Moore v. Hartman, Civil Action No. 92-2288(RMU).

• Citation: 569 F.Supp.2d 133
• Decision Date: 06 August 2008
• Docket Number: Civil Action No. 93-0324(RMU).,Civil Action No. 92-2288(RMU).
• Parties: William G. MOORE, Jr., Plaintiff, v. Michael HARTMAN et al., Defendants. William G. Moore, Jr., Plaintiff, v. United States of America, Defendant.
• Court: U.S. District Court — District of Columbia

569 F.Supp.2d 133

William G. MOORE, Jr., Plaintiff, v. Michael HARTMAN et al., Defendants.

William G. Moore, Jr., Plaintiff, v. United States of America, Defendant.

Civil Action No. 92-2288(RMU).

Civil Action No. 93-0324(RMU).

United States District Court, District of Columbia.

August 6, 2008.

Christian G. Vergonis, Joseph M. David, Jones Day, Washington, DC, John J. Mead, Paul Michael Pohl, Jones, Day, Reavis & Pogue, Pittsburgh, PA, for William G. Moore, Jr.

Andrea W. McCarthy, David F. Legge, Elizabeth S. Mattioni, Richard Montague, Matthew Thaddeus Fricker, U.S. Department of Justice, Washington, DC, for Michael Hartman et al.

MEMORANDUM OPINION

GRANTING THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

RICARDO M. URBINA, District Judge.

I. INTRODUCTION

This civil case follows an unsuccessful criminal fraud prosecution against the plaintiff. The plaintiff alleges that federal postal inspectors induced an Assistant United States Attorney to bring criminal charges against him in retaliation for speaking out against policies of the United States Postal Service. In addition, the plaintiff brings an action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b)(1), 2671-2680 (2000), alleging malicious prosecution.

Following a Supreme Court decision holding that the plaintiff bears the burden of proving the absence of probable cause to prevail on his claim that the inspectors successfully induced the prosecution, the defendants—the five postal inspectors who are still alive out of the six against whom the plaintiff brought suit, as well as the United States—have moved for summary judgment. They argue that the plaintiff cannot prove the absence of probable cause. The plaintiff opposes the motion, contending that the courts have already rejected the government's claim that there was probable cause to prosecute him and that, in any event, a reasonable jury could conclude that there was no probable cause to prosecute him. Because the plaintiff is unable to establish a lack of probable cause, the court grants the defendants' motion for summary judgment.

II. FACTUAL & PROCEDURAL BACKGROUND

Because the facts of the underlying case have been set forth in numerous prior opinions, the court will not recount them in exhaustive detail here. See Hartman v. Moore, 547 U.S. 250, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006); Moore v. United States, 213 F.3d 705 (D.C.Cir.2000); Moore v. Valder, 65 F.3d 189 (D.C.Cir. 1996). Beginning in the mid-1980s, when Moore was President and Chief Executive Officer of Recognition Equipment, Inc. ("REI"), defendants Michael Hartman et al., Postal Inspectors ("the Inspectors") for the United States Postal Service ("USPS"), began investigating the plaintiff and others in connection with a scheme to defraud and steal from the USPS. Pl.'s Opp'n to Defs.'s Renewed Mot. for Summ. J. ("Pl.'s Opp'n") at 5-6. The investigation centered on Peter Voss, a member of the USPS Board of Governors; REI; and Gnau & Associates, Inc. ("GAI"), a consulting firm that REI had hired on Voss's recommendation in connection with REI's effort to obtain an equipment contract with the USPS. Id. at 5-6, 25. Through their investigation, the Inspectors learned that Voss was receiving illegal payments from John Gnau, the chairman of GAI, for referring REI to GAI, and that Voss's administrative assistant and two other GAI officials, William Spartin and Michael Marcus, were involved in the scheme. Id. at 6; Pl.'s Opp'n, Ex. 39 ("Gnau Grand Jury Statement") at 1.

Voss, Gnau and Marcus ultimately pleaded guilty for their involvement in the conspiracy, and Spartin entered into an immunity agreement with the government in exchange for his cooperation. United States v. Recognition Equip., Inc., 725 F.Supp. 587, 589 (D.D.C.1989). A grand jury returned an indictment against the plaintiff, REI and REI's vice president, Robert Reedy, charging them with conspiracy to defraud the United States, theft, receiving stolen property, and mail and wire fraud. Id. at 587. The matter proceeded to trial, but at the close of the government's case, the court granted the plaintiff's motion for judgment of acquittal, ruling that there was insufficient evidence to support an inference that he was aware beyond a reasonable doubt of the conspiracy. Id. at 602. The plaintiff then brought suit alleging five causes of action against the postal inspectors who conducted the investigation and the Assistant United States Attorney who prosecuted the case. After nearly two decades of litigation, only two claims remain: a Bivens claim¹ alleging that the inspectors induced a retaliatory prosecution against the plaintiff and an FTCA claim against the inspectors alleging malicious prosecution.

In April 2006, the Supreme Court, reversing the Court of Appeals, ruled that to prevail on his Bivens claim, the plaintiff must prove that the prosecutor lacked probable cause to bring the charges against him. Hartman, 547 U.S. at 265-66, 126 S.Ct. 1695. Because probable cause is now "a decisive element of the plaintiffs claims[,]" and because the plaintiff now bears the burden of proving its absence, this court granted an additional discovery period to allow for exploration of the bases for probable cause. See Mem. Op. (Mar. 27, 2007), 241 F.R.D. 59. The government now moves for summary judgment, arguing that the plaintiff cannot show an absence of probable cause.

III. ANALYSIS

A. Legal Standard for a Motion for Summary Judgment

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C.Cir.1995). To determine which facts are "material," a court must look to the substantive law on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A "genuine issue" is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252, 106 S.Ct. 2505. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party "fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id.

The nonmoving party may defeat summary judgment through factual representations made in a sworn affidavit if he "support[s] his allegations . . . with facts in the record," Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999) (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993)), or provides "direct testimonial evidence," Arrington v. United States, 473 F.3d 329, 338 (D.C.Cir.2006). Indeed, for the court to accept anything less "would defeat the central purpose of the summary judgment device, which is to weed out those cases insufficiently meritorious to warrant the expense of a jury trial." Greene, 164 F.3d at 675.

B. The Plaintiff Cannot Establish the Absence of Probable Cause

To prevail on his two remaining claims, the plaintiff must establish that the government lacked probable cause to bring charges against him.² He must make this showing to prevail on his Bivens claim because absence of probable cause is now an element of a retaliatory prosecution claim in this Circuit. Hartman, 547 U.S. at 265-66, 126 S.Ct. 1695. And because absence of probable cause is an element of the tort of malicious prosecution under District of Columbia law, he must make this showing to prevail on his FTCA claim as well. See Davis v. Giles, 769 F.2d 813, 814-15 (D.C.Cir.1985).³

Ordinarily, when the facts are in dispute, the question of probable cause is one for the jury. Davis, 769 F.2d at 815. But this is not so when "an indictment, `fair upon its face,'" has been "returned by a `properly constituted grand jury[.]'" Gerstein, 420 U.S. at 117 n. 19, 95 S.Ct. 854 (quoting Ex parte United States, 287 U.S. 241, 250, 53 S.Ct. 129, 77 L.Ed. 283 (1932)).⁴ A valid indictment conclusively determines the existence of probable cause to bring charges against a suspect. Ex parte United States, 287 U.S. at 250, 53 S.Ct. 129; see also United States v. King, 482 F.2d 768, 776 (D.C.Cir.1973); RESTATEMENT (SECOND) OF TORTS, § 664(2) (1977) (stating that "[t]he indictment of the accused by a grand jury is evidence that the person who initiated the proceedings had probable cause for initiating them"). The plaintiff correctly cites White v. Frank for the proposition that "though an indictment by a grand jury is generally considered prima facie evidence of probable cause in a subsequent civil action for malicious prosecution, this presumption may be rebutted by proof that the defendant misrepresented, withheld, or falsified evidence." 855 F.2d 956, 961-62 (2d Cir.1988). White is binding only in the Second Circuit, however, and the plaintiff points out no parallel exception in this Circuit to the rule that an indictment conclusively establishes probable cause.⁵ Nonetheless, the court agrees that if the plaintiff were able to allege misconduct or irregularities in the grand jury proceeding sufficient to call...