388 F.3d 871 (D.C. Cir. 2004), 03-5241, Moore v. Hartman

Docket Nº:03-5241.
Citation:388 F.3d 871
Party Name:William G. MOORE, Jr., Appellee, v. Michael HARTMAN, et al., Appellants.
Case Date:November 09, 2004
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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388 F.3d 871 (D.C. Cir. 2004)

William G. MOORE, Jr., Appellee,

v.

Michael HARTMAN, et al., Appellants.

No. 03-5241.

United States Court of Appeals, District of Columbia Circuit

November 9, 2004

Argued Sept. 15, 2004

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Appeal from the United States District Court for the District of Columbia (No. 92cv02288).

Richard Montague, Attorney, U.S. Department of Justice, argued the cause for appellants. With him on the briefs were Peter D. Keisler, Assistant Attorney General, Kenneth L. Wainstein, U.S. Attorney, and Barbara L. Herwig, Assistant Director.

Paul Michael Pohl argued the cause for appellee. With him on the brief were Bryan D. Kocher and Daniel H. Bromberg.

Before: SENTELLE and TATEL, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

OPINION

TATEL, Circuit Judge:

Qualified immunity generally shields public officials from civil damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). In this case, appellee William G. Moore, Jr., claims that government officials--in particular six postal inspectors--pursued criminal charges against him in retaliation for his political activities. The postal inspectors argue that even though the criminal charges against Moore were dismissed, they enjoy qualified immunity because probable cause supported the prosecution. At the time of Moore's indictment, however, the clearly established law of this circuit barred government officials from bringing charges they would not have pursued absent retaliatory motive, regardless of whether they had probable cause to do so. Because a reasonable jury could find on the basis of the record before us that Moore's prosecution violated this standard, we reject the inspectors' immunity defense and affirm

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the district court's denial of summary judgment on this issue.

I.

In the mid-1980s, William G. Moore, Jr., served as CEO of Recognition Equipment, Inc. ("REI"), a company specializing in optical scanning technology. Among other products, REI produced a multi-line optical character reader ("MLOCR")--a device capable of mechanically interpreting multiple lines of text. Encouraged by some $50 million in research and development funding REI had received from the U.S. Postal Service ("USPS"), Moore urged Postmaster General ("PMG") William F. Bolger to consider purchasing REI's MLOCRs to aid the USPS in automating its mail sorting functions. Moore was disappointed, however. Since the late 1970s, the USPS had been pursuing an initiative, known as "Zip + 4," to add four digits to existing five-digit zip codes; with the new nine-digit codes, efficient automatic sorting required scanning only a single line of text, rather than the multiple lines read by REI's device. Accordingly, PMG Bolger--a staunch supporter of Zip + 4--announced in late 1983 that the USPS would stick with single-line optical character readers ("SLOCRs") instead of using REI's product.

Zip + 4, however, was politically controversial. "Bureaucratic arrogance," one senator called it. Another urged the USPS to "Zap the ZIP!!" In December 1981, the House Committee on Government Operations accused the USPS of "repeatedly overstat[ing] and misrepresent[ing] the benefits that might accrue" due to the nine-digit codes. And despite PMG Bolger's testimony that prohibiting Zip + 4 would "cut the Postal Service from the only major opportunity it now has to meet all its obligations at controlled costs," Congress imposed a two-year moratorium on Zip + 4 in July 1981 and barred the USPS from making the nine-digit codes mandatory.

Chagrined by PMG Bolger's procurement of SLOCRs, Moore plunged REI into the political fray. To members of Congress and USPS governors, he argued that REI's MLOCRs were superior technology because they were not dependent on Zip + 4. He also pointed out that unlike SLOCRs, REI's MLOCRs were American-made. USPS managers reacted angrily: PMG Bolger told Moore to "back off," and another top official told Moore REI would never receive USPS business. Moore's position nevertheless gained influence. Several members of Congress pressed REI's case with the USPS Board of Governors, and Representative Martin Frost, working closely with Moore, introduced legislation (later withdrawn) to force USPS to buy American-made MLOCRs. More important, the General Accounting Office (now the Government Accountability Office) and the Office of Technology Assessment ("OTA") produced reports concluding that the USPS's operational losses due to the use of SLOCRs rather than MLOCRs exceeded one million dollars a day. The OTA report attributed the procurement of SLOCRs to unrealistic expectations for Zip + 4, noting that while MLOCR technology might have been inferior in the past, it was now "fully competitive," making it unreasonable for USPS to continue using single-line technology despite low usage of the nine-digit codes.

Responding to these pressures, the USPS Board of Governors voted in July 1985 to make a "mid-course correction" and switch to multi-line technology. Although this was just what Moore's media and lobbying campaign had sought, the result turned out unhappily for Moore and his company.

In the months following the mid-course correction, the USPS Postal Inspection

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Service uncovered two criminal schemes relating, at least incidentally, to REI. The first, a kickback arrangement, involved a USPS Governor, Peter Voss, and a consulting firm, Gnau & Associates, Inc. ("GAI"), that REI had hired in connection with its lobbying campaign. As it turned out, GAI was paying Voss for referrals, and three GAI officers--John Gnau, Jr., Michael Marcus, and William Spartin--had agreed to share the proceeds of the REI contract with Voss. The second scheme, the details of which are unimportant to this case, involved Spartin's and REI's role in the search for a new PMG. In connection with these two schemes, Voss, Gnau, and Marcus pleaded guilty to criminal charges, while Spartin accepted immunity in exchange for cooperation.

Having uncovered these crimes, the postal inspectors sought to determine whether anyone at REI had participated in them. Following an investigation we describe in more detail below, a grand jury returned a seven-count indictment against Moore, REI, and REI's Vice President for Marketing, Robert Reedy, in October 1988. The case went to trial a year later, but six weeks into the proceedings at the close of the government's case, the district court issued a judgment of acquittal. See United States v. Recognition Equip. Inc., 725 F.Supp. 587, 587-88, 602 (D.D.C.1989). Emphasizing a "complete lack of direct evidence to suggest the Defendants knew of the illegal payoff scheme," id. at 596, the district court concluded, "The government's evidence is insufficient, even when viewed in the light most favorable to it, for a trier of fact to find guilt beyond a reasonable doubt. Much of what the government characterizes as incriminating evidence is not persuasive of guilt when viewed in its full context. In fact, some of the government's evidence is exculpatory and points toward innocent conduct of the Defendants." Id. at 587-88.

Exonerated of the criminal charges, Moore set about obtaining civil damages for the harm to his life and career. Joined by his wife, Moore began by filing a complaint in the Northern District of Texas asserting constitutional claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), against the prosecutor and six postal inspectors (one of whom is now deceased). Shortly thereafter, the Moores filed a second complaint, also in the Northern District of Texas, seeking recovery from the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680. The Texas federal court dismissed Mrs. Moore's claims for lack of standing; found that absolute immunity barred the claims against the prosecutor; and, citing qualified immunity, threw out a Fifth Amendment abuse-of-process claim against the inspectors. Moore v. Valder, No. 91-2491 (N.D. Tex. Sept. 21, 1992). The court transferred the remaining claims to the U.S. District Court for the District of Columbia, which dismissed the entire suit. Moore v. Hartman, No. 92-2288, 1993 WL 405785 (D.D.C. Sept. 24, 1993).

Reviewing the decisions of the D.C. and Texas district courts, we reinstated certain claims against the prosecutor and the United States along with a retaliatory prosecution Bivens claim against the postal inspectors. Moore v. Valder, 65 F.3d 189 (D.C.Cir. 1995) (" Moore I "). On remand, the district court denied the inspectors' motion for summary judgment, allowing limited discovery on the retaliatory prosecution claim. As to the prosecutor and the United States, however, the court again dismissed Moore's claims. Moore v. Valder, No. 92-2288 (D.D.C. Feb. 5, 1988). Moore appealed a second time, and we affirmed the district court's ruling except as to one FTCA claim not relevant here.

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Moore v. United States, 213 F.3d 705 (D.C.Cir. 2000) (" Moore II ").

The inspectors, setting up the issue we now face, again sought summary judgment on the retaliatory prosecution claim, this time on the theory that they enjoy qualified immunity because probable cause supported Moore's prosecution. In the alternative, the inspectors argued that the record contained insufficient evidence of retaliatory motive. The district court denied the inspectors' motion in the following one-paragraph order:

Upon consideration of the motion of defendants, United States and Michael Hartman, et al., for summary judgment and the response thereto, the Motion for Summary Judgment is DENIED. There are material facts in dispute. The most significant are the facts surrounding the...

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