The opinion of the court was delivered by: SMITH, JR.
According to the amended complaint in this action, a federal grand jury for the District of Columbia on April 10, 1978 indicted Gray along with W. Mark Felt, a former Acting Associate Director of the FBI, and Edward S. Miller, a former Assistant Director for the Domestic Intelligence Division of the FBI, for conspiring against the rights of citizens. The indictment alleged that Gray, Felt and Miller had conspired to deprive certain relatives and acquaintances of fugitives connected with the so-called "Weatherman" organization of their Fourth Amendment rights by utilization of surreptitious entries, or "bag jobs," as an investigative technique. Gray's involvement in the conspiracy, according to the indictment, rested primarily on information suggesting that he had given generic authorization for the use of "bag jobs" in the FBI's effort to apprehend the Weatherman fugitives.
On December 10, 1980, the Department of Justice moved for dismissal of the case against Gray. The district court granted the Department's motion and the case was nolle prossed. Felt and Miller were later tried and convicted. On March 26, 1981 they were given a full and unconditional pardon by President Reagan.
On April 9, 1981, Gray filed this action. In Count One of his amended complaint, Gray alleges that defendants violated his Fifth Amendment rights to due process of law and indictment by an informed and unbiased grand jury by conducting a negligent pre-indictment investigation. Specifically, Gray alleges that defendants conducted a negligent pre-indictment investigation and, as a result, presented false and misleading evidence to the grand jury, failed to obtain and present to the grand jury certain exculpatory evidence and, in addition, failed to present to the grand jury certain exculpatory evidence that they had obtained. In Count Two, Gray alleges that defendants willfully and maliciously violated his Fifth Amendment rights to due process of law and indictment by an informed and unbiased grand jury by presenting false and misleading evidence to the grand jury and by withholding certain exculpatory evidence from the grand jury. In Count Three, Gray asserts causes of action under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. (1976 & Supp. IV 1980), based on his allegations in Counts One, Two and Four. In Count Four, Gray asserts a common law cause of action for malicious prosecution.
Defendants seek to dismiss this action on several grounds. Defendants argue that all of Gray's claims are barred by the doctrine of collateral estoppel and, in addition, that the amended complaint fails to state claims upon which relief can be granted. Defendants further contend that defendant Bell and the fifteen Department of Justice attorneys named as defendants are entitled to absolute immunity as prosecutors under the circumstances of this case.
Under the Supreme Court's landmark decision in Imbler v. Pachtman, 424 U.S. 409, 96 S. Ct. 984, 47 L. Ed. 2d 128 (1976), the test for determining whether a prosecutor is entitled to absolute immunity or only qualified immunity is a functional one.
A prosecutor engaging in advocatory, or quasi-judicial, activities is entitled to absolute immunity. Id. at 430, 96 S. Ct. at 994; Dellums v. Powell, 212 U.S. App. D.C. 403, 660 F.2d 802, 806-07 (D.C.Cir.1981); Simons v. Bellinger, 643 F.2d 774, 784 (D.C.Cir.1980). A prosecutor engaging in investigative or administrative activities is entitled to only qualified immunity. Halperin v. Kissinger, 196 U.S. App. D.C. 285, 606 F.2d 1192, 1208 (D.C.Cir.1979), aff'd by an equally divided Court per curiam, 452 U.S. 713, 101 S. Ct. 3132, 69 L. Ed. 2d 367 (1981); Briggs v. Goodwin, 186 U.S. App. D.C. 179, 569 F.2d 10, 21 (D.C.Cir.1977), cert. denied, 437 U.S. 904, 98 S. Ct. 3089, 57 L. Ed. 2d 1133 (1978); Apton v. Wilson, 165 U.S. App. D.C. 22, 506 F.2d 83, 93 (D.C.Cir.1974). See Harlow v. Fitzgerald, 457 U.S. 800, n.16, 102 S. Ct. 2727, 2735 n.16, 73 L. Ed. 2d 396 (1982).
In Imbler, the Supreme Court recognized that the advocatory activities of a prosecutor often involve "actions preliminary to the initiation of a prosecution and actions apart from the courtroom." Imbler v. Pachtman, 424 U.S. at 431 n.33, 96 S. Ct. at 995 n.33. As the Supreme Court explained:
A prosecuting attorney is required constantly, in the course of his duty as such, to make decisions on a wide variety of sensitive issues. These include questions of 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 what other evidence to present. Preparation, both for the initiation of the criminal process and for a trial, may require the obtaining, reviewing, and evaluating of evidence.
The Supreme Court also recognized, however, that
(at) some point, and with respect to some decisions, the prosecutor no doubt functions as an administrator rather than as an officer of the court. Drawing a proper line between these ...