Appendix — Moore v. Valder

Court, 0.3.

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00-216 AUG 09 2000

No. 00- GEBICE O6 Lae CkERK

IN THE

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Petitioner,

Respondent.

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TABLE OF CONTENTS

Moore v. United States, 213 F.3d 705

a Gs SE So 6 5s ec ce ees eee la

Memorandum Opinion, Moore v. Valder,

Nos. 92-2288 & 93¢v0324 (D DC.

ee efor sa ee i. Pees.

Order, Moore v. Valder, Nos. 92-2288 &

93cv0324 (D D.C. May6,1999)......... 28a

Judgment, Moore v. Valder, Nos. 92-2288 &

93cv0324 (D.D.C. May 6,1999).............. 29a

Order, Moore v. Valder, Nos. 92-2288 &

93cv0324 (D.D.C. Feb. 5, 1998)) ............. 30a

Memorandum Opinion, Moore v. Valder,

Nos. 92-2288 & 93cv0324 (D.D.C.

We ea Pecan Aa ol velcklcs cue as 33a

Moore v. Valder, 65 F.3d 189.

es A a oe, 78a

United States v. Recognition Equipment

Incorporated, 725 F. Supp. 587 (D.D.C.

eR Be ner Peete eM ne | 94a

OUR IE Co Gn Nore ik ae waa eee ees 126a

Arguments for Indicting

SCN SFr ou ee inary mae 127a

Postal Inspection Service, Details of Offense ........ 31a

la

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 13, 2000 Decided June 2, 2000

No. 99-5198

WILLIAM G. MOoRE, JR.,

APPELLANT

¥;

UNITED STATES OF AMERICA,

APPELLEE

No. 99-5198

WILLIAM G. MOoRgE, JR.,

APPELLANT

V.

JOSEPH B. VALDER, .

APPELLEE

Before. SILBERMAN, RANDOLPH, and ROGERS, Circuit

Judges.

Opinion for the Court filed by Circuit Judge RANDOLPH.

2a

RANDOLPH, Circuit Judge: Our first opinion in this case

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

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

prosecutor and postal inspectors and his complaint against the

United States. See Moore v. Vader, 65 F.3d 189 (D.C. Cir.

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

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

judgment on the pleadings in favor of the government, rulings

from which Moore now appeals.

I.

Moore’s basic grievance is that he was unjustly prosecuted

on charges concerning his dealings with the United States

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

headed—RE]I—wanted to sell the Postal Service multiple-line

scanners, but the Service declined. Moore publicly criticized

the decision. A Postal Service governor—Peter Voss—

suggested to REI that it hire the consulting firm GAI to

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

GAI: thirty percent of the fees REI paid to the consulting firm

were kicked back to Voss. After their crimes were discovered,

Voss and several GAI officials plead guilty. William A.

Spartin, GAI’s president, negotiated an immunity deal in return

‘for his cooperation.

Postal inspectors and prosecutor Vader, seeking to establish

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

instead by each of five of the admitted conspirators, including

Spartin, that no one at REI had such knowledge. The postal

- inspectors later drafted, and the prosecutor presented to the

grand jury, “witness statements” for these individuals, but

without this exculpatory information. Spartin’s refusal to

implicate Moore prompted Vader to tear up his immunity

agreement and threaten to prosecute Spartin’s son. Vader and

the postal inspectors showed Spartin the government-drafted

statements of the other witnesses. (Moore alleges this

disclosure was a violation of grand jury secrecy rules.) Spartin

3a

continued to deny that he had personal knowledge of Moore’s

involvement, repeating the point nineteen times during a

polygraph test. Spartin then said “I have no knowledge of that

at all... . But, you know, I read that goddam[n] testimony and

I’m not a lawyer but Jesus, there’s enough there to seem to me

to hang REI from the yardarm.” Spartin then testified before

the grand jury that in his “opinion” Moore knew of the

kickback scheme.

Postal inspectors also provided witness interview statements

and lab results to Paul Carlin, a former Postmaster General

dismissed by the Board of Governors during the scanner

controversy. Then, weeks before an indictment was returned

against Moore, the inspectors passed along a draft indictment

to Carlin. Carlin later filed a civil RICO claim against Moore,

alleging that Moore conspired to have the Board dismiss him.

Moore, REI Vice President Robert Reedy, and REI were

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

October 1988 for conspiracy to defraud the United States,

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

Despite a court order to turn over even “borderline” Brady

evidence, Vader failed to provide the defense with exculpatory

material, including the Spartin lie detector results and the

amended statement of one witness denying any knowledge that

REI officials were aware of the kickbacks. The district court

granted Moore’s motion for judgment of acquittal at the close

of the government’s case, stating that “[mJuch of what the

government characterizes as incriminatory evidence is not

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

of the government’s evidence is exculpatory and points toward

innocent conduct... .” United States v. Recognition Equip.,

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

Moore then brought his suits against Vader and the postal

inspectors under Bivens v. Six Unknown Named Agents of

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

against the United States under the Federal Torts Claims Act

4a

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

unnecessary to recount, the district court dismissed the

complaints and Moore appealed. This court considered

whether, as the district court determined, Vader enjoyed

absolute immunity from civil liability for malicious prosecution

and for retaliatory prosecution.’ See Moore, 65 F.3d at

192-95. Relying on the Supreme Court’s distinction between

a prosecutor’s role as an advocate and his conduct as an

investigator, see Jmbler v. Pachtman, 424 U.S. 409 (1976),

Burns v. Reed, 500 U.S. 478 (1991), Buckley v. Fitzsimmons,

509 U.S. 259 (1993), the court decided that absolute immunity

shielded some, but not all, of Vader’s conduct. Absolute

immunity protected Vader from liability for his “decision to

prosecute Moore,” “for allegedly concealing exculpatory

evidence from the grand jury,” “for allegedly manipulating

evidence before the grand jury to create a false impression of

what Moore knew about the alleged fraudulent schemes,” and

for failing to disclose exculpatory material before trial. 65 F.3d

at 194. But absolute immunity did not apply to Vader’s

“[ijntimidating and coercing witnesses into changing their

testimony” or “disclosing grand jury information to

unauthorized third parties.” Jd. at 194-95.

With respect to Moore’s claims under the Federal Tort

Claims Act, the court took note of the FTCA’s “discretionary

function” exception, which protects the government from

liability for “the exercise or performance or the failure to

exercise or perform a discretionary function or duty on the part

of a federal agency or an employee of the Government. . . .”

28 U.S.C. § 2680(a). The following alleged conduct fell within

the exception: “Deciding whether to prosecute, assessing a

witness’s credibility to ensure that he is giving an accurate and

complete account of what he knows, identifying the evidence

' Moore did not appeal the dismissal of his other Bivens claims. See 65

F.3d at 191 n.3.

5a

to submit to the grand jury and determining whether

information is ‘exculpatory’ and ‘material’ and therefore must

be disclosed pursuant to a Brady request.” 65 F.3d at 197.

“Disclosing grand jury testimony to unauthorized third parties,

however, is not a discretionary activity nor is it inextricably tied

to matters requiring the exercise of discretion.” Id.

On remand, Vader moved for summary judgment on the

retaliatory prosecution claim, contending that Moore could not

make out an essential element—that he brought the

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

Amendment activity—because absolute immunity protected his

decision to prosecute Moore. The district court agreed and

granted Vader’s motion. See Moore v. Vader, No.

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

1998) (“mem. op.”)

As to the FTCA claims, the district court determined that

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

application of the discretionary function exception—namely,

the claim that “AUSA Vader and the Postal Inspectors violated

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

Spartin and former Postmaster General Paul Carlin access to

the Grand Jury testimony of other witnesses for the purpose of

influencing Spartin’s testimony and for the apparent purpose of

assisting Carlin, a private plaintiff, to pursue civil

litigation. . . .”. FTCA Complaint 26. Moore argued that

these two grand jury disclosures were sufficient to make out

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

the FTCA, however, claims of malicious prosecution and abuse

of process can only arise from the conduct of “investigative or

law enforcement officers of the United States government.”

See 28 U.S.C. § 2680(h). ““[I]nvestigative 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.” Jd. Postal

inspectors are so empowered, see 39 CFR. § 233.1, but the

6a

district court concluded that federal prosecutors are not, see

mem. op. at 32 & n.21 (citing Bernard v. United States, 25

F.3d 98 (2d Cir. 1994); Gray v. Bell, 542 F.Supp. 927, 932

(D.D.C. 1982), aff'd, 712 F.2d, 490 (D.C. Cir. 1983)). The

district court then ruled that the unprotected conduct of the

postal inspectors did not establish a malicious prosecution or

abuse-of-process claim and granted judgment in favor of the

United States under Federal Rule of Civil Procedure 12(c).

See mem. op. at 32-43.

Il.

Two of the elements of a claim of retaliatory prosecution are

“first, that the conduct allegedly retaliated against or sought to

be deterred was constitutionally protected, and, second, that

the State’s bringing of the criminal prosecution was motivated

at least in part by a purpose to retaliate for or to deter that

conduct.” Haynesworth vy. Miller, 820 F.2d 1245, 1256 n.93

- (D.C. Cir. 1987) (quoting Wilson v. Thompson, 593 F.2d 1375,

1387 (Sth Cir. 1979)). Moore thinks the ground of the district

court’s dismissal of his claim—that absolute immunity

protected Vader with respect to his decision to

prosecute—contravened this court’s initial decision, in

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

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

did hold that some of Vader’s conduct was not protected by

absolute immunity and the court did remand the retaliatory

prosecution claim. But that opinion said nothing about the

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

his complaint. Rather than dealing with those subjects, the

opinion focused on the type of prosecutorial conduct for which

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

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

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

had immunity for his prosecutorial decision, then Moore’s

retaliatory prosecution claim could not go forward. But it is

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

7a

argument, explicitly or implicitly. It follows that the district

court did not contravene the mandate of this court.

According to Moore the district court erred for another

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

predicated upon Vader’s decision to prosecute him. Just as a

police officer can be liable for malicious prosecution as a result

of his investigatory conduct leading to the prosecution, so too,

Moore contends, should a prosecutor be liable if his

investigatory conduct leads to the prosecution. See infra Part

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

argument in Dellums v. Powell, 660 F.2d 802, 805-07 (D.C.

Cir. 1981) (“Dellums II”). A “prosecutorial official,” we ruled,

could not be “held liable for causing a prosecution to be

brought,” despite the fact that Imbler v. Pachtman, 424 US.

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

prosecutors acting in an investigatory capacity.’ 660 F.2d at

806. Moore believes the law has changed since Dellums II, but

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

malicious or retaliatory prosecution. If a prosecutor cannot be

sued for malicious or retaliatory prosecution, Moore asks, why

would the Supreme Court continue to devote its time to

discerning which prosecutorial actions are protected by

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

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

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

that there are potential causes of actions against prosecutors

? It may seem odd that the only official who could not be held liable for

malicious or retaliatory prosecution is the prosecutor. A similar point was

made in Jmbler, to which the Court responded with a quotation: “As is so

ee maine

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ap against Vader’

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With respect 1o Moore's PTCA action against the United

States for malicious prosecution and abuse of process, “the law

of the place where the act or omission ocourred” is controlling,

28 U.S.C, § 1346(b), All agree that District of Columbia law

must be consulted. See 7arpeh-Doe v, United States, 28 F.3d

120, 123 (D.C, Cir, 1994),

A. Malicious Prosecution

Under local law four elements make up the tort of malicious

prosecution: (1) the defendant’s initiation or procurement of

a criminal proceeding against the plaintiff, (2) absence of

probable cause for the proceeding; (3) malicious intent on the

part of the defendant; and (4) termination of the proceeding in

favor of the plaintiff See Davis v. Giles, 769 F.2d 813, 814-15

(D.C. Cir. 1985) (citing RESTATEMENT (SECOND) OF TORTS

§ 653 (1977)). As the first element indicates, in theory not

& person who “procures” 2 criminal proceeding may be liable

for muhcious prosecution See also RESTATEMENT (SECOND)

oF Torts § 653. In fact, those who procure mallicions

prosecunorm are casuals the ons powentai defences Dace.

as here, prosacetons enw absolute immunity See W Pact

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F 3d at 197, ana none of Vader's conduct cap be the basis for

a malicious prosecution ein age the government because

he is not an investigative or law enforcement officer, see 2%

U.S.C. § 2680(h),

in order to find that a defendant procured a prosecution, the

plaintiff must establish “a chain of causation” linking the

defendant’s actions with the initiation of criminal proceedings.

(“Dellums I), Moore's chain consisted of the postal

inspectors’ releasing of grand jury testimony to Spartin, which

Complaint 426.

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

Dellums I and the chain of causation there held sufficient to

establish procurement of a prosecution. Plaintiffs had won a

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Hi We Shep YE ceeeahen would pave beep Proken 4 Hie

secsiop 19 pipseeule was “WAeREndent OF APY PISSBMIE 9}

influence exerted by Royall and of any knoving Pisslalements

which Powell may haye made” Lo the prosecutors, Jd. al

192-93. But Powell had knowingly misled the prosecutors

when he failed to disclose the fact that the demonstrators were

“peaceful” and "not that disorderly,” /d. at 193, This was

sufficient evidence from which the jury could have concluded

that Chief Powell had procured the filing of informa

tions... ."" Id.

We see two distinctions between Moore’s case and Dellums

/, The first is that the postal inspectors themselves did not

make the misrepresentations, but allegedly caused Spartin to

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

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

additional link: but for the postal inspectors’ disclosure of

grand jury testimony to Spartin, he would not have implicated

Moore before the grand jury. See KEETONET AL. § 119, at 873

(stating that significant “second-hand” involvement in

instigating a prosecution is sufficient).

The | Aieteathais to thie Gis tbitention told ,

was presented to the grand jury. The district court made much

of this: “Moore has alleged only that the postal inspectors

influenced the grand jury's decision to indxt ... Moore's

the wnttamon of 2 prosecution by the Execute Branch not the

grand jaty “Even a ths Count could Gerermine thar Sparvin’s

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* The court cndered @ mew lah howeven Reoause of Waproper jury

watructions We id

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PISIRAWISHE 18 Hie AEANE fe tort. If the pro-

Aha Lg Sharls YAM) BERRA NEY LDA and the defendant

procured she MACHER, He Ais eenme of the tort is

satished. When “an indicument is found by | gramd jury . . . tue

return of the indictment... marks ht mstituron of the

proceedings.” RESTA THMIANT (SECOND) OF Torts § 54 cant

¢, see KEBTON BT AL, § 119, at 871-72 (Tine axial step us of

course a matter of the procedure of the partiesilar jurisdiction,

and where prosecution is begun by an indictment, or an

information filed by the prosecuting @(Omey, i seems clear

that this should be enough, since it Cunstiytes official action

and sets the law in motion.”).

The government argues that because |ater actions—-the

presentation of evidence to the grand jury, for instanoe=-were

protected, Moore’s case collapses. The district court seemed

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

chain of causation, if the “discretionary fungyjon” of presenting

evidence to the grand jury or prosecuting the plaintitf shiekied

prior misconduct from liability, a plaintiff would never be adie

to make out a malicious prosecution claim against the

government. Yet the FTCA specifically recognizes the tort of

malicious prosecution. See 28 U.S.C. § 2580a). We think ®

follows that although a plaintiff may not rely on an official's

alleged misconduct during the exercite of discretionary

snisconduct from ordinary principles of tor lability. Cf Jones

¥ City of Chivago, $35 F.28 98S, 994 (7th Cir. 1988),

RESTATEMENT GECOND) OF TORTS § SSS emt. g.

Rak Senile HRRNAAS WE GAageee WHA She district court that

Vaden S COMA SES POKVOVTIA gffer the indictment

AWARD GORE CORA BA RRRAARRPR ei that broke the

SR NA Swe WAM Qo a SP WML the indictment the

PRORRRUANA COUNT BOL DANE COMRINNE Seg FED, RK CRIM. P

Mad As We Dave SA UA PRORRRAROE'§ Continuation Of 4

proseqution automarioally WAMNUMEES Hrigy giepa in the

12a

prosecution, then the whole notion of liability for maliciously

“procuring” 2 prosecution would disappear. “[A] prosecutor's

decision to charge, 2 grand jury's decision to imdict, 2

prosecutor's deasion not to drop charges but to proceed to

ona— sone of these decasons wil stueid 2 police officer whe

decision” Jones v. City of Chicago, 56 F 24 at 994 (citing,

among other cases, Dellums 1, 566 ¥ 24 at 192-94), accord

RSSTATEMEDNST (SECOND) OF TORTS § 653 cmt. g On the other

hand, if Moore would have been indicted and prosecuted

anyway, even without the postal inspectors’ alleged

misconduct and Spartin’s testimony, then the United States

cannot be held liable. See Jones, 856 F.2d at 993, Since the

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

evidence will turn out, All that concerns us now is that the

complaint sufficiently set forth the first element of the

489428, at *2 (D.C. Cir, May 3, 2000).

B. Abuse of Process

Under Dastnct of Columbia law, abuse of process occurs

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

without the regular purwew of the process, or which compels

the party agamst whom # is used to do some collateral thing

which he could not legally and regularly be required to do”

Jacobson v. Thrifty Paper Boxes, Inc., 230 A2d 710, 711

(D.C. 1967) (citing | Am Jur. 2D Abuse of Process § 4_

(1962)). Local courts have emphasized that “[t}he critical

concer if abuse of process cases is whether process was used

to accomplish an end unintended by law... .” Morowitz v.

Marvel, 423 A.24 196, 19% (D.C. 1980), accord Bown v.

Hamilton, O\ A.24 1074, 1079 (D.C. 1992), see also Heck v.

Humphrey, 512 U.S. 477, 486 9.5 (1994), Scott v. District of

Columbia, \01 ¥.4d 748, 755 (D.C. Cir, 1997) (“The essence

of the tort of abuse of process is the use of the legal system ‘to

accomplish some end which is without the regular purview of

13a

the process... .™ (quoting Bown v. Hamilton, 601 A2d 1074,

1079 (D.C. 1992)) The Restatement also focuses om this

dlement of the tort. “For abuse of process to occur there must

se use of the grocess for an immediate purpose other than that

for which it was designed and mtenied™ KesiaTens

(Soom) oF Tots $ 2 cmt. b.

Moore's complamt failed to allege ts orttacal element of the

ocess tort and, for this reason, the district court

properly rendered a judgment on the pleadings in favor of the

government The only paragraph in the complaint dealing with

this tort alleged the following: “AUSA Vader and the Postal

Inspectors violated Federal Rule of Criminal Procedure 6(¢)(2),

which protects the secrecy of Grand Jury proceedings, by

giving Spartin and former Postmaster General Carlin access to

the Grand Jury testimony of other witnesses for the purpose of

influencing Spartin’s testimony and for the apparent purpose of

assisting Carlin, a private plaintiff, to pursue civil litigation in

connection with his dismissal from the Postal Service, The

Postal Inspectors even gave Cartin a copy of a draft indictment

for his review.” FTCA Complaint (26. As Moore sees #, his

allegations regarding Cartin are sufficient to make out 2 cause

of action But nothing im paragraph 26 of the complaimt speaks

of usimg the grand jury process for the purpose, immediate or

otherwise, of obtaining evidence to assist Carlin m bringing 2

disclosed witness testimony and the draft indictment to Castin.*

Disclosing information is a far cry from using the grand jury to

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

postal inspectors violated the secrecy of the grand jury. But

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

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

Carlin look at the draft could have damaged Moore unless the draft

contained information omitted from the final version, We shall assume

that the draft contained quch information and that it was grand jury

material

l4a

“process” here is the grand jury and the tort is made out only

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

the “critical concern” of abuse-of-process law—that the

inspectors used the grand jury for an improper purpose—we

tir the padgment of the district court”

Affirmed in part and reversed in part

“We recogmue that om Rae 124) moneors “fuje \aew the facts presemed

wm the pieadhegs and the unferences © be Goer therefrom mw the ght

most fvorabie the nommoang party” Peters v. Nationa! RR

Passenger Corp. %6 F2d 1483, 1485 @C Circ 1992) (quoting

Jablonski v. Pan American Worldways, imc. 263 F 24 229, 290-91 Gd

Cr 1983)) Even if we were t© stecich this principic beyond its ordinary

process for the purpose of obtaimng evidence that they passed along to

Cartin, Moore sili could not make out an dbuse-ot-process claim. For one

thing, Moore cannot base his ahuse-of -process aim on the presentation

of evidence to the grand jury that is @ discretionary function immune

from suit under the FTCA. See Moore, 65 ¥.44 at 197, see also Doe v.

Stephens, 451 ¥ 24 1457, 1462-65 (D.C. Cit. 1988) (causing 4 grand jury

subpoena (6 issue falls within discretionary function exception). for

Another, Prosecutors, hot postal inspectors, Convene and conduct grand

jury proceedings —and the actions of 4 prosecutor Cannot give rise to an

Abuserofeprocess Claim under the FTCA, See mem, op. at 12 & 21

(citing 28 U.S.C. § 2680(h)).

15a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

WILLIAM G. MOORE, JR.,

Plaintiff,

V.

_JOSEPH B. VALDER, et al.,

Defendants.

Civil Action No. 92-2288 (NHJ)

(Consolidated with Civ. No. 93CV0324 (NHJ))

MEMORANDUM OPINION

Presently before the Court is plaintiff's Motion for

Reconsideration or, in the Alternative, for Entry of Final

Judgment. Plaintiff seeks reconsideration of the Court’s Order

of February 5,1998, granting the motion of defendant Assistant

United States Attorney Joseph B. Valder for summary

judgment and the motion of defendant United States for

judgment on the pleadings. Alternatively, plaintiff asks the

Court to enter final judgments as to defendants Valder and the

United States pursuant to Fed. R. Civ. P. 54(b). Valder

opposes the motion for reconsideration and the alternative

motion for entry of final judgment, while the United States

opposes only the motion for reconsideration. For the, reasons

stated herein, the Court shall deny the motion for

reconsideration but grant the motion for entry of final judgment

as to both defendants.

The facts of this case and its procedural history have been

outlined at length in the Court’s Memorandum Opinion of

February 5, 1998, and in the opinion issued by the United

ee

16a

States Court of Appeals for the District of Columbia. See

Mem. Op. at 2-10; Moore v. Valder, 65 F.3d 189 (D.C. Cir.

1995). Therefore, the Court will summarize only those-aspects

of the case that are most relevant to plaintiff's motion for

reconsideration.

In its Opinion of February 5, 1998, the Court considered

four claims that had been remanded by the United States Court

of Appeals for the D.C. Circuit. The first involved a Bivens

claim of retaliatory prosecution against Valder based on his

coercion of grand jury witnesses William Spartin and Frank

Bray and Valder’s disclosure of grand jury materials to Spartin.

The second also involved a Bivens claim of retaliatory

prosecution against six United States Postal Service (“USPS”)

inspectors who were involved in the grand jury investigation of

Moore. The last two remanded claims were against the United

States for malicious prosecution and abuse of process under

the Federal Tort Claims Act (“FTCA”). The D.C. Circuit

instructed this Court to determine if the postal inspector’s

disclosure of grand jury testimony to Spartin and former

Postmaster General “PMG”) Paul Carlin established FTCA

claims for malicious prosecution and abuse of process. See

Moore, 65 F.3d at 196.

This Court held that Moore could not establish an essential

element of his retaliatory prosecution claim against Valder and

therefore granted Valder’s motion for summary judgment. The

Court also granted the United States’ motion for-judgment on

the pleadings with respect to the FTCA claims for malicious

prosecution and abuse of process, finding the remaining

allegations to be insufficient to establish either claim. Plaintiff

now seeks reconsideration of the Court’s rulings on the Bivens

claim for retaliatory prosecution against Valder and the FTCA

claims against the United States for malicious prosecution and

abuse of process. The Court shall address each ruling

separately.

17a

I. The Court’s Order Granting Summary Judgment to

Defendant Valder

Plaintiff first seeks reconsideration of this Court’s decision

to grant Valder’s motion for summary judgment, arguing that

the decision conflicts with the law of the case doctrine and is

clearly erroneous on its own merits. According to the law of

the case doctrine, “when a court decides upon a rule of law,

that decision should continue to govern the same issues in

subsequent stages in the same case.” isti

. 486 U.S. 800, 816 (1988) (quotation

omitted). Pursuant to this doctrine, plaintiff claims that the

decision of the United States Court of Appeals for the D.C.

Circuit to remand pasts of Moore’s Bivens claims against

Valder precluded this Court from granting Valder’s motion for

summary judgment on the grounds of absolute immunity.

In remanding the Bivens claims against Valder, the DC.

Circuit held that the absolute immunity doctrine does not

protect Valder from potential liability for “intimidating and

coercing witnesses into changing their testimony” and

“disclosing grand jury testimony to unauthorized third parties”

because such conduct 1s not “advocatory” but rather “a misuse

of investigative techniques.”. Moore, 65 F.3d at 194-95. When

a prosecutor engages in investigative or administrative

functions, he is entitled to only qualified, not absolute

immunity. Id, at 195 (citing Buckley v. Fitzsimmons, 509 U.S.

259, 276 (1993)). With respect to Valder’s coercion of

witnesses and disclosures of grand jury material, the Court of

Appeals noted that he “of course would be entitled to any

qualified immunity available to the postal inspectors.” Id. 11 at

195 n.8. In remanding the Bivens claims against Valder, the

D.C. Circuit expressed no view on whether this conduct

satisfied the elements of a retaliatory prosecution claim.

On remand, this Court confronted the issue of whether what

was left of Moore’s allegations against Valder, i.e., his

coercion of grand jury witnesses Spartin and Gray and his

18a

disclosure of grand jury testimony to Spartin, could establish

a Bivens claim of retaliatory prosecution. See Mem. Op. at 18.

To establish such a claim, Moore must show that Valder

brought the prosecution in order to retaliate against Moore for

exercising his First Amendment rights. See Haynesworth v.

Miller, 820 F.2d 1245, 1257 n.93 (D.C. Cir. 1987). Valder

argued that Moore could not establish an essential element of

a retaliatory prosecution claim because the absolute immunity

doctrine protects Valder’s decision to prosecute Moore.

Alternatively, Valder claimed that the qualified immunity

doctrine protects him from any liability arising out of forcing

witnesses to change their testimony and unauthorized

disclosures of grand jury material. Because this Court

accepted the first argument, it did not reach the qualified

immunity analysis. See Mem. Op. at 18, 23.

In his motion for reconsideration, Moore argues that this

Court’s dismissal of the retaliatory prosecution claim against

Valder on the ground of absolute immunity conflicts with the

law of the case doctrine because the Court of Appeals

implicitly rejected that ground.’ The law of the case doctrine

applies only to “issues previously determined” or issues that

“must have been decided by ‘necessary implication.”’ Bouchet

v. Nat’] Urban League, 730 F.2d 799, 806 (D.C. Cir. 1984)

(citations omitted). “Questions that merely could have been

decided do not become law of the case.” Id. (citation omitted).

According to plaintiff, the D.C. Circuit “necessarily rejected

Mr. Valder’s argument that plaintiff's retaliatory prosecution

claim is based upon conduct protected by absolute immunity”

by holding that the absolute immunity doctrine does not protect

all of Valder’s conduct. Pl.’s Mot. Recons. at 6.

While it is true that the Court of Appeals rejected Valder’s

argument that coercing witnesses and disclosing grand jury

' Plaintiff concedes that the Court of Appeals did not explicitly address the

argument accepted by this Court. See Mot. for Recons. at 6.

19a

testimony to unauthorized third parties constitutes advocatory

conduct protected by the absolute immunity doctrine, this

Court did not rely on this argument in granting Valder’s sum-

mary judgment. Furthermore, the Court of Appeals did not

reach the issue of whether such conduct by itself can satisfy the

elements of a retaliatory prosecution claim, at least in part

because the Court of Appeals did not need to determine the

merits of Moore’s retaliatory prosecution claim in order to

decide the absolute immunity question. See United Slates v.

Stanley, 483 U.S. 669, 684 (1987) (“[T}he availability of a

damages action under the Constitution for particular injuries .

_. is a question logically distinct from immunity to such an

action on the part of particular defendants.”) Moreover, at no

time did the D.C. Circuit reject the argument that Valder’s

initiation of Moore’s prosecution (the requisite first element of

Moore’s retaliatory prosecution claim) constitutes absolutely

protected conduct. In fact, the D.C. circuit explicitly held that

initiating a prosecution was “unquestionably advocatory” and

absolutely protected from liability. Moore, 65 F.3d at 194. For

these reasons, this Court rejects plaintiff's claim that the

February 5th Order conflicts with the law of the case.’

The Court also rejects plaintiff's claim that the Court’s

Order granting Valder summary judgment was clearly erron-

eous on the merits. As this Court explained in its Opinion of

February 5, 1998, Moore cannot establish a retaliatory

prosecution claim against Valder on the basis of his coercion of

witnesses and disclosures of grand jury material because the

first element of a retaliatory prosecution claim requires that

Valder instituted or caused the prosecution, and the Court of

Appeals made clear that Valder’s role in bringing the

2 As the Court’s decision to grant Valder summary judgment did not rest

on the D.C. Circuit’s decision in the Crawford-E] case, the Court need not

address plaintiff's claim that the Crawford-E] decision did not justify a

departure from the law of the case.

20a

prosecution is absolutely immune. See Mem. Op. of Feb. 5,

1998, at 20-23. Even if Valder did not make the ultimate

decision to prosecute Moore, his conduct “in initiating

[Moore’s] prosecution and in presenting the State’s case,” is

absolutely immune. Imbler v. Pacthman, 424 U.S. 409, 431

(1976).

Moore argues that the retaliatory prosecution claim is not

based on Valder’s role in the initiation and presentation of the

prosecution but rather on “the actions that Mr. Valder and the

postal inspectors took in investigating plaintiff and in using

court processes and government resources in furtherance of

their improper motives and purposes.” PI.’s Mot. for

Reconsideration at 10. According to Moore, Valder’s

investigatory conduct of coercing witnesses and disclosing

grand jury material can establish a claim for retaliatory

prosecution because it caused the initiation of plaintiff's

prosecution and because such conduct is entitled to only

qualified immunity protection. Id, at 10-11. Although this

Court stands by its prior holdings and analysis based on the

doctrine of absolute immunity, the Court will nevertheless

address the alternative qualified immunity argument in light of

plaintiff s motion for reconsideration. In doing so, the Court

finds that even if it erroneously relied upon the absolute

immunity doctrine in granting Valder summary judgment, it

would have granted him summary judgment nonetheless

because Moore’s evidence is simply insufficient to establish an

essential element of his claim, i.e., that Valder had an

unconstitutional retaliatory motive against Moore.

Pursuant to the doctrine of qualified immunity, “a

government official who performs discretionary functions [is

protected] from liability for civil damages if he can show that

his actions did not violate ‘clearly established statutory or

constitutional rights of which a reasonable person should have

known.”” Moore, 65 F.3d at 195 n.8 (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). With respect to

2la

Moore’s Bivens claims of malicious and retaliatory prosecution

against the postal inspectors, the D.C. Circuit held that

malicious prosecution does not violate a clearly established

right but that retaliatory prosecution does. Id. at 195-96. The

DC. Circuit also indicated that Valder “is entitled to any

qualified immunity available to the postal inspectors” with

respect to his coercion of witnesses and disclosures of grand

jury material. Id. at 195 n.8. Thus, had this Court considered

Valder’s qualified immunity defense, it would have concluded

that it defeats, Moore’s Bivens claim of malicious prosecution

against Valder, but that it does not defeat the retaliatory

prosecution claim. The Court would then have proceeded to

address the issue of whether Moore’s evidence could establish

the elements of a retaliatory prosecution claim.

Valder is entitled to summary judgment provided he can

identify the absence of sufficient evidence on an essential

element of Moore’s claim. See Celotex Corp, v. Catrett, 477

US. 242, 248 (1986). An essential element of a retaliatory

prosecution claim is that Valder’s “bringing of the criminal

prosecution was motivated at least in part by a purpose to ~

retaliate for or to deter [First Amendment-protected] conduct.”

820 F.2d at 1257 n.93. Although this Circuit

previously required clear and convincing evidence of an

unconstitutional motive-in cases such as this one, the Supreme

Court has since rejected this evidentiary standard. See

- 93 F.3d 813, 821-24, rev'd, 118 U.S.

1584, 1595 (1998). The Supreme Court concluded that its

holding in Harlow did not support imposing a heightened proof

standard on a plaintiff asserting a constitutional violation based

upon an improper motive. Crawford-El, 118 U.S. at 1592.

Therefore, the basic proof and summary judgment standards

apply to Moore’s retaliatory prosecution claim against Valder.

To overcome Valder’s motion for summary judgment,

Moore must show that “reasonable” jurors could find by a

preponderance of the evidence that [he] is entitled to a verdict”

22a

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pleading, but. . . must set forth specific facts showing that there

is a genuine issue for trial.” Fed. R. Civ. P. 56(e). While the

Court must believe the evidence presented by Moore and draw

all reasonable inferences from it, “[t]he mere existence of a

scintilla of evidence in support of [his] position will be

insufficient; there must be evidence on which the jury could

reasonably find for” him. Anderson, 477 U.S. at 252, 255. In

other words, in order to defeat Valder’s summary judgment

motion, Moore must present sufficient evidence on which the

trier of fact could reasonably find that Valder’s motive for

prosecuting Moore was to retaliate against him for engaging in

public criticism of USPS.

Although this Court found that Moore presented sufficient

evidence of the postal inspectors’ retaliatory motives to defeat

summary judgment, Moore has presented no evidence to show

that Valder had an unconstitutional retaliatory motive. In fact,

Moore has conceded that Valder had motives that were

independent of the postal inspector’s allegedly retaliatory

motives. See Mem. Opp. at 36; Pl.’s Supplemental Br. at 12

(noting that “AUSA Valder was, for his own reasons,

determined to prosecute Mr. Moore”). Moore’s sole evidence

regarding Valder’s motives show that Valder sought the

prosecution for the purpose of advancing his career goals, not

to retaliate against Moore for publicly criticizing USPS. See

Affidavit of William Hittinger 96 (alleging that Valder’s motive

was to establish a solid track record or some notoriety to help

him secure a good position in private practice).

Thus, under a qualified immunity analysis, the Court would

have dismissed the malicious prosecution claim against Valder

for not violating a clearly established right, and would have

been left with the retaliatory prosecution claim. However,

Moore has failed to produce evidence that Valder had an

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summary judgment must issue in favor of Valder. Given that

the Court would have granted Valder summary judgment even

if it had rejected the absolute immunity argument, the Court

finds no reason to vacate its February 5th Order granting

Valder’s motion for summary judgment

Il. The FTCA Claim Against the United States for

Malicious Prosecution

Moore has also failed to persuade the Court to vacate its

decision to grant judgment on the pleadings in favor of the

United States on his claim for malicious prosecution under the

FTCA. The Court may grant a motion for judgment on the

pleadings if, at the close of the pleadings, no material fact

remains in dispute and the moving party is entitled to judgment

as a matter of law. See Haynesworth v. Miller, 820 F.2d 1245,

1249 n.11 (D.C. Cir. 1987). In the February 5th Opinion, the

Court held that Moore could not establish a claim for malicious

prosecution based upon the postal inspectors’ disclosure of

grand jury testimony to Spartin. See Mem. Op. at 33-38.

Specifically, the Court held that Moore failed to establish an

adequate causal nexus between the disclosure and the initiation

of Moore’s prosecution. Moore seeks reconsideration of this

ruling, arguing that the disclosure served as “a vital link in the

chain of causation that led to plaintiff's prosecution”, and that

this Court misconstrued District of Columbia law and general

tort principles. P1.’s Mot. for Recons. at 12-13.

Moore claims that he need only prove that the postal

inspectors’ conduct caused plaintiff's prosecution to be

instituted, not that the postal inspectors themselves decided to

present Spartin’s testimony to the grand jury or that they

deceived Valder into prosecuting Moore. See Pl.’s Mot

Recons. at 12-14. The Court agrees such evidence is not

necessary and notes that the malicious prosecution claim failed

exactly because Moore could not establish a sufficient causal

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prosecution. See Mem. Op. at 35-36. Moore admits that the

postal inspectors’ conduct did not influence the decision to

prosecute him and that Valder was determined to prosecute

him independent of their conduct. See Pl’s Supplemental Br.

at 3, 4, 11, 12, 13. In light of these admissions, the Court finds

no reason to vacate its finding that Moore failed to establish

the requisite casual nexus.

Moore insists that he has established adequate causation,

arguing that the postal inspector’s conduct influenced the

grand jury’s decision to indict and that the indictment is a

crucial link in the chain of causation to prosecution. Yet, the

Court already rejected this argument on the grounds that a

grand jury indictment cannot by itself cause the initiation of a

prosecution. See Mem. Op. at 37 (footnotes omitted). While

Moore concedes that a grand jury indictment alone cannot

initiate a prosecution, he relies on cases outside this Circuit for

the proposition that by influencing the indictment, the postal

inspectors sufficiently caused the prosecution. See P!.’s Mot.

For Recons. at 14 (citations omitted). In doing so, he ignores

the D.C. Circuit precedent and his own admissions that

underlie the Court’s ruling on causation.

As this Court explained, the law presumes that United States

Attorneys act independently when they institute prosecutions

unless the plaintiff can show “a sufficient casual nexus”

between the acts of the defendant and the United States

Attorney’s decision to prosecute the plaintiff. Mem. Op. at 35

(citing Dellums v. Powell, 566 F.2d 167, 192, 194 (D.C. Cir.

1977) (“Dellums I”); (D.C. Cir. 1977) Dellums v. Powell, 660

F.2d 802, 804 n3 (D.C. Cir. 1981) (hereinafter “Dellums

If’)). Even assuming the postal inspectors influenced the grand

jury decision to indict, Moore has explicitly stated that they did

not influence the decision to prosecute. In his motion for

reconsideration, Moore now claims that Valder did not make

the decision to prosecute and that even if he did, the decision

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with the postal inspectors to prosecute Moore. Moore has not

only failed to allege a conspiracy in his FTCA claims, but he

has also admitted that Valder was determined to prosecute for

his Own reasons and was not influenced by the postal

inspectors’ misconduct. In sum, the Court sees no reason to

reconsider its conclusion that Moore failed to establish a

sufficient causal nexus and thus shall not vacate its Order

granting judgment on the pleadings in favor of the United

States.*

Il. The FTCA Claim Against the United States for

Abuse of Process

Lastly, plaintiff challenges this Court’s decision to grant the

United States judgment on the pleadings with respect to

Moore’s FTCA claim for abuse of process, arguing that this

Court ignored the test for such a claim under District Of

Columbia law. This challenge is perplexing given that the

Court’s analysis of the abuse of process claim relies entirely on

District of Columbia law and cases. In fact, the Court cites the

very case relied upor by plaintiff in his motion for

reconsideration. See Morowitz v. Marvel, 423 A.2d 196, 198

(D.C. 1980). Plaintiff also accuses the Court of raising a novel

theory sua sponte regarding the purposes for which the grand

jury process was used. The Court Struggles to see how its

reliance on well-established District of Columbia law

interpreting abuse of process claims constitutes reliance on a

novel theory. Given that the Court merely applied relevant

26a

precedent to the facts of this case, the Court finds no reason to

vacate its decision to grant summary judgment to the United

States on Moore’s FTCA claim for abuse of process.

IV. Alternative Motion for Entry of Final Judgment as

to Valder and the United States

Given the Court’s decision to deny the motion for

reconsideration, plaintiff asks the Court to enter final judgment

as to Valder and the United States pursuant to Fed. R. Civ. P.

54(b). The United States does not oppose Moore’s alternative

motion but Valder does. According to Rule 54(b), final

judgment may be entered as to some but not all parties to an

action “upon an express determination that there is no just

reason for delay.” As the Supreme Court has explained, “the

District Court may, by the exercise of its discretion in the

interest of sound judicial administration, release for appeal final

decisions upon one or more, but less than all, claims in multiple

claims actions.” Sears, Roebuck & Co. v. Mackey, 351 U.S.

427, 437 (1956).

Under the present circumstances of this case, the Court finds

no just reason for delay and shall therefore enter final judgment

as to both Valder and the United States. As Valder and the

United States concede, the Courts Order of February 5th

disposes of all the claims against them. See Def. Recons. Mem.

at 18-19. Additionally, the issues to be raised on appeal are

sufficiently separate and distinct from those awaiting

adjudication regarding the postal inspectors. See Curtis-Wnght

Corp. v. General Electric Co., 446 U.S. 1, 8 (1980) (approving

district court’s consideration of “whether the claims under

review were separable from the others remaining to be

adjudicated and whether the nature of the claims already

determined was such that no appellate court would have to

decide the same issues more than once even if there were

subsequent appeals”) (footnote omitted). Assuming Moore

will fail to uncover sufficient evidence of retaliation against the

postal inspectors, Valder argues that entry of final judgment

27a

regarding the Bivens retaliatory prosecution claim against him

Should be withheld while discovery proceeds with respect to

Moore’s identical claim against the postal inspectors. Because

the Court cannot make the same assumption and given the

possibility that Moore’s claim against the postal inspectors may

go to trial, it makes more sense to enter final judgment on the

claim against Valder to prevent the possibility of having

multiple trials.

Finding no just reason for delay, the Court shall direct entry

of final judgment as to the Bivens claim of retaliatory

prosecution against Valder and as to the FTCA claims of

malicious prosecution and abuse of process against the United

States, Accordingly, the Court shall deny Moores motion for

reconsideration but shall grant his alternative motion for entry

of final judgment as to Valder and the United States. An

appropriate order and judgment | shall accompany this

Memorandum Opinion.

ls/_

NORMA HOLLOWAY JOHNSON

Chief Judge

28a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

WILLIAM G. MOORE, JR.,

Plaintiff,

v.

JOSEPH B. VALDER, et al.,

Defendants.

Civil Action No. 92-2288 (NHJ)

(Consolidated with Civ. No. 93CV0324 (NHJ)

ORDER

Upon consideration of plaintiff's motion for reconsideration

or, in the alternative, for entry of final judgment, and for the

reasons given in the accompanying Memorandum Opinion, it

is this 6th day of May 1999,

ORDERED that plaintiff's motion for reconsideration

[#170- 1] be, and hereby is, denied; and it is further

ORDERED that the motion in the alternative for entry of

final judgment [#170-2] be, and hereby is, granted.

Ls/_

NORMA HOLLOWAY JOHNSON

Chief Judge

2

§

;

29a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

WILLIAM G. MOORE, JR.,

Plaintiff,

V.

JOSEPH B. VALDER, et al.,

Defendants.

Civil Action No. 92-2288 (NHJ)

(Consolidated with Civ. No. 93CV0324 (NHJ))

JUDGMENT

For the reasons given in the accompanying Memorandum

Opinion and pursuant to Fed. R. Civ. P. 54(b), it is this 6th day

of May 1999,

ORDERED that judgment be, and hereby is, entered in favor

of Joseph B. Valder as to plaintiff s Bivens claim of retaliatory

prosecution; and it is further

ORDERED that judgment be, and hereby is, entered in favor

of the United States as to plaintiff s claims of malicious

prosecution and abuse of process under the Federal Tort

Claims Acct.

Ls/

NORMA HOLLOWAY JOHNSON

Chief Judge

30a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

WILLIAM G. MOORE, JR.,

Plaintiff,

Ww

JOSEPH B. VALDER, et al.,

Defendants.

Civil Action No. 92-2288 (NHJ)

(Consolidated with Civ.

No. 93CV0324 (NHJ))

WILLIAM G. MOORE, JR.,

Plaintiff,

v.

UNITED STATES OF AMERICA,

Defendant.

Civil Action No. 93-0324 (NHJ)

(Consolidated with Civ.

No. 92CV2288 (NHJ))

ORDER

Upon careful consideration of the parties’ pending motions,

memoranda in support and in opposition, and the entire record,

3la

and for the reasons given in the accompanying Memorandum

Opinion, it is this Sth day of February, 1998,

ORDERED that defendant Postal Inspectors’ Motion to

Strike Affidavit and Plaintiffs Amended Local Rule 108(h)

Statement [#131] be, and hereby is, granted in part and denied

in part; it is further

ORDERED that defendant Valder's Motion to Strike

Affidavit and Plaintiffs Amended Local Rule 108(h) Statement

[#136] be, and hereby is, granted in part and denied in part; it

is further

ORDERED that defendant Valder’s Motion for Summary

Judgment [#126] be, and hereby is, granted; it is further

ORDERED that plaintiff's Motion to Clarify the Stay Order

of September 16, 1996 [#125] be, and hereby is, denied as

moot; it is further

ORDERED that defendant Postal Inspectors’ Motion for

Summary Judgment [#103] be, and hereby is, denied; it is

further

ORDERED that defendant United States’ Motion for

Judgment on the Pleadings [#94-1] be, and hereby is, granted;

it is further

ORDERED that defendant United States’ Motion in the

Alternative to Dismiss for Lack of Subject Matter Jurisdiction

[#94-2] be, and hereby is, denied as moot; it is further

ORDERED that discovery on plaintiff's Bivens claim of

retaliatory prosecution against the postal inspectors proceed as

indicated in this Opinion; and it is further

ORDERED by the Court, Sua sponte, that plaintiff's Bivens

claim of retaliatory prosecution against the postal inspectors

be, and hereby is, referred to Magistrate Judge Kay for

discovery and pretrial. Unless otherwise ordered by this Court,

contested preliminary motions within Local Rule 209 will

32a

likewise be heard by Magistrate Judge Kay. All other motions

will be heard by the Court.

ls/

NORMA HOLLOWAY JOHNSON

United States District Judge

33a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

WILLIAM G. MOORE, JR.,

Plaintiff,

V.

JOSEPH B. VALDER, et al.,

Defendants.

Civil Action No. 92-2288 (NHJ)

(Consolidated with Civ.

No. 93CV0324 (NHJ))

WILLIAM G. MOORE, JR.,

Plaintiff,

V.

UNITED STATES OF AMERICA,

Defendant.

Civil Action No. 93-0324 (NHJ)

(Consolidated with Civ.

No. 92CV2288 (NHJ))

MEMORANDUM OPINION

This case arises from the federal prosecution of William G. |

Moore Jr. (“Moore”) on charges of fraud, bribery, and

34a

conspiracy, of which Moore was acquitted, see United States

v. Recognition Equipment Inc., 725 F. Supp. 587 (D.D.C.

1989), and Moore’s Bivens’ and Federal Torts Claims Act

(“FTCA”) claims for retaliatory prosecution, malicious

prosecution, and abuse of process against Assistant United

States Attorney Joseph Valder (“Valder”), six United States

Postal Service Inspectors (“postal inspectors”), and the United

States. Presently before the Court are the following motions:

1) defendant Postal Inspectors’ Motion to Strike Affidavit and

Plaintiffs Amended Local Rule 108(h) Statement; 2) defendant

Valder’s Motion to Strike Affidavit and Plaintiff's Amended

Local Rule 108(h) Statement; 3) defendant Valder’s Motion

for Summary Judgment; 4) plaintiff's Motion to Clarify the

Stay Order of September 16, 1996, asking whether it applies to

Valder; 5) defendant Postal Inspectors’ Motion for Summary

Judgment; and 6) defendant United States’ Motion for

Judgment on the Pleadings or, in the Alternative, to Dismiss for

Lack of Subject Matter Jurisdiction. The Court will address

the motions in this order in light of the Court of Appeals’

opinion in this case, Moore v. Valder, 65 F.3d 189 (D.C. Cir.

1995); cert. denied, 117 S.Ct. 75 (1996).

L_Background

A. The Facts .

As the United States Court of Appeals for the District of

Columbia Circuit fully discussed Moore’s claims in its opinion,

see Moore, 65 F.3d at 191-92, the allegations in Moore’s

complaint and other submissions relevant to the pending

motions are summarized as follows.

403 US. 388 (1971),

2 28 U.S.C. §§ 2671 et seq.

35a

On October 6, 1988, plaintiff Moore was indicated for

allegedly conspiring to bribe a member of the Board of

Governors of the United States Postal Service (“USPS”) in

order to procure business for Recognition Equipment, Inc.

(“RET”). Moore was Chairman, President, and Chief Executive

Officer of REI at the time. Moore and Robert Reedy, another

REI employee, were charged with participating in a kickback

scheme in which a consulting firm, Gnau & Associates, Inc.

(“GAI”), paid kickbacks to Peter E. Voss, a member of the

Board of Governors of USPS, in exchange for his encouraging

USPS business for GAI’s clients, including REI. See United

iti , 725 F. Supp. 587, 589

(D.D.C. 1989). Five co-conspirators in the scheme, Peter

Voss, John Gnau, Michael Marcus, Sharon Peterson, and

William Spartin, pled guilty or testified pursuant to a grant of

immunity. On November 20, 1989, Moore was acquitted of all

charges. See id.

Two years later, on November 19, 1991, Moore commenced

a Bivens cause of action for malicious prosecution (malicious

prosecution claim) and one for prosecution in retaliation for the

exercise of his First Amendment rights (retaliatory prosecution

claim) against Valder and six postal inspectors. See Bivens y.

Dy Know mts Of Fed, Bureau of Narcotics, 403

U.S. 388 (1971). The six postal inspectors are Frank Korman,

Michael Hartman, Robert Edwards, Norman Robbins, Pierce

McIntosh, and Daniel Harrington. Robbins and McIntosh have

since retired, and Harrington has since died. Moore alleges

that Valder and the postal inspectors conspired to prosecute

him with malicious intent and/or in retaliation for public

criticism of USPS.

The Court finds that Moore did engage in public criticism of

USPS prior to his indictment and prosecution by Valder and

that his conduct is constitutionally protested by the First

ee

36a

Amendment.’ In 1983, former Postmaster General (“PMG”)

William Bolger announced that USPS would use single-line

scanners to identify addresses on mail instead of the multi-line

scanners developed by REI. After this announcement, Moore

voiced his criticism of USPS to Bolger, Assistant PMG James

Jellison, the media, and members of the United States

Congress. In 1985, Moore, Reedy, and REI lobbied to have

Jellison and Bolger’s successor as PMG, Paul N. Carlin,

dismissed from USPS because of their opposition to REI’s

multi-line technology. That same year, USPS began investi-

gating REI for alleged irregularities in the procurement

processes of USPS.

Moore claims that this investigation and his subsequent

indictment and prosecution in 1988 and 1989 were brought in

retaliation for his public criticism of USPS and its management.

Valder and the postal inspectors allegedly coerced witnesses

into incriminating Moore by using intimidation tactics and by

disclosing secret grand jury information to them. Specifically,

Moore claims that defen-dants coerced William Spartin, the

president of GAI, into implicating Moore during his grand jury

testimony. Spartin had been granted immunity from prosecu-

tion in exchange for his grand jury testimony. During a poly-

graph examination conducted by postal inspector Norman

Robbins on December 5, 1986, Spartin stated nineteen times

that he had no personal knowledge that Moore and REI knew

of the kickback scheme. Moore claims that in order to coerce

Spartin into implicating him, Valder and the postal inspectors

tore up Spartin’s immunity letter in front of him, threatened to

prosecute his son, and showed him the grand jury statements

> The Court makes this finding and the other findings of fact in this

opinion on the basis of its decision regarding the postal inspectors’ and

Valder’s motions to strike Moore’s amended affidavit and Local Rule

108(h) statement. See supra pp. 10-17.

37a

of four co-conspirators.‘ These statements were allegedly

drafted by Valder and the postal inspectors and indicated that

REI and Moore had knowledge of the illegal payoffs.

At Moore’s criminal trial, Valder admitted that he gave

Spartin government-authored statements of the four other

unindicted conspirators that had been adopted as part of the

grand jury testimony. See Trial Tr. at 2553-54, 2561. He also

admitted in his Answer to Moore’s Bivens Complaint that a

preplanned tearing up of Spartin’s immunity letter did occur.

See Valder’s Answer at J 21. On the basis of the evidence

before it, the court finds that Valder and the postal inspectors

tore up Spartin’s immunity letter, disclosed grand jury

statements to him, and in some way threatened his son. The

Court also finds that this conduct influenced Spartin’s

statement to the grand jury that in his “opinion,” Moore had to

have known about the illegal payoffs. The Court notes that

none of Spartin’s earlier statements indicating that Moore had

no knowledge of the illegal scheme were ever presented to the

grand jury.

Moore alleges that Valder and the postal inspectors also

coerced Frank Bray, REI’s Manager of Postal Programs, into

changing his testimony to implicate Moore. Bray, like Spartin,

had been granted immunity in exchange for his testimony to the

grand jury. During interviews, Bray repeatedly told Valder and

the postal inspectors that Moore had no knowledge of the

kickback scheme; nevertheless, they asked him to sign a

witness statement indicating that Moore had knowledge. See

Trial Tr. at 1809-11, 1832-33, 1939. When Bray refused to

sign it, Valder told him he would have to testify before the

grand jury for five to seven days or “however long it takes.”

See id. at 1824. Bray and his attorney then insisted that a

paragraph be added to the witness statement to show that

“The statements came from Voss, Peterson, Marcus, and Gnau. See Trial

Transcript 2550-54, 2727-31.

38a

Moore had no knowledge of the scheme. See id. at 1833.

Valder and the postal inspectors would not permit its inclusion,

but agreed to afford Bray an opportunity to testify that Moore

did not know of the scheme. See id. at 1939, 1943-44. When

Bray testified before the grand jury, however, Valder did not

allow him to do this. See id. at 1944.

Moore has also alleged that postal inspector McIntosh

disclosed secret grand jury material to former PMG Paul Carlin

in order to help Carlin bring a civil case against REI, Moore,

and Reedy for Carlin’s dismissal from USPS. Soon after

Moore and Reedy were indicted, Carlin brought a $15 million

RICO claim against them. Information that the government

produced as Jencks material in Moore’s criminal case reveals

notes of a phone conversation between Carlin and postal

inspector McIntosh on December 9, 1986 (“McIntosh Notes”).

The McIntosh Notes indicate that Carlin requested and

received grand jury information regarding interviews of former

PMG Al Casey, Deputy PMG Jackie Strange, and John

McKean, chairman of the USPS Board of Governors, and a lab

examination. According to Carlin’s testimony at Moore’s

criminal trial, postal inspectors Hartman and Kormann also

reviewed a draft indictment of Moore with Carlin on

September 20, 1988. See Trial Tr. at 2153-56.

The Court finds on the basis of the McIntosh Notes and

Carlin’s trial testimony that postal inspectors McIntosh,

Hartman, and Kormann disclosed secret grand jury information

to Carlin in violation of Federal Rule of Criminal Procedure

6(e). Moore alleges that the purpose of these disclosures was

to help Carlin bring a civil case against Moore, Reedy, and

REI. On the basis of Moore’s evidence, the Court cannot find

that this was indeed the postal inspectors’ motive, but accepts

this allegation as true for purposes of deciding the motion for

judgment on the pleadings filed by defendant United States.

See FED. R. CIv. P 12(c). Valder and the postal inspectors’

disclosures of grand jury information to Spartin and Carlin and

39a

their coercion of witnesses Spartin and Bray constitute the

primary facts upon which Moore’s remaining Bivens and

FTCA claims rest.

B. Procedural History

In November 1991, Moore filed a complaint in the U.S.

District Court for the Northern District of Texas against Valder

and the postal inspectors alleging among other torts malicious

and retaliatory prosecution under Bivens. This case was

subsequently transferred to this Court in September 1992. On

October 14, 1992, Moore filed a second complaint in the

Northern District of Texas against the United States pursuant

to the FTCA, 28 U.S.C. §§ 2671 et seq., setting forth claims

for malicious prosecution, false arrest, abuse of process, and

various constitutional torts. The second case was also

transferred to this Court and consolidated with the first case.

The U.S. District Court for the Northern District of Texas

dismissed the Bivens claim against Valder, finding him

protected by absolute immunity. The district court transferred

the Bivens claim against the postal inspectors to this Court for

lack of in personam jurisdiction and transferred the FTCA

claim against the United States to this Court as well. After

denying Moore’s motion to return the complaints to the

Northern District of Texas, this Court dismissed the Bivens

claims against the postal inspectors because Moore’s complaint

failed to meet a heightened pleading standard. This Court also

dismissed the FTCA claims against the United States for lack

of subject matter jurisdiction, holding that the alleged

misconduct fell within the “discretionary function” exception

of the FTCA. See 28 U.S.C. § 2680(a).

Moore subsequently appealed the dismissals of his claims

against Valder, the postal inspectors, and the United States to

the D.C. Circuit. The D.C. Circuit affirmed some of the

dismissals, but remanded some of the claims against Valder, the

postal inspectors, and the United States. Moore v. Valder, 65

40a

F.3d 189 (D.C. Cir. 1995). These claims had been dismissed

under the standard set by Federal Rule of Civil Procedure

12(b)(6).° On appeal, the D.C. Circuit “accept[ed] the facts as

alleged in [Moore’s] complaint” and reviewed the district

court’s Rule 12(b)(6) dismissals de novo. Moore, 65 F.3d at

192.

The findings of the D.C. Circuit under Rule 12(b)(6)

therefore evaluated only the legal sufficiency of Moore’s

allegations rather than Moore’s evidence to support those

allegations, which is what this Court must consider when

deciding defendants’ motions for summary judgment under

Federal Rule of Civil Procedure 56. Allegations that can

survive a Rule 12(b)(6) motion twill not necessarily survive a

motion for ase . under _— 56. See so 80m

PiU nwt

(SCRAP), 412 US. 669, 689-90 n.15 (1973). Wilderness

Society v. Griles, 824 F.2d 4, 15 (D.C. Cir. 1987) (noting that

* If a plaintiff fails to state a claim upon which relief can be granted, the

court must dismiss the claim. See FED. R. Civ. P. 12(b)(6). In deciding

a Rule 12(6)6) motion, the Court “may consider only the facts alleged in

the complaint, any documents either attached to or incorporated in the

complaint and matters of which we may take judicial notice.” E.E.O.C.

vy. St. Francis Xavier Parochial School, 117 F.3d 631, 625 (D.C. Cir.

1997). The “complaint should not be dismissed for failure to state a claim

unless it appears beyond doubt that the plaintiff can prove no set of facts

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

Communications Corp, 16 F.3d 1271, 1276 (D.C. Cir. 1994).

Additionally, “[t}he complaint must be ‘liberally construed in favor of the

plaintiff,’ who must be granted the benefit of all inferences that can be

derived from the facts alleged.” Id. (footnote omitted).

* While Rule 12(b)(6) motions are decided on the basis of the pleadings,

Rule 56 summary judgment motions are decided on the basis of the

pleadings and matters outside of them, such as supporting and opposing

affidavits. In this case, the court will have to consider the parts of

Moore’s affidavit and Rule 108(h) statement that this Court decides not

to strike.

4la

“while a motion to dismiss may be decided on the pleadings

alone, construed liberally in favor of the plaintiff, a motion for

summary judgment by definition entails an opportunity for a

supplementation of the record, and accordingly a greater

showing is demanded of the plaintiff”) Furthermore, the

“heightened pleading standard” applied in the D.C. Circuit’s

opinion in Moore v. Valder was unanimously rejected by the

D.C. Circuit in Crawford-E] v. Britton, 93 F.3d 813, 829 (D.C.

Cir. 1996) (en banc), cert. granted) 117 S.Ct. 2451

(1997)(“Crawford-El If’). For these reasons, this Court will

consider defendants’ summary judgment motions in light of the

D.C. Circuit’s opinion in Moore and the standards set by Rule

56 and Crawford-El II.

Because Moore’s claims rely on Crawford-El II, the Court

must first describe the holdings of that case. Although there is

no question that the D.C. Circuit rejected the “heightened

pleading standard” in Crawford-El I, the parties dispute

whether a majority of the Court of Appeals judges adopted a

Standard for constitutional tort cases requiring “clear and

convincing evidence” of a defendant government official’s

unconstitutional motive. Crawford-El II, 93 F.3d at 821-24.

United States Court of Appeals judges who have referenced

Crawford-E] II in their opinions believe the D.C. Circuit has

adopted the clear and convincing standard.’ Three district

court judges within the D.C. Circuit have also reached this

conclusion.*®

” See, ¢.g., Tang v. State of Rhode Island Dep’t of Elderly Affairs, 120

F.3d 325, 327 (1* Cir. 1997); McMillan v. W.F, Johnson, 101 P.3d 1363,

1368-39 (11" Cir. 1996) (Propst, J., concurring).

* See Byrd v. Moseley, 942 F. Supp. 642, 645 (D.D.C. 1996) (“In

Crawford-El v. Britton, the Court of Appeals for this circuit recently held

that a Ԥ 1983 or Bivens plaintiff who seeks damages from a government

official for a constitutional tort must prove the defendant’s

unconstitutional motive (where that is an element of the tort) by clear and

42a

What is clear from Crawford-El I] is that “Judge Ginsburg’s

separate opinion . . . is controlling on [the issue of discovery]

as the opinion consistent with the disposition on the narrowest

grounds.” Crawford-El II, 93 F.3d at 829 (citing King v.

Palmer, 950 F.3d 771 (D.C. Cir. 1991)). According to Judge

Ginsburg, if a plaintiff facing a summary judgment motion

cannot establish clear and convincing evidence of the

defendant’s unconstitutional motive, the motion should be

granted unless the plaintiff can show, “based upon such

evidence as he may have without the benefit of discovery and

any facts to which he can credibly attest,” that he has “a

reasonable likelihood of turning up evidence that a jury could

consider clear and convincing proof of the defendant’s

unconstitutional motive.” Id. at 841 (Ginsburg, J., concurr-

ing). If the plaintiff can demonstrate this “reasonable

likelihood,” he should be allowed to pursue “limited

discovery.” Id.

Because Moore’s retaliatory prosecution claims against

Valder and the postal inspectors constitute motive-based

constitutional tort actions, this Court must apply Crawford-El

II to defendants’ summary judgment motions. The Court will

apply the case in the following manner. First, the Court will

look to see if Moore has “clear and convincing” evidence of

defendants’ retaliatory motive to withstand their summary

judgment motions. If Moore cannot meet this standard, then

the Court will apply Judge Ginsburg’s standard to determine

convincing evidence’ to withstand a motion for summary judgment on the

grounds of qualified immunity.”) (quoting J. Ginsburg’s concurrence);

Bridges v. Kelley, 977 F. Supp. 503, 509 n.11 (D.D.C. 1997) (“Under the

rule announced in Crawford-El, plaintiff must adduce clear and

convincing evidence of motive on the part of the defendants.”) (citation

omitted); District Council 20 v, The District of Columbia, 1997 WL

446254, at *12-13 (D.D.C. July 29, 1997) (applying first the “clear and

-convincing” test to determine whether summary judgment should be

granted and then Judge Ginsburg’s test to see if discovery was warranted).

El

Crees eet caret te re rene rene nen mamma srete scar - as

43a

whether Moore should nonetheless be permitted to pursue

limited discovery on the motive issue. Before turning to

defendants’ dispositive motions, however, the Court will first

decide whether to grand Valder and the postal inspectors’

motions to strike Moore’s amended affidavit and 108(h)

statement.

Il. DISCUSSION

A. Postal Inspectors’ and Valder’s Motions to Strike

Moore’s Amended Affidavit and Local Rule 108(h)

Statement

On February 25, 1997, this Court issued an Order striking

Moore’s affidavit of June 30, 1990, and his Statement of

Material Facts as to Which There Exists a Genuine Issue to be

Litigated (“‘108(h) statement”) filed in opposition to the Postal

Inspectors’ Motion for Summary Judgment, because the

former did not comply with Federal Rule of Civil Procedure

56(e) and the latter did not comply with Local Rule 108(h).

Moore filed an amended 108(h) statement and an amended

affidavit in opposition to the postal inspectors’ summary

judgment motion. Moore subsequently filed the same amended

documents in opposition to Valder’s summary judgment

motion. Both the postal inspectors and Valder have moved to

strike the amended affidavits and amended 108(h) statements

filed in opposition to their respective motions for summary

judgment. As the amended affidavits and 108(h) statements

are “in all material respects identical” and allegedly suffer from

the safe defects,” the Court will address the postal inspectors’

and Valder’s motions to strike simultaneously.

The postal inspectors and Valder ask the court to strike

Moore’s entire affidavit and the entire 108(h) statement,

* In his motion to strike Moore’s amended affidavit and 108(h) statement,

Valder indicated that he joins in the arguments made in the postal

inspectors’ memoranda supporting their second motion to strike.

44a

alleging that significant parts of them do not comport with

FRCP 56(e) and Local Rule 108. Although the Court has the

discretion to strike Moore’s amended affidavit and 108(h)

statement in their entirety as it did in its Order of February 25,

1997, the Court finds that Moore made an effort to comply

with its Order and it is not necessary to strike the amended

submissions altogether. The Court therefore strikes only those

portions of the affidavit and 108(h) statement that are

inadmissible for the reasons explained below. See Casas Office

Machs., Inc, v. Mita Copystar Am., Inc., 42 F.3d 668, 682 (1"

Cir. 1994).

The postal inspectors and Valder argue that Moore’s

amended affidavit contains statements that are not based upon

his personal knowledge. Federal Rule of Civil Procedure 56(e)

provides in relevant part that:

Supporting and opposing affidavits shall be made on per-

sonal knowledge, shall set forth such facts as would be

admissible in evidence, and shall show affirmatively that the

affiant is competent to testify to the matters stated therein.

Sworn or certified copies of all papers thereof references to

in an affidavit shall be attached thereto or served therewith.

The postal inspectors and Valder claim that Moore’s amended

affidavit continues to rely on hearsay statements and factual

assertions not based upon Moore’s personal knowledge.

Under Rule 56(e), the facts set forth in affidavits submitted in

Opposition to a summary judgment motion must be “such as

would be admissible in evidence.” Jameson v. Jameson, 176

F.3d 58, 60 (D.C. Cir. 1949).

Moore argues that the Court should permit hearsay

statements in his affidavit and 108(h) statement because formal

discovery has yet to take place in this case. He cites a 1991

D.C. Circuit case indicating that “[i}nadmissible hearsay reports

of the defendant’s specific statements indicating malicious

45a

intent” can meet the Circuit’s heightened pleading standard'®

when discovery had not yet occurred. See Crawford-El v.

Britton, 951 F.2d 1314, 1320 (D.C. Cir. 1991), cert.-denied,

506 U.S. 818 (1992) (“Crawford-El I’). The heightened

pleading standard applied in Crawford-El I, however, was

replaced with new standards in Crawford-El I], as explained

above. See Crawford-El II, 93 F.3d at 815. Applying the

standards of Crawford-El II, this Court will not consider

hearsay statements in Moore’s affidavit or 108(h) statement

because such statements are neither “evidence” nor “facts to

which he can credibly attest.” Id. at 841.

Paragraphs 25 and 35 of Moore's Amended Affidavit

In paragraph 25, Moore states: “I was later informed that

Mr. Valder and the inspectors characterized my answers as the

‘biggest ___ing lies a man can tell.”” Moore openly admits

that this assertion is based upon the report of others, not his

own personal knowledge. Because the statement constitutes

inadmissible hearsay under Federal Rule of Evidence 802, the

Court strikes it. In paragraph 35, Moore references assertions

made in a trade journal editorial regarding the alleged “hatred”

between REI and the top reaches of the Postal Service.

Because these assertions are not based on Moore’s personal

knowledge, but rather on an editorial, they must also be struck

for noncompliance with Rule 56(e). As a result of striking

paragraph 35 and Exhibit 3 of Moore’s affidavit, the Court also

'° The heightened pleading standard in Crawford-El I “insist{ed] that,

before discovery, plaintiffs suing government officers or damages set forth

‘nonconclusory allegations’ that are ‘sufficiently precise to put defendants

on notice of the nature of the claim, and enable them to prepare a response

and, where appropriate, a summary judgment motion on qualified

immunity grounds.” Id. at 1317. Because there had been no opportunity

for discovery, “the heightened pleading requirement demands only that

plaintiff ‘relat[e] the pertinent information that is already in his

possession.”” Id. at 1320 (citation omitted).

46a

strikes the second sentence of statement 15 in Moore’s 108(h)

statement, which relies on the affidavit.

Paragraphs 21 and 22 of Moore’s Amended Affidavit

In paragraph 22, Moore states that former PMG William

Bolger and former Assistant PMG James Jellison were “aware

of my sharp criticism [of the USPS optical character reading

procurement strategy] and that I had taken the matter to

Congress.” While defendants concede that Moore can testify

to another person’s state of mind if his testimony were based

upon personal observation, they claim that Moore failed to

state facts in his affidavit demonstrating the requisite

foundation. See Securities and Exchange Comm’n v. First City

Financial Corp., Ltd., 688 F. Supp. 705, 720 (D.D.C. 1988),

aff'd, 890 F.2d 1215 (D.C. Cir. 1989); FED. R. Evi. 602.

Moore counters that paragraph 21 shows that he told Bolger

of his intent to approach the USPS Board of Governors and

the U.S. Congress to stop the single-line ZIP+4 implemen-

tation. In the Court’s view, paragraph 21 shows that Bolger

and Jellison were aware of Moore’s criticism and permit the

reasonable inference that they knew he went to Congress. The

Court will not strike paragraph 22.

Paragraphs 26, 27, 29, 30, 32, and 39 of Moore’s Amended

Affidavit

With respect to paragraphs 26, 27, 29, 30, 32, and 39,

defendants again contend that they are not based on Moore’s

personal knowledge, but rather on the testimony of others at

his trial or on speculation as to why certain allegations were

included in his indictment. The Court agrees that Moore lacks

personal knowledge of why and how his indictment was

prepared and will strike speculative statements in paragraph 26.

As for statements in the challenged paragraphs referencing

testimony at Moore’s criminal trial, Moore must cite the trial

transcript to support his 108(h) statement and cannot rely on

his own affidavit for such support. Thus, Moore’s references

47a

to what the Court found in his trial and what Moore “learned”

from observing trial testimony must be struck from his

affidavit. However, this does not preclude Moore from citing

the trial record directly in support of his 108(h) statement,

which Moore has done. Thus, although the Court strikes parts

of paragraph 26 and all of paragraphs 27, 31, and 32 of

Moore’s affidavit, the court upholds Moore’s citations to the

“McIntosh Notes,” the Trial Transcript, and the Spartin

Polygraph found in his 108(h) statement.

The Court also finds that paragraphs 29 and 32 are not

based on Moore’s personal knowledge and therefore strikes

them. Both paragraphs contain statements that rely upon the

Statements of others made at trial or elsewhere. This reliance

violates Rule 56(e) because “[p]ersonal knowledge may not be

based upon the statements of another.” Securities & Exchange

iSsi i ity Fi i , 688 F. Supp.

705, 720 (citation omitted), aff'd, 890 F.2d 1215 (D.C. Cir.

1989). While Moore can cite information contained in the trial

transcript or district court opinion issued in his criminal case!

to support his 108(h) statement, such information does not

constitute his personal knowledge and therefore must be struck

from his affidavit.

The Court also strikes paragraph 39 because Moore once

again cites the statement of another as his own, this time the

affidavit of William C. Hittinger. Moore can cite and has cited

the Hittinger Affidavit directly to support statement 28 of his

108(h) statement. The Hittinger Affidavit asserts that AUSA

Valder did not care whether Moore was guilty because he

needed “a track record and some notoriety which would help

him obtain a good position in private practice.” Hittinger

Affidavit at 6. According to Hittinger, AUSA Valder said

this in his company and that of several postal inspectors, who

United States v, Recognition Equipment, Inc,, 75 F. Supp 587 (D.D.C.

1989).

48a

did not respond to the comment. The Court will consider the

Hittinger Affidavit in deciding the summary judgment motions.

Paragraphs 40 and 17 of Moore’s Amended Affidavit

In paragraph 40 of his affidavit, Moore attempts to allege

evidence of malicious intent on the part of the defendants.

Most of the statements in this paragraph, however, constitute

mere opinion and speculation about the state of mind of the

defendants and are not supported by Moore’s personal

knowledge. For these reasons, the Court strikes all of

paragraph 40, except for Moore’s personal observations that

USPS management appeared angered by his criticism of them

and that the postal inspectors appeared hostile to him during

the USPS investigation of him. Lastly, the Court strikes PMG

Bolger’s 1982 statement about “bad blood” between USPS and

REI referenced in paragraph 17 of Moore’s affidavit, because

although the statement satisfies the personal knowledge

requirement of Rule 56(e), the statement constitutes

inadmissible hearsay.

Moore ’s Amended 108(h) Statement

Having struck several paragraphs of Moore’s affidavit, the

Court now looks to Moore’s 108(h) statement. The

importance of filing a proper Rule 108(h) statement is well

established. See Jackson v. Finnegan, Henderson, Farabow,

Garrett & Dunnor, 101 F.3d 145, 151 (D.C. Cir. 1996). Strict

compliance with the Local Rule is necessary because courts

rely upon the statement to distinguish from undisputed facts

and to identify the pertinent parts of the record. Id.

The Court finds the sections of Moore’s 108(h) statement

entitled “the Strained Relationship between REI and the

USPS” and “The Postal Inspector’s Abusive Conduct” to be

problematic because they are argumentative and conclusory.

A Rule 108(h) statement should be struck when it “blend[s]

factual assertion with legal argument.” Id. at 153. Many

instances in these sections of Moore’s 108(h) statement

49a

characterize, rather than merely assert, material facts. For

instance, the word “abusive” in the heading zaust be struck, as

well as statements such as “the postal inspectors employed

improper techniques” (statement 23), “the Postal Inspectors

and ... Valder also attempted to coerce witnesses into false

testimony” (statement 24(b)), “[iJn order to coerce Spartin into

inculpating Moore,” and “[i]n order to trick Spartin into

inculpating Moore” (statement 24(c)). These statements not

only use argumentative language but also presume knowledge

of the defendants’ statement of mind, and therefore must be

struck. The Court also finds that statement 36” is

argumentative and therefore strikes it.

Having struck paragraph 17 and most of paragraph 40 of

Moore’s affidavit, the Court must also strike the parts of

statement 16 in the 108(h) statement that rely on such

paragraphs. While the court finds that paragraphs 21 and 22

support a finding that the relationship between REI and the

USPS was “strained” during parts of Moore’s tenure with REI,

the Court strikes the language alleging that the relationship was

strained “before” Moore’s arrival and “worsened after it.”

Paragraphs 21 and 22 show merely that Bolger and Jellison

knew of Moore’s criticism of USPS and appeared “upset” to

Moore.

Upon consideration of defendants’ motions to strike

Moore’s amended affidavit and 108(h) statement, memoranda

in support and in opposition, and the entire record, the Court

grants the motions in part, and denies them in part, as indicated

in the paragraphs above. On the basis of what remains of the

108(h) statement and the supporting exhibits, including what

is left of Moore’s affidavit, the Court will decide whether to

grant the summary judgment motions of Valder and the postal

'? Statement 36 reads: “The Postal Inspectors have not submitted any proof

evidencing a legitimate motive for the investigation and indictment of

William G. Moore, Jr.”

50a

inspectors with respect to the Bivens claims remanded by the

D.C. Circuit. The Court will conclude by deciding whether to

grant judgment on the pleadings in favor of the United States

with respect to Moore’s FTCA claims remanded by the D.C.

Circuit.

B. Valder’s Summary Judgment Motion With Respect to

he R ied Bi lai iM s Motion T

Clarify Order of S ' 996, Staving Di

The United States District Court for the Northern District of

Texas found that Valder was protected by absolute immunity

from the Bivens claims brought against him and granted

Valder’s motion under Federal Rule of Civil Procedure

12(b)(6). That case was transferred to this Court and on

appeal, the D.C. Circuit held that absolute immunity protects

Valder from liability for some of his conduct, but not all of it,

and remanded part of the case that had been improperly

dismissed under Rule 12(b)(6). See Moore v. Valder, 65 F.3d

189, 194 (D.C. Cir. 1995). The D.C. Circuit held that Valder

was not liable for “the decision to prosecute Moore” nor “for

allegedly concealing exculpatory evidence from the grand jury

and for allegedly manipulating evidence before the grand jury

to create a false impression of what Moore knew about the

alleged fraudulent schemes.” Id. Valder, however, does not

enjoy absolute immunity for “intimidating and coercing

witnesses into changing their testimony “ and “disclosing grand

jury testimony to unauthorized third parties” because this

conduct is not “advocatory.” Id. at 194-95. The D.C. Circuit

noted that Valder is “entitled to any qualified immunity

available to the postal inspectors.” Id. at 195 n.8.

The issue for this Court on remand is whether Valder’s

alleged conduct of coercing witnesses and disclosing grand jury

testimony can establish a Bivens claim for retaliatory

Sla

prosecution.'"? In his motion for summary judgment, Valder

first argues that Moore cannot establish an essential element of

his claim for retaliatory prosecution because the absolute

immunity doctrine protects Valder’s decision to prosecute

Moore. Valder also argues that the qualified immunity

doctrine protects him from any liability arising out of forcing

witnesses to , change their testimony and unauthorized

disclosures of grand jury material. The Court finds the first

argument persuasive and therefore does not reach the second.

For the reasons given below, the Court will grant Valder’s

summary judgment motion.

On appeal from the dismissal of Moore’s claims against

Valder, the D.C. Circuit accepted the facts as alleged in

Moore’s complaint and reviewed the Rule 12(6)(6) dismissal

de novo. See Moore, 65 F.3d at 192. The findings of the D.C.

Circuit under Rule 12(b)(6) standards reflect a different

evidentiary basis than that required by Valder’s motion for

summary judgment under Federal Rule of Civil Procedure 56.

Under Rule 12(b)(6), the Court construes the allegations in the

complaint liberally and draws all inferences therefrom in favor

of the plaintiff to see if he or she has stated a claim upon which

relief can be granted. Kowal v. MCI Communications Corp.,

16 F.3d 1271, 1276 (D.C. Cir. 1994). Under Rule 56, the

Court does not accept the complaint as true but rather looks at

the plaintiff's evidence to see if there is a genuine issue of

material fact requiring resolution at trial. See FED. R. CIv. P.

56(c)-(e). The D.C. Circuit therefore applied a more lenient

standard that this Court must apply under Rule 56.

Additionally, the “heightened pleading standard” applied in the

D.C. Circuit’s opinion has been unanimously rejected by the

DC. Circuit in Crawford-El II, 93 F.3d at 829. To account for

'3 Moore concedes in his Opposition to Valder’s summary judgment

motion that the only remaining claim against Valder is one of retaliatory

prosecution.

52a

these differences, this Court will consider defendants’ summary

judgment motions in light of the standards set by Rule 56 and

Crawford-El II, as well as the findings of the D.C. Circuit in

Moore v. Valder, 65 F.3d 189 (D.C. Cir. 1995).

The Court should grant a summary judgment motion

whenever the evidence shows that “there is no genuine issue as

to any material facts and that the moving party is entitled to

judgment as a matter of law.” FED. R. Civ. P. 56(c). Only a

factual dispute that “might affect the outcome of the suit under

the governing law” can preclude summary judgment. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The moving party must identify the absence of sufficient

evidence on an essential element of the nonmoving party’s

case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

The nonmoving party “may not rest upon mere allegations of

denials of [his] pleading, but [his] response, by affidavits or as

otherwise provided in this rule, must set forth specific facts

showing that there is a genuine issue for trial.” FED. R. CIv. P.

56(e). If the nonmoving party fails to do this, summary

judgment must issue in favor of the moving party. The Court

must believe the evidence presented by the nonmoving party

and draw all reasonable inferences from it. See Anderson v.

Liberty Lobby, 477 U.S. 242, 255 (1986). However, “[t]he

mere existence of a scintilla of evidence in support of the

plaintiff's position will be insufficient; there must be evidence

on which the jury could reasonably find for the plaintiff.” Id.

at 252.

Valder argues that he is entitled to summary judgment as a

matter of law because Moore cannot make out an essential

element of retaliatory prosecution, which is Moore’s only

remaining claim against him. An essential element of a Bivens

claim for retaliatory prosecution is that the defendant brought

the prosecution in question in order to retaliate against the

individual for exercising his First Amendment rights. See

Haynesworth v. Miller, 820 F.2d 1245, 1257 n.93 (D.C. Cir.

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1987). To overcome a motion for summary judgment, Moore

would have to come forward with clear and convincing

evidence from which a reasonable trier of fact could find that

Valder brought the prosecution with the purpose of retaliating

against Moore for his criticism of USPS. See Crawford-El II,

93 F.3d at 829.

According to Valder, he cannot be held liable for retaliatory

prosecution because this claim inherently relies on his decision

to prosecute Moore, which is absolutely protected by

prosecutorial immunity. See Moore, 65 F.3d at 194. This

holding implies that Moore cannot base any claim for damages

on Valder’s decision to prosecute Moore. This implication is

supported by another D.C. Circuit case, in which the plaintiffs

could not bring a malicious prosecution claim against an

Attorney General because “instituting a criminal action” was

both an essential element of the claim and an absolutely

protected prosecutorial activity. Dellums v. Powell, 660 F.2d

802, 805-06 (D.C. Cir. 1981).'* Although the D.C. ‘Circuit in

Moore concluded that coercing witnesses and disclosing grand

jury material are not absolutely protected activity, this activity

by itself cannot satisfy the essential elements of a claim for

retaliatory prosecution because that claim requires that Valder

caused Moore’s prosecution. See Dellums v. Powell, 566 F.2d

167, 191 n.65 (D.C. Cir. 1977). While Valder did initiate and

continue the prosecution of Moore, thereby satisfying one of

the elements of retaliatory prosecution, the D.C. Circuit has

made clear that liability cannot rest on this conduct. Moore, 65

F.3d at 194 (“prosecutorial immunity insulates him from

liability for his unquestionably advocatory decision to

prosecute Moore”). See also Dellums, 660 F.2d at 806

'* The court explained that this holding applied to both malicious

prosecution and retaliatory prosecution claims based on the First

Amendment. See Dellums, 660 F.2d at 806.

54a

(“[nJever has a prosecutorial official been held liable for

causing a prosecution to be brought”).

Because the doctrine of absolute immunity precludes Moore

from establishing an essential element of his retaliatory

prosecution claim, there is no genuine issue as to any material

fact and Valder is entitled to judgment as a matter of law. See

FED. R. Civ. P. 56(c); Celotex, 477 U.S. at 323.'° Even if

Moore had evidence from which a reasonable trier of fact could

find that Valder did coerce witnesses and disclose grand jury

material in order to incriminate Moore, this conduct by itself

could not constitute retaliatory prosecution until Valder

decided to initiate the prosecution of Moore. At that point,

however, Valder’s conduct became absolutely protected,

thereby foreclosing a’claim for retaliatory prosecution. See

Dellums, 660 F.2d at 806. Moore suffered no injury from

Valder’s alleged coercion of witnesses and disclosures of grand

jury material until the fruits of that conduct were used against

him before the grand jury and at trial. Yet, as soon as Valder

began deciding what information to present to the grand jury

and at trial, his conduct became absolutely protected. See

Moore, 65 F.3d at 194 (“Valder’s decisions regarding what

evidence to put before the grand jury, and in what manner, are

advocatory because they are central to the prosecutor’s task of

“initiating a prosecution’ and ‘presenting the State’s case.””)

(citations omitted).

Thus, even though the D.C. Circuit held that some of

Valder’s conduct was not absolutely protected and remanded

'S The U.S. Supreme Court explained that when a party cannot establish

an essential element of her claim, “there can be ‘no genuine issue as to

any material fact,’ since a complete failure of proof concerning an

essential element of the nonmoving party’s case necessarily renders all

other facts immaterial. The moving party is ‘entitled to a judgment as a

mater of law’ because the nonmoving party has failed to make a sufficient

showing on an essential element of her case with respect to which she has

the burden of proof.” Celotex, 477 U.S. at 323.

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that part of the case, what is left of the case cannot meet the

elements of a Bivens claim for retaliatory prosecution. This

situation resembles that in Buckley v. Fitzsimmons, 20 F.3d

789 (7" Cir. 1994). The United States Supreme court had

remanded parts of the case back to the Seventh Circuit,

including Buckley’s claim that the prosecutors violated his Due

Process rights by coercing two witnesses and paying them

money to implicate Buckley in their statements. See Buckley

v. Fitzsimmons, 509 U.S. 259, 279 (1993).'© On remand, the

Seventh Circuit found that this conduct was not entitled to

absolute immunity because the interrogation and payments

occurred early in the investigation, before the prosecutors were

functioning as advocates. See Buckley, 20 F.3d at 794. When

the Court proceeded to the question of whether coercing

witnesses to incriminate Buckley was entitled to qualified

immunity, the Court concluded that such conduct did not

violate any clearly established right of Buckley and dismissed

the claim based on that conduct. Id, at 794-95.

The Court noted that while the prosecutors’ coercion could

violate the constitutional rights of the witnesses, it did not

violate Buckley’s rights and did not give him a claim against

the prosecutors. Id. at 194-95. The Court explained:

[If the constitutional entitlement is the right to prevent use

of the [coerced] confession at trial (or before the grand

jury), then absolute immunity under Imbler defeats

Buckley’s claim. Obtaining the confessions is not covered

'® The Supreme Court found that: “The precise contours of these claims

are unclear, and they were not addressed below; we leave them to be

passed on in the first instance by the Court of Appeals on remand.” Id.

The Supreme Court also held that the prosecutors’ alleged misconduct,

when trying to determine whether a bootprint at the scene of the crime

had been left by Buckley, was an investigatory rather than a prosecutorial

function, entitled to only qualified immunity, and that the prosecutor’s

allegedly false statements to the press were entitled to only qualified, and

not absolute, immunity from section 1983 liability.

56a

by immunity but does not violate any of Buckley’s rights;

using the confession could violate Buckley’s rights but

would be covered by absolute immunity. Because the

“reliability” aspect of coerced-confession law is an element

of trial practice . . . the only way Buckley can establish a

violation of the Constitution is to plead himself out of court.

Prosecutors are entitled to absolute immunity for actions as

advocates before the grand jury and at trail even if they

present unreliable or wholly fictitious proofs.

Id. at 795 (citations omitted) (emphasis added). For similar

reasons, Moore cannot base a retaliatory prosecution claim

upon Valder’s alleged coercion of witnesses and disclosures of

grand jury testimony to witnesses without pleading himself out

of court. To establish the claim, Moore must show that Valder

used the witness statements procured through this wrongful

conduct in the grand jury and trial proceedings in order to

_ prosecute Moore in retaliation for his criticism of USPS.

However, as soon as Moore alleges this, he confronts the

absolute immunity doctrine which effectively prohibits his

claim.

Finding that absolute prosecutorial immunity precludes

Moore from establishing an essential element of a Bivens claim

for retaliatory prosecution against Valder, the Court does not

address the merits of Valder’s qualified immunity defense. The

Court grants Valder’s motion for summary judgment and

denies Moore’s Motion to Clarify Order of September 16

1996, Staying Discovery as moot.’”

'? This Order granted defendant postal inspectors’ motion to stay

discovery to permit them to file a motion for summary judgment based on

the D.C. Circuit’s opinion in Crawford-El II]. Moore’s motion asked the

Court to clarify whether this Order applied to Valder or whether discovery

could proceed on Moore’s claims against Valder. In light of the Court’s

grant of summary judgment in favor of Valder, the issue of whether

discovery can proceed against Valder is moot and the motion is thus

denied.

57a

C. The Remanded Bivens Claim of Retaliatory Prose-

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On September 24, 1993, this Court dismissed the Bivens

claim against the postal inspectors on the grounds that Moore’s

complaint had not met a heightened pleading standard. On

appeal, the D.C. Circuit concluded that this Court should have

decided if the Bivens claims alleged violations of clearly

established law before it reached the heightened pleading

standard issue. See Moore, 65 F.3d at 195. The D.C. Circuit

then held that it was not clearly established that malicious

prosecution violates any constitutional or statutory right and

affirmed the dismissal of Moore’s malicious prosecution claim ©

against the postal inspectors. See id. at 195-96. However, the

Court of Appeals reversed the dismissal of Moore’s retaliatory

prosecution claim, finding that retaliation for speech protected

by the First Amendment violates a clearly established right. It

also found that Moore met the Circuit’s two-level heightened

pleading standard, articulated in Kartseva v. Dep’t of State, 37

F.3d 1524, 1530-31 (D.C. Cir. 1994)."* See id. at 196.

This Court acknowledges the D.C. Circuit’s finding that

retaliatory prosecution violates a clearly established right, but

revisits its finding that Moore met the heightened pleading

standard in Kartseva in light of intervening D.C. Circuit

precedent and the higher evidentiary burden required by

'® In Kartseva, the D.C. Circuit explained the two levels as follows:

The first level applies to all Bivens or § 1983 claims and

demands that plaintiff's plead the facts surrounding the alleged

violation with sufficient “detail [ ] to enable the district court to

decide at the outset whether [the] action may proceed to

discovery and trial” over a qualified immunity defense. The

second level of our heightened pleading standard applies only to

Claims in which the outcome depends on the defendant’s state of

mind, and it demands direct evidence of intent.

Kartseva, at 130-31 (citations omitted).

58a

Federal Rule of Civil Procedure 56. The two-level heightened

pleading standard articulated in Kartseva for claims involving

unconstitutional motives by government officials that the D.C.

Circuit relied upon in Moore’s appeal has been replaced by the

standards articulated in Crawford-El I]. Consequently, this

court reviews what is left of Moore’s 108(h) statement and

affidavit under the standards set forth in Crawford-El II to

decide whether to grant the postal inspectors’ motion for

summary judgment on the Bivens claim for retaliatory pro-

secution.

According to Crawford-El II, a plaintiff opposing a

summary judgment motion based upon a qualified immunity

defense with respect to a motive-based constitutional claim

must produce “clear and convincing proof of a defendant’s

unconstitutional motive.” Crawford-El II, 93 F.3d at 838-39

(Ginsburg, J., concurring). If the plaintiff cannot meet the

“clear and convincing” standard, the Court should grant

summary judgment unless the plaintiff can show, “based upon

such evidence as he may have without the benefit of discovery

and any facts to which he can credibly attest,” that he has “a

reasonable likelihood of turning up evidence that a jury could

consider clear and convincing proof of the defendant’s

unconstitutional motive.” Id. at 841. If Moore’s evidence

against the postal inspectors meets the “reasonable likelihood”

standard, the court will allow him to pursue “limited discov-

ery.” Id.

First, the Court asks if Moore can meet the “clear and

convincing” standard. In their motion for summary judgment,

the postal inspectors claim that under this new standard, Moore

cannot establish that they had an unconstitutional motive,

which is an essential element of a retaliatory prosecution claim.

See Haynesworth v. Miller, 820 F.2d 1245, 1257 n.93 (D.C.

59a

Cir. 1987)."° To overcome the postal inspectors’ summary

judgment motion, Moore must come forward with specific

facts from which a rational trier of fact could find by clear and

convincing evidence that the postal inspectors possessed the

motive of retaliating against Moore for his criticism of USPS.

See FED. R. Civ. P. 56(e). As the D.C. Circuit has explained:

“[T]he clear and convincing standard generally requires the

trier of fact, in viewing each party’s pile of evidence, to reach

a firm conviction of the truth on the evidence about which he

or she is certain.” United States v. Montague, 40 F.3d 1251,

1254 (D.C. Cir. 1994) (citations omitted). The Court applies

this standard to the remaining parts of Moore’s 108(h)

Statement and affidavit to see if Moore has sufficient evidence

that the postal inspectors possessed the requisite unconstitu-

tional motive for a retaliatory prosecution claim.

The Court finds that Moore’s amended 108(h) statement

and affidavit establish the following facts with respect to the

issue of motive. Moore voiced his criticism of USPS directly

to USPS management, the media, and Congress in 1983.

Members of USPS management, specifically PMG Bolger and

Bolger’s deputy, Jellison, were aware of Moore’s criticism. In

1983, Bolger told Moore to “back off” of his criticisms of

USPS management, and Jellison said REI would never get any

multi-line production awards while he was at USPS. In 1985,

Moore lobbied to have Jellison and Bolger’s successor as

° The essential elements of a retaliatory prosecution claim under Bivens

are: “first, that the conduct allegedly retaliated against or sought to be

deterred was constitutionally protected, and, second, that the State’s

bringing of the criminal prosecution was motivated at least in part by a

purpose to retaliate for or to deter that conduct.” Haynesworth, 820 F.2d

at 1257 n.93 (quoting Wilson v. Thompson, 593 F.2d 1375 (5 Cir.

1979)). If the plaintiff can establish these two elements, then the Court

should consider a third: “whether the State has shown by a preponderance

of the evidence that it would have reached the same decision as to whether

to prosecute even had the impermissible purpose not been considered.”

Id.

60a

PMG, Paul N. Carlin, dismissed from USPS because of their

opposition to REI’s multi-line technology. That year, USPS

began investigating REI for problems in their procurement

process.

The postal inspectors participated in the investigation of REI

and worked with Valder to obtain an indictment against

Moore. The postal inspectors appeared hostile to Moore

during the investigation. In the presence of the postal

inspectors, Valder told William Hittinger that he did not care

whether Moore was guilty or innocent because he needed to

establish a good track record as a prosecutor. The postal

inspectors did not repudiate Valder’s comment. After Moore

was indicted, but before he was tried, the Assistant PMG for

Procurement insisted that Moore be put on leave of absence

from REI, that he be terminated from REI, that REI not pay his

legal fees, that he not be able to profit from any appreciation in

REI stock, and that he lose all of his CEP perquisites. In

response to this pressure, REI cut Moore’s salary, bonuses,

and privileges.

The Court of Appeals found that “[t]hese facts taken

together constitute evidence sufficient to meet” the heightened

pleading standards articulated in Kartseva. Moore, 65 F.3d at

196. As Crawford-El II now applies to this case, this Court

must determine whether these facts are sufficient to meet the

new standard: whether they constitute clear and convincing

evidence of a retaliatory motive by the postal inspectors.

Although Moore’s evidence suggests that Bolger and Jellison

were angry at Moore and were implicitly threatening him, this

evidence does not show that the postal inspectors were upset

with him. The evidence about Bolger and Jellison suggests that

USPS management disliked Moore’s public criticism of it and

may have had a motive to retaliate against him by pursuing a

baseless investigation and ultimate prosecution of him.

However, while it is possible that management expressed this

motive to the postal inspectors, Moore’s evidence does not

6la

provide clear and convincing evidence that the postal

inspectors themselves had a retaliatory motive.

Second, then, the court must ask if Moore can show that he

has a “reasonable likelihood of turning up evidence that a jury

could consider clear and convincing proof of the defendant’s

unconstitutional motive.” Crawford-El II, 93 F.3d at 841

(Ginsburg, J., concurring). Other facts show that Moore does

meet this Crawford-El II standard for “limited discovery.” Id.

The fact that the postal inspectors report to USPS management

shows that they were likely aware of and influenced by

management’s hostility to Moore and REI. Moore’s observa-

tions of the postal inspectors’ hostility toward him during the

USPS investigation supports this inference. In addition, the

postal inspectors’ failure to repudiate Valder’s comment that

he did not care whether Moore was guilty or not may mean

they were also indifferent to Moore’s innocence. This reason-

able inference is supported by the postal inspectors’ conduct in

coercing Spartin to implicate Moore even after he had said

nineteen times during his polygraph exarnination that Moore

was not involved, and their similar attempts to coerce Bray into

implicating Moore. The postal inspectors’ concealment of

exculpatory evidence from the grand jury and their drafting and

presentation of misleading witness statements also suggest a -

desire to get Moore prosecuted even if he were innocent.

Lastly, the fact that the postal inspectors showed former PMG

Carlin secret grand jury information suggests that they were

trying to help Carlin in his civil case against Moore stemming

from Moore and REI’s efforts to get Carlin dismissed from

USPS.

While these facts do not provide “clear and convincing”

evidence that the postal inspectors sought Moore’s prosecution

in order to retaliate against him, the Court finds that they do

show that Moore has “a reasonable likelihood of turning up

evidence that a jury could consider clear and convincing proof”

that the postal inspectors sought to prosecute Moore in

62a

retaliation for his public criticism of USPS. Crawford-El II, 93

F.3d at 841. The court will therefore permit “limited discov-

ery” with respect to Moore’s Bivens claim for retaliatory

prosecution against the postal inspectors. Id. Specifically, the

Court will permit discovery tailored to the issue of whether the

postal inspectors had the requisite retaliatory motive based on

Moore’s criticism of USPS.

The Court’s decision to permit limited discovery is con-

sistent with the D.C. Circuit’s decision to remand Moore’s

retaliatory prosecution claim against the postal inspectors. See

Moore, 65 F.3d at 196. In fact, at a status conference held in

this Court on April 25, 1996, defense counsel admitted that the

D.C. Circuit’s holdings implied that discovery should proceed,

stating that “we fully agree that document production should

go forward.” 4/25/96 Hr. Tr. at 20. Magistrate Judge Kay had

even ordered discovery to commence on October 14, 1996, but

the decision in Crawford-El II required staying discovery until

this Court could determine whether the new standards

permitted the planned discovery. This Court concludes that

discovery is warranted under the new standards and refers this

case to Magistrate Judge Kay to oversee discovery on

Moore’s Bivens claims for retaliatory prosecution against the

postal inspectors.

D. The Remanded FTCA Claims Against the United

On the basis of the alleged conduct of Valder and the postal

inspectors described above, Moore brought claims against the

United States under the Federal Tort claims Act (“FTCA”), 28

U.S.C. §§ 2671 et seq. The FTCA waives the sovereign

immunity of the United States in legal actions based on

negligence or wrongful conduct of federal government

employees. See 28 U.S.C. §§ 2671-2680. This waiver is

subject to certain exceptions, including the “discretionary

function” exception, which insulates the United States against

liability arising out of an act or omission of a government

employee exercising or failing to exercise a discretionary

63a

function. See 28 U.S.C. § 2680(a). On September 24, 1993,

this court held that Valder and the postal inspectors’ alleged

misconduct fell within the discretionary function exception and

consequently dismissed Moore’s FTCA claims for lack of

subject matter jurisdiction.

On appeal, the, D.C. Circuit held that “the United States

enjoys immunity from Moore’s claims that Valder and the

postal inspectors pressured witnesses into incriminating him,

concealed and distorted exculpatory evidence to create a false

impression of what he knew about the fraud schemes and

withheld material exculpatory information from him after the

grand jury returned a indictment.” Moore, 65 F.3d at 197.

The D.C. Circuit agreed that these activities fell within the

FTCA’s discretionary function exception, noting that:

deciding whether to prosecute, assessing a witness’s

credibility to ensure that he is giving an accurate and

complete account of what he knows, identifying the

evidence to submit to the grand jury and determining

whether information is ‘exculpatory’ and ‘material’ and

therefore must be disclosed pursuant to a Brady request are

actions that require the prosecutor to exercise his

professional judgment.

Id. However, the D.C. Circuit found that “[d]isclosing grand

jury testimony to unauthorized third parties . . . is not a

discretionary activity nor is it inextricably tied to matters

requiring the exercise of discretion.” Id. The Court of Appeals

instructed this Court to reconsider the alleged disclosures of

grand jury material, but warned that it “express[ed] no view

whether the allegation is otherwise cognizable under the FTCA

or whether it is supported by the evidence.” Id.

The Court of Appeals’ opinion disposes of all of the

allegations against the United States in Moore’s FTCA |

Complaint other than paragraph 26 which alleges that Valder

and the postal inspectors violated Federal Rule of Criminal

64a

Procedure 6(e) by disclosing grand jury testimony to two

unauthorized third parties. See id., at 197; FTCA Complaint

at J 26. Specifically, the Complaint makes two claims; one of

malicious prosecution and one of abuse of process. First, the

Complaint alleges that Valder and the postal inspectors gave

William Spartin, the president of GAI and the prosecution’s

primary witness against More, access to “Grand Jury testimony

of other witnesses for the purpose of influencing Spartin’s

testimony.” FTCA Complaint at § 26. In Moore’s view, this

alleged disclosure to Spartin constitutes malicious prosecution

and renders the United States liable under the FTCA. Second,

the Complaint alleges that Valder and the postal inspectors

gave grand jury testimony of other witnesses and “a copy of a

draft indictment” to former PMG Paul Carlin “for the apparent

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

litigation in connection with his dismissal from the Postal

Service.” Id. Moore argues that the unauthorized disclosure

of grand jury information to Carlin establishes an abuse of

process claim under the FTCA.

The torts of malicious prosecution and abuse of process

cannot form the basis of an FTCA claim unless they were

committed by “investigative or law enforcement officers of the

United States government.” See 28 U.S.C. § 2680(h).”

Section 2680(h) reads:

The provisions of this chapter and § 1346(b) of this title shall not

apply to any claim arising out of an 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 §

1345(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.

65a

According to the FTCA, a person is an “investigative or law

enforcement officer” if empowered by law to execute searches,

seize evidence, or make arrests for violations of F’ sederal law.

See 28 U.S.C. § 2680(h). As postal inspectors are authorized

to perform all three functions, see 39 C.F.R. § 233.1 (1998),

their alleged conduct can form the basis of Moore’s FTCA

claims for malicious prosecution and abuse of process. See,

e.g., Crow v. United States, 634 F. Supp. 1085, 1088 (D. Kan.

1986). Valder’s alleged conduct, however, cannot for the basis

of either of Moore’s FTCA claims because federal prosecutors

cannot perform such functions and therefore are not

“investigative or law enforcement officers” under § 2680(h).”!

Accordingly, the Court will not consider Valder’s alleged

disclosures of grand jury material in deciding the government’s

dispositive motion.

Pursuant to Rule 12(c) of the Federal Rules of Civil

Procedure, defendant United States moves for judgment on the

pleadings with respect to Moore’s remaining FTCA claims that

the postal inspectors disclosed grand jury testimony to

unauthorized third parties.” The Court may grant a motion for

28 U.S.C. § 2680(h) (emphasis added).

* See ¢.g., Bernard v. United States, 25 F.3d 98 (2d Cir. 1994); Ames v.

United States, 600 F.3d 183, 185 n.3 (8th Cir. 1979); Gray v. Bell, 542

F. Supp. 927, 932 (D.D.C. 1982), aff'd, 712 F.2d 490 (D.C. Cir. 1983).

The Court follows the clear language of 28 U.S.C. § 2680(h) and the

holdings in these cases and rejects Moore’s argument that AUSA Valder

be treated as an “investigative or law enforcement officer” because he was

engaged in “investigative” activities when he allegedly disclosed grand

jury materials.

* The United States also moves, in the alternative, for dismissal of the

action for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of

the Federal Ruies of Civil Procedure. In light of this Court’s decision to

grant the motion for judgment on the pleadings in favor of the United

States, the alternative motion to dismiss or lack of subject matter

66a

judgment on the pleadings if, at the close of the pleadings, no

material fact remains in dispute and the moving party is entitled

to judgment as a matter of law. Haynesworth v. Miller, 820

F.2d 1245, 1249 n.11 (D.C. Cir. 1987). In considering such a

motion, the Court must view the complaint in the light most

favorable to the plaintiff and accept as true the factual

allegations set forth herein and all reasonable inferences drawn

from those allegations. Id.

Whether the postal inspectors’ alleged disclosures of grand

information to Spartin and Carlin establish actionable claims of

malicious prosecution and abuse of process against the United

States are the only FTCA issues facing this Court on remand.

The Court will look first at the malicious prosecution and claim

and then the abuse of process claim to determine if the United

States is entitled to judgment as a matter of law on either of

these claims.

Malicious Prosecution

Defendant United States argues that Moore cannot establish

the essential elements of his malicious prosecution claim on the

basis of the postal inspectors’ alleged disclosures of grand jury

information to Spartin. The FTCA incorporates the substantive

law of the place where the alleged tortious conduct occurred,

which in this case is the District of Columbia. See 28 U.S.C.

§ 1346(b). Under D.C. law, the tort of malicious prosecution

has four elements: (1) the initiation or procurement of a

criminal proceeding by the defendant against the plaintiff; (2)

absence of probable cause for the proceeding; (3) termination

of the proceeding in favor of the plaintiff; and (4) malicious

intent on the part of the defendant. See Davis v. Giles, 769

F.2d 813, 814-15 (D.C. Cir. 1985); accord Ammerman v.

Newman, 384 A.2d 637, 639 (D.C. App. 1978). Failure to-

satisfy any one of these four elements is “fatal” to a claim of

jurisdiction is moot.

67a

malicious prosecution. See Jarett v. Walker, 201 A.2d 523,

526 (D.C. App. 1964) (citing Bumphus v. Smith, 189 A.2d

130, 131 (D.C. App. 1963)).”

According to defendant United States, Moore cannot satisfy

the first element, that the postal iispectors initiated or procured

Moore’s prosecution, given the hcidings of the D.C. Circuit in

Moore v. Valder, 65 F.3d 189 (D.C. Cir. 1995). First, the

D.C. Circuit made clear that the discretionary function

exception applies to the “decision to prosecute and the

presentation of evidence to the Grand Jury.” Moore, 65 F.3d

at 196-97 (citing Gray v. Bell, 712 F.3d 508, 516 (DC. Cir.

1983)). Hence, even if the postal inspectors “decided to

prosecute” Moore or “caused” him to be prosecuted by

presenting Spartin’s manipulated testimony to the Grand Jury,

their conduct could not provide a basis for liability because

such conduct is discretionary. Second, the postal inspectors’

alleged disclosure of grand jury testimony to Spartin, which is

the only non-discretionary conduct that this Court must .

‘consider on remand, cannot establish the first element given the

D.C. Circuit’s holding that such “unauthorized disclosure ‘does

not involve the initiation of a prosecution, the presentation of

the state’s case in court, or actions preparatory for these

functions’.” Moore, 65 F.3d at 195 (quoting Buckley v.

Fitzsimmons, 509 U.S. 259, 278 (1993)).

Moore faces a third obstacle in trying to establish that the

postal inspectors initiated or procured the prosecution of

Moore, which the Court asked the parties to brief in its Order

of September 26, 1997. That Order directed the parties to

address the following question:

?3 Jarrett applies the elements of malicious prosecution under Maryland

law instead of D.C. law, but as the District of Columbia Court of Appeals

explains, “[t]he necessary elements to support a case for malicious

prosecution are the same under Maryland law as recognized in this

jurisdiction.” Jarrett, 201 A.2d at 526 (citations omitted).

68a

If Assistant United States Attorney Valder is not an

“investigative or law enforcement officer,” provide authority

for the proposition that the conduct of the postal inspectors

alone can satisfy the elements of a malicious prosecution

claim against the United States under the FTCA. Further

support the proposition that an adequate casual nexus

existed between the conduct of the postal inspectors and

Assistant United States Attorney Valder’s decisions to

initiate and continue the prosecution of plaintiff Moore.

In the D.C. Circuit, a plaintiff alleging malicious prosecution

under the FTCA must show “a sufficient casual nexus”

between the acts of the defendant and the United States

Attorney’s decision to prosecute the plaintiff. Dellums v.

Powell, 566 F.2d 167, 194 (D.C. Cir. 1977), cert. denied, 483

U.S. 916 (1978) (“Dellums I”); Dellums v. Powell, 600 F.2d

802, 804 n3 (D.C. Cir. 1981) (“Dellums IT’). The law

presumes that United States Attorneys act independently when

they institute prosecutions unless the plaintiff can show “a

chain of causation” between the defendant’s conduct and the

initiation of the prosecution. See Dellums J, 566 F.2d at 192.

If the United States Attorney’s decision to prosecute was

“independent of any pressure or influence exerted and of any

knowing misstatements” by the defendant, “the chain of

causation . . . is broken.” Id. at 193 (citations omitted).

Given that this Court lacks jurisdiction under the FTCA to

base a malicious prosecution claim on AUSA Valder’s

conduct, see 28 U.S.C. § 2680(h), and that a malicious

prosecution claim requires that the defendant “instituted or

procured” the prosecution, Moore must show that the postal

inspectors’ alleged disclosures of grand jury testimony to

Spartin played a sufficiently causal role in Valder’s decision to

prosecute Moore. In light of the D.C. Circuit’s holdings in

Moore and Dellums, Moore tries to distinguish the actual

decision to prosecute, which is clearly discretionary, from

improper actions taken by the postal inspectors to initiate and

69a

continue Moore’s prosecution. According to Moore, such

actions include the postal inspectors’ alleged efforts to mislead

the grand jury into indicting Moore by concealing, distorting,

and manufacturing evidence and their efforts to pressure

Spartin into incriminating Moore by showing him grand jury

statements drafted by the postal inspectors. Moore argues that

these actions establish the first element because the disclosure

of the grand jury information caused Spartin to incriminate

Moore in his testimony before the grand jury, “which in turn

led to the grand jury indictment of Moore that continued the

prosecution of Moore.” Supplemental Brief at 11. Lastly,

Moore asserts that “it makes no difference that AUSA Valder

was, for his own reasons, determined to prosecute Moore”

because “[t]he postal inspectors’ misconduct continued

Mr. Moore’s prosecution by influencing the grand jury, not

Valder.” Id. at 12 (emphasis added).

The Court finds that Moore has not established an adequate

“causal nexus” between the postal inspectors’ disclosure of

grand jury information to Spartin and the initiation of Moore’s

prosecution. Moore has not alleged that the postal inspectors

pressured Valder into prosecuting Moore or knowingly made

misrepresentations to Valder that led him to prosecute Moore

when he otherwise would not have. See Dellums I, 566 F.2d

at 193. In fact, Moore has conceded that the postal inspectors

did not influence Valder’s decision to prosecute, and that

Valder was “determined to prosecute Moore” independent of

their conduct. Moore has alleged only that the postal

inspectors influenced the grand jury’s decision to indict,

claiming that Spartin’s manipulated testimony “must have led

the grand jury to indict Moore.” Supplemental Brief at 10.

Moore’s allegations ignore the fact that malicious prosecu-

tion requires the initiation of a prosecution by the Executive

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Branch, not the grand jury.“ Even if this Court could deter-.

mine that Spartin’s testimony “caused” the indictment,”* this

would not satisfy the first element because a grand jury indict-

ment cannot by itself initiate a prosecution. Moreover,

Moore’s concession that Valder’s decision to prosecute was

independent of the postal inspectors’ misconduct breaks what-

ever causal chain he sought to establish and thereby defeats his

malicious prosecution claim under the FTCA. See Dellums 1,

566 F.2d at 193.

The Court also finds that More cannot establish a causal

chain between the postal inspectors’ disclosure of grand jury

testimony and the initiation of Moore’s prosecution without

relying on conduct that has already been declared protected by

the FTCA’s discretionary function exception. The disclosure

is significant to a malicious prosecution claim only if it resulted

in the initiation or procurement of Moore’s prosecution.

Moore claims the disclosure was made to pressure Spartin into

implicating Moore during his grand jury testimony so that

Moore would be indicted. Moore also claims that the postal

inspectors presented Spartin’s manipulated testimony to the

grand jury and concealed his exculpatory statements in order

to get Moore indicted and ultimately prosecuted.

4 See United States v. Nixon, 418 U.S. 683, 693 (1974) (“the Executive

Branch has exclusive authority and absolute discretion to decide whether

to prosecute a case”) (citations omitted); In Re Sealed Case, 838 F.2d 476,

488 (D.C. Cir. 1988), reversed on other grounds, 487 U.S. 654 (1988)

(“the Constitution vests the power to initiate a criminal prosecution

exclusively in the Executive Branch”).

> Moore concedes that “[i]t is, of course, impossible to gauge exactly the

impact of Spartin’s testimony.” Supplemental Brief at 10 n.3.

2° See United States v. Cox, 342 F.2d 167, 172 (5 Cir. 1965) (noting that

a grand jury’s decision to indict cannot cause a prosecution to be initiated

because the prosecutor must sign the indictment to institute proceedings).

eee .

nee.

71a

This alleged conduct, however, cannot form the basis of a

malicious prosecution claim because the Court of Appeals

explicitly held that “the United States enjoys immunity from

Moore’s claims that Valder and the postal workers pressured

witnesses into incriminating him, concealed and distorted

exculpatory evidence to create a Jalse impression of what he

knew about the fraud schemes and withheld material

exculpatory information from him after the grand jury returned

an indictment.” Moore, 65 F.3d at 197 (emphasis added).

This holding and Moore’s concession that the postal inspectors

did not influence Valder’s decision to prosecute preclude

Moore from establishing the causal chain required by the first

element of malicious prosecution. The Court notes that if the

disclosure of grand jury information by the postal inspectors

occurred as alleged, it would constitute a reprehensible

violation of Federal Rule of Criminal Procedure 6(e); however,

the alleged disclosure is simply insufficient to support an FTCA

claim for malicious prosecution.”

.

*” Defendant United States also claims the allegations in the Complaint

Cannot satisfy the second element regarding lack of probable cause or the

fourth element regarding malicious intent because of the “inherently

discretionary nature” of such elements. The Complaint alleges that

Valder and the postal inspectors knew Moore was innocent and yet

deliberately misled the grand jury into indicting him. See FTCA

Complaint at { 21-28. Although Moore claims these allegations show the

postal inspectors acted without probable cause and with malicious intent,

Moore fails to address the Court of Appeals’ holding that concealing,

distoriing, and withholding exculpatory evidence “to create a false

impression of what he [Moore] knew about the fraud schemes” fell within

the discretionary function exception of the FTCA. Moore, 65 F.3d at 197.

Nevertheless, because this Court finds the malicious prosecution claim

fails on the basis of the first element, it does not reach the issue of whether

Moore can establish the other three elements.

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Abuse of Process

In its FTCA complaint against the United States, Moore

alleges that the postal inspectors gave secret grand jury

information, including witness statements and a draft

indictment, to former PMG Carlin in order to help him pursue

a civil action against Moore and REI for his dismissal from

USPS. See FTCA Complaint at ] 26. Defendant United States

contends that these allegations, even if true, do not satisfy the

elements of an abuse of process claim” and that the United

States is therefore entitled to judgment on the pleadings under

rule 12(c). As noted above, the FTCA incorporates the

substantive law of the place where the alleged tortious conduct

occurred, which in this case is the District of Columbia. See 28

U.S.C. § 1346(b). Accordingly, the Court looks to D.C. law

on the tort of abuse of process to decide the Rule 12(c)

motion.

Under D.C. law, “[t]he critical concern in abuse of process

cases is whether process was used to accomplish an end

unintended by law, and whether the suit was instituted to

achieve a result not regularly or legally obtainable.” Morowitz

v. Marvel, 423 A.2d 196, 198 (D.C. App. 1980). However,

' “the fact that a person acts spitefully, maliciously, or with an

ulterior motive in instituting a legal proceeding is insufficient

to establish abuse of process.” Scott v. District of Columbia,

101 F.3d 748, 755 (D.C. Cir. 1997). As the D.C. Circuit has

made clear, “there is no action for abuse of process when the

process is used for the purpose for which it is intended” even

if there is an “incidental motive of spite or an ulterior purpose

8 Moore’s abuse of process claim differs from his malicious prosecution

claim in the following respect: “The essence of the tort is the use of legal

process for improper purposes, and so abuse of process is conceptually

different from, but overlaps with, malicious prosecution, the latter of

which occurs only when a legal action is brought without probable cause.”

Neumann vy. Vidal, 710 F.2d 856, 860 (D.C. Cir. 1983).

73a

of benefit to the defendant.” Id. (citation omitted). In other

words, “‘[n]o matter what ulterior motive may have promoted

it,’ . .. one who invokes the legal process to obtain such relief

as it offers commits no abuse of process.” Harrison v. Howard

Univ., 846 F. Supp. 1, 2-3 (D.D.C. 1993) (quoting Morowitz,

423 A.2d at 198), aff'd, 48 F.3d 562 (D.C. Cir. 1995). The

plaintiff must show that the defendant used some legal process

“for an immediate purpose other than that for which it was

designed and intended.” Scott, 101 F.3d at 755 (citation

omitted) (emphasis added).”

The D.C. Circuit recognizes that using the grand jury

subpoena process for a single purpose other than investigating

a crime or obtaining evidence relevant to a crime can constitute

an abuse of process. See, e.g., Doe v. DiGenova, 779 F.2d

(D.C. Cir. 1985). In Doe v. DiGenova, the plaintiff alleged

that an Assistant United States Attorney abused the process of

the grand jury by issuing a subpoena for veteran medical

records “not to investigate the crime, but to evaluate the

viability of a yet to be asserted insanity defense.” Id, at 91.

The Court of Appeals remarked, that “[h]ad [exploration of

Doe’s possible insanity defense] been the only reason behind

the subpoena, this Court would be troubled.” Id. (emphasis

added). On remand, however, the district court found there

was no abuse of process because the prosecutor had .

subpoenaed the plaintiffs records or two reasons: to

determine whether the plaintiff was defrauding the Veterans’

Administration and whether the defense of insanity was

available. The D.C. Circuit affirmed the lower court’s finding

that this use of the subpoena was “entirely consistent with the

purpose of grand jury proceedings, which is ‘to determine

” See also Wilcon v. Traveler’s Indemnity Company, 654 F.2d 976, 984

(5 Cir. 1981) (“the plaintiff need only show that the defendant acted

‘primarily’ to accomplish an immediate purpose for which the process was

not designed”) (quoting Restatement (Second) of Torts § 682 (1977))

(emphasis added).

74a

whether a crime has been committed and whether criminal

proceedings should be instituted against any person.’” Doe v.

DiGenova, 642 F. Supp. 624, 631 (D.D.C. 1986) (citation

omitted), affd sub nom., Doe v. Stephens, 851 F.2d 1457,

1463 (D.C. Cir. 1988) (“we agree with the district court that

this [abuse of process] claim affords no basis for relief”).

Moore claims the postal inspectors misused the grand jury

process to divulge secret information to Carlin in order to help

him pursue a civil action against Moore. Applying D.C. law on

abuse of process to Moore’s Complaint and accepting his

allegations as true in accordance with Rule 12(c), the Court

finds that the postal inspectors improperly disclosed grand jury

information to Carlin in violation of Federal Rule of Criminal

Procedure 6(e) and possessed the “ulterior motive” of assisting

Carlin’s private suit. See Scott, 101 F.3d at 755. However,

because there is no abuse of process under D.C. law if the legal

process was used for its intended purpose, see id., in order to

prevail, Moore must allege that the postal inspectors did not

use the grand jury process for its intended purpose of

investigating potential crimes and identifying evidence for

submission to the grand jury, but rather invoked the process for

the sole and “immediate purpose” of obtaining information

helpful to Carlin’s case against Moore. Id.; see Doe v.

DiGenova, 779 F.2d at 91. 7

The allegations in Moore’s FTCA complaint do not establish

an abuse of process claim.*° Moore has not alleged enough

* The facts Moore alleges differ markedly from those in a case in which

the court found the defendant’s use of the subpoena process constituted

abuse of process. The Court of Appeals of New York found that “on its

face an allegation that defendants had subpoenaed 87 persons with full

knowledge that they all could not and would not testify and that this was

done maliciously with the intent to injure and to harass plaintiff spell[ed]

out an a of moet ee

1889, AFT AFL-CIO. 343 N.E.2d 278 (NY. 1975). In Fanningdale, a

75a

facts to infer that the postal inspectors used the grand jury

process to obtain witness statements and to draft an indictment

for the sole and “immediate purpose” of assisting Carlin in his

case against Moore, instead of for the process’s intended

purpose of investigating crimes and identifying evidence to

present to the grand jury. Moore has alleged only that the

postal inspectors gave Carlin access to secret information that

had been obtained through the grand jury process in order to

help him with his civil case. See FTCA Complaint at ¥ 26.

Though this allegation satisfies the ulterior motive requirement,

it fails to show the process was used solely for an “immediate

purpose other than that for which it was designed or intended.”

Scott, 101 F.3d at 755; see Doe v. DiGenova, 779 F.2d at 91.

As the holdings in Scott, DiGenova, and Harrison show, the

postal inspectors could not have committed an abuse of

process if they properly used the grand jury process to

investigate crimes and identify evidence to present to the grand

jury even though they may have also had the “incidental”

ulterior motive of obtaining the information for Carlin’s benefit.

On the basis of the pleadings and the absence of allegations

to the contrary, this Court finds that the postal inspectors

invoked the grand jury process for its intended purpose of

identifying evidence for submission to the grand jury and that

the “ulterior motive” of helping Carlin was not their

“ammediate purpose,” but rather a purpose that developed after

the process had been invoked and the grand jury information

had been obtained. In Moore, the D.C. Circuit expressly held

teacher’s association had issued subpoenas to 87 teachers to compel their

appearance as witnesses at a hearing. Id. at 280. When the school district

requested that most teachers be excused and that staggered hearing dates

be set for the remaining teachers, the teacher’s association refused, forcing

the district to hire 77 substitute teachers. Id. The Court of Appeals for

New York found these allegations supported an inference that the

teacher’s association had perverted the subpoena process for the purpose

of causing the school district economic harm. Id. at 283.

76a

that “identifying the evidence to submit to the grand jury” is

protected activity under the FTCA’s discretionary function

exception. Moore, 65 F.3d at 197. In light of this holding and

Moore’s failure to allege otherwise, this Court finds that the

postal inspectors’ primary and immediate use of the grand jury

process to obtain evidence for submission to the grand jury and

to prepare an indictment precludes Moore from basing an

abuse of process claim on the postal inspectors’ subsequent

disclosures of witness testimony and a draft indictment to

Carlin. Accepting the allegations in the Complaint as true and

drawing all reasonable inferences therefrom, this Court holds

that no material fact remains in dispute and that the United

States is entitlement to judgment on the pleadings as a matter

of law with respect to Moore’s abuse of process claim under

the FTCA. See FED. R. Civ. P. 12(c).

Ii. Conclusion

For the reasons given above, the Court will grant in part and

deny in part defendant Postal Inspectors’ Motion to Strike

Affidavit and Plaintiff s Amended Local Rule 108(h) Statement

and defendant Valder’s Motion to Strike Affidavit and

Plaintiffs Amended Local Rule 108(h) Statement. The Court

will grant defendant Valder’s Motion for Summary Judgment,

and deny as moot Plaintiff's Motion to Clarify the Stay Order

of September 16, 1996. The Court will deny defendant Postal

Inspectors’ Motion for Summary Judgment and permit limited

discovery to proceed on plaintiff's Bivens claim for retaliatory

prosecution against the postal inspectors. Lastly, the court will

grant defendant United States’ Motion for Summary Judgment

on the Pleadings, and deny as moot its Alternative Motion to

Dismiss for Lack of Subject Matter Jurisdiction.

77a

An Order will accompany this Memorandum Opinion.

ls/

NORMA HOLLOWAY JOHNSON

United States District Judge

78a

UNITED STATES COURT OF APPEALS

DISTRICT OF COLUMBIA CIRCUIT

WILLIAM G. MOORE, JR., APPELLANT,

Vv.

JOSEPH B. VALDER, ET AL., APPELLEES.

Nos. 93-5341, 93-5343.

Argued Jan. 18, 1995.

Decided Sept. 22, 1995.

Rehearing and Suggestion for Rehearing In Banc

Denied Jan. 23, 1996.

Before: EDWARDS, Chief Judge; WALD and HENDERSON,

Circuit Judges.

KAREN LECRAFT HENDERSON, Circuit Judge:

Appellant William G. Moore, Jr. (Moore) appeals the

dismissal of his Bivens and Federal Tort Claims Act claims

against Assistant United States Attorney Joseph B. Valder

(Valder), six United States Postal Service Inspectors (postal

inspectors)’ and the United States. Moore sued for injuries

allegedly caused by Valder’s and the postal inspecters’

malicious and retaliatory prosecution of him. We affirm in

part and reverse in part.

I.

Moore was indicted in October 1988 on various counts

of theft and fraud. Moore was chairman, president and chief

' The postal inspector defendants-appellees are Michael Hartman, Frank

Korman, Robert Edwards, Pierce McIntosh, Daniel Harrington and

Norman Robbins.

79a

executive officer of Recognition Equipment Incorporated

(REI), a company interested in supplying the U.S. Postal

Service (USPS) with address-scanning equipment. The

indictment charged that Moore and Robert Reedy, another REI

employee, engaged in a scheme to defraud the federal

government by persuading William Spartin to recommend for

the position of United States Postmaster General a candidate

who favored using REI’s address-scanning equipment.

Spartin was both president of Gnau & Associates, Inc. (GAI),

a consulting firm hired by REI, and president of a subsidiary of

an executive search firm hired by the USPS to identify a

qualified candidate to serve as Postmaster General. The

indictment also accused Moore and Reedy of participating in

a scheme by which GAI employees paid money to Peter E.

Voss, a member of the USPS Board of Govemors, in return for

Voss’s steering business to GAI and its clients. REI had hired

GAI at the suggestion of Voss. Five co-conspirators, including

Voss and John R. Gnau, Jr., the principal of GAI, either

pleaded guilty or testified about the fraud pursuant to a grant

of immunity.

In November 1989, at the close of the government’s case in

Moore’s criminal non-jury trial, the district court granted

Moore’s motion for a judgment of acquittal. United States v.

Recognition Equip. Inc., 725 F Supp. 587 (D.D.C.1989). The

district court found insufficient evidence to support a

reasonable inference that Moore and Reedy knew of either

scheme. Jd. Moore then filed a complaint in the U.S. District

Court for the Northern District of Texas against Valder and the

postal inspectors, asserting a Bivens? cause of action for

malicious prosecution (malicious prosecution claim) and a

* Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403

U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (recognizing a cause of

action for damages against officials who violate constitutional or Statutory

rights under color of federal law).

80a

Bivens claim for prosecution in retaliation for the exercise of

his first amendment right (retaliatory prosecution claim).°

Moore later filed a second complaint in the Northern District

of Texas seeking recovery from the United States under the

Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671 ef seq.,

for the same alleged injuries.

In the two complaints Moore alleged that Valder and the

postal inspectors maliciously prosecuted him, even though they

knew that he was unaware of the fraud, based on his and REI’s

criticism of USPS procurement policies and on his

recommendations to the President of qualified candidates for

Postmaster General. In addition, Moore alleged other

misconduct, including claims that Valder told several postal

inspectors in the presence of a grand jury witness that he did

not care whether Moore was in fact guilty because he wanted

to secure a “high-profile” indictment to further his career; that

Valder and the postal inspectors intimidated and coerced

witnesses into changing their testimony to incriminate Moore;

that they concealed evidence of Moore’s innocence; that they

manipulated witness testimony and presented to the grand jury

false, incomplete and misleading written witness statements;

that they lost, destroyed or concealed from the grand jury

exculpatory information; that they disclosed grand jury

testimony to third parties; and that Valder withheld material

exculpatory information from Moore after indictment.

The district court dismissed the Bivens claims against

Valder, holding that he was protected by absolute immunity.

The court denied the postal inspectors’ motion to dismiss the

Bivens claims against them on the ground of qualified immunity

and then transferred the remaining claims to the U.S. District

Court for the District of Columbia, concluding that it lacked in

> The complaint also asserted other constitutional and common-law tort

claims which were dismissed by the district court. Moore does not appeal

the dismissal of those claims.

8la

personam jurisdiction. |The FTCA complaint was also

transferred and the parties stipulated to the consolidation of the

two cases by the district court here.

The district court first denied Moore’s motion to return the

complaints to the Northern District of Texas. The court then

dismissed the Bivens claims against the postal inspectors

_ because Moore’s complaint did not recite direct evidence of

their alleged unconstitutional motive and therefore did not

satisfy a heightened pleading standard. The court also

dismissed the FTCA claims for iack of subject matter

jurisdiction, holding that the alleged misconduct fell within the

FTCA’s discretionary function exéeption.

II.

On appeal Moore contends that Valder is not entitled to

absolute immunity, that the court erred in applying a

heightened pleading standard to his Bivens complaint; and that

the FTCA’s discretionary function exception does not preserve

the United States’s sovereign immunity from liability for the

alleged misconduct. In analyzing his claims, we group the

specific misconduct alleged by Moore into four categories:

pressuring witnesses into incriminating Moore; concealing and

distorting exculpatory evidence to create misleading or

incomplete witness accounts of what Moore knew about the

alleged fraud;* withholding material exculpatory information

from Moore after indictment; and disclosing grand jury

testimony to unauthorized third parties.

* We do not read Moore’s complaint to allege that Valder or the postal _

inspectors manufactured false evidence to incriminate Moore. The

complaint, construed favorably to Moore, alleges only that the written

witness statements, prepared by Valder and the postal inspectors and

submitted to the grand jury, created false impressions because they

omitted important exculpatory testimony. Joint Appendix (JA) 377-78.

82a

A. Claims Against Valder

The district court dismissed Moore’s Bivens claims against

Valder, holding that Valder was protected by absolute

immunity.° We review de novo a dismissal for failure to state

a claim upon which relief can be granted but accept the facts as

alleged in the complaint. Kowal v. MCI Communications

Corp., 16 F.3d 1271, 1276, 1273 (D.C.Cir.1994). We hold

that absolute immunity shields Valder from liability for the

decision to prosecute Moore and for some, but not all, of the

other alleged instances of misconduct.

In several decisions the Supreme Court has considered

whether and to what extent a state or local prosecutor qua

prosecutor is immune from liability under 42 U.S.C. § 1983.

As the Court has recognized, the law of immunity in a Bivens

claim against a federal official mirrors that in a section 1983

claim against a state official. See, e.g., Butz v. Economou, 438

US. 478, 504, 98 S.Ct. 2894, 2909-10, 57 L.Ed.2d 895 (1978)

(deeming it “untenable to draw a distinction for purposes of

immunity law between suits brought against state officials

under § 1983 and suits brought directly under the Constitution

against federal officials”); see also Briggs v. Goodwin, 569

F.2d 10, 17-18 n.8 (D.C.Cir.1977) (“[A]ssuming the rule of

Bivens comprehends a damage action for a particular

constitutional infringement by a federal officer, the

federally-determined immunity applicable in such a case should

be no different from the federally-determined immunity

available in a § 1983 suit against a state official.”) (emphasis

original). Accordingly, we look to those decisions for

guidance.

> According to the district court, “Valder was performing judicial and

quasi-judicial functions. All of Valder’s conduct relevant to this case was

preparatory to presenting a case against Moore to the grand jury. The

face of the complaint compels the conclusion that all of the acts attributed

to Valder were prosecutorial fuxctions....”- JA 340.

83a

In /mbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47

L.Ed.2d 128 (1976), the Supreme Court held that a prosecutor

enjoys absolute immunity from section 1983 liability when he

acts “as an advocate” by engaging in activities “intimately

associated with the judicial phase of the criminal process.” /d.

at 430, 96 S.Ct. at 995. As the Court in Imbler noted, the

common law afforded absolute immunity to prosecutors for

several reasons. Immunity encourages vigorous decisionmaking

by reducing, if not eliminating, liability’s inhibitory effect, id. at

424-25, 96 S.Ct. at 992-93; it protects prosecutors against

having “to answer in court each time [a defendant] charge[s]

him with wrongdoing [which diverts] his energy and attention

... from the pressing duty of enforcing the criminal law,” id. at

425, 96 S.Ct. at 992; and it ensures that judges are not

influenced “by even the subconscious knowledge that a

post-trial decision in favor of the accused might result in the

prosecutor’s being called upon to respond in damages for his

error or mistaken judgment.” Jd. at 427, 96 S.Ct. at 993.

Alternative mechanisms, such as the trial judge’s remedial

powers, appellate review and post-conviction collateral

remedies, exist to remedy injury caused by prosecutorial

misconduct. Jd. In addition, there are alternative ways to

deter and punish prosecutorial misconduct, such as subjecting

the prosecutor to criminal prosecution or professional

discipline. Jd. at 429, 96 S.Ct. at 994.

The Court in Imbler held that “the same considerations of

public policy that underlie the common-law rule likewise

countenance absolute immunity under § 1983.” Jd. at 424, 96

S.Ct. at 992. At a minimum, advocatory conduct includes

“initiating a prosecution” and “presenting the State’s case.” Jd

at 431, 96 S.Ct. at 995-96.° Recognizing that “the duties of

* Additionally, “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

Swienseenemh

84a

the prosecutor in his role as advocate for the State involve

actions preliminary to the initiation of a prosecution and

actions apart from the courtroom,” the Court acknowledged

that distinguishing between action taken as an advocate and

action taken as an administrator or investigator “may present

difficult questions.” Id. at 431 n. 33, 96 S.Ct. at 996 n. 33.

The line between advocatory conduct and administrative or

investigative activity was refined in Burns v. Reed, 500 US.

478, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991). Using a

“functional approach,” the Court emphasized that lower courts

must look at the nature of the function performed, not the

identity of the person performing it, to determine if a

prosecutor is clothed with absolute immunity. The prosecutor

must establish that the conduct under review was advocatory

in nature. Jd at 486, 111 S.Ct. at 1939. The Court held that

participation in a probable cause hearing (“appearing before a

judge and presenting evidence in support of a motion for a

search warrant”) is protected by absolute immunity but giving

legal advice to police officers is not. “Absolute immunity is

designed to free the judicial process from the harassment and

intimidation associated with litigation. That concern therefore

justifies absolute prosecutorial immunity only for actions that

are connected with the prosecutor’s role in judicial

proceedings, not for every litigation-inducing conduct.” Jd. at

494, 111 S.Ct. at 1943-44. The Court warned that “[a]lmost

any action by a prosecutor, including his or her direct

participation in purely investigative activity, could be said to be

in some way related to the ultimate decision whether to

prosecute, but we have never indicated that absolute immunity

is that expansive.” Jd. at 495, 111 S.Ct. at 1944.

Most recently, the Court discussed the scope of absolute

prosecutorial immunity in Buckley v. Fitzsimmons, 509 U.S.

what other evidence to present” are advocatory decisions. Jmbler, 424 U.S.

at 431 n. 33, 96 S.Ct. at 996 n. 33.

85a

259, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). There, the

Court reaffirmed that “as the function test of Imbler

recognizes, the actions of a prosecutor are not absolutely

immune merely because they are performed by a prosecutor.”

Id.at__, 113 S.Ct. at 2615. Advocatory conduct protected

by absolute immunity “include[s] the professional evaluation of

the evidence assembled by the police and appropriate

preparation for its presentation at trial or before a grand jury

after a decision to seek an indictment has been made.” Id. But

when a prosecutor “performs the investigative functions

normally performed by a detective or police officer,” he is

entitled only to the qualified immunity that the detective or

police officer enjoys. Jd. at__—, 113 S.Ct. at 2616-17.

In Buckley, the petitioner alleged that the prosecutors

fabricated evidence during the preliminary investigation of a

crime and made false statements at a press conference

announcing the indictment of the petitioner. The Court held

that the prosecutors did not have absolute immunity from

liability for the alleged fabrication of evidence because they did

not have probable cause to arrest or to initiate judicial

proceedings. Jd. at __, 113 S.Ct. at 2616. “Their mission at

that time was entirely investigative in character. A prosecutor

neither is, nor should consider himself to be, an advocate

before he has probable cause to have anyone arrested.” Jd.

The Court emphasized that the alleged fabrication occurred

before a grand jury was convened and that when the grand jury

eventually was convened, “its immediate purpose was to

conduct a more thorough investigation of the crime—not to

return an indictment against a suspect whom there was already

probable cause to arrest.” Jd. The Court also held that a

prosecutor is not absolutely immune from liability for making

allegedly false statements to the press because statements to

the media “have no functional tie to the judicial process.” /d.

at _, 113 S.Ct. at 2618.

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Applying these holdings here, we conclude that Valder’s

prosecutorial immunity insulates him from liability for his

unquestionably advocatory decision to prosecute Moore. His

prosecutorial immunity also protects Valder from liability for

allegedly concealing exculpatory evidence from the grand jury

and for allegedly manipulating evidence before the grand jury

to create a false impression of what Moore knew about the

alleged fraudulent schemes. Valder’s decisions regarding what

evidence to put before the grand jury, and in what manner, are

advocatory because they are central to the prosecutor’s task of

“initiating a prosecution” and “presenting the State’s case.”

Imbler, 424 U.S. at 431, 96 S.Ct. at 996; see also Hill v. City

of New York, 45 F.3d 653, 661-62 (2nd Cir.1995) (holding

absolute immunity protects prosecutor from liability for

withholding exculpatory evidence from grand jury). In addition,

withholding after indictment information that is subject to

disclosure under Brady v. Maryland, 373 U.S. 83, 83 S.Ct.

1194, 10 L.Ed.2d 215 (1963), is advocatory. In Jmbler, the

prosecutor was alleged to have knowingly used false testimony

and suppressed material exculpatory evidence at trial. The

Court upheld the lower courts’ rulings that the prosecutor was

absolutely immune from potential liability for the alleged

misconduct. As other courts have recognized, it follows from

Imbler that the failure, be it knowing or inadvertent, to disclose

material exculpatory evidence before trial also falls within the

protection afforded by absolute prosecutorial immunity. See

Hill, 45 F.3d at 662 (holding failure to turn over Brady

material “after prosecutorial phase” of case had begun was

covered by absolute prosecutorial immunity); Carter v. Burch,

34 F.3d 257, 262 (4th Cir.1994) (holding absolute immunity

protects prosecutor from liability for failing to give defense

counsel materially exculpatory evidence).

Valder, however, has not met his burden of establishing that

absolute immunity protects him from potential liability for the

other instances of misconduct alleged by Moore. Intimidating

and coercing witnesses into changing their testimony is not

eam

87a

advocatory. It is rather a misuse of investigative techniques

legitimately directed at exploring whether witness testimony is

truthful and complete and whether the government has

acquired all incriminating evidence. It therefore relates to a

typical police function, the collection of information to be used

in a prosecution. See, e.g., Barbera v. Smith, 836 F.2d 96,

100 (2d Cir. 1987) (holding “acquiring evidence which might be

used in a prosecution,” in contradistinction to “organization,

evaluation, and marshalling” of such evidence, is activity of

“police nature” and is therefore not entitled to absolute

protection) (emphasis

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