213 F.3d 705 (D.C. Cir. 2000)
William G. Moore, Jr., Appellantv.United States of America, AppelleeWilliam G. Moore, Jr., Appellantv.Joseph B. Valder, Appellee
No. 99-5197, No. 99-5198
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 13, 2000Decided June 2, 2000

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 General, 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:


1
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.

2
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--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.


3
Postal inspectors and prosecutor Valder, 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 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 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.


4
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.


5
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 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 "[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 toward innocent conduct...."  United States v. Recognition  Equip., Inc., 725 F. Supp. 587, 587-88 (D.D.C. 1989).


6
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 complaints 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.  Relying on the Supreme Court's distinction between a prosecutor'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]ntimidating and coercing witnesses into changing their testimony" or  "disclosing grand jury information to unauthorized third parties."  Id. at 194-95.


7
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. S 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 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.


8
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.").


9
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 apparent 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]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."  Id.  Postal inspectors are so empowered, see 39 C.F.R. S 233.1, but the 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.

II.

10
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. Thompson, 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 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 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.


11
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 prosecutors 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 absolute 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 that do not rely on the decision to prosecute.  A violation of  the Fourth Amendment is one of the more obvious examples.


12
We therefore will affirm the dismissal of Moore's Bivens  claim against Valder.3

III.

13
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

14
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 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 § 653.  In fact, those who  procure malicious prosecutions are usually the only potential  defendants because, as here, prosecutors enjoy absolute immunity.  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 inspectors' conduct fell within the FTCA's discretionary function 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).


15
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) ("Dellums 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 PP 26.


16
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 demonstrators.  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 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 "peaceful" and "not that disorderly."  Id. at 193.  This was sufficient evidence "from which the jury could have concluded that  Chief Powell had procured the filing of informations...."5Id.


17
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 implicated 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).


18
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 inspectors 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 reflects District of Columbia law set forth in Davis v. Giles.  A  criminal proceeding is a prerequisite to the malicious prosecution tort.  If the proceeding starts with a grand jury indictment 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. § 119, at 871-72 ("The 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 attorney, it seems clear that this should be enough, since it  constitutes official action and sets the law in motion.").


19
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 exercise of discretionary functions, this does not immunize earlier,  unprotected misconduct from ordinary principles of tort liability.  Cf. Jones v. City of Chicago, 856 F.2d 985, 994 (7th Cir.  1988); Restatement (Second) of Torts § 653 cmt. g.


20
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 prosecutioncould 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 prosecution, then the whole notion of liability for maliciously "procuring" a prosecution would disappear.  "[A] prosecutor's  decision to charge, a grand jury's decision to indict, a prosecutor's decision not to drop charges but to proceed to trial-none of these decisions will shield a police officer who deliberately 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 § 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 malicious prosecution tort.  See Krieger v. Fadely, 2000 WL 489428, at *2 (D.C. Cir. May 5, 2000).

B. Abuse of Process

21
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 accomplish 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 process....' " (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.


22
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 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  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 disclosed witness testimony and the draft indictment to Carlin6.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 inspectors used the grand jury for an improper purpose--we  affirm the judgment of the district court7.


23
Affirmed in part and reversed in part.



Notes:


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


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.)).


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).


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 government 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 Postmaster General Carlin access to the Grand Jury testimony of other  witnesses...."  FTCA Complaint p 26 (italics added).  We therefore assume that the postal inspectors did play a role in presenting  grand jury materials to Spartin.


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


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 therefrom 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 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, convene 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. § 2680(h)).


