Moore, William v. Hartman, Michael

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

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 15, 2004 Decided November 9, 2004

No. 03-5241

WILLIAM G. MOORE, JR.,

APPELLEE

v.

MICHAEL HARTMAN, ET AL.,

APPELLANTS

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.

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

2

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 for the Court filed by Circuit Judge TATEL.

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 (1982). In this case,

appellee William G. Moore, Jr., claims that government offi-

cials—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 violat-

ed this standard, we reject the inspectors’ immunity defense

and affirm 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 devel-

opment 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

3

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 v 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 v 4—announced in late 1983 that

the USPS would stick with single-line optical character read-

ers (‘‘SLOCRs’’) instead of using REI’s product.

Zip v 4, however, was politically controversial. ‘‘Bureau-

cratic 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 v 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 v 4 in July 1981 and

barred the USPS from making the nine-digit codes mandato-

ry.

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 v 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 legisla-

tion (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

4

rather than MLOCRs exceeded one million dollars a day.

The OTA report attributed the procurement of SLOCRs to

unrealistic expectations for Zip v 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 Gover-

nors 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 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 ex-

change 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

5

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 ob-

taining 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 (1971), against

the prosecutor and six postal inspectors (one of whom is

now deceased). Shortly thereafter, the Moores filed a sec-

ond complaint, also in the Northern District of Texas, seek-

ing 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 immuni-

ty, 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 Colum-

bia, 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 prose-

cution 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

6

as to one FTCA claim not relevant here. 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 prosecu-

tion. In the alternative, the inspectors argued that the

record contained insufficient evidence of retaliatory motive.

The district court denied the inspectors’ motion in the follow-

ing one-paragraph order:

Upon consideration of the motion of defendants,

United States and Michael Hartman, et al., for sum-

mary judgment and the response thereto, the Mo-

tion for Summary Judgment is DENIED. There

are material facts in dispute. The most significant

are the facts surrounding the presentation of evi-

dence to the grand jury and the disclosure of grand

jury testimony as to a key prosecution witness.

The inspectors now appeal, arguing, as they did in the district

court, that they enjoy qualified immunity because they had

probable cause to pursue the criminal charges against Moore.

II.

Before addressing the merits of the inspectors’ qualified

immunity claim, we must consider whether we have jurisdic-

tion over this interlocutory appeal. Though 28 U.S.C. § 1291

permits us to hear appeals only from ‘‘final decisions’’ of the

district court, denial of a claim of qualified immunity falls

within the ‘‘small class’’ of collateral orders subject to immedi-

ate appeal under that statute despite the absence of a final

judgment. See Mitchell v. Forsyth, 472 U.S. 511, 524-25, 530

(1985). The reason for this is simple: appeal after trial

cannot remedy an erroneous denial of qualified immunity,

since by then the defendant will already have suffered the

burdens of litigation the immunity is intended to prevent.

See id. at 525-30; Int’l Action Ctr. v. United States, 365 F.3d

20, 23 (D.C. Cir. 2004). As Moore observes, however, the

collateral order doctrine applies only ‘‘to the extent [the

7

denial of qualified immunity] turns on an issue of law.’’

Mitchell, 472 U.S. at 530. Pointing out that many facts in the

record are disputed, Moore argues that the inspectors cannot

establish a ‘‘purely legal’’ issue subject to interlocutory ap-

peal, id. at 530, unless they concede the plaintiff’s view of the

facts—something Moore says the inspectors refuse to do.

Accordingly, Moore argues, we lack jurisdiction to entertain

the inspectors’ appeal.

We have little trouble rejecting Moore’s argument. Al-

though in one interlocutory case where we found jurisdiction,

we did describe the facts as ‘‘effectively conceded,’’ see Farm-

er v. Moritsugu, 163 F.3d 610, 614 (D.C. Cir. 1998), we never

suggested that such a concession was required for jurisdic-

tional purposes. In fact, such a requirement would conflict

with Behrens v. Pelletier, 516 U.S. 299 (1996), which held that

denial of a claim of qualified immunity remains an appealable

collateral order even if the underlying facts are disputed—

indeed, even if, as in this case, the district court denied the

motion for summary judgment due to the presence of materi-

al issues of fact. See id. at 312-13. While noting in reliance

on Johnson v. Jones, 515 U.S. 304 (1995), that ‘‘determina-

tions of evidentiary sufficiency at summary judgment are not

immediately appealable merely because they happen to arise

in a qualified-immunity case,’’ Behrens explained that the

solution to a disputed record on qualified immunity is the

same as in any other summary judgment case: the court

determines ‘‘what facts the district court, in the light most

favorable to the nonmoving party, likely assumed,’’ perform-

ing ‘‘a cumbersome review of the record’’ if necessary. Beh-

rens, 516 U.S. at 313 (quoting Johnson, 515 U.S. at 319).

Once the facts are established under that standard, an immu-

nity claim like the inspectors’ raises ‘‘the purely legal ques-

tion of whether or not an official’s actions violate clearly

established law,’’ no less than in an appeal based on agreed

facts. See Meredith v. Fed. Mine Safety & Health Review

Comm’n, 177 F.3d 1042, 1048–49 (D.C. Cir. 1999). Such legal

questions—which sharply divide the parties in this case—fall

squarely within the collateral order doctrine as expounded in

Mitchell v. Forsyth.

8

Though neither party raises the issue, we also note that our

statement in Moore I that ‘‘Moore’s retaliatory prosecution

claim TTT does allege the violation of clearly established law,’’

65 F.3d at 196, neither deprives us of jurisdiction nor controls

our resolution of the issues before us. The denial of qualified

immunity at summary judgment is a ‘‘final decision’’ subject

to immediate appeal even if the defendant previously appeal-

ed a denial of the same claim on a motion to dismiss. See

Behrens, 516 U.S. at 309-11. Thus, although the inspectors

conceded in the appeal from their motion to dismiss that

Moore’s claim stated a violation of clearly established law,

they are free to assert qualified immunity now: the ‘‘legally

relevant factors bearing upon the [qualified immunity] ques-

tion will be different on summary judgment than on an earlier

motion to dismiss,’’ because the court now conducts the

immunity inquiry based on ‘‘the evidence before it,’’ rather

than the pleadings. Id. at 309. Furthermore, as we ex-

plained in Moore II, our opinion in Moore I ‘‘said nothing

about the elements of [a retaliatory prosecution claim], or

whether Moore could succeed on his complaint.’’ Moore II,

213 F.3d at 709. Accordingly, whether Moore’s cause of

action requires lack of probable cause remains a live issue.

III.

As the Supreme Court has recognized, although damages

suits like Moore’s ‘‘may offer the only realistic avenue for

vindication of constitutional guarantees,’’ such suits also carry

substantial social costs, including the expense of litigation, the

diversion of official energy, and the risk of deterring legiti-

mate official action. See Harlow, 457 U.S. at 814. Striking

‘‘a balance between the evils inevitable in any available alter-

native,’’ id. at 813, qualified immunity protects ‘‘government

officials performing discretionary functions TTT from liability

for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which

a reasonable person would have known,’’ id. at 818. Underly-

ing this doctrine is the basic principle of fair notice: officials

may be held liable if ‘‘[t]he contours of the right [are]

sufficiently clear that a reasonable official would understand

9

that what he is doing violates that right,’’ Anderson v. Creigh-

ton, 483 U.S. 635, 640 (1987); otherwise, the unfairness of

holding officials responsible on grounds they could not have

anticipated trumps the individual’s interest in vindicating

transgressed rights. See id. at 641; Crawford-El v. Britton,

523 U.S. 574, 590-91 (1998). To ensure that shielding public

officials from unclear law does not freeze the law in place,

however, courts facing qualified immunity claims ordinarily

engage in a two-step inquiry, considering first what the law

is, and only then whether that law was clearly established.

See Wilson v. Layne, 526 U.S. 603, 609 (1999). Were the

procedure otherwise, constitutional avoidance might lead

courts to rest on findings of uncertainty without first clarify-

ing the law for future cases—a result contrary to the interest

of both government officials and individuals claiming that

such officials violated their constitutional rights. See id.;

County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998).

Because the qualified immunity inquiry focuses on whether

the officials could have known ‘‘what [they were] doing’’ was

unlawful, Anderson, 483 U.S. at 640, defining the right ‘‘at the

appropriate level of specificity’’ is critical. Wilson, 526 U.S.

at 615; see also Butera v. District of Columbia, 235 F.3d 637,

646 (D.C. Cir. 2001). While the right need not have arisen in

identical or even ‘‘fundamentally’’ or ‘‘materially similar’’ cir-

cumstances, see Hope v. Pelzer, 536 U.S. 730, 739, 741 (2002),

the right can be considered clearly established only if the

unlawfulness was ‘‘apparent’’ in light of pre-existing law, see

Anderson, 483 U.S. at 640. The ‘‘salient question,’’ then, is

‘‘whether the state of the law [at the relevant time] gave [the

officials] fair warning that their alleged treatment of [the

plaintiff] was unconstitutional.’’ Hope, 536 U.S. at 741.

In this case, Moore seeks to vindicate his right to be free

from prosecution undertaken in retaliation for First Amend-

ment activity. The inspectors, though conceding that right

generally exists, see Crawford-El, 523 U.S. at 592 (describing

the ‘‘general rule’’ that ‘‘the First Amendment bars retaliation

for protected speech’’ as one that ‘‘has long been clearly

established’’), urge us to define the claim more specifically.

10

Insisting the record shows that they acted with probable

cause, the inspectors argue that what they were doing could

violate a clearly established right only if the First Amend-

ment prohibits retaliatory prosecution even when probable

cause exists. Based on cases from other jurisdictions requir-

ing lack of probable cause as an element of a retaliatory

prosecution claim, the inspectors argue that no such right

exists, much less a clearly established one. Moore disputes

both points in the inspectors’ syllogism: this circuit, he

insists, clearly permitted liability despite probable cause at

the time of his indictment, and in any event the inspectors

acted without sufficient grounds for suspicion.

As instructed by Wilson, we consider this debate in two

stages, asking first what the law is, and second whether that

law was clearly established at the time of Moore’s indictment.

Because, as we shall explain, we agree with Moore that the

inspectors may be liable even if they had probable cause, we

have no need to determine whether, as the inspectors insist,

they actually had probable cause to pursue Moore’s indict-

ment.

Were Moore’s Rights Violated?

The question presented under the first element of the

qualified immunity test—does the retaliatory prosecution

cause of action require a lack of probable cause?—has already

been answered by this circuit. In Haynesworth v. Miller, 820

F.2d 1245 (D.C. Cir. 1987), we described the ‘‘essential ele-

ments of a retaliatory-prosecution claim’’ as follows:

The Court should consider whether the plaintiffs

have shown, first, that the conduct allegedly retaliat-

ed against or sought to be deterred was constitution-

ally protected, and, second, that the State’s bringing

of the criminal prosecution was motivated at least in

part by a purpose to retaliate for or to deter that

conduct. If the Court concludes that the plaintiffs

have successfully discharged their burden of proof

on both of these issues, it should then consider a

third: whether the State has shown by a preponder-

11

ance of the evidence that it would have reached the

same decision as to whether to prosecute even had

the impermissible purpose not been considered.

Id. at 1257 n.93 (quoting Wilson v. Thompson, 593 F.2d 1375,

1387 (5th Cir. 1979) (footnote omitted)). Nowhere does this

statement suggest that lack of probable cause is an element

of the claim, nor does its silence imply such a requirement.

The standard Haynesworth articulated is this: once a plain-

tiff shows protected conduct to have been a motivating factor

in the decision to press charges, the burden shifts to the

officials to show that they would have pursued the case

anyway. Given that probable cause usually represents only

one factor among many in the decision to prosecute—some

others being the strength of the evidence, the resources

required for the prosecution, the relation to enforcement

priorities, and the defendant’s culpability—there is no reason

to expect that the mere existence of probable cause will

suffice under Haynesworth to protect government officials

from liability.

The inspectors insist that this circuit has never ‘‘squarely

addressed’’ the issue they raise, leaving us free to require

lack of probable cause. (Appellant’s Br. at 25.) Again read-

ing Haynesworth, we disagree. The relevant passage reads

as follows:

We share the conviction TTT that retaliatory prose-

cution unconstitutionally impinges on the right of

access to the courts guaranteed by the First Amend-

ment. Haynesworth alleged that he was charged

with disorderly conduct solely because he refused to

release his civil claims against the arresting officers.

That averment, we think, partakes from the circum-

stances enough substance to entitle him to proceed

directly under the First Amendment for damages.

Haynesworth, 820 F.2d at 1257 (footnotes omitted). Because

this conclusion—that plaintiff had stated a claim for retaliato-

ry prosecution—required some vision of what the claim en-

tailed, Haynesworth’s articulation of the elements was central

to its holding. True enough, plaintiff described his prosecu-

12

tion as ‘‘unmerited,’’ id. at 1255, and the opinion said the

charges arose ‘‘solely because’’ of protected activity, id. at

1257 (emphasis added), implying, perhaps, that plaintiff was

prosecuted without probable cause. As we noted above,

however, Haynesworth’s description of the cause of action left

little doubt that probable cause would not automatically im-

munize a retaliatory prosecution. Because that description of

the tort was part of Haynesworth’s holding, we lack authority

to disregard it.

Haynesworth, moreover, is not the only case in which we

have suggested liability may arise regardless of probable

cause. In Martin v. D.C. Metropolitan Police Department,

812 F.2d 1425 (D.C. Cir. 1987), overruled on other grounds by

Crawford–El v. Britton, 93 F.3d 813 (D.C. Cir. 1996) (en

banc), rev’d, 523 U.S. 574 (1998), in which plaintiff alleged

that police pressed charges to deter the vindication of civil

rights, we noted ‘‘the at least arguable existence of probable

cause,’’ yet went on to consider the sufficiency of the motive

allegations. Id. at 1434. That disposition implied that a

showing of probable cause, by itself, is insufficient to preclude

liability. Id. at 1434. As the inspectors argue, Martin could

be read to have simply assumed the validity of the claim so as

to reach the motive issue, but the case at least reinforces the

view that probable cause is not conclusive. Demonstrating

the continuing vitality of Haynesworth, moreover, our two

prior opinions in this case relied on that decision in discussing

retaliatory prosecution. See Moore I, 65 F.3d at 196 & n.12;

Moore II, 213 F.3d at 709.

As the inspectors point out, several other circuits require

lack of probable cause in retaliatory prosecution actions. See,

e.g., Mozzochi v. Borden, 959 F.2d 1174, 1180 (2d Cir. 1992);

Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 796-97 (3d

Cir. 2000); Keenan v. Tejeda, 290 F.3d 252, 260 (5th Cir.

2002); Smithson v. Aldrich, 235 F.3d 1058, 1063 (8th Cir.

2000); Redd v. City of Enterprise, 140 F.3d 1378, 1383-84

(11th Cir. 1998). These cases, however, are not the law of

this circuit—Haynesworth is. Besides, two other circuits

agree with Haynesworth. See Greene v. Barber, 310 F.3d

889, 897-98 (6th Cir. 2002); Poole v. County of Otero, 271

13

F.3d 955, 961 (10th Cir. 2001). Our approach, moreover,

comports with the Supreme Court’s framework in Mt.

Healthy City School District Board of Education v. Doyle,

429 U.S. 274 (1977). In that case, which involved an unten-

ured public school teacher’s claim that the school board fired

him because of his First Amendment activity, the Court

explained that if the teacher could show his constitutionally

protected conduct to have been a ‘‘motivating factor’’ in the

firing, the burden would shift to the board to establish that ‘‘it

would have reached the same decision TTT even in the ab-

sence of the protected conduct.’’ Id. at 287. While the

criminal context, of course, involves considerations of prosecu-

torial discretion absent in a school employment decision, Mt.

Healthy provides considerable support for Haynesworth.

Although Haynesworth’s binding effect is enough to end

the first part of our qualified immunity inquiry, the inspectors

have raised serious objections to our approach, so we think it

useful to flesh out the reasons why the existence of probable

cause should not necessarily preclude liability. To begin

with, probable cause, requiring no more than ‘‘information

sufficient to warrant a prudent man in believing the suspect

has committed or is committing an offense,’’ United States v.

Kayode, 254 F.3d 204, 209 (D.C. Cir. 2001) (internal quota-

tions and alterations omitted), is designed for the ordinary

arrest or prosecution where courts may presume that govern-

ment officials exercised their discretion in good faith, so long

as their actions were not obviously unfounded. Yet when

plaintiffs demonstrate hostility to free speech to have been a

motivating factor in the decision to prosecute—as in a prima

facie case under Haynesworth—courts may no longer pre-

sume that appropriate considerations guided the govern-

ment’s decision-making. In such circumstances, were courts

to demand no more than a showing of probable cause, as the

inspectors urge, law enforcement officers could freely bring

marginal cases against advocates of disfavored views, even if

the officers’ only reason for doing so were hostility to those

views. The inspectors’ approach, in other words, interprets

the First Amendment to prevent only baseless prosecutions,

i.e., prosecutions lacking probable cause. As the inspectors

14

see it, constitutional free speech protections say nothing

about prosecutions brought only because the defendant is,

say, a peace activist, a Klan member, a Democrat, or a

Republican.

In our view, the First Amendment prohibits such targeted

prosecutions, just as it prohibits legislation aimed at punish-

ing free speech. To be sure, prosecutorial discretion is a

‘‘core executive constitutional function,’’ United States v.

Armstrong, 517 U.S. 456, 465 (1996), but as the Supreme

Court has made clear, ‘‘the decision to prosecute may not be

deliberately based upon an unjustifiable standard such as

race, religion, or other arbitrary classification, including the

exercise of protected statutory and constitutional rights.’’

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

quotations and citations omitted). Respectful of executive

discretion, Haynesworth’s framework allows the government

to proceed with prosecutions that, though motivated in part

by hostility to First Amendment activity, can be justified on

legitimate grounds. When hostility to speech represents a

but-for cause of the prosecution, however, the charges are

‘‘deliberately based upon an unjustifiable standard.’’ Id.

We also disagree with the inspectors that analogous First

Amendment Bivens claims call for imposing an ‘‘objective’’

threshold requirement relating to the defendant’s culpability.

Pointing out that ‘‘courts in other contexts have interposed

rules requiring some objective showing before scrutinizing a

criminal prosecution for bad faith or other ill motive,’’ the

inspectors argue that lack of probable cause should be re-

quired in the retaliatory prosecution context because it af-

fords ‘‘a ready-made (but not insurmountable) objective crite-

rion as a first step in assessing prosecutorial discretion.’’

(Appellant’s Br. at 29-30.) Yet the two defenses the inspec-

tors cite in support of their theory—selective prosecution and

vindictive prosecution—are hardly irreconcilable with

Haynesworth. It is true that a selective prosecution claim

requires proof not only that prosecutors acted with bad

intent, but also that ‘‘similarly situated individuals [outside

the protected category] were not prosecuted.’’ Armstrong,

517 U.S. at 465. But once that showing has been made, the

accused has a defense to the charges. See United States v.

15

Mangieri, 694 F.2d 1270, 1273 (D.C. Cir. 1982); United

States v. Steele, 461 F.2d 1148, 1151-52 (9th Cir. 1972). Thus,

contrary to the inspectors’ theory, selective prosecution doc-

trine supports our view that constraints on prosecutorial

motive may at times override the interest in punishing objec-

tively culpable conduct.

As for vindictive prosecution, that defense entails a frame-

work much like the one Haynesworth adopted for retaliatory

prosecution: if evidence indicates a ‘‘reasonable likelihood’’

that the government acted ‘‘to punish a defendant for exercis-

ing his legal rights,’’ a presumption of vindictiveness arises,

which the government may rebut with ‘‘objective information

in the record justifying the increased sentence or charges.’’

United States v. Gary, 291 F.3d 30, 34 (D.C. Cir. 2002)

(quoting Maddox v. Elzie, 238 F.3d 437, 446 (D.C. Cir. 2001)).

Though the government’s burden under this standard may be

lighter than under Haynesworth, in both cases prima facie

evidence of bad motive triggers an obligation on the govern-

ment’s part to show that permissible considerations supported

its action. The standard the inspectors propose, in contrast,

requires plaintiffs—the alleged victims—to establish lack of

justification in the first instance.

Our reluctance to impose objective limitations finds support

in the logic of Crawford-El. In that case, the Supreme Court

held that while qualified immunity protects officers who com-

ply with an objectively reasonable view of the law, it affords

no protection against claims under clearly established law

that entail the subjective element of improper intent. See

Crawford-El, 523 U.S. at 593-94. Consistent with this rea-

soning, we see no reason why compliance with the objective

probable cause standard should bar scrutiny of subjective

motivations here. Other constraints identified in Crawford-

El—procedural mechanisms for limiting discovery and facili-

tating summary judgment, as well as the opportunity to show

the prosecution would have happened anyway, id. at 592-93,

597-601—may screen out baseless motive claims without pre-

cluding recovery in cases where officers pursue retaliatory

charges they would not have undertaken but for their uncon-

stitutional animus.

16

In sum, the law of this circuit, as expressed in Haynes-

worth, affords damages liability for prosecutions that would

not have occurred without retaliatory motive, even if the

officers involved acted on the basis of probable cause. This

theory of liability, we hasten to stress, is limited. 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 Bi-

vens 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 officials’ retaliatory animus. In

such circumstances, government officers cannot prevail under

Haynesworth because they cannot establish that legitimate

considerations supported their action.

Moore’s case appears to be an example of this rare circum-

stance, at least when we view the evidence in the light most

favorable to Moore, as we must at summary judgment, see,

e.g., Beckett v. Airline Pilots Ass’n, 59 F.3d 1276, 1278 (D.C.

Cir. 1995). Looking at the record through that lens, we

detect not only strong evidence of retaliatory motive, but also

quite weak indicators of probable cause.

Beginning with motive, we think the record permits, at the

least, a reasonable inference that the inspectors had Moore’s

lobbying campaign in mind as they pursued his indictment.

The inspectors referred explicitly to Moore’s political activi-

ties in two reports summarizing the evidence in the REI

investigation. The first, titled ‘‘Arguments for Indicting the

Corporation,’’ lists the following as the first of nine ‘‘bas[es]’’

for indicting REI:

Independent of Voss/GAI actions, the corporation

and its PAC funded a media and political campaign

to discredit USPS management and cause financial

harm to USPS, for example:

a. staged questions and testimony before Con-

gress

b. Frost amendment to freeze USPS appropria-

tions bill.

17

Similarly, a ‘‘Details of Offense’’ memorandum submitted to

the U.S. Attorney’s Office refers to REI’s lobbying activities

as evidence that Moore and Reedy (the REI vice president)

had ‘‘intent to defraud the USPS’’:

Moore’s, Reedy’s and REI’s intent to defraud the

USPS is evident in the following events and transac-

tions that related to Voss’ official influence but were

independently initiated by Moore and Reedy.

1 On or about July 25, 1985, at Moore’s and

Reedy’s suggestion and with their substantial

input relative to its drafting, Congressman

Frost proposed an amendment to a USPS

appropriate [sic] bill that in effect would

freeze USPS revenue until MLOCRs were

purchased from REI.

TTTT

1 During the period August 1985 to April 1986,

REI continued to undermine the competitive

testing program [an aspect of OCR procure-

ment] via the media and Congress.

Read in Moore’s favor, these documents suggest that the

inspectors regarded Moore’s speech and lobbying—activities

clearly subject to First Amendment protection—as grounds

for prosecution, even though these activities were ‘‘indepen-

dent of Voss/GAI actions’’ (presumably a reference to the

alleged conspiracy). Consistent with this view of the inspec-

tors’ motives, subpoenas in the REI investigation targeted

speech and lobbying activity, seeking, among other things,

‘‘articles placed with trade publications and reporters,’’ ‘‘inter-

views with journalists and reporters,’’ ‘‘meetings with United

States Congressmen,’’ and ‘‘consulting services or meetings

with or regarding the REI Political Action Committee.’’

Reinforcing the inference that the prosecution would not

have happened without retaliatory motive, the evidence sup-

porting the government’s case—again, viewed in the light

most favorable to Moore—appears quite weak. To begin

with, the strongest evidence connecting REI to the conspira-

18

cy related to Moore only indirectly. Though Voss, the cor-

rupt USPS governor, called Moore at one point to ask ‘‘why

hadn’t it [a contract with GAI] been done,’’ Voss gave his

initial referral not to Moore, but to Reedy. Reedy may have

known the GAI contract was fishy; at the least, information

from Gnau about conversations he had with Reedy gave the

inspectors reason to suspect as much. See REI, 725 F. Supp.

at 593–94. In addition, Reedy, perhaps revealing a guilty

conscience, initially lied to the inspectors about the source of

the GAI referral. Id. at 595–96. Yet no record evidence

indicates that Reedy shared with Moore whatever misgivings

he may have had about the contract.

Attempting to connect Moore to the conspiracy, the inspec-

tors point to several scribbles about Voss and GAI in a

notebook Moore labeled ‘‘Postal.’’ One entry, apparently

dating from December 18, 1984, reads as follows:

Get John Knau [sic] involved — have broad

scale assoc w/ John — get together

——————

* Call Peter Voss

——————

‘‘The business to be had here is

substantial’’

Another entry dated April 29, 1985 again mentions Gnau and

Voss, while also referring to Zip v 4; to John McKean, the

Chairman of the USPS Board of Governors; to Electrocom

Automation, Inc., a competing producer of scanning technolo-

gy; and to James Jellison, a top USPS official:

USPS — prudent to do contingency planning

1 ZIP v 4 not going well

1 Consultant — wired (Peter Voss)

1 Inside vs outside control

1 100 systems — $150m-$250m

1 McKean — West Point/airborne/Gonzaga HS

19

1 Upgrade at Electrocom

1 Jellison

Elsewhere, the notes appear to refer to information from a

‘‘closed session’’ of the USPS Board of Governors, and an

entry dating from January 27, 1987—more than six months

after Voss’s guilty plea—suggests that Moore gave advice to

employees in preparation for Postal Inspection Service inter-

views:

Critical Incident 1 Final ‘‘fishing trip’’

1 Lawyer in DC — late for hearing —

Martin Luther King — no copy of transcript

(plea arrangement) — date of plea

— conversation between judge v

U.S. Attorney

————————————————————————

1 lot of homework

1 drive a wedge between people (intimidate)

1 answer ‘‘I don’t know, I really can’t remember’’

1 excitable

1 all kinds of scenarios

1 ask same questions over and over

1 don’t show him how smart you are

1 don’t relax

1 long interrogation (tough questions at end)

1 possible subpoena

Note [illegible] B/S list based (1/27) on

high number of charges

The inspectors interpret these notes to show that Moore (1)

formed a ‘‘broad scale’’ criminal association with Gnau and

Voss, (2) sought ‘‘inside control’’ of the Board of Governors

through a ‘‘wired’’ consultant (i.e., Gnau), and (3) obstructed

the Postal Inspection Service investigation.

20

Reading the notes in Moore’s favor, however, we think it at

least as plausible that the notes reflect perfectly innocent

business considerations, such as Moore’s interest in forming a

legitimate relationship with a well-connected lobbyist and

protecting his employees from potentially damaging litigation.

To be sure, as the inspectors point out, Moore’s interview

advice includes no instruction to tell the truth, while the

instruction to answer ‘‘I don’t know, I really can’t remember’’

could suggest a coverup. But Moore points to evidence

suggesting he did encourage his employees to tell the truth,

and in light of that evidence, Moore’s ‘‘I don’t know’’ state-

ment could mean nothing more than that he cautioned em-

ployees to avoid guesswork and speculation—guidance that,

like Moore’s other notes, reflects standard deposition advice.

Next, the inspectors think it suspicious that Moore’s note-

book was missing thirty-six of its eighty pages, and that REI

failed to locate certain subpoenaed phone records from late

1984 and early 1985—the ‘‘critical period,’’ as the inspectors

see it, for the formation of the conspiracy. Because Marcus

told the inspectors he had heard from Spartin that ‘‘Reedy,

Moore, Gnau and Voss TTT met and developed a story to

cover up their involvement,’’ the inspectors suspected that

REI officials removed the pages and records to cover their

tracks. Yet phone records were also missing from early

1984—long before the Voss referral—while REI produced

other evidence (including at least one phone message) reveal-

ing contacts between Moore and Voss. As for the notebook,

Moore explained during his deposition that he often tore out

sheets for his secretary to type. Given the posture of this

case, we must resolve these ambiguities in Moore’s favor,

leading us to conclude that the missing notes and records fail

to establish a coverup.

Other evidence points to Moore’s innocence. Though lack-

ing any evident reason to protect Moore, not one of the

21

conspiracy’s admitted members fingered him. Spartin, for

example, failed to corroborate Marcus’s assertion that Moore

and Reedy agreed to a coverup. In fact, despite extraordi-

nary pressure—at one point as many as ten inspectors sur-

rounded Spartin while an Assistant United States Attorney

tore up his immunity agreement—Spartin never indicated

that Moore knew of the conspiracy. Instead, Spartin stated

that although he ‘‘[didn’t] give a hoot and hell about Bill

Moore,’’ he would not ‘‘make up a story’’ to incriminate

Moore. Asked whether ‘‘anyone in REI knew Peter Voss

was involved in this scheme TTT or was being paid,’’ Spartin

offered only that other witness statements the inspectors had

shown him suggested Moore’s guilt: ‘‘Let me answer you this

way,’’ Spartin said. ‘‘Being paid, no sir, I don’t. I have no

knowledge of that at all. Peter Voss being part of the deal,

no knowledge. But, you know I read that goddamn testimo-

ny and I’m not a lawyer but Jesus, there’s enough there to

seem to me to hang REI from the yardarm.’’ Voss even told

the inspectors there was ‘‘no way Moore knew’’ of anything

improper.

Recognizing the deficiencies in the inspectors’ evidence, the

U.S. Attorney’s Office hesitated to indict—even though the

inspectors urged them to do so. ‘‘The facts underlying this

[proposed] indictment are complicated, and the evidence is

entirely circumstantial,’’ the Chief and Deputy Chief of Spe-

cial Prosecutions wrote in a memo to the U.S. Attorney. ‘‘If

this matter goes to trial it will be a very difficult case and

consume significant resources.’’ While concluding—incorrect-

ly, as it turned out—that ‘‘there is enough evidence to get by

an MJOA [motion for judgment of acquittal],’’ the memo

described the chances of convicting Moore, Reedy, and REI

as ‘‘questionable.’’ As to Moore specifically, the two Assis-

tant United States Attorneys observed:

[N]one of the evidence shows direct knowledge by

Moore of the payments to Voss through GAI. Even

22

when the evidence is considered in light of Moore’s

close association with Reedy—from which one can

infer that Moore knew of at least some of Reedy’s

conversations with Gnau—it proves no more than

that Moore probably knew of the payments to Voss.

True enough, Joseph Valder, the AUSA handling the investi-

gation, disagreed with the memo, stating in a response that

‘‘hundreds, if not thousands, of pieces of direct evidence TTT

show that the defendants are guilty beyond a reasonable

doubt.’’ Nevertheless, the opinion of the Chief and Deputy

Chief of Special Prosecutions—two experienced prosecutors—

that the evidence was ‘‘questionable’’ adds weight to Moore’s

assertion that unbiased officials would never have pressed

charges against him.

The record also suggests that unusual prodding from the

Postal Inspection Service contributed to the eventual decision

to indict—an inference that could, again, support Moore’s

theory of retaliatory motive. The Chief Postal Inspector,

C.R. Clauson, twice wrote to the U.S. Attorney, Jay Stephens,

urging him to press charges against Moore, Reedy, and REI.

In the second letter, which followed the AUSAs’ memoran-

dum, Clauson wrote, ‘‘Frankly, Jay, I am disappointed by

your office’s failure to act on this matter and the series of

broken promises from your staff (review committee) relative

to the date and nature of their recommendation.’’ Both

Clauson and another inspector (one of the defendants in this

case) said in their depositions that they were unable to recall

the Postal Inspection Service ever sending a similar letter.

Moreover, some record evidence could lead a reasonable

trier of fact to conclude that when the U.S. Attorney’s Office

finally decided to indict, the inspectors behaved before the

grand jury as if their case needed bolstering. For example,

when Robert Bray, an REI Vice President, wanted to explain

in his grand jury statement that to his knowledge Moore and

Reedy knew nothing about the payoffs, Valder and the in-

spectors refused to let him say any such thing, despite

23

protracted negotiations with Bray’s lawyer. Valder apparent-

ly circled portions of Bray’s draft statement and wrote ‘‘don’t

reveal.’’ The record also suggests that the inspectors and

Valder showed the prepared grand jury statements to Spartin

during his polygraph examination, and that they shared inves-

tigative materials—allegedly including grand jury evidence—

with Bolger’s ousted successor as PMG, Paul Carlin.

Considering all this evidence together and interpreting it in

Moore’s favor, we cannot conclude that the postal inspectors

would have prosecuted Moore had they not been irked by his

aggressive lobbying against Zip v 4. The evidence of retal-

iatory motive comes close to the proverbial smoking gun: in

addition to subpoenas targeting expressive activity, Moore

has produced not one, but two Postal Inspection Service

documents specifically referring to his lobbying as a rationale

for prosecution. At the same time, evidence of guilt seems

quite weak: not only did none of the admitted conspirators

implicate Moore, but even the U.S. Attorney’s Office conclud-

ed that, at best, Moore ‘‘probably’’ knew about the charged

conspiracies, and even that conclusion rested on the assump-

tion that Reedy likely shared with Moore his misgivings about

Gnau and Voss—an assumption the record fails to substanti-

ate. Moreover, the U.S. Attorney’s Office warned that the

case would be ‘‘complicated’’ and ‘‘consume significant re-

sources’’—considerations that, under normal circumstances,

might weigh against prosecuting a marginal case. Applying

the Haynesworth test, we believe this combination of fac-

tors—complexity and expense plus strong indications of retal-

iation and weak evidence of probable cause—suggests not

only that hostility to free expression was at least a motivating

factor in Moore’s prosecution, but also that the inspectors

may be unable to rebut that inference. Accordingly, Moore

has alleged the violation of a constitutional right, precluding

summary judgment under the first element of the qualified

immunity test.

Was the Law Clearly Established?

As to the qualified immunity test’s second element,

Haynesworth again stands as the key authority. Decided in

24

1987, a year before Moore’s indictment, Haynesworth clearly

stated the elements of retaliatory prosecution, leaving no

doubt that government officials could be liable for pressing

charges they would not have pursued without bad motive.

Our conclusion, then, that the inspectors’ conduct was action-

able under Haynesworth constrains us to hold that Moore has

alleged the violation of a clearly established right.

The inspectors’ argument to the contrary misapprehends

the standard for clear law. True, Haynesworth stated the

elements of retaliatory prosecution ‘‘without analysis in a

footnote in an opinion generally addressing other issues.’’

(Reply Br. at 12.) But as we noted earlier, Haynesworth’s

description of the elements was part of its holding, and hence

binding precedent, even if it appeared in a footnote. In any

event, qualified immunity requires only that the law be clear,

not that it be stated prominently or elaborately. Here,

Haynesworth established the elements of retaliatory prosecu-

tion, making plain that what the inspectors were doing—

prosecuting a case they otherwise would have left alone—

violated the First Amendment. See Anderson, 483 U.S. at

640; Butera, 235 F.3d at 646. Neither Haynesworth’s pur-

ported lack of analysis nor its use of a footnote freed the

Postal Service from the obligation to take note of the opinion

and instruct its inspectors accordingly.

Nor did the decisions of other courts give the government

reason to doubt that Haynesworth meant what it said. The

law of other circuits may be relevant to qualified immunity,

but only in the event that no cases of ‘‘controlling authority’’

exist in the jurisdiction where the challenged action occurred.

See Wilson, 526 U.S. at 617. Here, a decision of this court—

Haynesworth—provided guidance on exactly the issue the

inspectors confronted. Moreover, even if cases from other

jurisdictions could somehow infuse Haynesworth with ambi-

guity, they did not do so before 1988, for nearly all decisions

on which the inspectors rely came later. At the time of

Moore’s indictment, only the Third Circuit required lack of

probable cause, see Losch v. Borough of Parkesburg, 736 F.2d

903, 906-09 (3d Cir. 1984), although the Eleventh Circuit had

hinted at such a requirement in Motes v. Myers, 810 F.2d

25

1055, 1060 (11th Cir. 1987); see also Redd v. City of Enter-

prise, 140 F.3d 1378, 1383 (11th Cir. 1998). In contrast, and

also at the time of Moore’s indictment, the Fifth Circuit,

though later embracing the Third Circuit’s view, see Keenan,

290 F.3d at 260, had stated that an enforcement practice

could be unconstitutional ‘‘if those who file such charges upon

probable cause can be presumed to be motivated by a retribu-

tive purpose,’’ Gates v. City of Dallas, 729 F.2d 343, 346 (5th

Cir. 1984); cf. Izen v. Catalina, 382 F.3d 566, 571-72 (5th Cir.

2004) (holding that although ‘‘the government need not have

even reasonable suspicion to undertake an investigation,’’ an

investigation undertaken ‘‘with the substantial motivation of

retaliating’’ against protected speech may violate the First

Amendment). Against this ambiguous background—at best,

two circuits immunizing prosecutions based on probable cause

and one apparently not—Postal Service officials could not

reasonably have read Haynesworth to require lack of proba-

ble cause.

To sum up, because Haynesworth’s framework for Moore’s

claim is incompatible with the probable cause-based standard

the inspectors advocate, we conclude that the Postal Service

had, as the Supreme Court put it in Hope, 536 U.S. at 741,

‘‘fair warning’’ that government officers could be liable under

the circumstances alleged here. Agreeing with the district

court, we therefore reject the inspectors’ claim of qualified

immunity.

IV.

Some fifteen years after the district court dismissed the

indictment and found evidence probative of Moore’s innocence

and thirteen years after Moore filed his first complaint,

Moore’s attorney quipped at oral argument: ‘‘I suppose I’d be

the poster boy that a lawyer has to be crazy to take a Bivens

case because you die before it ends.’’ We trust this opinion

will reassure both sides—Moore and the postal inspectors—

that this case may now be resolved within the lifetime of their

attorneys. With the inspectors’ immunity theory dispatched,

nothing stands in the way of a judgment on the merits;

26

indeed, because the district court found material issues of fact

in the record, the next step, presumably, will be preparation

for trial. We affirm the decision of the district court and

remand the case for further proceedings consistent with this

opinion.

So ordered.