Hartman v. Moore

(Slip Opinion) OCTOBER TERM, 2005 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

HARTMAN ET AL. v. MOORE

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

No. 04–1495. Argued January 10, 2006—Decided April 26, 2006

Seeking to convince the United States Postal Service to incorporate

multiline optical scanning technology, a company (REI), which manu

factured 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 lu

crative equipment contract to a competing firm. Subsequently,

Postal Service inspectors investigated REI and its chief executive, re

spondent 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, 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 abso

lute 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.

Held: A plaintiff in a retaliatory-prosecution action must plead and

show the absence of probable cause for pressing the underlying

criminal charges. Pp. 5–15.

2 HARTMAN v. MOORE

Syllabus

(a) As a general matter, this Court has held that the First Amend

ment 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. When nonretaliatory

grounds are insufficient to provoke the adverse consequences, retalia

tion is subject to recovery as the but-for cause of official injurious ac

tion offending the Constitution, see, e.g., id., at 593, and a vengeful

federal officer is subject to damages under Bivens. Pp. 5–6.

(b) Although a Bivens (or 42 U. S. C. §1983) plaintiff must show a

causal connection between a defendant’s retaliatory animus and sub

sequent injury in any retaliation action, the need to demonstrate

causation in the retaliatory-prosecution context presents an addi

tional difficulty which can be overcome by a showing of the absence of

probable cause. In an ordinary retaliation case, the evidence of mo

tive 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 valu

able circumstantial evidence to prove or disprove retaliatory causa

tion. Demonstrating a lack of probable cause will tend to reinforce

the retaliation evidence and show that retaliation was the but-for ba

sis 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 im

munity, but an official who allegedly influenced the prosecutorial de

cision, 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 decisionmaking, a showing of the

absence of probable cause is needed to bridge the gap between the

nonprosecuting government agent’s retaliatory motive and the prose

cutor’s injurious action and to rebut the presumption. Pp. 6–13.

(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

Cite as: 547 U. S. ____ (2006) 3

Syllabus

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. 13–15.

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 dis

senting opinion, in which BREYER, J., joined. ROBERTS, C. J., and ALITO,

J., took no part in the consideration or decision of the case.

Cite as: 547 U. S. ____ (2006) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 04–1495

_________________

MICHAEL HARTMAN, FRANK KORMANN, PIERCE

MCINTOSH, NORMAN ROBBINS, AND ROBERT

EDWARDS, PETITIONERS v. WILLIAM G.

MOORE, JR.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

[April 26, 2006]

JUSTICE SOUTER delivered the opinion of the Court.

This is a Bivens action against criminal investigators for

inducing prosecution in retaliation for speech. The ques

tion is whether the complaint states an actionable viola

tion 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.

I

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 in

formation on one line of text to allow single-line scanning

2 HARTMAN v. MOORE

Opinion of the Court

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 Congress and Government research officers had reser

vations 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 Technol

ogy 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. Notwithstand

ing 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,

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

——————

1 See,

e.g., Seaberry, Durenberger Begins Campaign Against Nine-

Digit Zip Code, Washington Post, Feb. 24, 1981, p. E4 (describing

Senator David Durenberger’s reference to the Zip + 4 campaign as “ ‘a

mnemonic plague of contagious digititous’ ”).

Cite as: 547 U. S. ____ (2006) 3

Opinion of the Court

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. Notwith

standing very limited evidence linking Moore and REI to

any wrongdoing, 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 direct evidence” connecting

the defendants to any of the criminal wrongdoing alleged,

and it granted the REI defendants’ motion for judgment of

acquittal. United States v. Recognition Equip. Inc., 725

F. Supp. 587, 596 (DC 1989).

Moore then brought an action in the Northern District

of Texas for civil liability under Bivens v. Six Unknown

Fed. Narcotics Agents, 403 U. S. 388 (1971),2 against the

prosecutor and the five postal inspectors who are petition

ers here (a sixth having died). His complaint raised five

causes of action, only one of which is relevant here, the

claim that the prosecutor and the inspectors had engi

neered his criminal prosecution in retaliation for criticism

of the Postal Service, thus violating the First Amendment.

In the course of these proceedings Moore has argued,

——————

2 “Bivens established that the victims of a constitutional violation by a

federal agent have a right to recover damages against the official in

federal court despite the absence of any statute conferring such a

right.” Carlson v. Green, 446 U. S. 14, 18 (1980). Though more limited in

some respects not relevant here, a Bivens action is the federal analog to

suits brought against state officials under Rev. Stat. §1979, 42 U. S. C.

§1983. See Wilson v. Layne, 526 U. S. 603, 609 (1999); see also Waxman

& Morrison, What Kind of Immunity? Federal Officers, State Criminal

Law, and the Supremacy Clause, 112 Yale L. J. 2195, 2208 (2003) (“Sec

tion 1983 applies . . . to state and local officers, [and] the Supreme Court

in Bivens . . . inferred a parallel damages action against federal officers”).

4 HARTMAN v. MOORE

Opinion of the Court

among other things, that the postal inspectors launched a

criminal investigation against him well before they had

any inkling of either of the two schemes mentioned above,

that the inspectors targeted him for his lobbying activities,

and that they pressured the United States Attorney’s

Office to have him indicted. Moore also sought recovery

from the United States under the Federal Tort Claims Act

(FTCA). The District Court dismissed the claims against

the Assistant United States Attorney in accordance with

the absolute immunity for prosecutorial judgment, and

rejected an abuse-of-process claim against the inspectors.

Moore v. Valder, Civil Action No. 3:91–CV–2491–G (ND

Tex., Sept. 21, 1992).3

The claims remaining were transferred to the District

Court for the District of Columbia, where Moore’s suit was

dismissed in its entirety, Civ. Nos. 92–2288 (NHJ), 93–

0324 (NHJ), 1993 WL 405785 (Sept. 24, 1993), only to

have the Court of Appeals for the District of Columbia

Circuit reinstate the retaliatory-prosecution claim. Moore

v. Valder, 65 F. 3d 189 (1995). The District Court then

permitted limited discovery on that matter so far as the

inspectors were involved, but again dismissed the remain

ing charges against the United States and the prosecutor.

Moore v. Valder, Civil Action No. 92–2288 (NHJ) et al.,

Record, Tab No. 32 (Memorandum Opinion, Feb. 5, 1998).

Although Moore succeeded in having the District of Co

lumbia Circuit reinstate his FTCA claim against the

United States, the dismissal of his claims against the

prosecutor was affirmed. Moore v. United States, 213

F. 3d 705 (2000).

With the remainder of the case back in District Court,

the inspectors moved for summary judgment, urging that

because the underlying criminal charges were supported

——————

3 Moore and his wife had originally filed this complaint jointly. Her

claims were dismissed for lack of standing.

Cite as: 547 U. S. ____ (2006) 5

Opinion of the Court

by probable cause they were entitled to qualified immu

nity from a retaliatory-prosecution suit. The District

Court denied the motion, and the Court of Appeals af

firmed. 388 F. 3d 871 (2004).

The Courts of Appeals have divided on the issue of

requiring evidence of a lack of probable cause in 42

U. S. C. §1983 and Bivens retaliatory-prosecution suits.

Some Circuits burden plaintiffs with the obligation to

show its absence. See, e.g., Wood v. Kesler, 323 F. 3d 872,

883 (CA11 2003); Keenan v. Tejeda, 290 F. 3d 252, 260

(CA5 2002); Mozzochi v. Borden, 959 F. 2d 1174, 1179–

1180 (CA2 1992). Others, including the District of Colum

bia Circuit, impose no such requirement. See, e.g., Poole v.

County of Otero, 271 F. 3d 955, 961 (CA10 2001);

Haynesworth v. Miller, 820 F. 2d 1245, 1256–1257 (CADC

1987). We granted certiorari, 545 U. S. ___ (2005), to

resolve the Circuit split and now reverse.

II

Official reprisal for protected speech “offends the Consti

tution [because] it threatens to inhibit exercise of the

protected right,” Crawford-El v. Britton, 523 U. S. 574,

588, n. 10 (1998), and the law is settled that as a general

matter the First Amendment prohibits government offi

cials from subjecting an individual to retaliatory actions,

including criminal prosecutions, for speaking out, id., at

592; see also Perry v. Sindermann, 408 U. S. 593, 597

(1972) (noting that the government may not punish a

person or deprive him of a benefit on the basis of his “con

stitutionally protected speech”). Some official actions

adverse to such a speaker might well be unexceptionable if

taken on other grounds, but when nonretaliatory grounds

are in fact insufficient to provoke the adverse conse

quences, we have held that retaliation is subject to recov

ery as the but-for cause of official action offending the

Constitution. See Crawford-El, supra, at 593; Mt. Healthy

6 HARTMAN v. MOORE

Opinion of the Court

City Bd. of Ed. v. Doyle, 429 U. S. 274, 283–284 (1977)

(adverse action against government employee cannot be

taken if it is in response to the employee’s “exercise of

constitutionally protected First Amendment freedoms”).

When the vengeful officer is federal, he is subject to an

action for damages on the authority of Bivens. See 403

U. S., at 397.

III

Despite a procedural history portending another

Jarndyce v. Jarndyce,4 the issue before us is straightfor

ward: whether a plaintiff in a retaliatory-prosecution

action must plead and show the absence of probable cause

for pressing the underlying criminal charges.5

A

The inspectors argue on two fronts that absence of

——————

4 See

2 C. Dickens, Bleak House 85 (1853).

5 Moorecontends that we (like the Court of Appeals before us) exceed

our appellate jurisdiction when we address the issue of probable cause,

see Brief for Respondent 37–39, but his argument is mistaken. It is

true that the disagreement over a no-probable-cause requirement arose

on the inspectors’ motion for summary judgment on their qualified-

immunity defense; Moore stresses that an interlocutory appeal can be

taken from the rejection of qualified immunity at the summary-

judgment stage only on questions turning on the definition of the

violation, not on the sufficiency of the evidence to show that a defen

dant is in fact entitled to the immunity claimed. See Mitchell v. For

syth, 472 U. S. 511, 528 (1985). Moore says that the issue of probable

cause or its absence is simply an evidentiary matter going to entitle

ment in fact. But the inspectors are making more than a claim about

the evidence in this case: they are arguing that we should hold that a

showing of no probable cause is an element of the kind of claim Moore

is making against them. In agreeing with the inspectors, we are

addressing a requirement of causation, which Moore must plead and

prove in order to win, and our holding does not go beyond a definition of

an element of the tort, directly implicated by the defense of qualified

immunity and properly before us on interlocutory appeal. See ibid.; see

also Crawford-El v. Britton, 523 U. S. 574, 588, 592–593 (1998); Mt.

Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 285–286 (1977).

Cite as: 547 U. S. ____ (2006) 7

Opinion of the Court

probable cause should be an essential element. Without

such a requirement, they first say, the Bivens claim is too

readily available. A plaintiff can afflict a public officer

with disruption and expense by alleging nothing more, in

practical terms, than action with a retaliatory animus, a

subjective condition too easy to claim and too hard to

defend against. Brief for Petitioners 21–23; see also Na

tional Archives and Records Admin. v. Favish, 541 U. S.

157, 175 (2004) (allegations of government misconduct are

“‘easy to allege and hard to disprove’ ”). In the inspectors’

view, some “objective” burden must be imposed on these

plaintiffs, simply to filter out the frivolous. The second

argument complements the first, for the inspectors believe

that the traditional tort of malicious prosecution tells us

what the objective requirement should be. Brief for Peti

tioners 24–29. In an action for malicious prosecution after

an acquittal, a plaintiff must show that the criminal action

was begun without probable cause for charging the crime

in the first place; the inspectors see retaliatory prosecution

under Bivens as a close cousin of malicious prosecution

under common law, making the latter’s no-probable-cause

requirement a natural feature of the constitutional tort.

See Heck v. Humphrey, 512 U. S. 477, 483–485, and 484,

n. 4 (1994).

B

In fact, we think there is a fair argument for what the

inspectors call an “objective” fact requirement in this type

of case, but the nub of that argument differs from the two

they set out, which we will deal with only briefly. As for

the invitation to rely on common-law parallels, we cer

tainly are ready to look at the elements of common-law

torts when we think about elements of actions for consti

tutional violations, see Carey v. Piphus, 435 U. S. 247, 258

(1978), but the common law is best understood here more

as a source of inspired examples than of prefabricated

8 HARTMAN v. MOORE

Opinion of the Court

components of Bivens torts. See, e.g., Albright v. Oliver,

510 U. S. 266, 277, n. 1 (1994) (GINSBURG, J., concurring);

Bivens, supra, at 394; cf. Baker v. McCollan, 443 U. S. 137,

146 (1979). And in this instance we could debate whether

the closer common-law analog to retaliatory prosecution is

malicious prosecution (with its no-probable-cause element)

or abuse of process (without it). Compare Heck, 512 U. S.,

at 483–485, and 484, n. 4 with id., at 493–496 (SOUTER, J.,

concurring in judgment).

Nor is there much leverage in the fear that without a

filter to screen out claims federal prosecutors and federal

courts will be unduly put upon by the volume of litigation.

The basic concern is fair enough, but the slate is not

blank. Over the past 25 years fewer than two dozen dam

ages actions for retaliatory prosecution under Bivens or

§1983 have come squarely before the Federal Courts of

Appeals, and there is no disproportion of those cases in

Circuits that do not require showing an absence of prob

able cause.6

C

It is, instead, the need to prove a chain of causation

from animus to injury, with details specific to retaliatory-

prosecution cases, that provides the strongest justification

for the no-probable-cause requirement espoused by the

inspectors. Although a Bivens (or §1983) plaintiff must

show a causal connection between a defendant’s retalia

tory animus and subsequent injury in any sort of retalia

tion action, see Crawford-El, 523 U. S., at 593; Mt.

——————

6 In

fact, many of the appellate challenges have been brought in the

Second, Fifth, and Eleventh Circuits, all of which require plaintiffs to

show an absence of probable cause. See, e.g., Izen v. Catalina, 398

F. 3d 363 (CA5 2005) (per curiam); Wood v. Kesler, 323 F. 3d 872 (CA11

2003); Keenan v. Tejeda, 290 F. 3d 252 (CA5 2002); Singer v. Fulton

County Sheriff, 63 F. 3d 110 (CA2 1995); Post v. Fort Lauderdale, 7

F. 3d 1552 (CA11 1993); Mozzochi v. Borden, 959 F. 2d 1174 (CA2

1992); Magnotti v. Kuntz, 918 F. 2d 364 (CA2 1990).

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Opinion of the Court

Healthy, 429 U. S., at 285–287, the need to demonstrate

causation in the retaliatory-prosecution context presents

an additional difficulty that can be understood by compar

ing the requisite causation in ordinary retaliation claims,

where the government agent allegedly harboring the

animus is also the individual allegedly taking the adverse

action, with causation in a case like this one.

Take the example of a public employee’s claim that he

was fired for speech criticizing the government. See, e.g.,

Pickering v. Board of Ed. of Township High School Dist.

205, Will Cty., 391 U. S. 563, 566–567 (1968) (allegation

that a school board dismissed a teacher for writing a

public letter critical of the board’s financial administra

tion). While the employee plaintiff obviously must plead

and prove adverse official action in retaliation for making

the statements, our discussions of the elements of the

constitutional tort do not specify any necessary details

about proof of a connection between the retaliatory animus

and the discharge, which will depend on the circum

stances. Cf. Crawford-El, supra, at 593 (“[A]t least with

certain types of claims, proof of an improper motive is not

sufficient to establish a constitutional violation—there

must also be evidence of causation”). The cases have

simply taken the evidence of the motive and the discharge

as sufficient for a circumstantial demonstration that the

one caused the other. See, e.g., Mt. Healthy, supra, at 287;

see also Arlington Heights v. Metropolitan Housing Devel

opment Corp., 429 U. S. 252, 270, n. 21 (1977). It is clear,

moreover, that the causation is understood to be but-for

causation, without which the adverse action would not

have been taken; we say that upon a prima facie showing

of retaliatory harm, the burden shifts to the defendant

official to demonstrate that even without the impetus to

retaliate he would have taken the action complained of

(such as firing the employee). See Mt. Healthy, 429 U. S.,

at 287. If there is a finding that retaliation was not the

10 HARTMAN v. MOORE

Opinion of the Court

but-for cause of the discharge, the claim fails for lack of

causal connection between unconstitutional motive and

resulting harm, despite proof of some retaliatory animus

in the official’s mind. See ibid. It may be dishonorable to

act with an unconstitutional motive and perhaps in some

instances be unlawful, but action colored by some degree

of bad motive does not amount to a constitutional tort if

that action would have been taken anyway. See Craw

ford-El, supra, at 593; Mt. Healthy, supra, at 285–286.

When the claimed retaliation for protected conduct is a

criminal charge, however, a constitutional tort action will

differ from this standard case in two ways. Like any other

plaintiff charging official retaliatory action, the plaintiff in

a retaliatory-prosecution claim must prove the elements of

retaliatory animus as the cause of injury, and the defen

dant will have the same opportunity to respond to a prima

facie case by showing that the action would have been

taken anyway, independently of any retaliatory animus.

What is different about a prosecution case, however, is

that there will always be a distinct body of highly valuable

circumstantial evidence available and apt to prove or

disprove retaliatory causation, namely evidence showing

whether there was or was not probable cause to bring the

criminal charge. Demonstrating that there was no prob

able cause for the underlying criminal charge will tend to

reinforce the retaliation evidence and show that retalia

tion was the but-for basis for instigating the prosecution,

while establishing the existence of probable cause will

suggest that prosecution would have occurred even with

out a retaliatory motive. This alone does not mean, of

course, that a Bivens or §1983 plaintiff should be required

to plead and prove no probable cause, but it does mean

that litigating probable cause will be highly likely in any

retaliatory-prosecution case, owing to its powerful eviden

Cite as: 547 U. S. ____ (2006) 11

Opinion of the Court

tiary significance.7

The second respect in which a retaliatory-prosecution

case is different also goes to the causation that a Bivens

plaintiff must prove; the difference is that 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, and the need to show this more

complex connection supports a requirement that no prob

able cause be alleged and proven. A Bivens (or §1983)

action for retaliatory prosecution will not be brought

against the prosecutor, who is absolutely immune from

liability for the decision to prosecute, Imbler v. Pachtman,

424 U. S. 409, 431 (1976).8 Instead, the defendant will be a

non-prosecutor, an official, like an inspector here, who

may have influenced the prosecutorial decision but did not

himself make it, and the cause of action will not be strictly

for retaliatory prosecution, but for successful retaliatory

——————

7 Indeed, even though the Court of Appeals in this case held that

plaintiffs do not have to show an absence of probable cause in order to

make retaliatory-prosecution claims, it nevertheless acknowledged

probable cause’s significance in such suits. See 388 F. 3d 871, 881

(CADC 2004) (“Given that probable cause ordinarily suffices to initiate

a prosecution, that showing will be enough in most cases to establish

that prosecution would have occurred absent bad intent. A Bivens

recovery remains possible, however, in those rare cases where strong

motive evidence combines with weak probable cause to support a

finding that the prosecution would not have occurred but for the offi

cials’ retaliatory animus”).

8 An action could still be brought against a prosecutor for conduct

taken in an investigatory capacity, to which absolute immunity does

not extend. See Buckley v. Fitzsimmons, 509 U. S. 259, 274–276 (1993)

(no absolute immunity when prosecutor acts in administrative capacity);

Burns v. Reed, 500 U. S. 478, 492–495 (1991) (absolute immunity does not

attach when a prosecutor offers legal advice to the police regarding

interrogation practices). In fact, Moore’s complaint charged the prosecu

tor with acting in an investigative as well as in a prosecutorial capacity,

see App. 45, but dismissal of the complaint as against the prosecutor was

affirmed in 213 F. 3d 705, 710 (CADC 2000), and no claim against him is

before us now.

12 HARTMAN v. MOORE

Opinion of the Court

inducement to prosecute.9 The consequence is that a

plaintiff like Moore must show that the nonprosecuting

official acted in retaliation, and must also show that he

induced the prosecutor to bring charges that would not

have been initiated without his urging.

Thus, the causal connection required here is not merely

between the retaliatory animus of one person and that

person’s own injurious action, but between the retaliatory

animus of one person and the action of another. See 213

F. 3d, at 710 (“In order to find that a defendant procured a

prosecution, the plaintiff must establish ‘a chain of causa

tion’ linking the defendant’s actions with the initiation of

criminal proceedings”); see also Barts v. Joyner, 865 F. 2d

1187, 1195 (CA11 1989) (plaintiff seeking damages inci

dent to her criminal prosecution would have to show that

the police, who allegedly acted in violation of law in secur

ing her arrest, unduly pressured or deceived prosecutors);

Dellums v. Powell, 566 F. 2d 167, 192–193 (CADC 1977)

(where allegation of misconduct is directed at police, a

malicious-prosecution claim cannot stand if the decision

made by the prosecutor to bring criminal charges was

independent of any pressure exerted by police); cf. Smiddy

v. Varney, 665 F. 2d 261, 267 (CA9 1981) (“[W]here police

officers do not act maliciously or with reckless disregard

for the rights of an arrested person, they are not liable for

damages suffered by the arrested person after a district

attorney files charges unless the presumption of inde

pendent judgment by the district attorney is rebutted”).

Herein lies the distinct problem of causation in cases

like this one. Evidence of an inspector’s animus does not

——————

9 No one here claims that simply conducting a retaliatory investiga

tion with a view to promote a prosecution is a constitutional tort. That

is not part of Moore’s complaint. See App. 33–34, 38–45. Whether the

expense or other adverse consequences of a retaliatory investigation

would ever justify recognizing such an investigation as a distinct

constitutional violation is not before us.

Cite as: 547 U. S. ____ (2006) 13

Opinion of the Court

necessarily show that the inspector induced the action of a

prosecutor who would not have pressed charges otherwise.

Moreover, to the factual difficulty of divining the influence

of an investigator or other law enforcement officer upon

the prosecutor’s mind, there is an added legal obstacle in

the longstanding presumption of regularity accorded to

prosecutorial decisionmaking. See Reno v. American-Arab

Anti-Discrimination Comm., 525 U. S. 471, 489–490 (1999);

United States v. Armstrong, 517 U. S. 456, 464–466 (1996).

And this presumption that a prosecutor has legitimate

grounds for the action he takes is one we do not lightly

discard, given our position that judicial intrusion into execu

tive discretion of such high order should be minimal, see

Wayte v. United States, 470 U. S. 598, 607–608 (1985).

Some sort of allegation, then, is needed both to bridge

the gap between the nonprosecuting government agent’s

motive and the prosecutor’s action, and to address the

presumption of prosecutorial regularity. And at the trial

stage, some evidence must link the allegedly retaliatory

official to a prosecutor whose action has injured the plain

tiff. The connection, to be alleged and shown, is the ab

sence of probable cause.

It would be open to us, of course, to give no special

prominence to an absence of probable cause in bridging

the causal gap, and to address this distinct causation

concern at a merely general level, leaving it to such plead

ing and proof as the circumstances allow. A prosecutor’s

disclosure of retaliatory thinking on his part, for example,

would be of great significance in addressing the presump

tion and closing the gap. So would evidence that a prose

cutor was nothing but a rubber stamp for his investigative

staff or the police. Cf. Mt. Healthy, 429 U. S., at 281–283.

(evidence that the board of education, which formally

decided not to rehire a teacher, was only nominally dis

tinct from the school superintendent, who allegedly bore

the retaliatory animus). In fact, though, these examples

14 HARTMAN v. MOORE

Opinion of the Court

are likely to be rare and consequently poor guides in struc

turing a cause of action. In most cases, for instance, it

would be unrealistic to expect a prosecutor to reveal his

mind even to the degree that this record discloses, with its

reported statement by the prosecutor that he was not

galvanized by the merits of the case, but sought the in

dictment against Moore because he wanted to attract the

interest of a law firm looking for a tough trial lawyer.10

Accordingly, the significance of probable cause or the

lack of it looms large, being a potential feature of every

case, with obvious evidentiary value. True, it is not neces

sarily dispositive: showing an absence of probable cause

may not be conclusive that the inducement succeeded, and

showing its presence does not guarantee that inducement

was not the but-for fact in a prosecutor’s decision. But a

retaliatory motive on the part of an official urging prose

cution combined with an absence of probable cause sup

porting the prosecutor’s decision to go forward are reason

able grounds to suspend the presumption of regularity

behind the charging decision, see Bordenkircher v. Hayes,

434 U. S. 357, 364 (1978) (emphasizing that “so long as the

prosecutor has probable cause,” the charging decision is

——————

10 Some may suggest that we should structure a cause of action in the

alternative, dispensing with a requirement to show no probable cause

when a plaintiff has evidence of a direct admission by a prosecutor that,

irrespective of probable cause, the prosecutor’s sole purpose in initiat

ing a criminal prosecution was to acquiesce to the inducements of other

government agents, who themselves harbored retaliatory animus. Cf.

United States v. Armstrong, 517 U. S. 456, 469, n. 3 (1996) (leaving

open the question “whether a [criminal] defendant must satisfy the

similarly situated requirement in a case ‘involving direct admissions by

[prosecutors] of discriminatory purpose’ ” (brackets in original)). But

this would seem a little like proposing that retirement plans include

the possibility of winning the lottery. Unambiguous admissions of

successful inducement are likely to be rare, and hassles over the

adequacy of admissions will be the predictable result, if any exemption

to a no-probable-cause requirement is allowed.

Cite as: 547 U. S. ____ (2006) 15

Opinion of the Court

generally discretionary), and enough for a prima facie

inference that the unconstitutionally motivated induce

ment infected the prosecutor’s decision to bring the

charge.

Our sense is that the very significance of probable cause

means that a requirement to plead and prove its absence

will usually be cost free by any incremental reckoning.

The issue is so likely to be raised by some party at some

point that treating it as important enough to be an ele

ment will be a way to address the issue of causation with

out adding to time or expense. See n. 7, supra. In this

case, for example, Moore cannot succeed in the retaliation

claim without showing that the Assistant United States

Attorney was worse than just an unabashed careerist, and

if he can show that the prosecutor had no probable cause,

the claim of retaliation will have some vitality.

In sum, the complexity of causation in a claim that

prosecution was induced by an official bent on retaliation

should be addressed specifically in defining the elements

of the tort. Probable cause or its absence will be at least

an evidentiary issue in practically all such cases. Because

showing an absence of probable cause will have high

probative force, and can be made mandatory with little or

no added cost, it makes sense to require such a showing as

an element of a plaintiff’s case, and we hold that it must

be pleaded and proven.

The judgment of the Court of Appeals is reversed, and

the case is remanded for further proceedings consistent

with this opinion.

It is so ordered.

THE CHIEF JUSTICE and JUSTICE ALITO took no part in

the consideration or decision of this case.

Cite as: 547 U. S. ____ (2006) 1

GINSBURG, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 04–1495

_________________

MICHAEL HARTMAN, FRANK KORMANN, PIERCE

MCINTOSH, NORMAN ROBBINS, AND ROBERT

EDWARDS, PETITIONERS v. WILLIAM G.

MOORE, JR.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

[April 26, 2006]

JUSTICE GINSBURG, with whom JUSTICE BREYER joins,

dissenting.

The Court of Appeals, reviewing the record so far made,

determined that “[t]he evidence of retaliatory motive

[came] close to the proverbial smoking gun.” 388 F. 3d

871, 884 (CADC 2004). The record also indicated that the

postal inspectors engaged in “unusual prodding,” strenu

ously urging a reluctant U. S. Attorney’s Office to press

charges against Moore. Ibid. Following Circuit precedent,

the Court of Appeals held that “once a plaintiff shows

[conduct sheltered by the First Amendment] to have been

a motivating factor in the decision to press charges,” the

burden shifts to the defending officials to show that the

case would have been pursued anyway. Id., at 878.

Recognizing that this case is now directed against the

instigating postal inspectors alone, not the prosecutor, I

would not assign to the plaintiff the burden of pleading

and proving the absence of probable cause for the prosecu

tion. Instead, in agreement with the Court of Appeals, I

would assign to the postal inspectors who urged the prose

cution the burden of showing that, had there been no

retaliatory motive and importuning, the U. S. Attorney’s

Office nonetheless would have pursued the case.

2 HARTMAN v. MOORE

GINSBURG, J., dissenting

Under the Court’s proof burden allocation, which sad

dles plaintiff–the alleged victim–with the burden to

plead and prove lack of probable cause, only entirely “base

less prosecutions” would be checked. Id., at 879. So long

as the retaliators present evidence barely sufficient to

establish probable cause and persuade a prosecutor to act

on their thin information, they could accomplish their

mission cost free. Their victim, on the other hand, would

incur not only the costs entailed in mounting a defense, he

likely would sustain a reputational loss as well, and nei

ther loss would be compensable under federal law. Under

the D. C. Circuit’s more speech-protective formulation, “[a]

Bivens [v. Six Unknown Fed. Narcotics Agents, 403 U. S.

388 (1971),] recovery remains possible . . . in those rare

cases where strong motive evidence combines with weak

probable cause to support a finding that the [investigation

and ensuing] prosecution would not have occurred but for

the [defending] officials’ retaliatory animus.” Id., at 881.

That such situations “are likely to be rare,” it seems to me,

does not warrant “structuring a cause of action,” ante, at

14, that precludes relief when they do arise.

For reasons fully developed in the D. C. Circuit’s opin

ion, I conclude that, in full accord with this Court’s deci

sion in Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274,

287 (1977), the Court of Appeals’ decision strikes the

proper balance. I would, therefore, affirm the Circuit’s

judgment.