Moore v. Hartman

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 16, 2009 Decided July 7, 2009

No. 08-5370

WILLIAM G. MOORE, JR.,

APPELLANT

v.

MICHAEL HARTMAN, ET AL.,

APPELLEES

Consolidated with 08-5371

Appeals from the United States District Court

for the District of Columbia

(No. 1:92-cv-02288)

Paul Michael Pohl argued the cause for appellant. With

him on the briefs were Bryan D. Kocher, Christian G. Vergonis,

and Joseph M. David.

Richard Montague, Attorney, U.S. Department of

Justice, argued the cause for appellees. With him on the brief

were Michael F. Hertz, Acting Assistant Attorney General,

Jeffrey A. Taylor, U.S. Attorney, and Barbara L. Herwig,

Attorney.

Before: SENTELLE, Chief Judge, HENDERSON and

BROWN, Circuit Judges.

Opinion for the Court filed by Chief Judge SENTELLE.

SENTELLE, Chief Judge: Over twenty years ago,

appellant William Moore was indicted and charged with

participation in an illegal conspiracy. At the close of the

government’s evidence, the trial court dismissed all charges.

After his acquittal, appellant filed this action asserting

retaliatory prosecution claims under Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388

(1971), and malicious prosecution claims under the Federal Tort

Claims Act, 28 U.S.C. §§ 2671 et seq. (FTCA), against the

prosecutor and six postal inspectors (one of whom is now

deceased). Only the appellant’s Bivens and FTCA claims

against the postal inspectors remain. Following a Supreme

Court decision that appellant bears the burden of proving the

absence of probable cause to prevail on his retaliatory

prosecution claim, the postal inspectors moved for summary

judgment on the ground that appellant could not prove the

absence of probable cause. The district court granted the postal

inspectors’ motion, concluding that an indictment is conclusive

evidence of probable cause, and that the appellant failed to

establish a lack of probable cause. Appellant contends on

appeal that the district court erred by holding that an indictment

was conclusive evidence of probable cause and that, under the

proper standard, he overcame the rebuttable presumption of

probable cause established by the indictment. On review, we

hold that the district court erred by holding that an indictment is

conclusive evidence of probable cause in a subsequent

retaliatory or malicious prosecution action. We therefore vacate

the judgment of the district court and remand for further

proceedings.

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I. BACKGROUND

This case has a factual history stemming back over

twenty years to the early 1980s. The voluminous facts in this

case have been set forth in a number of prior opinions both by

this court and the Supreme Court. See Hartman v. Moore

(Moore IV), 547 U.S. 250, 252-56 (2006); Moore v. Hartman

(Moore III), 388 F.3d 871, 873-75 (D.C. Cir. 2004); Moore v.

United States (Moore II), 213 F.3d 705, 707-09 (D.C. Cir.

2000); Moore v. Valder (Moore I), 65 F.3d 189, 191-92 (D.C.

Cir. 1995). The following is a brief recitation of the salient facts

concerning the immediate legal battle in the war that is Moore

v. Hartman.

In 1982, the appellant, William Moore was President and

CEO of Recognition Equipment, Inc. (REI), a company that

specialized in optical scanning technology. Appellees Michael

Hartman et al. were postal inspectors for the United States

Postal Service (USPS). Beginning in the late 1970s, the USPS

had pursued an initiative to add four digits to the current five-

digit zip codes in an effort to enable more efficient automatic

scanning of mail for sorting. This zip+4 initiative would enable

the USPS to use scanners that only needed to scan one line of

text on mail instead of multiple lines of text. Moore’s company,

however, specialized in producing an optical scanner capable of

scanning multiple lines of text. Moore urged the Postmaster

General to consider purchasing REI’s multi-line scanners in the

early 1980s, which would have required the USPS to continue

using a five-digit zip code. Nevertheless, in late 1983, the

Postmaster General announced that the USPS was committed to

using the new zip+4 format.

Many in Congress were upset at the USPS’s stance on

the zip+4 format. Moore and REI began to lobby Congress and

USPS governors on behalf of REI’s multi-line scanners, arguing

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that they were superior products that did not require a wholesale

zip code change. Eventually, Moore’s position gained traction,

with several members of Congress pressing REI’s case with the

USPS Board of Governors. The USPS Board of Governors

finally gave in to the pressure surrounding the USPS’s zip+4

tack, and made a “mid-course correction” to switch the

technology from single line technology to multi-line scanners.

Shortly thereafter, the USPS Postal Inspection Service

uncovered two criminal schemes relating to this design switch

and, at least incidentally, to REI. The first scheme was a

kickback arrangement involving USPS Governor Peter Voss and

a consulting firm, Gnau & Associates, Inc. (GAI), which REI

had hired in connection with its lobbying efforts. Under this

scheme, GAI was paying Voss for referrals, and three GAI

officers (John Gnau, Michael Marcus, and William Spartin)

agreed to share the proceeds of the REI contract with Voss. A

second scheme unrelated to this instant dispute involved Spartin

and REI’s alleged role in attempting to improperly influence the

selection of a new Postmaster General. Voss, Gnau, and Marcus

pleaded guilty to criminal charges for their roles in the two

schemes, while Spartin was given immunity in exchange for his

cooperation.

The postal inspectors then set out to determine whether

anyone at REI had participated in the two uncovered criminal

schemes. Following an investigation, which is the subject of

this dispute, a grand jury returned an indictment against Moore

and REI’s vice president, Robert Reedy, charging them with

conspiracy to defraud the United States, theft, receiving stolen

property, and mail and wire fraud. United States v. Recognition

Equip., Inc., 725 F. Supp. 587 (D.D.C. 1989). REI itself was

also indicted along with Moore and Reedy. The criminal matter

against the defendants proceeded to trial. The trial court granted

Moore’s motion for a judgment of acquittal at the close of the

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government’s case, ruling there was insufficient evidence to

show beyond a reasonable doubt that Moore was even aware of

the conspiracy. Id. at 602.

Having been exonerated, Moore subsequently brought a

civil suit alleging five causes of action against the postal

inspectors who conducted the investigation against him, and the

Assistant United States Attorney who prosecuted the case. The

only remaining claims at this point in the litigation are Moore’s

Bivens claim alleging that the inspectors induced a retaliatory

prosecution against him, and an FTCA claim against the

inspectors alleging malicious prosecution. With respect to

these claims, the postal inspectors moved for summary judgment

on the retaliatory prosecution claim on the theory that they

enjoyed qualified immunity because probable cause supported

Moore’s prosecution. The district court denied that motion. We

affirmed the district court’s decision and rejected the inspectors’

qualified immunity defense finding that, under the law of this

Circuit, government officials were barred from bringing charges

they would not have pursued absent retaliatory motive

regardless of whether they had probable cause to do so. Moore

III, 388 F.3d at 872. The Supreme Court reversed, holding that,

to prevail on his Bivens claim, Moore must prove that the

prosecutor lacked probable cause to bring the charges against

him, as lack of probable cause is an essential element of a

Bivens claim for retaliatory prosecution. Moore IV, 547 U.S. at

265-66.

Under the Supreme Court’s decision, the three elements

of a retaliatory prosecution claim are that: (1) the appellant’s

conduct allegedly retaliated against or sought to be deterred was

constitutionally protected; (2) the government’s bringing of the

criminal prosecution was motivated at least in part by a purpose

to retaliate for or to deter that conduct; and (3) the government

lacked probable cause to bring the criminal prosecution against

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the appellant. See id.; Moore II, 213 F.3d at 709 (describing the

first two elements of a retaliatory prosecution claim). On

remand, the district court granted additional discovery to explore

the bases for probable cause. After discovery was complete, the

inspectors again moved for summary judgment, arguing that

appellant could not show that the government lacked probable

cause to bring the charges against him. Moore asserted that he

had shown a lack of probable cause, and pointed to a number of

facts to support his argument. First, the prosecutor made

statements to grand jury witnesses to “not reveal” certain

portions of their testimony to the grand jury. Second, senior

attorneys in the U.S. Attorney’s Office allegedly stated in

memoranda that the government’s evidence against appellant

was “extremely thin,” and openly questioned whether charges

should be brought against appellant. Third, the postal inspectors

stated in a memorandum after the grand jury investigation that

witnesses could testify that appellant was not aware of the

conspiracy. Finally, the postal inspectors improperly showed

GAI Officer Spartin other witnesses’ grand jury statements,

intimidated Spartin by threatening to prosecute his son and

tearing up his plea agreement, and lobbied the U.S. Attorney’s

Office to prosecute appellant. The district court held that a valid

indictment conclusively determines the existence of probable

cause to bring charges against a suspect. Applying this stringent

standard, the district court concluded that Moore’s proffered

evidence could not negate the conclusive effect of probable

cause given to the grand jury indictment in this case. Under the

district court’s view, the only way for appellant to overcome the

presumption of probable cause was to “allege misconduct or

irregularities in the grand jury proceeding sufficient to call into

question the validity of the indictment.” Because Moore failed

to present any evidence that caused the court to question the

validity of the indictment, the district court granted the

inspectors’ summary judgment motions as to both the retaliatory

and malicious prosecution claims. Moore appealed.

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On appeal, Moore argues that the district court erred in

deciding that a grand jury indictment conclusively establishes

probable cause as a matter of law in a subsequent civil action for

retaliatory and malicious prosecution. Moore contends that the

district court adopted the wrong legal standard and gave the

indictment greater legal weight than it actually has in a civil suit

for damages. Instead, Moore argues, the district court should

have held that a valid indictment is merely prima facie,

rebuttable evidence of probable cause. Under this standard,

Moore asserts that the record evidence rebuts the prima facie

showing of probable cause created by the indictment, thereby

raising an issue of fact as to whether probable cause existed.

The lack of probable cause is an essential element in

both retaliatory prosecution and malicious prosecution claims.

See Morowitz v. Marvel, 423 A.2d 196, 198 (D.C. 1980)

(malicious prosecution requires (1) that the underlying suit was

resolved in appellant’s favor; (2) malice on the defendant’s part;

(3) lack of probable cause for the underlying prosecution; and

(4) special injury); see also Moore IV, 547 U.S. at 265-66 (lack

of probable cause is an essential element of retaliatory

prosecution claim). We therefore focus our review on this

element.

II. ANALYSIS

A.

We review a summary judgment determination de novo.

Adams v. Rice, 531 F.3d 936, 942 (D.C. Cir. 2008). Summary

judgment may be granted only where there is no genuine issue

as to any material fact and the moving party is entitled to a

judgment as a matter of law. Fed. R. Civ. P. 56(c); see

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A

genuine issue of fact derives from the “evidence [being] such

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that a reasonable jury could return a verdict for the nonmoving

party,” id. at 248, resolving all ambiguities and drawing all

factual inferences in favor of the nonmoving party. Id. at 255.

The nonmoving party cannot defeat summary judgment by

“simply show[ing] that there is some metaphysical doubt as to

the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986). “[A]ll that is required [from

a nonmoving party] is that sufficient evidence supporting the

claimed factual dispute be shown to require a jury or judge to

resolve the parties’ differing versions of the truth at trial.” First

Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89

(1968). “If material facts are at issue, or, though undisputed, are

susceptible to divergent inferences, summary judgment is not

available.” Kuo-Yun Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir.

1994).

B.

The controlling issue in this appeal is whether the

evidence of record, taken in the light most favorable to the

appellant, raises a genuine issue of material fact as to whether

the government lacked probable cause in obtaining the

indictment of appellant. In resolving this issue, we must

determine whether and to what extent a grand jury indictment

gives rise to a presumption that probable cause exists in the

context of a retaliatory prosecution action. Appellant first

argues that the district court should have held that a valid

indictment is merely prima facie, rebuttable evidence of

probable cause. He then argues that the record evidence rebuts

the prima facie showing of probable cause created by the

indictment, thereby requiring a jury to decide the issue of

whether probable cause existed.

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Presumption of Probable Cause

We have not previously decided what presumption a

grand jury indictment is afforded in a Bivens retaliatory

prosecution claim. Appellant points out, however, that several

of our sister circuits have held that a grand jury indictment is

prima facie evidence of probable cause which may be rebutted.

See, e.g., White v. Frank, 855 F.2d 956, 961-62 (2d Cir. 1988)

(“[T]hough an indictment by a grand jury is generally

considered prima facie evidence of probable cause in a

subsequent civil action for malicious prosecution, this

presumption may be rebutted by proof that the defendant

misrepresented, withheld, or falsified evidence.”); see also

Gonzalez Rucci v. INS, 405 F.3d 45, 49 (1st Cir. 2005)

(generally an indictment establishes probable cause, but there is

an exception if law enforcement officers knowingly presented

false testimony to the grand jury); Rothstein v. Carriere, 373

F.3d 275, 282-83 (2d Cir. 2004) (grand jury indictment creates

presumption of probable cause; may be rebutted if plaintiff

“establish[es] that the indictment was produced by fraud,

perjury, the suppression of evidence or other police conduct

undertaken in bad faith”); Riley v. City of Montgomery,

Alabama, 104 F.3d 1247, 1254 (11th Cir. 1997) (“[A]n

indictment is prima facie evidence of probable cause which can

be overcome by showing that it was induced by misconduct.”);

Rose v. Bartle, 871 F.2d 331, 353 (3d Cir. 1989) (grand jury

indictment “constitutes prima facie evidence of probable cause

to prosecute, but . . . may be rebutted by evidence that the

presentment was procured by fraud, perjury or other corrupt

means”); Hand v. Gary, 838 F.2d 1420, 1426 (5th Cir. 1988)

(“obtaining an indictment is not enough to insulate state actors

from an action for malicious prosecution under § 1983” when

“finding of probable cause remained tainted by the malicious

actions of the government officials”); Harris v. Roderick, 126

F.3d 1189, 1198 (9th Cir. 1997) (same; explicitly adopts

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reasoning of Hand). Cf. Awabdy v. City of Adelanto, 368 F.3d

1062, 1067 (9th Cir. 2004) (in a later civil action for malicious

prosecution, a judicial finding of probable cause in a criminal

proceeding is prima facie evidence of probable cause which may

be rebutted by a “showing that the criminal prosecution was

induced by fraud, corruption, perjury, fabricated evidence, or

other wrongful conduct undertaken in bad faith”); Hinchman v.

Moore, 312 F.3d 198 (6th Cir. 2002) (a judicial finding of

probable cause in a criminal proceeding does not bar a future

malicious prosecution claim where plaintiff alleges the police

officer supplied false information to establish probable cause);

DeLoach v. Bevers, 922 F.2d 618, 620-21 (10th Cir. 1990)

(despite judicial determination of probable cause, police officer

“cannot hide behind the decisions of others involved in

[plaintiff’s] arrest and prosecution if she deliberately conceals

and mischaracterizes exculpatory evidence”). We join these

other circuits in their unanimous holding.

The district court’s reliance on the Supreme Court’s

decisions in Gerstein v. Pugh, 420 U.S. 103 (1975), and Ex

parte United States, 287 U.S. 241 (1932), as well as our decision

in United States v. King, 482 F.2d 768 (D.C. Cir. 1973), to reach

its conclusion that an indictment is conclusive evidence of

probable cause in a subsequent retaliatory prosecution claim is

misplaced. Admittedly, each of these cases states that the return

of an indictment conclusively establishes probable cause. See

Gerstein, 420 U.S. at 117 n.19; Ex parte United States, 287 U.S.

at 250; King, 482 F.2d at 776. Nevertheless, these cases arose

within the context of a criminal case, and not within a civil

retaliatory prosecution action brought in response to an allegedly

improper criminal prosecution. See Gerstein, 420 U.S. at 106-

07 (defendant arrested on an information seeking judicial

determination of probable cause for detention prior to his

criminal trial); Ex parte United States, 287 U.S. at 245

(prosecutor seeking to set aside a federal district court’s refusal

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to issue a bench warrant to arrest defendant after a grand jury

indictment was issued); King, 482 F.2d at 770 (criminal

defendant at trial attempted to reopen his preliminary hearing,

after an indictment was issued against him). Nothing in these

cases requires that their holdings control in a civil action such as

this in which an essential element of the cause of action is a lack

of probable cause. In the criminal context, if a case has been

tried, it is logical to presume that the question of probable cause

has been subsumed in the jury verdict—particularly when guilt

has been established beyond a reasonable doubt. In the odd case

of Ex parte United States, there was no other way to test the

proposition of probable cause than to let the criminal case go

forward. In either event, probable cause was deemed to be

established for the purpose of proceeding to criminal

adjudication, and not for the purpose of contesting the existence

of the elements of a later civil action for malicious or retaliatory

prosecution.

Even looking to the criminal precedents, we recognized

in King that there were limits to the presumption that an

indictment conclusively establishes probable cause. A court

may look beyond an indictment to “protect the accused from

harmful consequences” when his constitutional rights are

violated, even though doing so might have a dispositive impact

on the question of probable cause. Id. at 776. “[T]he primary

purpose of the Bivens doctrine is to remedy abuses by those who

act as agents for the sovereign.” Zerilli v. Evening News Ass’n,

628 F.2d 217, 224 (D.C. Cir. 1980) (citing Bivens, 403 U.S. at

392). Therefore, even in light of King, the “conclusive existence

of probable cause” established by the indictment must give way

if, as Moore alleges, the accused’s constitutional rights have

been violated.

The standard we adopt today is also consistent with the

Supreme Court’s opinion in Moore IV. Indeed, in Moore IV, the

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Court held that appellant need only show “some evidence” of a

lack of probable cause. Moore IV, 547 U.S. at 263. The Court

recognized that “it would be unrealistic to expect a prosecutor

to reveal his mind.” Id. at 264. Accordingly, the Court noted

that appellant may satisfy his burden by looking to “a distinct

body of highly valuable circumstantial evidence available . . .

showing whether there was or was not probable cause to bring

the criminal charge.” Id. at 261. These statements support our

interpretation that the Court viewed the indictment as prima

facie–not conclusive–evidence of probable cause.

For these reasons, the district court was incorrect in

holding that an indictment is conclusive evidence of probable

cause in a retaliatory prosecution action.

Because the district court erred in defining the proper

presumption of probable cause established by the grand jury

indictment, it remains to be determined whether the evidence

appellant put forth is sufficient to overcome this presumption

under the proper standard. The imposition of a prima facie

standard creates a rebuttable presumption that will stand until

the appellant introduces sufficient evidence to negate it. Frito-

Lay, Inc. v. Willoughby, 863 F.2d 1029, 1033 (D.C. Cir. 1988).

While the de novo nature of our review would make it possible

for us to make the determination in the first instance, in the

interest of both judicial efficiency and assuring a full and fair

hearing to both parties, we will vacate the district court’s

judgment and remand the matter for further proceedings

consistent with this opinion.

On remand, the district court will of course take into

account the rebuttable presumption in favor of probable cause,

but should also consider whether appellant has offered enough

evidence to create a genuine issue of material fact as to the

legitimacy, veracity, and sufficiency of the evidence presented

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to the grand jury. Given the presumption, to carry his burden he

must present evidence that the indictment was produced by

fraud, corruption, perjury, fabricated evidence, or other

wrongful conduct undertaken in bad faith. See supra pp. 9-10

(citing cases).

III. CONCLUSION

For the reasons set forth above, we hold that the district

court erred in granting summary judgment for the defendants.

We therefore vacate the judgment and remand the matter for

further proceedings consistent with this opinion.

So ordered.