Moore v. Hartman

• Decision Date: 15 July 2011
• Docket Number: No. 10–5334.,10–5334.
• Citation: 396 U.S.App.D.C. 28,644 F.3d 415,396 U.S.App.D.C. 23
• Parties: William G. MOORE, Jr. et al., Appelleesv.Michael HARTMAN et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

644 F.3d 415

396 U.S.App.D.C. 23

396 U.S.App.D.C. 28

William G. MOORE, Jr. et al., Appellees

v.Michael HARTMAN et al., Appellants.

No. 10–5334.

United States Court of Appeals, District of Columbia Circuit.

Argued April 14, 2011.Decided July 15, 2011.

Background: Vendor brought Bivens action against six Postal Inspectors, alleging that they wrongly caused him to be prosecuted in retaliation for his public criticism of the United States Postal Service (USPS) and its personnel. After remand, 571 F.3d 62, the United States District Court for the District of Columbia, 730 F.Supp.2d 174, denied defendants' motion for summary judgment, based on qualified immunity, on Moore's claim of retaliatory inducement to prosecution, and defendants appealed.

Holding: The Court of Appeals, Karen LeCraft Henderson, Circuit Judge, held that arguable probable cause did not apply to a First Amendment retaliatory inducement to prosecution case because probable cause was not an element of the First Amendment right allegedly violated.

Affirmed in part, dismissed in part, and remanded.

Karen LeCraft Henderson, Circuit Judge, filed concurring opinion.

Appeal from the United States District Court for the District of Columbia (No. 1:92–cv–02288).

Catherine Y. Hancock, Attorney, United States Department of Justice, argued the cause for the appellants. Tony West, Assistant Attorney General, Ronald C. Machen Jr., United States Attorney, and Barbara L. Herwig, Attorney, were on brief. Richard Montague, Attorney, entered an appearance.Paul Michael Pohl argued the cause for the appellees. Bryan D. Kocher, Christian G. Vergonis and Charles T. Kotuby, Jr. were on brief.Before: HENDERSON, ROGERS and KAVANAUGH, Circuit Judges.Opinion for the Court filed by Circuit Judge HENDERSON.Concurring opinion filed by Circuit Judge HENDERSON.KAREN LECRAFT HENDERSON, Circuit Judge:

William G. Moore alleges that six U.S. Postal Inspectors (Postal Inspectors) wrongly caused him to be criminally prosecuted in retaliation for his public criticism of the United States Postal Service (USPS) and its personnel. The Postal Inspectors appeal the district court's denial of their motion for summary judgment, based on qualified immunity, on Moore's claim of retaliatory inducement to prosecution in violation of his right to free speech under the First Amendment to the United States Constitution. For the reasons set out below, we affirm in part and dismiss in part.

I.

In the early 1980s Moore was the chief executive of Recognition Equipment Inc. (REI), a publicly-traded corporation, which was pursuing a contract to sell its multiple-line optical character readers to USPS for use in scanning postal addresses. At the time, many of USPS's top officials were advocating purchasing single-line scanners to use with USPS's new “zip + 4” nine-digit zip codes. REI lobbied members of the United States Congress and Moore personally testified before congressional committees in opposition to the zip + 4 codes and in favor of multiple-line scanners. In addition, notwithstanding the United States Postmaster General's admonition “to be quiet,” REI hired public relations firm Gnau and Associates, Inc. (GAI) to advocate on REI's behalf. Hartman v. Moore, 547 U.S. 250, 253, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006) ( Moore IV ). GAI had been recommended to Moore by Peter Voss, a member of USPS's Board of Governors.

REI's lobbying efforts bore fruit in July 1985 when USPS, at the urging of several members of the Congress, changed course and decided to use multiple-line scanners after all—yielding to the many critics (both within the government and without) who opposed the nine-digit zip codes and the single-line scanners. Unfortunately for REI, however, USPS decided to purchase multiple-line scanners from one of REI's competitors—a decision Moore attributes to retaliation for his criticism of USPS and the zip + 4 codes. To make matters worse, shortly thereafter, USPS instigated an investigation of a kickback scheme in which, it maintained, Moore was a participant.

The Postal Inspectors discovered that GAI's chairman, John R. Gnau, Jr., had paid kickbacks to Voss in return for Voss having referred REI (and other companies) to GAI. They further learned that GAI president William Spartin and vice president Michael Marcus were also involved in the scheme. In April 1986, Spartin entered an agreement with the government in which he agreed, in exchange for immunity, to cooperate with the government's investigation and eventual criminal prosecution of the participants in the scheme. With Spartin's cooperation, the government secured guilty pleas from Voss, Gnau and Marcus to offenses related to the giving and receipt of illegal gratuities. “Notwithstanding very limited evidence linking Moore and REI to any wrongdoing,” Moore IV, 547 U.S. at 253–54, 126 S.Ct. 1695, then-Assistant United States Attorney Joseph B. Valder filed criminal charges against them and, on October 6, 1988, a federal grand jury indicted them, along with REI vice president Robert Reedy, on seven counts involving fraud and theft—all stemming from REI's attempts to contract with USPS for its multiple-line scanners.¹

In November 1989, six weeks into the ensuing bench trial, the district court granted the defendants' motion for judgment of acquittal at the close of the government's case, concluding that the government had failed to establish a prima facie case. United States v. Recognition Equip. Inc., 725 F.Supp. 587, 587–88 (D.D.C.1989).

On November 19, 1991, Moore filed this Bivens² action in the Northern District of Texas, where he resided, alleging that prosecutor Valder and six named postal inspectors deprived him of rights under the First, Fourth and Fifth Amendments to the United States Constitution and asserting supplemental tort claims under the local laws of Texas and of the District of Columbia for defamation, invasion of privacy, false arrest, abuse of process and malicious prosecution. Moore subsequently filed a separate action for malicious prosecution against the United States pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671–80. The two actions were transferred to the United States District Court for the District of Columbia and consolidated. The case has since been up and down the litigation ladder, disposing of all but two of Moore's claims: the Bivens retaliatory inducement to prosecution claim and the FTCA malicious prosecution claim. We now summarize the recent procedural history as it relates to the single claim at issue in this latest interlocutory appeal, the Bivens retaliatory inducement to prosecution claim.³

In 2003, after two appeals to this court, the district court on remand denied a motion for summary judgment filed by the Postal Inspectors in a one-paragraph unpublished order, stating:

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 presentation of evidence to the grand jury and the disclosure of grand jury testimony to a key prosecution witness.

Moore v. Valder, Nos. 92–cv–2288 & 93–cv–0324 (D.D.C. Aug. 5, 2003). On interlocutory appeal the Postal Inspectors, relying on extra-Circuit authority, argued that they were entitled to qualified immunity because the record established that they acted based on probable cause, the absence of which is a sine qua non of a First Amendment retaliatory inducement to prosecution claim.

We affirmed the summary judgment denial because “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.” Moore v. Hartman, 388 F.3d 871, 872 (D.C.Cir.2004) ( Moore III ) (emphasis added).

The United States Supreme Court granted certiorari and reversed, holding that a retaliatory inducement to prosecution claimant must plead and prove the absence of probable cause as an element of his case. Moore IV, 547 U.S. at 265–66, 126 S.Ct. 1695. The no-probable-cause requirement is justified, the Court wrote, because of “the need to prove a chain of causation from animus to injury, with details specific to retaliatory-prosecution cases.” Id. at 259, 126 S.Ct. 1695. Unlike other retaliatory constitutional torts, the Court explained, retaliatory inducement to prosecution involves two special issues affecting proof of causation: (1) evidence showing probable cause vel non will always be available as “a distinct body of highly valuable circumstantial evidence ... apt to prove or disprove retaliatory causation”; and (2) “the requisite causation between the defendant's retaliatory animus and the plaintiff's injury is usually more complex than it is in other retaliation cases” because the plaintiff must show not only that “the nonprosecuting official acted in retaliation” but also “that he induced the prosecutor to bring charges that would not have been initiated without his urging”—a requirement the Court found must be met by the plaintiff's showing lack of probable cause. Id. at 261–63, 126 S.Ct. 1695. After remand from the Supreme Court, we remanded to the district court “for further proceedings consistent with the Supreme Court's decision,” noting that the district court had previously “expressed no view either on whether there was probable cause to support Moore's prosecution or on the relationship of probable cause to the Inspectors' qualified immunity.” Moore v. Hartman, No. 03–5241 (D.C.Cir. Aug. 22, 2006) (unpublished).

The Postal Inspectors again moved for summary judgment in 2007. This time, the district court granted the motion on the ground the indictment conclusively established probable cause because Moore had failed to allege “misconduct” in the grand jury proceeding that “undermine[...