The United States next argues that all of the other tortfeasors referenced in the complaint are DOJ attorneys and Customs administrative officials, who do not have the requisite authority to execute searches, seize evidence, or make arrests. The United States contends that because these individuals are not investigative or law enforcement officers under
§ 2680(h), their conduct may not serve as the predicate for Tri–State's malicious prosecution/abuse of process claims. The United States is partially correct. With respect to the DOJ prosecutors referenced in the complaint, it is well-established that the conduct of these officials may
not serve as the basis for a malicious prosecution and abuse of process claim against the United States. These prosecutors were not investigative or law enforcement officers as defined by
§ 2680(h), and there is generally no waiver of sovereign immunity for their actions.
See Moore, 213 F.3d at 709–10 (affirming dismissal of claims against federal prosecutor);
Dellums v. Powell, 660 F.2d 802, 805–07 (D.C.Cir.1981) (holding that a prosecutorial official could not be held liable for causing a prosecution to be brought).
After reviewing each allegation in the complaint, the court concludes that none of the claims involving federal prosecutors may serve as the basis of this malicious prosecution/abuse of process suit. This means that Tri–State may not seek redress for any of the alleged conduct the United States Attorney or DOJ prosecutors engaged in before or during the prosecution of Tri–State. Moreover, the court will not entertain skillful attempts to recharacterize the conduct of these prosecutors as those of Customs officials.
See, e.g., General Dynamics Corp. v. United States, 139 F.3d 1280, 1283–86 (9th Cir.1998) (“Where, as here, the harm actually flows from the prosecutor's exercise of discretion, an attempt to recharacterize the action as something else must fail.”).