712 F.2d 490 (D.C. Cir. 1983), 82-1838, Gray v. Bell

Docket Nº:82-1838.
Citation:712 F.2d 490
Party Name:L. Patrick GRAY, III, Appellant, v. Griffin BELL, et al.
Case Date:June 21, 1983
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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712 F.2d 490 (D.C. Cir. 1983)

L. Patrick GRAY, III, Appellant,


Griffin BELL, et al.

No. 82-1838.

United States Court of Appeals, District of Columbia Circuit

June 21, 1983

Argued Feb. 23, 1983.

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[Copyrighted Material Omitted]

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[229 U.S.App.D.C. 178] Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 81-00836).

Alan I. Baron and Ellen Scalettar, Baltimore, Md., for appellant.

John Oliver Birch, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Royce C. Lamberth, R. Craig Lawrence and Valerie K. Schurman, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellees.

Before MIKVA, EDWARDS and SCALIA, Circuit Judges.

TABLE OF CONTENTS Page I. BACKGROUND --------------------------------- 493 A. Facts ----------------------------------- 493 B. Judicial Proceedings -------------------- 494 II. OFFICIAL IMMUNITY -------------------------- 495 A. Introduction: The Basic Concept of Official Immunity ----------------------- 495 B. Absolute Prosecutorial Immunity --------- 497 1. The Rationale for According Absolute Immunity to Prosecutors -------------- 497 2. The Scope of Absolute Prosecutorial Immunity ----------------------------- 498 C. Application of Official Immunity In This Case ------------------------------------ 502 1. Counts One and Two: The Constitutional Claims ------------------------------- 502 (a) Conduct Before the Grand Juries 502 (b) Other Pre-Indictment Conduct ----- 504 2. Count Four: The Malicious Prosecution Claim -------------------------------- 505 III. SOVEREIGN IMMUNITY ------------------------- 506 A. The "Investigative or Law Enforcement Officer" Proviso to 28 U.S.C. § 2680(h) 507 B. The Language and Legislative History of 28 U.S.C. § 2680(a) --------------------- 508 C. The Purpose of a Governmental Immunity for Discretionary Acts ------------------ 509 D. The Case Law Interpretation of the Discretionary Function Exception -------- 511 E. Application of the Discretionary Function Exception In This Case ------------------ 513 IV. CONCLUSION --------------------------------- 516

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

Beginning in the Spring of 1976, the Justice Department conducted a two-year investigation of alleged Federal Bureau of Investigation ("FBI") break-ins against various relatives and acquaintances of suspected members of the Weatherman Underground Organization. Following this investigation, the appellant, L. Patrick Gray, III, who served as Acting Director of the FBI during the Nixon administration, was indicted by a federal Grand Jury for conspiracy to violate the rights of citizens. Government prosecutors subsequently acknowledged serious weaknesses in their case and agreed to voluntary dismissal. Gray believed that the indictment never should have been returned. Alleging gross

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[229 U.S.App.D.C. 179] negligence and malice in the Justice Department's pre-indictment investigation and Grand Jury presentations, he brought this suit for damages against the United States, former Attorney General Griffin Bell and certain other alleged participants in the prosecution. The trial court dismissed the complaint, holding, inter alia, that the individual defendants are protected by absolute official immunity, and that the United States is protected by the reservation of sovereign immunity in the "discretionary function" exception to the Federal Tort Claims Act ("FTCA"). 1 542 F.Supp. 927. We affirm.


  1. Facts

    We take the following factual allegations to be true. 2 In April 1976, the Justice Department commenced an investigation into the FBI's use of illegal break-ins against family members and friends of Weatherman suspects. During the course of and as part of this inquiry, prosecutors presented evidence to several Grand Juries. The investigation culminated in April 1978 when a Grand Jury sitting in Washington, D.C., indicted Gray and two other high-ranking FBI officials, W. Mark Felt and Edward S. Miller, for having conspired to deprive certain relatives and acquaintances of Weatherman fugitives of their rights under 18 U.S.C. § 241 (1976). 3

    The Government's case against Gray rested principally on his alleged issuance of generic authorization of surreptitious entries into the residences of friends and relatives of Weatherman fugitives. According to the indictment, Gray's authorization was issued in September of 1972, during two conferences of FBI Special Agents in Charge ("SAC"). In their Grand Jury presentations, representatives of the Justice Department "claimed that their investigation revealed that 67 persons attended those two SAC conferences, that 9 persons could provide testimony to support their 'generic authorization' theory, and that the remaining 58 persons had no recall one way or the other of relevant assertions by [Gray]." Amended Complaint and Demand for Jury Trial, reprinted in J.A. 9-10.

    An independent post-indictment investigation by Gray's attorneys brought out serious gaps in the generic authorization theory and revealed the Justice Department's investigation to have been incomplete in several important respects. Government investigators failed to take account of a significant number of persons in attendance at the SAC meetings who stated that they did not recall Gray authorizing any surreptitious entries and that they would not have likely forgotten such an instruction. Furthermore, two of the nine witnesses whose testimony purportedly supported the generic authorization theory specifically said Gray had not given such a directive at the September 1972 meetings. Government investigators also had or could have obtained FBI Agents' detailed notes of what transpired at the SAC conferences and these

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    [229 U.S.App.D.C. 180] notes failed to show that Gray had authorized the use of surreptitious entries.

    Gray claims that, as a direct result of these investigative deficiencies, the prosecution's presentation to the indicting Grand Jury gave a wholly inaccurate and distorted picture of what went on at the SAC conferences. Prosecutors failed to call witnesses who, had they been adequately interviewed or interviewed at all, would have testified favorably to Gray. There was no attempt to apprise the Grand Jury of the existence of contemporaneous notes omitting mention of the alleged blanket authorization. The testimony of the notetakers was not presented to the Grand Jury. And one witness who gave incriminating testimony later said that he would not have so testified had his memory been refreshed by the notes.

    Gray also contends that the prosecutors affirmatively misled and presented what proved to be false evidence to the indicting Grand Jury. For example, Gray asserts that the prosecutors represented that: (1) the break-ins had begun after Gray was appointed Acting Director, when in fact break-ins had begun two years before Gray's appointment; and (2) in October 1972 Gray had approved a training lecture on the use of illegal break-ins as an investigative technique, when in fact the agent who allegedly gave the lecture was suspended from duty at the time the training course was supposed to have taken place.

    Gray forcefully urges that all of these cited investigative and prosecutorial omissions, deficiencies and misrepresentations resulted from either gross negligence or willful and wanton disregard for his rights.

  2. Judicial Proceedings

    On March 5, 1979, District Court Judge Bryant severed Gray's trial from the trial of Felt and Miller. Gray's trial was then scheduled to follow the trial of his alleged compatriots. In August 1980, shortly before commencement of the trial of Felt and Miller, Gray moved to dismiss the indictment against him on the grounds of prosecutorial misconduct in the Government's investigation and Grand Jury presentations. The withholding of exculpatory evidence and the presentation of false and misleading evidence, he alleged, had denied him his Fifth Amendment rights to due process and to a fair and impartial Grand Jury. The allegations of misconduct on which the motion was based parallel Gray's averments here.

    Judge Bryant denied Gray's motion to dismiss on October 3, 1980, noting that "the exhaustive and admirable investigation by counsel for Mr. Gray has revealed certain weaknesses in the case the government presented to the grand jury," but that "the factual lacunae attributed to the prosecutors reflect an honest, albeit imperfect, attempt to recreate past events." 4 Prosecutors readily acknowledged these weaknesses, but indicated that they expected the trial of Felt and Miller to reveal testimony substantiating the charges against Gray. Without that testimony, prosecutors conceded, further proceedings against Gray would be unwarranted. Felt and Miller were convicted on November 6, 1980, 5 yet their trial failed to bring out evidence strengthening the Government's case against Gray. Government prosecutors accordingly filed a nolle prosequi on December 10, 1980, acknowledging that the charges against Gray were "unconvincing" and voluntarily dismissing the indictment against him.

    Gray filed this suit on April 9, 1981, seeking money damages for injury to his personal and professional reputation, extreme emotional distress and mental anguish, and associated physical ailments. The United States, former Attorney General Bell, and various Justice Department attorneys who


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