Moore, William G. v. United States

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 13, 2000 Decided June 2, 2000

No. 99-5197

William G. Moore, Jr.,
Appellant

v.

United States of America,
Appellee

No. 99-5198

William G. Moore, Jr.,
Appellant

v.

Joseph B. Valder,
Appellee

Appeals from the United States District Court
for the District of Columbia
(92cv02288)
(93cv00324)

---------

 Paul M. Pohl argued the cause for appellant. With him on
the briefs were Bryan D. Kocher, Daniel H. Bromberg, and
James E. Anklam.

Richard Montague, Trial Attorney, U.S. Department of
Justice, argued the cause for appellees. With him on the
brief were David W. Ogden, Acting Assistant Attorney Gen-
eral, Andrea W. McCarthy, Senior Trial Counsel, and Wilma
A. Lewis, U.S. Attorney.

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

Opinion for the Court filed by Circuit Judge Randolph.

Randolph, Circuit Judge: Our first opinion in this case
affirmed in part and reversed in part the district court's
dismissal of William G. Moore, Jr.'s complaint against a
prosecutor and postal inspectors and his complaint against
the United States. See Moore v. Valder, 65 F.3d 189 (D.C.
Cir. 1995). On remand, the district court again dismissed the
claims against the prosecutor, Joseph B. Valder, and granted
judgment on the pleadings in favor of the government, rulings
from which Moore now appeals.

I.

Moore's basic grievance is that he was unjustly prosecuted
on charges concerning his dealings with the United States
Postal Service. In the early 1980s, the company Moore
headed--REI--wanted to sell the Postal Service multiple-line
scanners, but the Service declined. Moore publicly criticized
the decision. A Postal Service governor--Peter Voss--sug-
gested to REI that it hire the consulting firm GAI to promote
its product. REI did so. Voss had a side deal with GAI:
thirty percent of the fees REI paid to the consulting firm
were kicked back to Voss. After their crimes were discover-
ed, Voss and several GAI officials plead guilty. William A.
Spartin, GAI's president, negotiated an immunity deal in
return for his cooperation.

 Postal inspectors and prosecutor Valder, seeking to estab-
lish that Moore and REI knew of the kickback scheme, were
told instead by each of five of the admitted conspirators,
including Spartin, that no one at REI had such knowledge.
The postal inspectors later drafted, and the prosecutor pre-
sented to the grand jury, "witness statements" for these
individuals, but without this exculpatory information. Spar-
tin's refusal to implicate Moore prompted Valder to tear up
his immunity agreement and threaten to prosecute Spartin's
son. Valder and the postal inspectors showed Spartin the
government-drafted statements of the other witnesses.
(Moore alleges this disclosure was a violation of grand jury
secrecy rules.) Spartin continued to deny that he had per-
sonal knowledge of Moore's involvement, repeating the point
nineteen times during a polygraph test. Spartin then said "I
have no knowledge of that at all.... But, you know, I read
that goddam[n] testimony and I'm not a lawyer but Jesus,
there's enough there to seem to me to hang REI from the
yardarm." Spartin then testified before the grand jury that
in his "opinion" Moore knew of the kickback scheme.

Postal inspectors also provided witness interview state-
ments and lab results to Paul Carlin, a former Postmaster
General dismissed by the Board of Governors during the
scanner controversy. Then, weeks before an indictment was
returned against Moore, the inspectors passed along a draft
indictment to Carlin. Carlin later filed a civil RICO claim
against Moore, alleging that Moore conspired to have the
Board dismiss him.

Moore, REI Vice President Robert Reedy, and REI were
indicted by a federal grand jury in the District of Columbia in
October 1988 for conspiracy to defraud the United States,
theft, receipt of stolen property, mail fraud and wire fraud.
Despite a court order to turn over even "borderline" Brady
evidence, Valder failed to provide the defense with exculpato-
ry material, including the Spartin lie detector results and the
amended statement of one witness denying any knowledge
that REI officials were aware of the kickbacks. The district

court granted Moore's motion for judgment of acquittal at the
close of the government's case, stating that "[m]uch of what
the government characterizes as incriminatory evidence is not
persuasive of guilt when viewed in its full context [and] some
of the government's evidence is exculpatory and points to-
ward innocent conduct...." United States v. Recognition
Equip., Inc., 725 F. Supp. 587, 587-88 (D.D.C. 1989).

Moore then brought his suits against Valder and the postal
inspectors under Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971), and against
the United States under the Federal Torts Claims Act
(FTCA), see 28 U.S.C. ss 2671-2680. After proceedings
unnecessary to recount, the district court dismissed the com-
plaints and Moore appealed. This court considered whether,
as the district court determined, Valder enjoyed absolute
immunity from civil liability for malicious prosecution and for
retaliatory prosecution.1 See Moore, 65 F.3d at 192-95. Re-
lying on the Supreme Court's distinction between a prosecu-
tor's role as an advocate and his conduct as an investigator,
see Imbler v. Pachtman, 424 U.S. 409 (1976), Burns v. Reed,
500 U.S. 478 (1991), Buckley v. Fitzsimmons, 509 U.S. 259
(1993), the court decided that absolute immunity shielded
some, but not all, of Valder's conduct. Absolute immunity
protected Valder from liability for his "decision to prosecute
Moore," "for allegedly concealing exculpatory evidence from
the grand jury," "for allegedly manipulating evidence before
the grand jury to create a false impression of what Moore
knew about the alleged fraudulent schemes," and for failing to
disclose exculpatory material before trial. 65 F.3d at 194.
But absolute immunity did not apply to Valder's "[i]ntimidat-
ing and coercing witnesses into changing their testimony" or
"disclosing grand jury information to unauthorized third par-
ties." Id. at 194-95.

With respect to Moore's claims under the Federal Tort
Claims Act, the court took note of the FTCA's "discretionary

__________
1 Moore did not appeal the dismissal of his other Bivens claims.
See 65 F.3d at 191 n.3.

function" exception, which protects the government from
liability for "the exercise or performance or the failure to
exercise or perform a discretionary function or duty on the
part of a federal agency or an employee of the Govern-
ment...." 28 U.S.C. s 2680(a). The following alleged con-
duct fell within the exception: "Deciding whether to prose-
cute, assessing a witness's credibility to ensure that he is
giving an accurate and complete account of what he knows,
identifying the evidence to submit to the grand jury and
determining whether information is 'exculpatory' and 'materi-
al' and therefore must be disclosed pursuant to a Brady
request." 65 F.3d at 197. "Disclosing grand jury testimony
to unauthorized third parties, however, is not a discretionary
activity nor is it inextricably tied to matters requiring the
exercise of discretion." Id.

On remand, Valder moved for summary judgment on the
retaliatory prosecution claim, contending that Moore could
not make out an essential element--that he brought the
prosecution at least in part to retaliate against Moore's First
Amendment activity--because absolute immunity protected
his decision to prosecute Moore. The district court agreed
and granted Valder's motion. See Moore v. Valder, No.
92CV-2288, memorandum opinion at 17-24 (D.D.C. Feb. 5,
1998) ("mem. op.").

As to the FTCA claims, the district court determined that
only one aspect of Moore's complaint survived this court's
application of the discretionary function exception--namely,
the claim that "AUSA Valder and the Postal Inspectors
violated Federal Rule of Criminal Procedure 6(e)(2) ... by
giving Spartin and former Postmaster General Paul Carlin
access to the Grand Jury testimony of other witnesses for the
purpose of influencing Spartin's testimony and for the appar-
ent purpose of assisting Carlin, a private plaintiff, to pursue
civil litigation...." FTCA Complaint p 26. Moore argued
that these two grand jury disclosures were sufficient to make
out his malicious prosecution and abuse-of-process claims.
Under the FTCA, however, claims of malicious prosecution
and abuse of process can only arise from the conduct of
"investigative or law enforcement officers of the United

States government." See 28 U.S.C. s 2680(h). " '[I]nvestiga-
tive or law enforcement officer' means any officer of the
United States who is empowered by law to execute searches,
to seize evidence, or to make arrests for violations of Federal
law." Id. Postal inspectors are so empowered, see 39 C.F.R.
s 233.1, but the district court concluded that federal prosecu-
tors are not, see mem. op. at 32 & n.21 (citing Bernard v.
United States, 25 F.3d 98 (2d Cir. 1994); Gray v. Bell, 542
F. Supp. 927, 932 (D.D.C. 1982), aff'd, 712 F.2d 490 (D.C. Cir.
1983)). The district court then ruled that the unprotected
conduct of the postal inspectors did not establish a malicious
prosecution or abuse-of-process claim and granted judgment
in favor of the United States under Federal Rule of Civil
Procedure 12(c). See mem. op. at 32-43.

II.

Two of the elements of a claim of retaliatory prosecution
are "first, that the conduct allegedly retaliated against or
sought to be deterred was constitutionally protected, and,
second, that the State's bringing of the criminal prosecution
was motivated at least in part by a purpose to retaliate for or
to deter that conduct." Haynesworth v. Miller, 820 F.2d
1245, 1256 n.93 (D.C. Cir. 1987) (quoting Wilson v. Thomp-
son, 593 F.2d 1375, 1387 (5th Cir. 1979)). Moore thinks the
ground of the district court's dismissal of his claim--that
absolute immunity protected Valder with respect to his deci-
sion to prosecute--contravened this court's initial decision, in
violation of the mandate. See LaShawn A. v. Barry, 87 F.3d
1389, 1393 n.3 (D.C. Cir. 1996) (en banc). The prior opinion
did hold that some of Valder's conduct was not protected by
absolute immunity and the court did remand the retaliatory
prosecution claim. But that opinion said nothing about the
elements of such a claim, or whether Moore could succeed on
his complaint. Rather than dealing with those subjects, the
opinion focused on the type of prosecutorial conduct for which
there would be absolute immunity. One such type of conduct,
of course, was "the decision to prosecute Moore." 65 F.3d at
192. In his brief for that appeal, Valder had argued that if he
had immunity for his prosecutorial decision, then Moore's

retaliatory prosecution claim could not go forward. But it is
clear to us that the court did not pass judgment on the
argument, explicitly or implicitly. It follows that the district
court did not contravene the mandate of this court.

According to Moore the district court erred for another
reason. As he sees it, his retaliatory prosecution claim is not
predicated upon Valder's decision to prosecute him. Just as a
police officer can be liable for malicious prosecution as a
result of his investigatory conduct leading to the prosecution,
so too, Moore contends, should a prosecutor be liable if his
investigatory conduct leads to the prosecution. See infra
Part IIIA. The problem for Moore is that we rejected this
very argument in Dellums v. Powell, 660 F.2d 802, 805-07
(D.C. Cir. 1981) ("Dellums II"). A "prosecutorial official," we
ruled, could not be "held liable for causing a prosecution to be
brought," despite the fact that Imbler v. Pachtman, 424 U.S.
409, 430-31 (1976), extended only qualified immunity to prose-
cutors acting in an investigatory capacity.2 660 F.2d at 806.
Moore believes the law has changed since Dellums II, but he
cites no cases in which a prosecutor has been held liable for
malicious or retaliatory prosecution. If a prosecutor cannot
be sued for malicious or retaliatory prosecution, Moore asks,
why would the Supreme Court continue to devote its time to
discerning which prosecutorial actions are protected by abso-
lute immunity and which are not? See Kalina v. Fletcher,
522 U.S. 118 (1997); Buckley v. Fitzsimmons, 509 U.S. 259
(1993); Burns v. Reed, 500 U.S. 478 (1991). The answer is
that there are potential causes of actions against prosecutors

__________
2 It may seem odd that the only official who could not be held
liable for malicious or retaliatory prosecution is the prosecutor. A
similar point was made in Imbler, to which the Court responded
with a quotation: "As is so often the case, the answer must be
found in a balance between the evils inevitable in either alternative.
In this instance it has been thought in the end better to leave
unredressed the wrongs done by dishonest officers than to subject
those who try to do their duty to the constant dread of retaliation."
Imbler, 424 U.S. at 428 (quoting Gregoire v. Biddle, 177 F.2d 579,
581 (2d Cir. 1949) (Hand, J.)).

that do not rely on the decision to prosecute. A violation of
the Fourth Amendment is one of the more obvious examples.

We therefore will affirm the dismissal of Moore's Bivens
claim against Valder.3

III.

With respect to Moore's FTCA action against the United
States for malicious prosecution and abuse of process, "the
law of the place where the act or omission occurred" is
controlling. 28 U.S.C. s 1346(b). All agree that District of
Columbia law must be consulted. See Tarpeh-Doe v. United
States, 28 F.3d 120, 123 (D.C. Cir. 1994).

A. Malicious Prosecution

Under local law four elements make up the tort of mali-
cious prosecution: (1) the defendant's initiation or procure-
ment of a criminal proceeding against the plaintiff; (2) ab-
sence of probable cause for the proceeding; (3) malicious
intent on the part of the defendant; and (4) termination of
the proceeding in favor of the plaintiff. See Davis v. Giles,
769 F.2d 813, 814-15 (D.C. Cir. 1985) (citing Restatement
(Second) of Torts s 653 (1977)). As the first element indi-
cates, in theory not only the prosecutor who initiates criminal
proceedings, but also a person who "procures" a criminal
proceeding may be liable for malicious prosecution. See also
Restatement (Second) of Torts s 653. In fact, those who
procure malicious prosecutions are usually the only potential
defendants because, as here, prosecutors enjoy absolute im-
munity. See W. Page Keeton et al., Prosser and Keeton on
Torts s 119, at 873 (5th ed. 1984). To succeed in this case,
Moore must rely on the procurement component of the first
element, focusing on the conduct of the postal inspectors in
disclosing grand jury material. The remainder of the postal

__________
3 Moore also contends that the district court improperly denied
his request for discovery. But a district court may deny discovery
requests when additional facts are not necessary to resolve the
summary judgment motion. See White v. Fraternal Order of
Police, 909 F.2d 512, 516-17 (D.C. Cir. 1990) (en banc).

inspectors' conduct fell within the FTCA's discretionary func-
tion exception, see 65 F.3d at 197, and none of Valder's
conduct can be the basis for a malicious prosecution claim
against the government because he is not an investigative or
law enforcement officer, see 28 U.S.C. s 2680(h).

In order to find that a defendant procured a prosecution,
the plaintiff must establish "a chain of causation" linking the
defendant's actions with the initiation of criminal proceedings.
Dellums v. Powell, 566 F.2d 167, 192 (D.C. Cir. 1977) ("Del-
lums I"). Moore's chain consisted of the postal inspectors'
releasing of grand jury testimony to Spartin, which caused
Spartin to incriminate him, which led to his indictment and
then his prosecution.4 See mem. op. at 36; FTCA Complaint
p 26.

It may be helpful at this point to look more closely at
Dellums I and the chain of causation there held sufficient to
establish procurement of a prosecution. Plaintiffs had won a
verdict against Powell, the D.C. Police Chief, for his role in
bringing about criminal charges against anti-war demonstra-
tors. See 566 F.2d at 173-75, 193. The court noted that the
"chain of causation" would have been broken if the decision to
prosecute was "independent of any pressure or influence
exerted by Powell and of any knowing misstatements which

__________
4 In his brief, Moore stated only that Valder disclosed grand jury
material to Spartin, though he mentions that the inspectors were
present at the time. See Brief for Appellant at 10. The govern-
ment jumps on this to argue that Moore's claim had to be dismissed
because a malicious prosecution claim under the FTCA can rely
only on the conduct of investigative or law enforcement officers and
Valder is not one. Moore's complaint, however, alleged that
"AUSA Valder and the Postal Inspectors violated Federal Rule of
Criminal Procedure 6(e)(2) ... by giving Spartin and former Post-
master General Carlin access to the Grand Jury testimony of other
witnesses...." FTCA Complaint p 26 (italics added). We there-
fore assume that the postal inspectors did play a role in presenting
grand jury materials to Spartin.

Powell may have made" to the prosecutors. Id. at 192-93.
But Powell had knowingly misled the prosecutors when he
failed to disclose the fact that the demonstrators were "peace-
ful" and "not that disorderly." Id. at 193. This was suffi-
cient evidence "from which the jury could have concluded that
Chief Powell had procured the filing of informations...."5
Id.

We see two distinctions between Moore's case and Dellums
I. The first is that the postal inspectors themselves did not
make the misrepresentations, but allegedly caused Spartin to
make them. The district court did not rely on this distinction
and we think its effect is only to require Moore to prove an
additional link: but for the postal inspectors' disclosure of
grand jury testimony to Spartin, he would not have implicat-
ed Moore before the grand jury. See Keeton et al. s 119, at
873 (stating that significant "second-hand" involvement in
instigating a prosecution is sufficient).

The second distinction is that the misleading information
was presented to the grand jury. The district court made
much of this: "Moore has alleged only that the postal inspec-
tors influenced the grand jury's decision to indict ... Moore's
allegations ignore the fact that malicious prosecution requires
the initiation of a prosecution by the Executive Branch, not
the grand jury. Even if this Court could determine that
Spartin's testimony 'caused' the indictment, this would not
satisfy the first element because a grand jury indictment
cannot by itself initiate a prosecution." Mem. op. at 36-37
(footnotes omitted). We do not believe this accurately re-
flects District of Columbia law set forth in Davis v. Giles. A
criminal proceeding is a prerequisite to the malicious prosecu-
tion tort. If the proceeding starts with a grand jury indict-
ment and the defendant procured the indictment, the first
element of the tort is satisfied. When "an indictment is found
by a grand jury ... the return of the indictment ... marks
the institution of the proceedings." Restatement (Second) of
Torts s 654 cmt. c; see Keeton et al. s 119, at 871-72 ("The

__________
5 The court ordered a new trial, however, because of improper
jury instructions. See id.

initial step is of course a matter of the procedure of the
particular jurisdiction; and where prosecution is begun by an
indictment, or an information filed by the prosecuting attor-
ney, it seems clear that this should be enough, since it
constitutes official action and sets the law in motion.").

The government argues that because later actions--the
presentation of evidence to the grand jury, for instance--
were protected, Moore's case collapses. The district court
seemed to agree. See mem. op. at 37. If this were enough to
break the chain of causation, if the "discretionary function" of
presenting evidence to the grand jury or prosecuting the
plaintiff shielded prior misconduct from liability, a plaintiff
would never be able to make out a malicious prosecution
claim against the government. Yet the FTCA specifically
recognizes the tort of malicious prosecution. See 28 U.S.C.
s 2680(h). We think it follows that although a plaintiff may
not rely on an official's alleged misconduct during the exer-
cise of discretionary functions, this does not immunize earlier,
unprotected misconduct from ordinary principles of tort liabil-
ity. Cf. Jones v. City of Chicago, 856 F.2d 985, 994 (7th Cir.
1988); Restatement (Second) of Torts s 653 cmt. g.

For similar reasons we disagree with the district court that
Valder's continuation of the prosecution after the indictment
came down constituted an independent act that broke the
causal chain. See mem. op. at 37. Without the indictment
the prosecution could not have continued. See Fed. R. Crim.
P. 7(a). As we have said, if a prosecutor's continuation of a
prosecution automatically immunizes prior steps in the prose-
cution, then the whole notion of liability for maliciously "pro-
curing" a prosecution would disappear. "[A] prosecutor's
decision to charge, a grand jury's decision to indict, a prose-
cutor's decision not to drop charges but to proceed to trial--
none of these decisions will shield a police officer who deliber-
ately supplied misleading information that influenced the
decision." Jones v. City of Chicago, 856 F.2d at 994 (citing,
among other cases, Dellums I, 566 F.2d at 192-94); accord
Restatement (Second) of Torts s 653 cmt. g. On the other
hand, if Moore would have been indicted and prosecuted
anyway, even without the postal inspectors' alleged miscon-

duct and Spartin's testimony, then the United States cannot
be held liable. See Jones, 856 F.2d at 993. Since the case is
still at the pleading stage, there is no telling how the evidence
will turn out. All that concerns us now is that the complaint
sufficiently set forth the first element of the malicious prose-
cution tort. See Krieger v. Fadely, 2000 WL 489428, at *2
(D.C. Cir. May 5, 2000).

B. Abuse of Process

Under District of Columbia law, abuse of process occurs
when "process has been used to accomplish some end which is
without the regular purview of the process, or which compels
the party against whom it is used to do some collateral thing
which he could not legally and regularly be required to do."
Jacobson v. Thrifty Paper Boxes, Inc., 230 A.2d 710, 711
(D.C. 1967) (citing 1 Am. Jur. 2d Abuse of Process s 4 (1962)).
Local courts have emphasized that "[t]he critical concern in
abuse of process cases is whether process was used to accom-
plish an end unintended by law...." Morowitz v. Marvel,
423 A.2d 196, 198 (D.C. 1980); accord Bown v. Hamilton, 601
A.2d 1074, 1079 (D.C. 1992); see also Heck v. Humphrey, 512
U.S. 477, 486 n.5 (1994); Scott v. District of Columbia, 101
F.3d 748, 755 (D.C. Cir. 1997) ("The essence of the tort of
abuse of process is the use of the legal system 'to accomplish
some end which is without the regular purview of the pro-
cess....' " (quoting Bown v. Hamilton, 601 A.2d 1074, 1079
(D.C. 1992)). The Restatement also focuses on this element
of the tort: "For abuse of process to occur there must be use
of the process for an immediate purpose other than that for
which it was designed and intended." Restatement (Second)
of Torts s 682 cmt. b.

Moore's complaint failed to allege this critical element of
the abuse-of-process tort and, for this reason, the district
court properly rendered a judgment on the pleadings in favor
of the government. The only paragraph in the complaint
dealing with this tort alleged the following: "AUSA Valder
and the Postal Inspectors violated Federal Rule of Criminal
Procedure 6(e)(2), which protects the secrecy of Grand Jury

proceedings, by giving Spartin and former Postmaster Gener-
al Carlin access to the Grand Jury testimony of other wit-
nesses for the purpose of influencing Spartin's testimony and
for the apparent purpose of assisting Carlin, a private plain-
tiff, to pursue civil litigation in connection with his dismissal
from the Postal Service. The Postal Inspectors even gave
Carlin a copy of a draft indictment for his review." FTCA
Complaint p 26. As Moore sees it, his allegations regarding
Carlin are sufficient to make out a cause of action. But
nothing in paragraph 26 of the complaint speaks of using the
grand jury process for the purpose, immediate or otherwise,
of obtaining evidence to assist Carlin in bringing a civil suit.
The paragraph alleges only that the postal inspectors dis-
closed witness testimony and the draft indictment to Carlin.6
Disclosing information is a far cry from using the grand jury
to assist Carlin's civil litigation. If the complaint is true, the
postal inspectors violated the secrecy of the grand jury. But
that does not, in itself, constitute abuse of process. The
"process" here is the grand jury and the tort is made out only
if the grand jury is misused. Because Moore does not allege
the "critical concern" of abuse-of-process law--that the in-
spectors used the grand jury for an improper purpose--we
affirm the judgment of the district court.7

__________
6 Given that the indictment became public, we do not see how
letting Carlin look at the draft could have damaged Moore unless
the draft contained information omitted from the final version. We
shall assume that the draft contained such information and that it
was grand jury material.

7 We recognize that on Rule 12(c) motions "[w]e 'view the facts
presented in the pleadings and the inferences to be drawn there-
from in the light most favorable to the nonmoving party.' " Peters
v. National R.R. Passenger Corp., 966 F.2d 1483, 1485 (D.C. Cir.
1992) (quoting Jablonski v. Pan American Worldways, Inc., 863
F.2d 289, 290-91 (3d Cir. 1988)). Even if we were to stretch this
principle beyond its ordinary confines and infer that the postal
inspectors somehow used the grand jury process for the purpose of
obtaining evidence that they passed along to Carlin, Moore still
could not make out an abuse-of-process claim. For one thing,
Moore cannot base his abuse-of-process claim on the presentation of

 Affirmed in part and reversed in part.

__________
evidence to the grand jury--that is a discretionary function immune
from suit under the FTCA. See Moore, 65 F.3d at 197; see also
Doe v. Stephens, 851 F.2d 1457, 1462-63 (D.C. Cir. 1988) (causing a
grand jury subpoena to issue falls within discretionary function
exception). For another, prosecutors, not postal inspectors, con-
vene and conduct grand jury proceedings--and the actions of a
prosecutor cannot give rise to an abuse-of-process claim under the
FTCA. See mem. op. at 32 & n.21 (citing 28 U.S.C. s 2680(h)).