

499, 507 (5th Cir. 1980), cert. denied, 450 U.S. 913

(1981).

16 See Imbler v. Pachtman, 424 U.S. 409; Butz v. Economon,

438 U.S. 478.

'T See Imbler v. Pachtman, 424 U.S. at 425 (“suits [against

prosecutors] could be expected with some frequency, for a de-

fendant often will transform his resentment at being prose-

cuted into the ascription of improper and malicious actions to

the State’s advocate”); Butz v. Economou, 488 U.S. at 515

(“An individual targeted by an administrative proceeding will

react angrily and may seek vengeance in the courts. A cor-

poration will muster all of its financial and legal resources

in an effort to prevent administrative sanctions. ‘When mil-

lions may turn on regulatory decisions, there is a strong in-

centive to counter-attack.’") (quoting Expeditions Unlimited

Aquatic Enters., Inc. v. Smithsonian Inst., 566 F.2d 289, 293

(1977) (en hanc), cert. denied. 438 U.S. 915 (1978)). Cf.

Briscoe v. LaHue, 108 8. Ct. at 1119 (“Section 1983 lawsuits

against police officer witnesses, like Jaw lawsuits against nrose-

cutors, ‘could be expected with some frequency.’” (quoting

Imbler, 424 U.S. at 425)).

A-13

14

Second, it has been recognized that built-in safeguards

diminish the need for private redress against prosecu-

torial abuse.'* Inherent in the judicial process are checks

that serve to restrain prosecutorial abuse, and any abuse

that does occur is subject to various self-remedying mech-

anisms of the adversarial process. As Judge Leventhal

once aptly observed,

the prosecutor’s absolute protection, like that of the

judge from which it is derived, is both justified and

bounded by the judicial traditions and procedures

that limit and contain the danger of abuse. Cases

holding prosecutors absolutely immune have referred

to them as “quasi-judicial officers,” and the circum-

stances typically provide alternative instruments of

the judicial branch to check misconduct—the discre-

tion of the grand jury, the procedures of a trial, and

the potential sanction of discipline imposed by the

court itself.

Apton v. Wilson, 506 F.2d 83, 93-94 (D.C. Cir. 1974)

(footnotes omitted).

Mindful of the distinctive functional characteristics

of a prosecutor’s position, we turn to the scope of the

prosecutor’s absolute immunity.

2. The Scope of Absolute Prosecutorial Immunity

In Imbler v. Pachtman, the Supreme Court, in an ex-

plicitly limited holding, ruled that “the prosecutor is

‘* Imbler v. Pachtman, 424 U.S. at 429 (checks provided by

criminal and ethical sanctions “undermine the argument that

the imposition of civil liability is the only way to insure that

prosecutors are mindful of the constitutional rights of persons

accused of crime”); Butz v. Economou, 438 U.S. at 512 (“safe

guards built into the judicial process tend to reduce the need

for private damages actions as a means of controlling uncon-

stitutional conduct”). Cf. Briscoe v. LaHue, 108 S. Ct. at 1121

n.32 (“[{I]}n those cases in which the judicial process fails,

the public is not powerless to punish misconduct. Like prose-

cutors and judges, official witnesses may be punished crim-

inally for willful deprivations of constitutional rights... .”).

15

immune from a civil suit for damages under § 1983”

in “initiating a prosecution and in presenting the State’s

case.” 424 U.S. at 431. These activities, the Court ob-

served, are “intimately associated with the judicial phase

of the criminal process, and thus [are] functions to

which the reasons for absolute immunity apply with full

force.” Id, at 430. The Court went no further in Butz

v. Economou, where agency officials were accorded ab-

solute protection from suits arising out of “[t]he decision

to initiate administrative proceedings” and “the presen-

tation of evidence on the record in the course of an ad-

judication.” 438 U.S. at 515, 517."

% The /mbler Court left open the question “whether like or

similar reasons require immunity for those aspects of the

prosecutor’s responsibility that cast him in the role of an

administrator or investigative officer rather than that of ad-

vocate.” 424 U.S. at 480-31. This reservation was noted in

Butz, 488 U.S. at 511 n.87, but never explicitly addressed.

Nonetheless, it has been suggested that the functional approach

established in Butz fairly compels the conclusion that a prose-

cutor is not entitled to absolute immunity for conduct outside

of his advocatory role. See Marrero v. City of Hialeah, 625

F.2d 499, 506-10 (5th Cir. 1980), cert. denied, 450 U.S. 913

(1981).

Without fully embracing the functional lines that lower

courts have drawn in deciding when prosecutors are and are

not entitled to absolute immunity, the Supreme Court has

noted that lower courts have uniformly read /mbiler not to

extend beyond advocatory conduct, Harlow v. Fitzgerald, 102

S. Ct. at 2735 n.16; see Stepanian v. Addis, 699 F.2d 1046

(1ith Cir. 1983) ; McSurely v. McClellan, 697 F.2d 309 (D.C.

Cir. 1982) (per curiam); Taylor v. Kavanagh, 640 F.2d 450

(2d Cir. 1981); Mancini v. Lester, 630 F.2d 990 (3d Cir.

1980) (per curiam); Marrero v. City of Hialeah, 625 F.2d

499; Daniele v. Kieser, 586 F.2d 64 (7th Cir. 1978). cert. de-

nied, 441 U.S. 981 (1979); Jacobson v. Rose, 592 F.2d 515

(9th Cir. 1978), cert. denied, 442 U.S. 980 (1979); Atkins v.

Lanning, 556 F.2d 485 (10th Cir. 1977) (per curiam) ; Walker

v. Cahalan, 542 F.2d 681 (6th Cir. 1976), cert. denied, 430

U.S. 966 (1977). But cf. Kenting v. Martin, 688 F.2d 1121

A~15

16

This court has repeatedly adhered to the principles

enunciated in Jmbler and Butz, “confin{ing] absolute

prosecutorial immunity to ‘quasi-judicial’ actions.” Mce-

Surley v. McClellan, 697 F.2d 309, 318 (D.C. Cir. 1982)

(per curiam).*’ The controlling question under this ap-

proach is whether the conduct in question is so closely

associated with the judicial process that it can be char-

acterized as advocatory:

[A] prosecutor receives absolute immunity only when

he acts as an “advocate,” that is, in his role as a

participant in the judicial phase of the criminal

process. When a prosecutor acts in any other ca-

pacity, the rationale for absolute immunity dissolves

and the en receives only the lesser, quali-

fied immunity .

Id. at 319,"

(8th Cir. 1980) (per curiam) (prosecutor held absolutely

immune for all acts within the scope of his duty).

The Court also has observed that some such functional

limitation is implicit in Butz, Harlow v. Fitzgerald, 102 S. Ct.

at 2735.

* See also Dellums v. Powell, 660 F.2d 802, 805 (D.C, Cir.

1981) (“In line with its origins, the scope of prosecutorial

immunity is limited to performance of ‘quasi-judicial’ func-

tions.”); United States v. Heldt, 668 F.2d 1238, 1276 (D.C.

Cir. 1981) (per curiam) (“Unless the defendant can complain

of some action taken by the prosecutor outside of his quasi-

judicial capacity, such suit will generally be barred by absolute

immunity.”), cert. denied, 456 U.S. 926 (1982).

7 This court and other courts have frequently employed a

rigid advocatory/investigative/administrative trichotomy in

analyzing prosecutorial functions. See McSurely v. McClellan,

697 F.2d at 318 (“a prosecutor engaged in essentially investi-

gative or administrative functions receives only the lesser

protection of qualified immunity”) ; see also Dellums v. Powell,

660 F.2d at 805; Taylor v. Kavanagh, 640 F.2d at 452; Mancini

v. Lester, 630 F.2d at 992-93; Briggs v. Goodwin, 569 F.2d

10, 20-21 (D.C. Cir. 1977), cert. denied, 487 U.S. 904 (1978).

The functional categories are sometimes limited to an advo-

A-16

17

Delineation of the precise scope of protected advocatory

conduct beyond the boundaries established in /mbler has

proved to be exceedingly difficult. Courts are agreed that

purely advocatory functions—conduct implicating, as in

Imbler, solely the initiation and prosecution of criminal

trial proceedings—triggers absolute immunity. Al-

though there are a number of decisions holding that ac-

tivity less closely associated with the judicial phase of

criminal proceedings should not receive absolute immu-

catory/investigative dichotomy. See United States v. Heldt,

668 F.2d at 1276; Simons v. Bellinger, 643 F.2d 774, 779

(D.C. Cir. 1980) ; Forsyth v. Kleindienst, 599 F.2d at 1214-15;

Atkins v. Lanning, 556 F.2d at 488. Whether the division of

functions is twofold or threefold, this approach does not

always comport with the wide variety of duties engaged in by

a prosecutor. We have thus expressed frustration with the

rigidity of the analysis, see Briggs v. Goodwin, 569 F.2d at 21

(“To some extent, ... assignment of a particular incident

to one of several mutually exclusive abstract categories is

likely te involve an element of arbitrariness, especially where

the incident in question was clearly not envisioned by those

who originally designed the classificatory scheme.”), as have

other courts, see, e.g., Lee v. Willins, 617 F.2d 320, 322 (2d

Cir.), cert. denied, 449 U.S. 861 (1980); Wilkinson v. Ellis,

484 F. Supp. 1072, 1088 (E.D. Pa. 1980). Accordingly, we

emphasize that the governing analysis should not be based

upon wooden application of functional labels.

*2 See, e.g., Taylor v. Kavanagh, 640 F.2d at 453 (plea bar-

gaining); Lee v. Willins, 617 F.2d at 322 (falsification of evi-

dence, subornation of perjury); Norton v. Liddel, 620 F.2d

1375, 1879 (10th Cir. 1980) (filing information); Henzel v.

Gerstein, 608 F.2d 654, 657 (5th Cir. 1979) (filing informa-

tion, offering perjured testimony at trial, misconduct in han-

dling appeals); Miller v. Barilla, 549 F.2d 648, 649 (9th Cir.

1977) (plea bargaining), overruled in part on other grounds,

Polk Cty. v. Dodson, 454 U.S. 312 (1981); Palermo v. Warden,

Green Haven State Prison, 545 F.2d 286, 297 (2d Cir. 1976)

(same), cert. dismissed, 481 U.S. 911 (1977); Wilkinson v.

Ellis, 484 F. Supp. at 1082 (falsification of evidence) ; Lofland

v. Meyers, 442 F. Supp. 955, 958 (S.D.N.Y. 1977) (subor-

nation of perjury, use of illegally seized evidence at trial).

A-17

“th,

18

nity,* there is no clear consensus on how to properly

characterize all of the various forms of prosecutorial con-

duct.** This lack of a consensus is plainly attributable

to an absence of any settled approach to determining

when absolute immunity applies.*

We believe the task of line-drawing where prosecutorial

conduct is neither clearly advocatory nor clearly non-

advocatory must take as its premise the rationale for

absolute immunity: “In defining the scope of an official’s

absolute privilege,” courts should be mindful that “the

sphere of protected action must be related closely to the

3 See, e.g., McSurely v. McClellan, 697 F.2d at 319-20

(participation in illegal search and seizure); Taylor v. Kava-

naugh, 640 F.2d at 452 (participation in illegal search; dicta) ;

Marrero v. City of Hialeah, 625 F.2d at 505-06 (participation

in illegal search and seizure, making of defamatory remarks

to media) ; Hampton v. Hanrahan, 600 F.2d 600, 632-33 (7th

Cir.) (participation in plannning and execution of illegal

police raid, dissemination of prejudicial information to media),

cert. denied, 446 U.S. 754, 759 (1979) (per curiam) ; Walker

v. Cahalan, 542 F.2d at 684-85 (sending of defamatory letter).

* Compare Atkins v. Lanning, 556 F.2d 485 (supervision of

police dragnet operation that resulted in plaintiff’s illegal

arrest held to be advocatory) with Apton v. Wilson, 506 F.2d 83

(supervision of police activities resulting in plaintiff’s illegal

arrest at May Day demonstration held to be non-advocatory) ;

Heidleberg v. Hammer, 577 F.2d 429 (7th Cir. 1978) (destruc-

tion of evidence held to be advocatory) with Henderson v.

Fisher, 631 F.2d 1115 (3d Cir. 1980) (per curiam) (knowing

failure to preserve exculpatory evidence held to be non-

advocatory) and Wilkinson v. Ellis, 484 F. Supp. 1072 (de-

struction of evidence held to be non-advocatory); Daniels v.

Kieser, 586 F.2d 64 (direction of material witness’ illegal

detention held to be advocatory) with Redcross v. County of

Rensselaer, 511 F. Supp. 364 (N.D.N.Y. 1981) (direction of

materia! witness’ illegal detention held to be non-advocatory).

* For a description of various approaches that have been

devised, see Note, Supplementing the Functional Test of

Prosecutorial Immunity, 34 STAN. L. REV. 487, 489-504 (1982)

(hereinafter cited as Supplementing the Functional Test].

A-18.

19

immunity’s justifying purposes.” Nixon v. Fitzgerald,

102 S. Ct. 2696, 2705 (1982). Hence, with an eye to

the rationale for granting the prosecutor absolute im-

munity when he acts within his advocatory role, we

briefly undertake to identify and elaborate on some gen-

eral considerations for analyzing prosecutorial conduct

that falls neither clearly within nor clearly without the

scope of Imbler.

In examining such conduct, we shall look first to

whether it was sufficiently adversarial to evoke strong

resentment and thus frequent retaliatory litigation. Per-

haps the best measure of this is the phase of the proceed-

ings at which the disputed conduct occurs.” The prose-

cutor is far more likely to be the target of vindictive

hostility once he has initiated criminal proceedings; in the

post-indictment phase of the proceedings, he is generally

required to do and say things on the public record that

may cast suspicion and ultimately the criminal sanction

on some individual. The prosecutor’s role in these circum-

stances is plainly advocatory.

But the phase of the proceedings cannot be disposi-

tive.** If the activity at issue occurs prior to indictment

or if no indictment is ever returned, the prosecutor’s

conduct may nevertheless be advocatory. There are sev-

26 See also Note, Supplementing the Functional Test, supra

note 25, at 508-11 (advocating balancing of policy factors

underlying absolute prosecutorial immunity in cases where

the conduct in question is not “classifiable as normally quasi-

judicial or non-quasi-judicial’’) .

27 See Briggs v. Goodwin, 569 F.2d at 18 (Imbler court was

concerned with “claims likely to arise from prosecutorial

behavior at or immediately before trial”); Taylor v. Kavanagh,

640 F.2d at 452; Marrero v. City of Hialeah, 625 F.2d at 505;

Wilkinson v. Ellis, 484 F. Supp. at 1081.

28 See Briggs v. Goodwin, 569 F.2d at 23 (“[T]he timing of

prosecutorial action, by itself, is not dispositive of the im-

munity issue.”) ; Daniels v. Kicser, 586 F.2d at 67 n.5.

A-19

20

eral important clues that may indicate whether the prose-

cutor’s role at pre-indictment stages approximates his

position after an indictment has been returned. The first

is the particularity of the proceedings. Prosecutorial

conduct in the course of an investigation that has focused

on a specific target may cast a shadow of public suspicion

and thus evoke vindictive reactions no less intense than

could be expected from an indicted defendant. Another

clue is the context of the conduct in question.” Activity

in the course of judicial or other formal proceedings is

likely to involve advocacy directed against some individ-

ual or corporation; in these circumstances, the prosecutor

can be expected to take an adversarial posture that may

well cause antagonism and hostile counter motives. A

final clue, albeit somewhat obscure in definition, may be

found in the nature of particular prosecutorial actions

or decisions. Thus, certain actions of the prosecutor may

be so closely related to traditional quasi-judicial func-

tions as to suggest an effective adversarial posture.™

Decisions involving the selection of evidence, for example,

must often be calculated to embarrass and discredit;

2» See Briggs v. Goodwin, 569 F.2d at 19 (“examples of...

advocate activities [preliminary to the initiation of proceed-

ings] provided by the Supreme Court [in /mbler] are instruc-

tive for their common focus on a particular criminal pro-

ceeding”) ; McSurely v. McClellan, 697 F.2d at 319 (“Advocacy

. . excludes activities that are not closely connected to the

initiation or conduct of a particular case.”); Simons v. Bel-

linger, 643 F.2d at 779-80; Comment, Section 1983 and the

Limits of Prosecutorial Immunity, 56 CHI.-KENT L. REV. 1029,

1050 (1980) (drawing distinction between “far-reaching in-

vestigation into the activities of a political group” and “in-

vestigating a specific crime”) [hereinafter cited as Section

1983).

*® See Marrero v. City of Hialeah, 625 F.2d at 505; Wilkin-

son v. Ellis, 484 F. Supp. at 1081.

% See Taylor v. Kavanagh, 640 F.2d at 452 (advocatory

“activities . . . involve decisions of judgment affecting the

course of the prosecution”); Marrero v. City of Hialeah, 625

F.2d at 508; Wilkinson v. Ellis, 484 F. Supp. at 1081.

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21

other prosecutorial decisions, involving the prosecutor’s

inherent discretion in deciding whether to charge and

what charges to bring, must by definition be threatening

and coercive. Cf. Goldschmidt v. Patchett, 686 F.2d 582

(7th Cir. 1982) (sending of letter threatening prosecu-

tion advocatory because it is “not the sort of activity

which could be performed by a layman with the same

effectiveness that a letter from the prosecutor’s office

would accomplish”).

Second, we shall look to whether there were prosecu-

torial safeguards to minimize the necessity for civil dam-

age suits. Here too the phase of the proceedings and the

context of the conduct are important. At all points after

the decision to seek an indictment there is generally close

and direct judicial scrutiny of prosecutorial conduct.™

Whatever the stage of the proceedings, however, conduct

outside the courtroom will generally be subject to rela-

tively little monitoring.™ Pre-indictment prosecutorial

conduct is subject to some measure of judicial scrutiny,”

and investigatory conduct may be subject to the exclu-

sionary sanction at trial or to professional discipline. But

these are often hollow and ineffectual remedies. As the

relationship between pre-indictment activity and the ju-

dicial process becomes more attenuated, the more im-

portant it becomes to take into account the adequacy of

the available sanctions to deter abuse.*

* See Apton v. Wilson, 506 F.2d at 94 (giving as examples

of safeguards in the judicial process “the discretion of the

grand jury, the procedures of a trial, and the potential sanction

of discipline imposed by the court itself”).

* See Marrero v. City of Hialeah, 625 F.2d at 509.

* See generally Holderman, Preindictment Prosecutorial

Conduct in the Federal System, 71 J. Crim. L. & CRIMINOLOGY

1 (1980).

* The rationale underlying absolute immunity does not re-

quire perfect substitutes for the remedy of | damages.

See Briscoe v. LaHue, 108 S. Ct. at 1119-21 (rejecting argu-

A-21

22

In sum, absolute prosecutorial immunity extends only

to advocatory conduct. Beyond initiation of criminal pro-

ceedings and presentation of evidence in criminal trials,

drawing functional lines between advocatory and non-

advocatory conduct becomes very difficult. We have iden-

tified various factors—all tied to the justifying purposes

for absolute immunity—to guide that line-drawing task

in cases where the scope of the immunity has not been

clearly settled. None of these factors alone is intended

to be determinative, nor must they always be used in

combination. Given the variety of prosecutorial conduct,

however, they will provide some indication of whether the

rationale, and thus the protection, of absolute immunity

applies in any particular case.

C. Application of Official Immunity In This Case

1. Counts One and Two: The Constitutional Claims

Having considered the nature and scope of the official

immunity principles relevant here, we turn to their ap-

plication. Application of the official immunity doctrine

to Gray’s constitutional claims requires a functional ana-

lysis to determine whether the alleged prosecutorial mis-

conduct is advocatory.” Applying the analysis set forth

ment that exception to rule of absolute witness immunity

should be made in the case of police officer witness because

prosecution for perjury so unlikely as to be ineffective sub-

stitute for civi] damages).

“In Part II.C.2. infra, we discuss the requirements that an

immunized act be discretionary and within the defendant’s

scope of authority. It is clear that the scope of authority re-

quirement is a prerequisite to any application of official im-

munity, whatever the level of protection asserted or the na-

ture of the claim involved. See Briggs v. Goodwin, 569 F.2d

at 15. There appears to be some question, however, whether

the requirement of discretion has any relevance where a

federa] claim is involved. See id. at 16 n.7 (observing that

the development of functional analysis in official immunity

law has superseded use of the discretionary/ministerial dis-

A-22

above, we conclude that all conduct before the various

Grand Juries is advocatory and thus entitled to absolute

immunity. For any “investigative” conduct antecedent

to Grand Jury proceedings, we assume arguendo that

qualified immunity applies but conclude that this lower

level of protection—as a matter of law—bars Gray’s suit.

(a) Conduct Before the Grand Juries. We regard it

as settled that presentation of evidence to an indicting

Grand Jury falls within the scope of advocatory prosecu-

torial conduct protected by Imbler." Participation in

tinction). But ef. Harlow v. Fitzgerald, 102 S. Ct. at 2738

(qualified immunity is available to “government officials per-

forming discretionary functions . . . insofar as their con-

duct” does not violate clearly established law). We need not

resolve that question, however, since all of the challenged

activities here are plainly discretionary. See text accompany-

ing note 48 infra.

** See Hampton v. Hanrahan, 600 F.2d at 682 (“presenta-

tion of evidence before the state grand jury . . . comprise[s]

part of [defendant’s] ‘quasi-judicial’ duties as state prose

cutor—‘initiating a prosecution and .. . presenting the

State’s case... .’") (quoting /mbler, 424 U.S. at 431); Slavin

v. Curry, 574 F.2d 1256, 1264 (5th Cir. 1978) (“Prosecu-

torial officials are immune from damage actions performed

in the role of a prosecutor .... Thus, [the defendant pros-

ecutor] cannot be liable for damages for his presentation of

evidence to the grand jury... .”), overruled in part on other

grounds, Sparks v. Duval Cty. Ranch Co., 604 F.2d 976 (5th

Cir. 1979) (en banc); Fine v. City of New York, 529 F.2d

70, 74 (2d Cir. 1975) (“It is clear that the presentation of

evidence to grand juries is precisely the sort of prosecutorial

function . . . that the immunity rule is designed to pro-

mote.”); Marlowe v. Coakley, 404 F.2d 70, 70-71 (9th Cir.

1968) (per curiam) (“A prosecuting attorney is immune

from civil suits for acts committed in the performance of

duties constituting an integral part of the judicial process,”

and “{a] California district attorney’s presentation of evi-

dence to a grand jury is clearly within the scope of his duty

to advise and present information to the grand jury .

The function is an ‘integral part of the judicial process.’ "),

cert. denied, 395 U.S. 947 (1969). See also Cerbone v. County

A-23

24

Grand Jury proceedings is a vital and customary part

of a prosecutor’s duties. At least in those instances where

an indictment is returned, it can safely be said that

much if not all of a prosecutor’s conduct in presenting

the evidence to a Grand Jury will reflect traditional ad-

vocacy directed to securing an indictment. In such cases,

it would be an exercise in futility and patently counter-

productive to attempt to separate out elements of conduct

that might have involved non-advocatory functions. We

therefore hold that the trial court was fully justified in

concluding that, in the instant case, “the presentation

of evidence to the grand jury indisputably is an advoca-

tory function of a prosecutor.” 542 F. Supp. at 932.

Gray argues, however, that our decision in Briggs v.

Goodwin, 569 F.2d 10 (D.C. Cir. 1977), cert. denied, 437

U.S. 904 (1978), dictates a different result. In Briggs,

a federal prosecutor allegedly perjured himself during

a judicial hearing in connection with on-going Grand

Jury proceedings. An individual who ultimately was

indicted by the Grand Jury subsequently brought a Civil

suit for damages caused him by the alleged perjury, and

the prosecutor’s conduct was held to be non-advocatory.

Among the reasons given for this result was that the

on-going Grand Jury proceedings were investigative in

nature; i.e., at the time the prosecutor allegedly perjured

himself, the Grand Jury’s investigation had not yet fo

cused on any particular suspect and was essentially a

broad fact-finding mission.*

of Westchester, 508 F. Supp. 780, 783 (S.D.N.Y. 1981);

Comment, Section 1983, supra note 29, at 1409; Note, Im-

munizing the Investigating Prosecutor: Should the Dishon-

est Go Free or the Honest Defend?, 48 FoRDHAM L. REV.

1110, 1184-36 (1980).

* It has not escaped our attention that this aspect of the

court’s reasoning has met with generally unfavorable com-

ment, see Note, Immunizing the Investigating Prosecutor:

Should the Dishonest Go Free or the Honest Defend?, supra

note 37, at 1129-30; Note, Briggs v. Goodwin: The Con-

A-24

25

Likewise, in the present case, Gray argues, the de-

fendants presented evidence to various Grand Juries over

a period of two years before the indictment of Gray was

returned. Thus, it is said, here too the Grand Jury pro

ceedings represented nothing more than a broad fact-

finding mission. At least with respect to conduct before

non-indicting Grand Juries, the analogy is not without

force. Briggs does indeed recognize that some prosecu-

torial activities during “on-going Grand Jury proceed-

ings” may involve non-advocatory conduct. But insofar

as Briggs compels close scrutiny of prosecutorial conduct

before non-indicting Grand Juries to determine which

side of the advocatory/non-advocatory line the conduct

falls on, we think the limited principles enunciated there

have no application in the present case.

The various factors identified in Part II.B.2. supra

highlight the crucial distinctions between this case and

Briggs. First, this case involved focused Grand Jury

presentations, i.e., conduct that was sufficiently adversar-

ial to trigger concerns about retaliatory litigation. A

pre-indictment investigation, such as the one conducted

here, will necessarily have focused on a particular sus-

pect or crime when the prosecutor actually begins pre-

senting evidence of probable cause to a Grand Jury. Any

related prosecutorial action before a Grand Jury, more-

over, takes place in a formal procedural setting in which

the prosecutor’s role approximates his role at trial. Al-

though Grand Jury proceedings are ex parte, the prosecu-

tor’s role in guiding the proceedings—whether or not

he has finally decided to seek indictment of the target

of Grand Jury inquiry—has a distinctly inquisitorial

striction of Prosecutorial Immunity, 15 Hous. L. Rev. 760,

768 (1978); Note, Absolute Immunity for Prosecutors; Too

Broad a Protection: Imbler v. Pachtman, 10 SW. U. L. REv.

805, 327-28 n.158 (1978), and that the recent decision in

Briscoe v. LaHue, 103 S. Ct. 1108 (granting absolute im-

munity to police officer witness sued under § 1988), casts

some doubt on the court’s result.

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26

quality to it. Furthermore, when working with a Grand

Jury the prosecutor must exercise delicate judgments

in deciding what evidence to seek and present. The com-

plaint in the instant case is perfectly illustrative: the

allegations focus on evidentiary omissions, misrepresenta-

tions and fabrications with respect to a particular suspect.

Second, in the present case there were procedural safe-

guards—which Gray in fact availed himself of—to rem-

edy the alleged misconduct in the Government’s Grand

Jury presentations. Whenever a Grand Jury returns an

indictment, the defendant can move to dismiss based on

prosecutorial misconduct before the Grand Jury. Many

courts have dismissed indictments procured through de-

liberate presentation of perjured testimony, intentional

failure to present exculpatory evidence, and a variety of

other types of prosecutorial misconduct.” We need ex-

press no view on the scope of such a remedy in this cir-

cuit, except to note *hat there is no settled rule on its

availability to redress the misconduct alleged here. The

possibility that the trial court could have decided to dis-

miss the indictment under these circumstances—which

Gray recognized by bringing a motion to dismiss—pro-

vides an adequate procedural deterrent against the type

of misconduct Gray avers.

In Briggs, by contrast, the challenged conduct did not

involve actual presentation of evidence to a Grand Jury.

Instead, the prosecutor was alleged to have perjured him-

self in court testimony about an aspect of the on-going

investigation. Central to the result in Briggs was that

the Grand Jury proceedings in that case had been de

signed as a broad-scale investigation with no focus on

%* See, e.g., United States v. Kennedy, 564 F.2d 1329 (9th

Cir. 1977) (knowing presentation of perjured testimony),

cert. denied, 435 U.S. 944 (1978); United States v. Phillips

Petroleum Co., 435 F. Supp. 610 (N.D. Okla 1977) (inter-

ference with Grand Jury deliberations); United States v.

Braniff Airways, Inc., 528 F. Supp. 579 (W.D. Tex. 1977)

(failure to present exculpatory evidence).

A-26

27

any particular suspect.” It is true that the prosecutor’s

misconduct in Briggs occurred in the course of formal

judicial proceedings; but the prosecutor and the plaintiff

had not yet engaged in an adversarial posture,’ and

the court noted that the prosecutor’s conduct in testifying

involved little or no discretionary judgment.* In Briggs,

moreover, there was evidence demonstrably showing that

the only potential safeguards against the alleged mis-

conduct involved were wholly ineffective. The Govern-

ment argued that criminal and ethical sanctions were suf-

ficient to cure the prosecutor’s alleged perjury, but be-

cause four and a half years had passed without official

inquiry—even by the court before which the perjury was

alleged to have taken place—the prospect of any sanc-

tion being invoked was described as “theoretical only.”

Briggs, 569 F.2d at 24. While Gray had access to a

remedial process that he himself could and did initiate,

the plaintiff in Briggs could only stand by and wait for

either the court or the prosecutor to reveal and remedy

the misconduct that had occurred.

Briggs v. Goodwin therefore does not compel the con-

clusion that the alleged prosecutorial misconduct before

# At the time the prosecutor allegedly perjured himself, he

was still engaged in a broad investigation of several individ-

uals and had not yet focused on the particular illegal activity

of any one of them. Thus, he “had embarked on what was

fundamentally a fact-finding mission, and .. . his false state-

ment to the court, if such it was, was intended to improve

the prospects for that endeavor’s success.” Briggs, 56° F.2d

at 24.

“ The plaintiff in Briggs was not subpoenaed to testify be-

fore the Grand Jury until a month after the prosecutor’s al-

leged perjury. Moreover, an indictment was not returned

against the plaintiff until four months later.

“ The prosecutor’s “act of answering a single inquiry from

the court, an inquiry which plainly called for a simple affirm-

ative or negative response, might well have been classified as

a ministerial, rather than a discretionary, act... .” Briggs,

569 F.2d at 16 n.7.

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28

non-indicting Grand Juries is entitled to only qualified

immunity. The analogy Gray draws between the “in-

vestigative” conduct in Briggs and the activities that

took place in this case has superficial appeal. But we

are not content with functional labels that indulge form

over substance. On closer examination, the present case,

unlike Briggs, involves prosecutorial conduct to which

the reasons for absolute immunity apply with sufficient

force to justify full protection from suit.

(b) Other Pre-Indictment Conduct. Gray does not con-

fine his allegations to prosecutorial misconduct in the

presentation of evidence to the Grand Juries. He alleges

a broad-ranging pre-indictment investigation involving

witness interviews and other conduct in developing evi-

dence to present to the Grand Juries. Gross deficiencies

in the entire pre-indictment investigation, Gray avers,

ultimately caused the alleged deprivation of his Fifth

Amendment rights.

« We need not labor the question whether absolute or

qualified immunity applies to prosecutorial activities in

developing evidence to present to a Grand Jury.“ Be

** Courts have reached differing .onclusions on the extent

to which evidence-gathering activities preliminary to a Grand

Jury presentation should be included within the sphere of

protected advocatory conduct. Compare J.D. Pflaumer, Inc.

v. United States Dep’t of Justice, 450 F. Supp. 1125, 1133

(E.D. Pa. 1978) (“[T]he gathering of evidence for the pur-

pose of supporting the presentation of an indictment to the

grand jury, at least in the context of this case, is more a

kin [sic] to the prosecutor’s role as an investigator and there-

fore outside the quasi-judicial phase of his duties.”) (relying

heavily on Briggs v. Goodwin) with Cook v. Houston Post,

616 F.2d 791, 793 (5th Cir. 1980) (absolute immunity ap-

plies to interviewing of witness prior to Grand Jury proceed-

ing because prosecutor was duty-bound to engage in such

investigation). See also Note, Delimiting the Scope of Pros-

ecutorial Immunity From Section 1983 Damage Suits, 52

N.Y.U. L. REV. 173, 199 (1977) (“Because grand jury pro-

ceedings, like actual trials, are judicial proceedings, investi-

A=28.

29

cause qualified immunity is readily available to protect

these activities, we may assume that this less stringent

level of immunity applies without considering the appli-

eability of absolute immunity. Under qualified immunity,

executive officials are shielded from liability for civil

damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person should have known.“ Gray cannot

clear the threshold obstacle of demonstrating that the

Government prosecutors violated any clearly established

constitutional or statutory requirement in conducting

their pre-indictment investigation. Some courts have rec-

ognized a prosecutorial duty to refrain from deliberately

presenting perjured testimony or engaging in other sorts

of misconduct before a Grand Jury.“ But there is no au-

thority whatsoever recognizing a prosecutorial duty to

conduct in any particular way investigative or other ac-

tivities antecedent to Grand Jury proceedings. The trial

court thus correctly concluded that any arguable “duty

under the Fifth Amendrient to conduct a careful, thor-

ough pre-indictment investigation . . . was not clearly es-

tablished at the time of [the Government’s alleged] ac-

tions.” 542 F. Supp. at 931 n.5.

2. Count Four: The Malicious Prosecution Claim

There can be no serious question that the individual

defendants are entitled to absolute immunity on Gray’s

claim of malicious prosecution. In Barr v. Matteo, 360

U.S. 564 (1954), the Supreme Court held that absolute

gations relating to grand jury activities deserve quasi-

judicial immunity.”) (footnote omitted). This court has re

cently observed that “preliminary gathering of evidence

which may blossom into a potential prosecution” is entitled

to m4 qualified immunity. McSurley v. McClellan, 697 F.2d

at ,

* See note 8 supra.

* See note 39 supra.

A-29

30

immunity is available to federal officials on common law

claims arising out of discretionary acts undertaken

within the outer perimeter of the officials’ authority.

Under this rule, it is enough if the official performed an

act not “manifestly or palpably beyond his authority” and

“having more or less connection with the general mat-

ters committed by law to his control or supervision,” “ a

test easily satisfied here.*’

The requirement of discretion is just as plainly satis-

fied. We conclude in Part III. infra that all of the al-

leged activities at issue in this case involve discretionary

functions protected under the FTCA. Although the con-

cepts of “discretion” in official immunity law and under

the FTCA are not of identical scope, they are similar and

may have a common origin.** In both areas, the notion of

“discretion” is a benchmark against which to measure

whether judicial scrutiny of a disputed official act might

inhibit official policymaking and thus unduly interfere

with the efficient operation of government. Because we

are satisfied that all of the alleged activities cited by

Gray fall within the “discretionary function” exception,

we are confident that the acts for which official immunity

is claimed are “discretionary” as well.

Gray argues, however, that he does not complain of

actual institution of criminal proceedings, but rather of

malicious investigative and administrative acts that ulti-

mately led to the institution of proceedings against him.

A claim for malicious prosecution will lie, he contends,

** Spalding v. Vilas, 161 U.S. 483, 498 (1896). See Briggs

v. Goodwin, 569 F.2d at 15.

** See Cooper v. O'Connor, 99 F.2d 135, 188 (D.C. Cir.),

cert. denied, 305 U.S. 643 (1988); Laughlin v. Garnett, 138

F.2d 931, 931-32 (D.C. Cir. 1943) (per curiam), cert. denied,

$322 U.S. 738 (1944).

— Sami v. United States, 617 F.2d 755, 771 (D.C. Cir.

1979).

A-30

31 °

so long as “a causal connection is established between the

acts of the defendant and the decision to prosecute the

plaintiff.” ** And where “a claim for malicious prosecu-

tion is stated against federal officials and prosecutors for

actions taken in their investigatory and administrative

roles only,” Gray urges, “the traditiona] rule of absolute

immunity in malicious prosecution cases should be re-

placed with the current rule allowing only qualified im-

munity for investigative activities.” This attempt to

distinguish different types of prosecutorial activity is un-

availing. It is well settled that the functiona] analysis

governing prosecutorial immunity as against federal

claims has no application to common law claims. What-

ever the nature of a prosecutor’s activity, he may not be

sued at common law for discretionary conduct within the

outer perimeter of his authority. Dellums v. Powell, 660

F.2d 802 (D.C. Cir. 1981), cited by Gray, has no applica-

tion. Because that case involved a constitutional claim,™

anything said therein that might bear on the proper anal-

ysis of prosecutorial function is irrelevant to application

of immunity as against a common law claim.

III. SOVEREIGN IMMUNITY

The United States is protected from unconsented suit

under the ancient common law doctrine of sovereign im-

munity. Prior to enactment of the FTCA, sovereign im-

munity did not entirely preclude redress for tortious

governmental acts, but relegated injured citizens to the

** Brief for Appellant 46.

% Id. at 47-48 (misciting the dissent in Dellums v. Powell,

660 F.2d at 808 (Edwards, J.), which did not address im-

munity rules applicable to common law malicious prosecution

claims) .

51 See Dellums v. Powell, 660 F.2d at 804 & n.6 (noting

that issues on appeal related only to claim for malicious

prosecution with intent to violate the First Amendment and

not to common law claim for malicious prosecution).

A-31

32

onerous process of securing recompense by private bill.

In the interest of providing a more efficient means of

compensation, the FTCA was enacted as a broad consent

to suit for personal injury or death caused by the tortious

actions of government employees acting within the scope

of their employment under circumstances where a private

person would be liable. Balanced against the interest in

facilitating private redress, however, was a concern for

protecting against unwarranted judicial intrusion into

areas of governmental operations and policymaking. Con-

gress thus retained a sovereign immunity from suit in

28 U.S.C. § 2680(a) for “[ajny claim ... based upon

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 Government,

whether or not the discretion involved be abused.” *

The District Court held that all of Gray’s allegations

challenge discretionary functions and, accordingly, dis-

missed his FTCA claim. We uphold the dismissal. Be

cause the obscurity of this area is matched only by its

$2 28 U.S.C. § 2680(a) reads:

The provisions of this chapter and section 1346(b) of this

title shall not apply to—

(a) Any claim based upon an act or omission of an

employee of the Government, exercising due care, in

the execution of a statute or regulation, whether or

not such statute or regulation be valid, or based upon

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 Gov-

ernment, whether or not the discretion involved be

abused.

Only the discretionary function clause of this provision is rel-

evant here. We note, however, that the first part of the stat-

ute reflects a similar congressional concern with “protect[ing]

the Government from liability that would seriously handicap

efficient government operations,” United States v. Muniz, 374

U.S. 150, 163 (1968). See Beins v. United States, 695 F.2d

591, 611 n.9 (D.C, Cir. 1982) (Robinson, C.J., concurring).

A-32

33

wealth of conclusory analytical labels, wading through

the relevant case law is surprisingly difficult. We there-

fore preface our application of section 2680(a) with a

discussion of its proper scope, guided—as we were simi-

larly guided in considering official immunity—by the be-

lief that the reservation of governmental immunity em-

bodied in the exemption should be bounded by its justi-

fying purposes.

A. The “Investigative or Law Enforcement Officer’

Proviso to 28 U.S.C. § 2680(h)

Before proceeding to our review of the applicability of

the “discretionary function” exception of 28 U.S.C..§ 2680

(a), we pause briefly to address the relevance of 28

U.S.C. § 2680(h). Gray argues that all he need show to

sustain the malicious prosecution portion of his FTCA

claim is that the individual defendants were “investiga-

tive or law enforcement officer(s]” within the meaning

of section 2680(h). The discretionary function clause, he

contends, does not apply to suits authorized by the “in-

** 28 U.S.C. § 2680(h) provides:

The provisions of this chapter and section 1346(b) of this

title shall not apply to—

(h) Any claim arising out of assault, battery, false

imprisonment, false arrest, malicious prosecution,

abuse of process, libel, slander, misrepresentation,

deceit, or interference with contract rights: Pro-

vided, That, with regard to acts or omissions of in-

vestigative or law enforcement officers of the United

States Government, the provisions of this chapter

and Section 1346(b) of this title shall apply to any

claim arising, on or after the date of the enactment

of this proviso, out of assault, battery, false im-

prisonment, false arrest, abuse of process, or mali-

cious prosecution. For the purpose of this subsec-

tion, “investigative 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.

A-33

84

vestigative or law enforcement officer” proviso of section

2680(h). We reject this construction of the statute.

One district court decision in this circuit suggests that

the “discretionary function” exception of section 2680 (a)

does not apply to suits under the “investigative or law

enforcement” proviso of section 2680(h), see Townsend

v. Carmel, 494 F. Supp. 30, 36-37 (D.D.C. 1980), and a

panel of this court has expressed uncertainty on the issue,

see Sami v. United States, 617 F.2d 755, 767-68 (D.C.

Cir. 1979). However, the plain language of 28 U.S.C.

§ 2680(a) states that the FTCA’s general waiver of sov-

ereign immunity is inapplicable to “any claim” based on a

discretionary function, see note 52 supra.

Nearly thirty years after enactment of the FTCA, in

the wake of Bivens v. Six Unknown Named Agents of

the FBI, 403 U.S. 398 (1971), Congress added the pro-

viso to section 2680(h), “establishing Federal liability for

intentional torts committed by law enforcement authori-

ties.” Townsend v. Carmel, 494 F. Supp. at 36. Thus, it

has been suggested that congressional intent will be de-

feated if immunity is afforded pursuant to section

2680(a) in suits brought under the proviso to section

2680(h). We are unpersuaded by this argument, both be-

cause of the unambiguous language of section 2680(a)

and because we can find no serious incongruity between

the immunity afforded under section 2680(a) and the

waiver of immunity under the proviso to section 2680(h).

We therefore reject the contention that intentional tort

claims based on the acts of “investigative or law enforce-

ment officer[s]” may never come within the purview of

the discretionary function exception to section 2680(a).

It seems clear that the intentional torts listed under

the proviso to section 2680(h) may’ be committed without

any exercise of a discretionary function. To this extent,

the provisions of section 2680(a) and section 2680(h)

are neither inconsistent nor mutually exclusive. It is true

that in some instances—as with a claim of malicious pros-

ecution—the challenged conduct may involve discretionary

A-34

35

functions and, thus, be covered by the section 2680(a)

exception. However, if the “investigative or law enforce-

ment officer” limitation in section 2680(h) is read to in-

clude primarily persons (such as police officers) whose

jobs do not typically include discretionary functions, it

will be rare that a suit permissible under the proviso to

section 2680 (h) is barred by section 2680(a).

For the foregoing reasons, and because “statutes which

waive (the) immunity of the United States from suit are

to be construed strictly in favor of the sovereign,” Mc-

Mahon v. United States, 342 U.S. 25, 27 (1951), we be-

lieve that Gray must clear the “discretionary function”

hurd!:. nd satisfy the “investigative or law enforcement

office: limitation to sustain the malicious prosecution

component of his FTCA claim. Nevertheless, since we

hold that all of the activities alleged in the complaint are

protected under the discretionary function clause, we need

not address whether the individual defendants were “‘in-

vestigative or law enforcement officer(s).”

B. The Language and Legislative History of 28 U.S.C.

§ 2680(a)

Turning now to the meaning of 28 U.S.C. § 2680(a),

we first note that the language of the discretionary

function clause discloses virtually nothing about the

scope of its protection. Literal adherence to the phrase

“discretionary function” leads to blind alleys. Because

™ See Payton v. United States, 679 F.2d 475, 479 (5th Cir.

Unit B 1982) (en banc) (“If strictly followed, [the] .. . lan-

guage (of the FTCA] would exempt .. . all but the most fortui-

tous events, for ‘{u)nless government (at no matter

what echelon) make their choices by flipping coins, their acts

A-35

36

statute suggests nothing about the scope of the discre-

tionary function exception, the wording of section 2680

(a) is nonetheless instructive. Section 2680(a) provides

that the FTCA “shall not apply” to claims involving dis-

cretionary functions. It is therefore clear that the dis-

cretionary function clause does not of its own force pro-

vide the government protection from suit, but rather

preserves a preexisting cloak of governmental immunity

for some category of activities.

Examination of the legislative history is only slightly

more helpful in divining the scope of protection afforded

by section 2680(a). Committee reports on the bill in

which section 2680(a) originated suggest that it was

meant to preclude claims arising out of certain acts of

administrative discretion. Although the reports give a

few examples of the types of governmental activities in-

tended to be immunized, nothing further about the nature

of administrative discretion is said. The legislative his-

involve discretion in making decisions.’”) (quoting Smith v.

United States, 375 F.2d 243, 246 (5th Cir.), cert. denied, 389

U.S. 841 (1967)). See also J.H Rutter Rex Mfg. Co. v. United

States, 515 F.2d 97, 99 (5th Cir. 1975) (per curiam), cert.

denied, 424 U.S. 954 (1976) ; Griffin v. United States, 500 F.2d

1059, 1063-64 (3d Cir. 1974).

™ The following text appears repeatedly in committee re-

ports:

This is a highly important exception, intended to preclude

any possibility that the bill might be construed to author-

ize suit for damages against the Government growing out

of an authorized activity, such as a flood-control or irriga-

tion project, where no negligence on the part of any Gov-

ernment agent is shown, and the only ground for suit is

the contention that the same conduct by a private individ-

ual would be tortious, or that the statute or regulation

authorizing the project was invalid. It is also designed

to preclude application of the bill to a claim against a

regulatory agency, such as the Federal Trade Commission

or the Securities and Exchange Commission, based upon

an alleged abuse of discretionary authority by an officer

A-3%6

37

tory does, however, indicate that the discretionary func-

tion exception merely reflects a congressional belief that

courts would continue to apply preexisting common law

doctrine barring claims against discretionary govern-

mental! acts.”

We can thus glean two general conclusions about the

breadth of the discretionary function exception from its

language and legislative history. First, Congress plainly

intended to preserve immunity for some undefined cate-

gory of discretionary governmental acts but to abrogate

that protection for ordinary, day-to-day acts of govern-

mental] negligence. Second, the only indication of how the

or employee, whether or not negligence is alleged to have

been involved. To take another example, claims based

upon an allegedly negligent exercise by the Treasury De-

partment of the blacklisting or freezing powers are also

intended to be excepted. The bill is not intended to...

provide a remedy on account of such discretionary acts

even though negligently performed and involving an abuse

of discretion. . .. However, the common-law torts of em-

ployees of regulatory agencies would be included within

the scope of the bill to the same extent as torts of non-

regulatory agencies. Thus, ... [the bill is] not intended

to exclude such common-law torts as an automobile col-

lision caused by the negligence of an employee of the

Treasury Department or other Federal agency adminis-

tering those functions,

H.R. Rep. No. 2245, 77th Cong., 2d Sess. 10 (1942). See also

S. Rep. No. 1196, 77th Cong., 2d Sess. 7 (1942); H.R. Rep.

No. 1287, 79th Cong., 1st Sess. 5-6 (1946).

* Then Assistant Attorney General Shea, referring to a

prior bill that had contained no similar exception, testified

in House hearings that “the cases embraced within [the new]

subsection would have been exempted from [the prior bill]

by judicial construction. It is not probable that the courts

would extend a Tort Claims Act into the realm of the validity

of legislation or discretionary administrative action, but H.R.

6463 makes this specific.” Tort Claims: Hearings on H.R.

5373 & H.R. 6463 Before the House Comm. on the Judiciary,

T7th Cong., 2d Sess. 29 (1942).

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38

boundaries of the exception are to be determined within

this broad range of activities is that Congress expected

courts to refer to preexisting notions of governmental

immunity. Reference to such notions—short of wholesale

incorporation of them and all of their doctrinal casuis-

tries *’—-will therefore be made in an effort to solve the

central problem of the discretionary function exception:

“articulating and applying a rule that .. . allow[{s] the

Government immunity in those cases where it continues

to feel the need.” *

C. The Purpose of a Governmental Immunity for Dis-

cretionary Acts

Long before its embodiment in the FTCA, the concept

of “discretion” acquired a well established common law

In 1955, the Supreme Court rejected the contention that

section 2860(a) should be read to codify the much criticized

municipal immunity doctrine distinguishing governmental and

nongovernmental acts:

The fact of the matter is that the theory whereby munici-

palities are made amenable to liability is an endeavor,

however awkward and contradictory, to escape from the

basic historical doctrine of sovereign immunity. The Fed-

eral Tort Claims Act cuts the ground from under that

doctrine; it is not self-defeating by covertly embedding

the casuistries of municipal liability for torts.

Indian Towing Co. v. United States, 350 U.S. 61, 65 (1955).

Nevertheless, we find it helpful to keep in mind that the

discretionary function exception does not create protection

from suit, but rather preserves an immunity that has his-

torically been granted. Although we do not suggest that

this requires wholesale adoption of some of the arcane dis-

tinctions developed in an attempt to escape from that historic

principle prior to the FTCA’s general waiver, see id. at 65-66

n.1, we do think reference to the genera! teachings of common

law immunity doctrine can be useful in confining the immunity

preserved by the FTCA to its proper scope.

** Reynolds, The Discretionary Function Exception of the

Federal Tort Claims Act, 57 Gro. L.J. 81, 126 (1968) [here-

inafter cited as The Discretionary Function Exception).

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39

meaning in suits against government officers. Although

the sovereign was totally immune from tort liability, suits

for non-monetary relief were regularly permitted through

mandamus or injunction actions against agents of the

sovereign. To avoid the bar of sovereign immunity, courts

indulged the fiction that a remedy could be had against a

government officer, even though, in reality, relief would

come from the government itself.” In such cases, the fa-

miliar “ministerial/discretionary” distinction was used to

separate permissible actions nominally against the officer

from impermissible actions deemed to be against the gov-

ernment. One of the earliest and most well known state-

ments of this principle appears in Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803), where Chief Justice Mar-

shall ruled that mandamus would lie where an officer “is

directed by law to do a certain act... affecting the ab-

solute rights of individuals,” but not where the issuance

of mandamus would require decision of “([q]uestions in

their nature political” or inquiry into “how the executive,

or executive officers, perform duties in which they have a

discretion.” Id. at 170. As we explain below, the same

concern for limiting judicial intrusion into executive and

legislative domains underlies the discretionary immunity

embodied in the FTCA.

The government’s immunity from tort liability tradi-

tionally rested on broader justifications. In the early part

of this century, however, the doctrine was given increas-

ingly narrow application as the reasons for its existence

were gradually discarded. Sovereign immunity’s two tra-

ditional stanchions—‘“the king can do no wrong,” and

* See, ¢.g., Minnesota v. Hitchcock, 185 U.S. 373, 386

(1902). See generally Jaffe, Suits Against Governments and

Officers: Sovereign Immunity, T7 Harv. L. REv. 1 (1963);

Davis, Suing the Government by Falsely Pretending to Sue an

Officer, 29 U. Cu. L. REv. 435 (1962).

@ Borchard, Governmental Responsibility in Tort, 36 YALE

LJ. 1, 39-40 (1926-27) (“It is not open to doubt that notwith-

A-39

40

“there can be no legal right as against the authority that

makes the law on which the right depends” *‘—were

thoroughly discredited in a series of leading articles by

Professor Edwin Borchard.~ Enacted in the reformist

climate initiated by these articles, see Keifer & Keifer v.

RFC, 306 U.S. 381, 391 (1939) (“the present climate of

opinion . . . has brought governmental immunity from

suit into disfavor”), the FTCA was one of the earliest ef-

forts in a widely accepted move by courts and legisla-

tures, both state and federal, to “mitigate unjust conse-

quences of sovereign immunity from suit.” Feres v.

United States, 340 U.S. 135, 139 (1950).*

But as judicial abrogation and general legislative

waiver of the doctrine gained ascendency, only the most

standing the denial by many courts that the maxim, ‘the king

can do no wrong,’ has any application in the United States,

it has nevertheless furnished the real explanation why exemp-

tion of the government, state and federal, from liability in tort

has become an apparent axiom of American law.”) [herein-

after cited as Governmental Responsibility in Tort]. See Lang-

ford v. United States, 101 U.S. 341, 342-46 (1879).

“ The Western Maid, 257 U.S. 419, 433 (1922) (Holmes

J.); Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907)

(Holmes, J.).

@ Borchard, Governmental Responsibility in Tort, supra

note 60, at 17-41 (criticizing the theory that “the king can do

no wrong”); id. 757, 757-807 (criticizing Justice Holmes’

theory that the state cannot be bound by law). See also id.

1039; Borchard, Government Liability in Tort, 34 YALE LJ.

1 (1924-25); id. 129; id. 229; Borchard, Governmental Re-

sponsibility in Tort, 28 CoLuM. L. Rev. 577 (1928) ; Borchard,

Theories of Governmental Responsibility in Tort, 28 CoLuM.

L. Rev. 734 (1928).

@ For a review of the movement toward government re-

sponsibility, see 3 K. Davis, ADMINISTRATIVE Law TREATISE

§ 25.01-.17, at 434-505 (1958).

41

zealous detractors of sovereign immunity called for its

total abolition. There was a general recognition that the

doctrine still had a place in modern jurisprudence despite

its association with out-moded absolutist notions of gov-

ernment.™ “[{T]he source of [sovereign immunity’s] ...

continuing vitality where the royal privilege no longer

exists,” Justice Stone declared in 1938, “is to be found in

the public policy now underlying the rule even though it

may in the beginning have had a different policy basis.”

Guaranty Trust Co. v. United States, 304 U.S. 126, 132

(1938).

The modern policy basis justifying sovereign immunity

from suit has three principal themes. First, and most im-

portant, under traditional principles of separation of

powers, courts should refrain from reviewing or judging

the propriety of the policymaking acts of coordinate

branches.” Second, consistent with the related doctrine of

“In concluding a summary of legislative and judicial de-

velopments, for example, Professor Davis qualified his ringing

endorsement of the trend toward abolition of immunity with

the remarks:

(T]his is far from saying that governmental units should

be liable for all private losses they cause. Most such losses,

as now, will have to be regarded as a part of the neces-

sary price for the benefits of living in organized society.

Nearly all policy determination—legislative, executive,

judicial, or administrative—hurts someone. The losses

caused by policy choices are usually well spread, and even

when they are not... the governmental unit should

[sometimes] be immune from liability ....

Id, at § 25.17, 504-05. See also Note, Separation of Powers

and the Discretionary Function Exception: Political Question

in Tort Litigation Against the Government, 56 Iowa L. REV.

930, 9385 n.24 (1971) (“Only after policy-makers were willing

to confront the bald question of how much liability govern-

ments could accept short of ineffectuality and financial suicide

was the real issue joined. It is at this level that most of the

debate over immunity continues.”) [hereinafter cited as Sepa-

ration of Powers].

* Separation of powers became relevant to the law of sover-

eign immunity only after courts themselves began to abrogate

A-41

42

official immunity, courts should not subject the sovereign

to liability where doing so would inhibit vigorous decision-

making by government policymakers.” Third, in the in-

terest of preserving public revenues and property, courts

should be wary of creating huge and unpredictable gov-

ernmenta] liabilities by exposing the sovereign to damage

claims for broad policy decisions that necessarily impact

large numbers of people.” Framed in different fashions,

the doctrine. It was suggested that separation of powers con-

siderations counseled in favor of legislative solutions to the

problem of government immunity; otherwise, judicial abroga-

tion of the doctrine would “leave in the hands of the judiciary

the responsibility for balancing policy considerations and

striking a practical solution to issues which are essentially

political in nature and thus particularly within the competence

and experience of legislatures.” Van Alstyne, Governmental

Tort Liability: A Public Policy Prospectus, 10 U.C.LA. L.

REV. 463, 466 (1963). See also James, Tort Liability of Gov-

ernmental Units and Their Officers, 22 U. Cut. L. REV. 610,

615 (1955); Note, Separation of Powers, supra note 64, at

946-50.

* Elgin v. District of Columbia, 337 F.2d 152, 155 (D.C. Cir.

1964); Reynolds, The Discretionary Function Exception, supra

note 58, at 121. The argument that suits against government

should be barred because of their potential inhibiting effect on

governmental decisionmaking has long been advanced as a

policy basis for sovereign immunity. See The Siren, 74 U.S.

152, 154 (1868); Briggs v. Light Boats, 11 Allen 157, 162

(Mass. 1865). Despite this history, however, inhibition of

vigorous governmental decisonmaking is clearly less of a con-

cern in governmental immunity law than in official immunity

law. See Owen v. City of Independence, 445 U.S. 622, 655-56

(1980) (the argument “that the threat of personal monetary

liability will introduce an unm*rarranted and unconscionable

consideration into the decisionrnaking process, thus paralyzing

the governing official’s decisiveness and distorting his judg-

ment on matters of public policy[,] . . . is [less forceful] ...

when the threat of personal liability is removed”).

* See Schwartz, Public Tort Liability in France, 29 N.Y.U.

L. REV. 1432, 1458 (1954); Note, Separation of Powers, supra

note 64, at 9385 & n.25. Fear that enormous liabilities might

threaten public solvency has traditionally been cited as a justi-

A-42

43

each of these themes appears again and again, alone or

in combination, as a modern justification for retaining a

form of immunity, under the general rationale that courts

should not “interfere” with government operations and

policymaking.

D. The Case Law Interpretation of the Discretionary

Function Exception

We now turn to the case law interpretation of section

2680(a)’s scope. As will become clear, courts have gradu-

ally developed a functional approach to the statute that

—consistent with common law principles embodied within

it—permits immunity only where interference with the

conduct of government is threatened.

The seminal Supreme Court case on the discretionary

function exception is Dalehite v. United States, 346 U.S.

15 (1953). Dalehite involved an FTCA action for per-

sonal injuries and deaths arising from a cataclysmic ex-

plosion in Texas City, Texas, of nitrate fertilizers manu-

factured by the government for shipment to occupied

Europe. Damages were sought for alleged negligence in

drafting and adopting the fertlizer export plan, manu-

facturing the fertilizer, and supervising dockside loading.

The Supreme Court denied all liability, ruling each of

these activities to be a protected discretionary function.

The Court began its construction of the discretionary

function exception with a reminder that sovereign im-

munity remains a vital principle subject to abrogation

fication for state sovereign immunity under the Eleventh

Amendment, see Cohens v. Virginia, 19 U.S. 264, 405 (1821),

and common law municipal immunity, sce Russell v. Men of

Devon, 100 Eng. Rep. 359 (K.B. 1788). It may have less force

as a justification for federal sovereign immunity. See

Rayonier, Inc. v. United States, 352 U.S. 315, 320 (1956)

(“[(F]Jor obvious reasons the United States cannot be equated

with a municipality, which conceivably might be rendered

bankrupt if it were subject to [huge] liability for the negli-

gence of its [employees] ....”).

A-43

44

only by clear legislative statement. After examining the

legislative history of section 2680(a), the Court noted

that the statute protects “the discretion of the executive

or the administrator to act according to one’s judgment

of the best course, a concept of substantial historical an-

cestry in American law.” Jd. at 34. But the Court did

not attempt a precise definition of the boundaries of the

concept of discretion in light of this ancestry, preferring

to say only that:

It is unnecessary to define, apart from this case,

precisely where discretion ends. It is enough to hold,

as we do, that the “discretionary function or duty”

that cannot form a basis for suit under the Tort

Claims Act includes more than the initiation of pro

grams and activities. It also includes determinations

made by executives or administrators in establish-

ing plans, specifications or schedules of operations.

Where there is room for policy judgment and de

cision there is discretion.

Id. at 35-36 (footnote omitted). The broad suggestion

that “where there is room for policy judgment and deci-

sion there is discretion” was limited with an analysis

aimed principally at the level of the decisionmaker.

“That the cabinet-level decision to institute the fertilizer

program was a discretionary act is not seriously dis-

puted,” the Court observed. Jd. at 37. And because all

of the decisions executing that initial determination “were

. responsibly made at a planning rather than opera-

tiona] level and involved considerations more or less im-

portant to the practicability of the Government’s ferti-

lizer program,” id. at 42, they too were ruled to be dis-

cretionary acts.”

* Dalehite remains the Supreme Court’s only full-dress pro-

nouncement on the discretionary function exception. ‘The ex-

ception came up indirectly or was relevant for its absence in a

_ spate of cases following immediately in Dalehite’s wake, see

Indian Towing Co. v. United Stater, 350 U.S. 61; Hatahley v.

United States, 351 U.S. 173 (1956) ; Rayonier, Inc. v. United

A-44

45

This court’s early application of the discretionary func-

tion exception used the planning/operational distinction

of Dalehite, but, at the same time, took care to relate

that distinction to its common law origins. In Eastern

Airlines, Inc. v. Union Trust Co., 221 F.2d 62 (D.C.

Cir.), affd sub nom. United States v. Union Trust Co.,

350 U.S. 907 (1955), for example, we found the negli-

gence of air traffic controllers in causing an aircraft

disaster to be actionable “operational” activity. The ques-

tion for decision was framed as whether the activities

alleged fell within the “ ‘historic principle that the courts

will not, in private action, revise or review executive

conduct involving the exercise of judgment or discretion

of a public character.’” Jd. at 74 (quoting, without

citation, contention of the United States). Noting that

Dalehite’s distinction “between non-actionable planning

and actionable negligence in carrying out the plan” could

be traced to this principle, id. at 77, the court observed

that a similar line had traditionally been drawn between

discretionary decisions “ ‘involving the exercise of de-

liberate judgment and large discretion . . . and depend-

ing upon considerations affecting the public health and

general convenience throughout an extensive territory,’”

and “ ‘simply ministerial duties’” involving implementa-

tion “ ‘according to the general plan so adopted.’” IJd. at

78 (quoting Johnston v. District of Columbia, 118 U.S.

19, 21 (1886)). The court then upheld a finding of li-

ability, concluding that the activities alleged “were not

‘decisions responsibly made at the planning level’ and

did not involve any considerations important to the prac-

ticability of the Government’s program of controlling air

traffic at public airports.” 221 F.2d at 78.

States, 352 U.S. 315; United States v. Muniz, 374 U.S. 150,

none of which contributed significantly to interpretation of the

statute’s proper scope. The task of fully expounding the mean-

ing of the discretionary function clause has thus devolved on

the lower federal courts.

46

More recent decisions by this court and other lower

federal courts under the discretionary function exception

have gradually dispensed with strict application of the

operational/planning distinction. In its place has emerged

a functional approach focusing on “the nature and qual-

ity of the discretion involved in the acts complained of.”

Smith v. United States, 375 F.2d 243, 246 (5th Cir.),

cert. denied, 389 U.S. 841 (1967). One discernible

theme in these recent decisions is to “hold[{] the govern-

ment responsible for any negligent execution of admit-

tedly discretionary policy judgments where the decisions

required for the execution did not themselves involve the

balancing of policy factors.” Sami v. United States, 617

F.2d 755, 766 (D.C. Cir. 1979). Government decisions

will thus be protected only if they are “fraught with for-

eign relations or other public policy considerations.” Id.

at 767. The aim of the analysis, consonant with common

law principles embodied in the statute, is to preserve an

immunity broad enough to “ ‘prevent[] tort actions from

becoming a vehicle for judicial interference” with the con-

duct of government. Jd. at 766 (quoting Blessing v.

United States, 417 F. Supp. 1160, 1170 (E.D. Pa. 1978) ).

E. Application of the Discretionary Function Exception

In This Case

It is plain that Gray’s FTCA claim was properly dis-

missed insofar as it incorporates the malicious prosecu-

tion claim and thus challenges the actual decision to

* See Sami v. United States, 617 F.2d at 766-67; First

Nat'l Bank in Albuquerque v. United States, 552 F.2d 370,

374-77 (10th Cir.), cert. denied, 484 U.S. 835 (1977) ; Downs

v. United States, 522 F.2d 990, 997 (6th Cir. 1975); J.H. Rut-

ter Rex Mfg. Co. v. United States, 515 F.2d at 99; Griffin v.

United States, 500 F.2d at 1064; Hendry v. United States, 418

F.2d 774, 780-83 (2d Cir. 1969).

™ See also Harr v. United States, No. 82-1379, slip op. at 11

(D.C. Cir. Apr. 19, 1983) ; Beins v. United States, 695 F.2d

591, 600-05 (D.C. Cir. 1982) ; Hitchcock v. United States, 665

F.2d 354, 363 (D.C. Cir. 1981).

A-46

47

institute prosecution against him. Prosecutorial decisions

as to whether, when and against whom to initiate prose-

cution are quintessential examples of governmental dis-

cretion in enforcing the criminal law, and, accordingly,

courts have uniformly found them to be immune under

the discretionary function exception.”

The separation of powers concerns justifying govern-

~ mental immunity in this area were forcefully expressed

by the Fifth Circuit in Smith v. United States, 375 F.2d

243. First, prosecutorial discretion is exercised pursuant

to expansive constitutional and statutory authority dele-

gated to the executive. The President of the United

States is charged in article 2, section 3, of the Con-

stitution with the duty to “take Care that the Laws be

faithfully executed,” the Attorney General is the Presi-

dent’s surrogate in the prosecution of all offenses against

the United States, and each Assistant Attorney Gen-

eral is the delegate of the Attorney General in exer-

cising this broad well-spring of enforcement authority.

See Smith v. United States, 375 F.2d at 246-47. Second,

each individual decision whether or not to initiate prose-

cution is part of a national enforcement policy and in-

volves the weighing of competing resources and priori-

ties. “The federal government’s decisions concerning en-

forcement of its criminal statutes comprise a part of

its pursuit of national policy. If the government could

be held liable for prosecuting or failing to prosecute [a

particular] ... case, its choices in [an entire] area...

could quite conceivably be affected by . . . a [private]

suit. Thus, a policy decision of the federal government

might be influenced by a plaintiff with no governmental

responsibility.” Jd. at 247. Finally, the prosecutor’s de-

™ See Redmond v. United States, 518 F.2d 811 (7th Cir.

1975); Accardi v. United States, 485 F.2d 1239 (3d Cir.

1970) ; Smith v. United States, 375 F.2d 243; United States v.

Faneca, 332 F.2d 872 (5th Cir. 1964), cert. denied, 380 U.S.

971 (1965) ; Brooks v. United States, 152 F. Supp. 535 (S.D.

N.Y. 1957).

48

cision whether or not to initiate prosecution has his-

torically been subject to little or no judicial scrutiny

and is not readily amenable to evaluation by courts. “The

discretion of the Attorney General in choosing whether

to prosecute or not to prosecute, or to abandon a prosecu-

tion already started, is absolute.” Jd.

Gray contends that the concerns expressed in Smith v.

United States do not apply here because the challenged

prosecutorial decision in that case was central to na-

tional civil rights policy. “The [prosecutors] ... in

Smith had to decide whether to prosecute black civil

rights activists for alleged illegalities in their boycotting

and picketing of a white merchant.” Reply Brief for Ap-

pellant 20. “No such complex issues of political respon-

sibility are involved in the instant case,” Gray observes.

Id. at 21. We do not think the separation of powers

concerns articulated in Smith may be read so narrowly.

Given the nature of the discretion inherent in any prose-

cutorial decision to initiate proceedings, it is clear that

judicial review in tort suits would—at some point—trench

on the traditional boundaries of separation of powers.

The test suggested by Gray, focusing on “complex issues

of political responsibility,” is both impractical and plainly

at odds with the underlying purpose of the discretionary

function exception. We think there can be no serious

question over the applicability of the discretionary func-

tion exception to the decision to initiate prosecution.”

™ In some areas of governmental] function where the appli-

cability of the rationale for sovereign immunity is less clear,

this court and other courts often undertake close, case-by-case

scrutiny of the particular decision at issue to determine

whether it involved the weighing of policy factors. See, e.g.,

Harr v. United States, slip op. at 10-13; Beins v. United

States, 695 F.2d at 602-05 ; Griffin v. United States, 500 F.2d at

1067-69 ; Hendry v. United States, 418 F.2d at 783 (all involv-

ing medical or scientific decisionmaking). But other “ ogo

1160, 1181 n.29 (E.D. Pa. 1978).

A-48

av

49

Disposition of the remaining portions of Gray’s FTCA

claim is only slightly more problematic. These portions

of Gray’s FTCA claim incorporate the allegations of

Counts One and Two of the complaint, both of which rest

on constitutional tort theories under the Grand Jury and

Due Process clauses of the Fifth Amendment. Because

the FTCA’s general waiver of immunity extends only to

acts or omissions that would he tortious under state law,

there is a question whether constitutional torts that do

not also constitute torts under state law are cognizable

under the FTCA.™ We do not resolve that issue, however,

because it was neither addressed below nor briefed be-

fore this court.”

™ See 28 U.S.C. 1346(b). In a case that arose prior to

1974, the Second Circuit held that constitutional torts are

not cognizable under the FTCA for this reason. See Birn-

baum v. United States, 588 F.2d 319, 327-28 (2d Cir. 1978).

The “investigative or law enforcement officer” proviso of

§ 2680(h), enacted in 1974, may now compel a different con-

clusion. See Norton v. United States, 581 F.2d 390, 395 (4th

Cir.) (“[{T]he legislative history [of the 1974 proviso] makes

clear that the federal government may be sued for Bivens

torts committed by its agents ... .”), cert. denied, 489 U.S.

1003 (1978). Commentators are divided on the question.

Compare Schuck, Suing Our Servants: The Court, Congress,

and the Liability of Public Officials for Damages, 1980 SuP.

CT. REV. 281, 356-57 and Bell, Proposed Amendment to the

Federal Tort Claims Act, 16 HARV. J. ON LEGIS. 1, 4-5 (1979)

with Boger, Gitenstein & Verkuil, The Federal Tort Claims

Act Intentional Torts Amendment: An Interpretive Analysis,

54 N.C. L. REv. 497, 521-23 (1976).

™ Nor do we resolve the interrelated question whether the

Gevernment may raise the official immunity defenses of its

employees in constitutional tort cases. See Norton v. United

States, 581 F.2d at 393 (ruling that the United States may

assert all defenses available to its agents, including official

immunity defenses, in Bivens actions). But see Townsend

v. Carmel, 494 F. Supp. at 36-37 (ruling that the United

States may not assert the official immunity defenses of its

agents, but observing in dicta that the result would be differ-

ent if § 2680(a) were applicable to cases under the “investi-

gative or law enforcement officer” proviso).

A-49

: 50

Even assuming Gray’s allegations of illegal pre

indictment conduct are cognizable under the FTCA, they

too are barred under the discretionary function clause.

Gray contends that he “is not complaining of the initial

decision which may have been made by one or more of

the defendants to conduct a broad scale investigation of

the FBI [, but, rather,] of the improper, tortious, and

constitutionally defective manner in which that investi-

gation was carried out.” Brief for Appellant 41. There

is, indeed, much validity to the distinction between rou-

tine execution of discretionary decisions and discretionary

decisions themselves,™ with the discretionary function ex-

ception of the FTCA immunizing the latter but not the

former. But this presupposes that the implementing ac-

tivities in any particular case are sufficiently separable

from the purely discretionary decisions to which they are

related. In an area of governmental functions, such as

those involving decisions of a prosecutor, where courts

traditionally have been quick to find immunizing discre-

tion, we must examine carefully the allegations made to

determine whether they are sufficiently separable from

protected discretionary decisions. If such separability ex-

ists, then the conduct of the prosecutor may be actionable

under the FTCA.

™ This distinction is traceable to the common law of mu-

nicipal immunity. We first recognized its validity as a guide

to application of the discretionary function exception in

Eastern Arlines, Inc. v. Union Trust Co., 221 F.2d 62, 77-78

(D.C. Cir.), aff'd sub nom. United States v. Union Trust Co.,

350 U.S. 907 (1955). As the law has developed, more re-

cently some courts have drawn a distinction between “policy

formulation” and “rule application.” See, e.g., Hendry v.

United States, 418 F.2d at 782; Duncan v. United States, 355

F. Supp. 1167, 1170 (D.D.C. 1973). The importance of the

distinction is not in the terminology used, however, but in

the focus on the nature of the decisionmaking discretion in-

volved. Thus, whatever terms are used, the result is the

same: routine decisions that do not involve the actual weigh-

ing of policy factors are not accorded immunity, even though

they may involve a measure of judgment.

A-50.

51

Although the decision whether or not to prosecute

clearly falls within the FTCA’s discretionary function

clause, other prosecutorial actions that directly relate to

this fundamental policy decision are not so easily char-

acterized. Indeed, there can be cases where conduct of the

prosecutor prior to, or even after, the initiation of Grand

Jury proceedings is removed sufficiently from the decision

to prosecute so that the discretionary function clause

would not provide any protection. For example, participa-

tion by prosecutors in illegal searches and seizures during

the course of an investigation, or the dissemination of

defamatory information to the media, easily could be dis-

associated from the discretionary decision to prosecute.

Cf. note 23 supra (citing cases). Disassociating such

activities from protected prosecutorial decisions is rela-

tively simple because the harm alleged in such cases is

distinct from the harm caused by the ultimate prosecution

itself. Without delving further into specific factual situa-

tions not now before us, we can only suggest that ap-

plication of the FTCA’s discretionary function clause to

actions taken by prosecutors will continue to evolve on a

case-by-case basis.

In the present case, the improper and tortious actions

allegedly undertaken by the defendants are too inter-

twined with purely discretionary decisions of the prosecu>

tors to be sufficiently separated from the initial decision

to prosecute. Taking the facts as alleged in the complaint,

we note that each allegation of improper investigatory

conduct is inextricably tied to the decision to prosecute

and the presentation of evidence to the Grand Jury. In

this case, there is no meaningful way in which the al-

legedly negligent investigatory acts could be considered

apart from the totality of the prosecution. Indeed, the

gist of Gray’s complaint focuses on alleged causal links

between the negligent investigation, the presentation of

false and misleading evidence, and the ultimate prosecu-

tion. Separating allegations in the complaint that focus

on the investigation from the ultimate prosecution merely

A-51

52

would elevate the form of Gray’s complaint over its es-

sence. Accordingly, although plaintiffs in other cases

might allege prosecutorial misdeeds in investigating and

presenting evidence to various Grand Juries that, if ana-

lyzed discretely, could be viewed as nondiscretionary, we

think that the conduct as alleged in this case is insuffi-

ciently separable from the discretionary decision to ini-

tiate prosecution and therefore cannot by itself support

suit under the FTCA.

Payton v. United States, 679 F.2d 475 (5th Cir. Unit

B 1982) (en banc), involved a similar situation. In that

case the plaintiff brought a wrongful death suit against

federal parole authorities for a murder perpetrated by

a psychotic federal] parolee. The parole release determi-

nation was held to be a discretionary function, but the

plaintiff drew his complaint—as Gray has done here—in

disaggregative fashion, challenging the Parole Board’s

“ministerial” failure to acquire and examine certain rec-

ords prior to making the parole decision. The court nev-

ertheless dismissed all of the allegations, explaining that

the plaintiff’s challenge to the “ministerial” omissions

implicates the discretionary function of the Board.

To withstand a motion to dismiss, an allegation

challenging the Board’s performance of any minis-

terial act must be sufficiently distinguishable from a

complaint disputing the Board’s exercise of its dis-

cretionary function. The plaintiff must therefore al-

lege that the Board breached a duty sufficiently sep-

arable from the decision-making function to be non-

discretionary and outside of the exception.

Id, at 482.

The same reasoning applies here. We will not permit

a suit for damages occasioned by activities that are not

meaningfully separable from a protected discretionary

function. We thus hold that section 2680(a) “exempts

the government from liability for exercising the discre-

tion inherent in the prosecutorial function of the Attor-

A-52

53

ney General, no matter whether [the challenged] deci-

sions are made during the investigation or prosecution of

offenses.”” Smith v. United States, 375 F.2d at 248.

IV. CONCLUSION

For the foregoing reasons, the District Court’s dismis-

sal of the amended complaint is

Affirmed.

A~53

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 82-1838 September Term, 1982

L. Patrick Gray, III

Appellant Civil Action No.

81-00836

Vv.

Griffin Bell, et al.

Appellees

BEFORE: Robinson, Chief Judge, Wright,

Tamm, Wilkey, Wald, Mikva,

Edwards, Ginsburg, Bork and

Scalia, Circuit Judges

The Suggestion for Rehearing en banc

of Appellant, filed August 5, 1983, has

been circulated to the full Court and no

member has requested the taking of a vote

thereon. On consideration of the fore-

going, it is

ORDERED by the Court en banc that the

aforesaid Suggestion is denied.

Per Curiam

A-54

For the Court:

GEORGE A. FISHER,

Clerk

By: /s/

Robert A. Bonner

Chief Deputy Clerk

Circuit Judges Tamm, Wald and Bork did

not participate in this Order.

A-55

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 82-1838 September Term, 1982

L. Patrick Gray, III

Appellant Civil Action No.

81-00836

Vv.

Griffin Bell, et al.

Appellees.

BEFORE: Mikva, Edwards and Scalia,

Circuit Judges

On consideration of Appellant's

Petition for Renearing, filed August 5,

1983, it is

ORDERED by the Court that the afore-

said Petition is denied.

Per Curiam

For the Court:

GEORGE A. FISHER, Clerk

By: /s/

Robert A. Bonner

ie a Deputy Clerk

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

L. PATRICK GRAY, III )

)

Plaintiff )

)

Vv. ) CIVIL ACTION

) No. 81-836

GRIFFIN BELL, et al., )

)

Defendants )

MEMORANDUM

L. Patrick Gray, III, a former Acting

Director of the Federal Bureau of Investi-

gation (FBI), brings this action against

the United States as well as former

Attorney General Griffin Bell and fifteen

Department of Justice attorneys, all of

whom are sued individually and in their

official capacity. Gray asserts several

claims arising out of defendants' roles

in his indictment for conspiring against

the rights of citizens in violation of

section 241 of title 18, 18 U.S.C. § 241

(1976). The action is before the Court

on defendants' motion, ta, dismiss.

According to the amended complaint

in this action, a federal grand jury for

the District of Columbia on April 10, 1978

indicted Gray along with W. Mark Felt,

a former Acting Associate Director of the

FBI, and Edward S. Miller, a former

Assistant Director for the Domestic

Intelligence Division of the FBI, for

conspiring against the rights of citizens.

The indictment alleged that Gray, Felt

and Miller had conspired to deprive certain

relatives and acquaintances of fugitives

connected with the so-called "Weatherman"

organization of their Fourth Amendment

rights by utilization of surreptitious

entries, or "bag jobs," as an investi-

gative technique. Gray's involvement in

the conspiracy, according to the indict-

ment, rested primarily on information

suggesting that he had given generic

authorization for the use of "bag jobs"

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in the FBI's effort to apprehend the

Weatherman fugitives.

On December 10, 1980, the Department of

Justice moved for dismissal of the case

against Gray. The district court granted

the Department's motion and the case was

nolle prossed. Felt and Miller were later

tried and convicted. On March 26, 1981,

they were given a full and unconditional

pardon by President Reagan.

On April 9, 1981, Gray filed this

action. In Count One of his amended

complaint, Gray alleges that defendants

violated his Fifth Amendment rights to due

process of law and indictment by an informed

and unbiased grand jury by conducting a

negligent pre-indictment investigation.

Specifically, Gray alleges that defendants

conducted a negligent pre-indictment investi-

gation and, as a result, presented false and

misleading evidence to the grand jury,

A-59

failed to obtain and present to the grand

jury certain exculpatory evidence and, in

addition, failed to present to the grand jury

certain exculpatory evidence that they had

obtained. In Count Two, Gray alleges that

defendants willfully and maliciously violated

his Fifth Amendment rights to due process of

law and indictment by an informed and

unbiased grand jury by presenting false and

misleading evidence to the grand jury and by

withholding certain exculpatory evidence

from the grand jury. In Count Three, Gray

asserts causes of action under the Federal

Tort Claims Act, 28 U.S.C. § 2671 et seq.

(1976 and Supp IV 1980), based on his alle-

gations in Counts One, Two and Four. In

Count Four, Gray asserts a common law cause

of action for malicious prosecution.

Defendants seek to dismiss this action

on several grounds. Defendants argue that

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all of Gray's claims are barred by the

doctrine of collateral estoppel and, in

addition, that the amended complaint

fails to state claims upon which relief

can be granted. Defendants further con-

tend that defendant Bell and the fifteen

Department of Justice attorneys named as

defendants are entitled to absolute

immunity as prosecutors under the

circumstances of this case.

II.

Under the Supreme Court's landmark

decision in Imbler v. Pachtman, 424 U.S.

409 (1976), the test for determining

whether a prosecutor is entitled to

absolute immunity or only qualified

1

immunity is a functional one. A

‘Gray does not allege that defendants

acted outside the scope of their duties

as prosecutors. See Briggs v. Goodwin,

569 F.2d 10, 15-16 (D.C. Cir. 1577),

cert. denied, 437 U.S. 904 (1978).

A-61

prosecutor engaging in advocatory, or

quasi-judicial, activities is entitled to

absolute immunity. Id. at 430; Dellums

v. Powell, 660 F.2d 802, 806-07 (D.C.

Cir. 1981); Simons v. Bellinger, 643 F.2d

774, 784 (D.C. Cir. 1980). A prosecutor

engaging in investigative or administra-

tive activities is entitled to only

qualified immunity. Halperin v. Kissinger,

606 F.2d 1192, 1208 (D.C. Cir. 1979),

aff'd by an equally divided Court per

curiam, 452 U.S. 713 (1981); Briggs v.

Goodwin, 569 F.2d 10, 21 (D.C. Cir. 1977),

cert. denied, 437 U.S. 904 (1978); Apton

v. Wilson, 506 F.2d 83, 93 (D.C. Cir.

1974). See Harlow v. Fitzgerald,

U.S. _, __, 50 U.S.LW. 4815, 4818 n.16

(June 24, 1982).

In Imbler, the Supreme Court

recognized that the advocatory activities

of a prosecutor often involve "actions

A-62

preliminary to the initiation of a

prosecution and actions apart from the

courtroom." Imbler v. Pachtman, 424 U.S.

at 431 n. 33. As the Supreme Court

explained:

A prosecuting attorney is

required constantly, in the

course of his duty as such,

to make decisions on a wide

variety of sensitive issues.

These include questions of

whether to present a case to

a grand jury, whether to file

an information, whether and

when to prosecute, whether to

dismiss an indictment against

particular defendants, which

witnesses to call, and what

other evidence to present.

Preparation, both for the

initiation of the criminal

process and for a trial, may

require the obtaining,

reviewing, and evaluating of

evidence.

The Supreme Court also recognized,

however, that

[a]t some point, and with

respect to some decisions,

the prosecutor no doubt

functions as an administrator

rather than as an officer of

the court. “a a proper

line between these functions

may present difficult

questions... .

The Court of Appeals for this Circuit

has analyzed "the plain import of the

Court's remarks" in Imbler as follows:

Although the passage quoted

above makes clear that a

prosecutor's advocacy function

does extend beyond the confines

of the trial courtroom, the

examples of such preliminary

advocate activities provided

by the Supreme Court are

instructive for their common

focus on a particular criminal

proceeding. By the plain

import of the Court's remarks,

absolute immunity under Imbler

extends only so far as necessary

to protect a prosecutor's

decision with respect to the

initiation and conduct of

particular cases. Imbler does

not, in our reading, immunize

prosecutors for any and all

measures they may undertake in

the course of wide-ranging law

enforcement investigations or

general fact-finding expeditions.

Briggs v. Goodwin, 569 F.2d at 19-20.

A-64

Il.

In Count One, Gray alleges that

defendants violated his Fifth Amendment

rights to due process of law and indict-

ment by an informed and unbiased grand

jury by conducting a negligent pre-

indictment investigation. By alleging

here that defendants’ negligence in

conducting the pre-indictment investiga-

tion legally caused subsequent violations

of his Fifth A-endment rights,

Gray

assumes that defendants owed him a duty

under the Fifth Amendment to conduct a

careful, thorough investigation before

presenting evidence to the grand jury in

their attempt to obtain his indictment.

This assumption, however, is misplaced.

<r the extent that Gray's allegations

here also encompass a claim involving

negligence in presenting or failing to

present evidence to the grand jury, the

analysis in Part IV provides the appro-

priate basis for dismissal.

A-65

Although defendants did owe Gray

some duties during the course of their

pre-indictment investigation, such as not

to violate his Fourth Amendment rights,

see Halperin v. Kissinger, 606 F.2d at

1208; Apton v. Wilson, 506 F.2d at 93,

defendants owed Gray no duty under the

Fifth Amendment to conduct a careful,

thorough pre-indictment investigation. >

As is well settled, prosecutors have no

duty to withhold inadequate or incompetent

evidence from the grand jury, see United

States v. Calandra, 414 U.S. 338, 349-52

(1974); Costello v. United States, 350

U.S. 359, 361-64 (1956), nor do prosecu-

tors have a duty to present to the grand

370 the extent that Gray attempts to

assert a common law negligence claim in

addition to the claim of a constitutional

tort based on the Fifth Amendment, Gray

similarly fails to establish the existence

of any relevant duty under the common law

owed to him by defendants.

A-66

jury exculpatory evidence that they have

obtained, * see United States v. Lasky,

600 F.2d 765, 768 (9th Cir.), cert. denied

444 U.S. 979 (1979); United States v.

Ruyle, 524 F.2d 1133, 1136 (6th Cir. 1975),

cert. denied, 425 U.S. 934 (1976); United

States v. Mandel, 415 F. Supp. 1033, 1042

(D. Md. 1976). Prosecutors a fortiori

have no duty to seek e

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