547 U.S. 250 (2006), 04-1495, Hartman v. Moore

Docket Nº:No. 04-1495.
Citation:547 U.S. 250, 126 S.Ct. 1695, 164 L.Ed.2d 441
Party Name:Michael HARTMAN, Frank Kormann, Pierce McIntosh, Norman Robbins, and Robert Edwards, Petitioners, v. William G. MOORE, Jr.
Case Date:April 26, 2006
Court:United States Supreme Court

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547 U.S. 250 (2006)

126 S.Ct. 1695, 164 L.Ed.2d 441

Michael HARTMAN, Frank Kormann, Pierce McIntosh, Norman Robbins, and Robert Edwards, Petitioners,


William G. MOORE, Jr.

No. 04-1495.

United States Supreme Court

April 26, 2006

Argued January 10, 2006.


[126 S.Ct. 1697] Syllabus [*]

Seeking to convince the United States Postal Service to incorporate multiline optical scanning technology, a company (REI), which manufactured multiline optical readers, commenced an extensive lobbying and public-relations campaign. In the end, the Postal Service be-grudgingly embraced the multiline technology, but awarded the lucrative equipment contract to a competing firm. Subsequently, Postal Service inspectors investigated REI and its chief executive, respondent Moore, for their alleged involvement in a consulting-firm kickback scandal and for their alleged improper role in the search for a new Postmaster General. Urged at least in part by the inspectors to bring criminal charges, a federal prosecutor tried REI and its top officials. But, finding a complete lack of evidence connecting them to any wrongdoing, the District Court acquitted the defendants. Moore then filed an action under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619, against the federal prosecutor and petitioner postal inspectors, arguing, as relevant here, that they had engineered the prosecution in retaliation for his lobbying efforts. The claims against the prosecutor were dismissed in accordance with the absolute immunity for prosecutorial judgment. Ultimately, the entire suit was dismissed, but the Court of Appeals reinstated the retaliatory-prosecution claim against the inspectors. Back in District Court, the inspectors moved for summary judgment, claiming that because the underlying criminal charges were supported by probable cause they were entitled to qualified immunity. The District Court denied the motion, and the Court of Appeals affirmed.


A plaintiff in a retaliatory-prosecution action must plead and show the absence of probable cause for pressing the underlying criminal charges. Pp. 1701-1707. [126 S.Ct. 1698] (a) As a general matter, this Court has held that the First Amendment prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out. Crawford-El v. Britton, 523 U.S. 574, 592, 118 S.Ct. 1584, 140 L.Ed.2d 759. When non retaliatory grounds are insufficient to provoke the adverse consequences, retaliation is subject to recovery as the but-for cause of official injurious action offending the Constitution, see, e.g., id., at 593, 118 S.Ct. 1584, and a vengeful federal officer is subject to damages under Bivens. P. 1701.

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(b) Although a Bivens (or 42 U.S.C. §1983) plaintiff must show a causal connection between a defendant's retaliatory animus and subsequent injury in any retaliation action, the need to demonstrate causation in the retaliatory-prosecution context presents an additional difficulty which can be overcome by a showing of the absence of probable cause. In an ordinary retaliation case, the evidence of motive and injury are sufficient for a circumstantial demonstration that the one caused the other, and the causation is understood to be but-for causation, without which the adverse action would not have been taken. When the claimed retaliation is, however, a criminal charge, the action will differ in two ways. First, evidence showing whether there was probable cause for the criminal charge will be highly valuable circumstantial evidence to prove or disprove retaliatory causation. Demonstrating a lack of probable cause will tend to reinforce the retaliation evidence and show that retaliation was the but-for basis for instigating the prosecution, while establishing the existence of probable cause will suggest that the prosecution would have occurred even without a retaliatory motive. Second, since the defendant in a retaliatory-prosecution case will not be the prosecutor, who has immunity, but an official who allegedly influenced the prosecutorial decision, the causal connection required is not between the retaliatory animus of one person and that person's own injurious action, as it is in the ordinary retaliation case, but between the retaliatory animus of one person and the adverse action of another. Because evidence of an inspector's animus does not necessarily show that the inspector induced the prosecutor to act when he would not have pressed charges otherwise and because of the longstanding presumption of regularity accorded prosecutorial decision making, a showing of the absence of probable cause is needed to bridge the gap between the non prosecuting government agent's retaliatory motive and the prosecutor's injurious action and to rebut the presumption. Pp. 1701-1706.

(c) The significance of probable cause or the lack of it looms large, being a potential feature of every case, with obvious evidentiary value. Though not necessarily dispositive, the absence of probable cause along with a retaliatory motive on the part of the official urging prosecution are reasonable grounds to suspend the presumption of regularity behind the charging decision and enough for a prima facie inference that the unconstitutionally motivated inducement infected the prosecutor's decision to go forward. Pp. 1706-1707.

388 F.3d 871, reversed and remanded.

SOUTER, J., delivered the opinion of the Court, in which Stevens, Scalia, Kennedy, and Thomas, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Breyer, J., joined. Roberts, C. J., and Alito, J., took no part in the consideration or decision of the case.


Edwin S. Kneedler, for petitioners.

[126 S.Ct. 1699] Patrick F. McCartan, for respondent.

Paul D. Clement, Solicitor General, Counsel of Record, Peter D. Keisler, Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Dan Himmelfarb, Assistant to the Solicitor General, Barbara L. Herwig, Matthew M. Collette, Stephanie R. Marcus, Richard Montague, Attorneys, Department of Justice, Washington, D.C., Brief for the Petitioners.

Christian G. Vergonis, Jones Day, Washington, DC, Patrick F. McCartan, Jones Day, Cleveland, OH, Paul Michael Pohl, Counsel of Record, Bryan D. Kocher, Jones Day, Pittsburgh, PA, Counsel for Respondent.


Souter, Justice.

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This is a Bivens action against criminal investigators for inducing prosecution in retaliation for speech. The question is whether the complaint states an actionable violation of the First Amendment without alleging an absence of probable cause to support the underlying criminal charge. We hold that want of probable cause must be alleged and proven.


In the 1980's, respondent William G. Moore, Jr., was the chief executive of Recognition Equipment Inc. (REI), which manufactured a multiline optical character reader for interpreting multiple lines of text. Although REI had received some $50 million from the United States Postal Service to develop this technology for reading and sorting mail, the Postmaster General and other top officials of the Postal Service were urging mailers to use nine-digit zip codes (Zip + 4), which would provide enough routing information on one line of text to allow single-line scanning machines to sort mail automatically by reading just that line.

Besides Moore, who obviously stood to gain financially from the adoption of multiline technology, some Members of

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Congress and Government research officers had reservations about the Postal Service's Zip + 4 policy and its intended reliance on single-line readers. Critics maligned single-line scanning technology, objected to the foreign sources of single-line scanners, decried the burden of remembering the four extra numbers, 1 and echoed the conclusion reached by the United States Office of Technology Assessment, that use of the single-line scanners in preference to multiliners would cost the Postal Service $1 million a day in operational losses.

Moore built on this opposition to Zip + 4, by lobbying Members of Congress, testifying before congressional committees, and supporting a "Buy American" rider to the Postal Service's 1985 appropriations bill. Notwithstanding alleged requests by the Postmaster General to be quiet, REI followed its agenda by hiring a public-relations firm, Gnau and Associates, Inc. (GAI), which one of the Postal Service's governors, Peter Voss, had recommended.

The campaign succeeded, and in July 1985 the Postal Service made what it called a "mid-course correction" and embraced multiline technology. Brief for Respondent 4. But the change of heart did not extend to Moore and REI, for the Service's ensuing order of multiline equipment, [126 S.Ct. 1700] valued somewhere between $250 million and $400 million went to a competing firm.

Not only did REI lose out on the contract, but Moore and REI were soon entangled in two investigations by Postal Service inspectors. The first looked into the purported payment of kickbacks by GAI to Governor Voss for Voss's recommendations of GAI's services, as in the case of REI; the second sought to document REI's possibly improper role in the search for a new Postmaster General. Notwithstanding very limited evidence linking Moore and REI to any wrongdoing,

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an Assistant United States Attorney decided to bring criminal charges against them, and in 1988 the grand jury indicted Moore, REI, and REI's vice president. At the close of the Government's case, after six weeks of trial, however, the District Court concluded that there was a "complete lack of...

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