UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


MOORE, WILLIAM G.

v.

UNITED STATES


99-5197a

D.C. Cir. 2000


*	*	*


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


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


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


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


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




__________

n 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, 


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


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


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 




__________

n 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




__________

n 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 




__________

n 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


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




__________

n 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.


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


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 




__________

n 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.




__________

n 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)).