# Petition — Gray v. Bell > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0720%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 465 U.S. 1100 ## Text 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 . . 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 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" A-58 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 A-60 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. 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 evidence that is adequate, competent or exculpatory. As stated in United States v. Ciambrone, 601 F.2d 616, 622 (2d Cir. 1979); Despite recent movements for revision of grand jury pro- cedure, a prosecutor is not presently obligated to search for and submit to a grand jury evidence favorable to the fat trial, in contrast, prosecutors have a duty under the due process of law requirement of the Fifth amendment "to bring to the attention of the court or of proper officials all significant evidence suggestive of innocence or mitigation." v. P 424 U.S. 409, 427 n.25 (1976). A-67 defense or negating guilt, when it has not been requested by the grand jury. Accord United States v. Olin Corp., 465 F. Supp. 1120, 1128 (W.D. N.Y. 1979). Thus, Count One must be dismissed for failure to state a claim upon which relief can be granted. Even assuming that defendants did owe Gray a duty under the Fifth Amendment to conduct a careful, thorough pre-indictment investigation, defendants are entitled to absolute immunity” because their activities in this case, as specifically alleged by Even if defendants are entitled only to qualified immunity under the circumstances of this case, they still are immune from suit. As the Supreme Court recently held "government officials performing discretion- ary 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." Harlow v. Fitzgerald, U.S. p 30 U.S LW. 41S a oLoWe , 4820 (June 24, 1980). Assuming that defendants did owe Gray a duty under the Fifth Amend- ment to conduct a careful, thorough pre- indictment investigation, that duty was not clearly established at the time of their actions. A-68 Gray, must be characterized as advocatory and not investigative. Any other con- clusion “would surely offend the principles of Imbler." Dellums v. Powell, 660 F.2d at 806 n.13. "Never has a prosecutorial official been held liable for causing a prosecution to be brought.” Id. at 806 (footnote omitted). In Simons v. Bellinger, 643 F.2d at 784 (footnotes omitted), the Court of Appeals for this Circuit explained: Briggs [v. Goodwin, 569 F.2d at -24] directs us to look beyond both the guise and setting of the prosecutor's activity and to examine, instead, the maturity of his investigation. At some point, the prosecutor's inquiry becomes sufficiently focused so that he is preparing a case against a particular defendant rather than seeking a defendant against whom he may prepare a case. At this point, his efforts become advocatory: they are intimately associated with the sensitive decision of whether or not to initiate a particular prosecution, a A-69 decision which is left to advocates, not investigators. Although Gray alieges that defendants conducted a "broad and wide-ranging” investigation designed to uncover any FBI wrongdoing, he challenges only activities that took place after the investigation had matured to the point at which defendants were "preparing a case against a particular defendant rather than seeking a defendant against whom... [t]Jo prepare a case." Simons v. Bellinger, 643 F.2d at 784 (footnote omitted). Defendants’ allegedly negligent activities "had focused upon both a set of defendants and a specific wrong,” id.; see id. at 785 n.16; Briggs v. Goodwin, 569 F.2d at 19- 20, and were related to the "initiation and conduct” of a particular criminal proceeding, Simons v. Bellinger, 643 F.2d at 784 n.15 (quoting Briggs v. Goodwin, A-70 569 F.2d at 20). See Cook v. Houston Post, 616 F.2d 791, 793 (5th Cir. 1980); Henzel v. Gerstein, 608 F.2d 654, 657 (5th Cir. 1979); Forsyth v. Kleindienst, 599 F.2d 1203, 1215 (3rd Cir. 1979), cert. denied, 453 U.S. 913 (1981); Conner v. Pickett, 552 F.2d 585, 586 (5th Cir. 1977). Indeed, it is difficult to conceive how defendants' duty to Gray under the Fifth Amendment to conduct a careful, thorough pre-indictment investigation, if in fact that duty exists, could even arise until the investigation had "focused upon" Gray and his suspected crime. One further reason supports the conclusion that defendants' allegedly negligent activities are advocatory and not investigative. In Briggs v. Goodwin, 569 F.2d at 24 (quoting Apton v. Wilson, 506 F.2d at 94), the Court of Appeals for this Circuit indicated: A-71 When prosecutorial activity is properly classified [as advocatory] ..., “the cir- cumstances typically provide alternative instruments of the judicial branch to check misconduct -- the discretion of the grand jury, the procedures of a trial, and the potential sanction of discipline imposed by the court itself." In this case, all three of the potential checks are present. See also Imbler v. Pachtman, 424 U.S. at 427, 429. IV 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. As discussed above, however, defendants owed Gray no duty under the Fifth Amendment to withhold false or A-72 misleading evidence from the grand jury or to present exculpatory evidence to the grand jury. Of course, even assuming that defendants did owe Gray that duty, or perhaps only a duty under the Fifth Amendment not to present knowingly false evidence to the grand jury, see United States v. Kennedy, 564 F.2d 1329, 1338 (9th Cir. 1977), cert. denied, 435 U.S. 944 (1978), defendants nevertheless are entitled to absolute immunity ® because the presentation of evidence to the grand jury indisputably is an advocatory function of a prosecutor, see Cook v. Houston Post, 616 F.2d at 793; Henzel v. Gerstein, 608 F.2d at 657; Prince v. Wallace, 568 F.2d 1176, 1178-79 (Sth Cir. 1978); Conner v. Pickett, 552 F.2d at 586; Brawer v. Horowitz, 535 F.2d 830, 834 (3d Cir. 1976); ®see note 5 supra. A-73 Marlowe v. Coakley, 404 F.2d 70, 70-71 (9th Cir. 1968), cert. denied, 395 U.S. 947 (1969). Vv In Count Four, Gray asserts a common law cause of action for malicious prosecu- tion. As discussed at length by the Supreme Court in Imbler v. Pachtman, 424 U.S. at 421-24, however, prosecutors are entitled to absolute immunity from causes of action based on the common law tort of malicious prosecution. See Yaselli v. Goff, 275 U.S. 503 (1927), aff'g per curiam 12 F.2d 396 (2d Cir. 1926). viI In Count Three, Gray asserts causes of action against the United States under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seg. (1976 & Supp. IV 1980), based on his allegations in Counts One, Two and Four. These causes of action, A-74 however, cannot be brought under the Federal Tort Claims Act. The United States did not waive its sovereign immunity for {a]Jny 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) (1976). All three causes of action here are based upon discretionary functions allegedly per- formed inadequately by defendants. Despite Gray's contentions to the contrary, moreover, the cause of action based upon his allegations of malicious prosecution does not fall within the United States' waiver of sovereign immunity contained in the proviso clause of section 2680(h) of the Federal Tort Claims Act. Under section 2680(h), the United States' waiver of sovereign immunity A-75 does not apply to: {aJny 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 enforce- ment 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 purpose 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) (1976). The United States' waiver of sovereign immunity for Claims arising out of malicious prosecu- tion, as set forth in the proviso clause, does not apply to the acts or omissions A-76 of federal prosecutors because federal pro- secutors are not "investigative or law enforcement officers." Federal prosecutors are not empowered by law "to execute searches, to seize evidence, or to make arrests for violations of Federal law." See 28 U.S.C. § 547 (1976). See also S. Rep. No. 588, 93d Cong., lst Sess. 2-4 (1973). VII Accepting as true Gray's detailed allegations of defendants' wrongdoing, this Court's decision today, to the extent that it rests on an application of the doctrine of absolute immunity, does leave Gray without civil redress for wrongs done to him. This result must obtain, however, because "the alternative of qualifying a prosecutor's immunity would disserve the broader public interest. It would prevent the vigorous and fearless performance of the prosecutor's duty that is essential to the proper functioning of A-77 the criminal justice system." Imbler v. Pachtman, 424 U.S. at 427-28 (footnote “ omitted) . As explained by Judge Hand: As is so often the case, the answer must be found in a balance between the evils inevitable in either alterna- tive. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation. Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949), cert. denied, 339 U.S. 949 (1950). Accordingly, defendants' motion to dismiss is granted as to all four counts of Gray's amended complaint. An Order consistent with this Memorandum follows. /s/ John Lewis Smith, Jr. United States District Judge Dated: July 9, 1982 A-78 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 ) ORDER Upon consideration of defendants' motion to dismiss, plaintiff's opposition, Oral argument of counsel and the entire record, it is by the Court this 9th_ day of July 1982 ORDERED that defendants' motion to dismiss is granted as to all four counts of plaintiff's amended complaint, and it is further ORDERED that this case is dismissed. /s/ John Lewis Smith, Jr. United States District Judge A-79 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0720%3A1. Public record. Not legal advice.