William Moore, Jr. v. Michael Hartman

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 6, 2012 Decided January 15, 2013

No. 10-5334

WILLIAM G. MOORE, JR. AND BLANCHE K. MOORE,

APPELLEES

v.

MICHAEL HARTMAN, ET AL.,

APPELLANTS

ANTONIO SANTOS,

APPELLEE

PAMELA JEAN SOTHAN-ROBBINS,

APPELLANT

UNITED STATES OF AMERICA,

APPELLEE

On Remand from the U.S. Supreme Court

Catherine Y. Hancock, Attorney, U.S. Department of

Justice, argued the cause for appellants. With her on the briefs

were Stuart F. Delery, Acting Assistant Attorney General,

Ronald C. Machen Jr., U.S. Attorney, and Barbara L. Herwig,

Attorney. Michael P. Abate and Richard Montague, Attorneys,

U.S. Department of Justice, entered appearances.

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Paul Michael Pohl argued the cause for appellees. With

him on the briefs were Christian G. Vergonis and Charles T.

Kotuby, Jr.

Before: ROGERS, TATEL and KAVANAUGH, Circuit Judges.

Opinion for the Court filed PER CURIAM.

Dissenting opinion filed by Circuit Judge KAVANAUGH.

PER CURIAM: The Supreme Court has directed this court to

determine whether our decision in Moore v. Hartman, 644 F.3d

415 (D.C. Cir. 2011) (“Moore V”), holding that “probable cause

is not an element of the First Amendment right allegedly

violated” in a retaliatory prosecution suit, id. at 423, remains

good law in light of Reichle v. Howard, 132 S. Ct. 2088 (2012).

There, in examining whether the law governing retaliatory

arrest claims was clearly established in the Tenth Circuit in

2006, the Court expressly declined to decide whether the

absence-of-probable-cause requirement identified in Hartman v.

Moore, 547 U.S. 250, 265–66 (2006), is “best read as defining

the scope of the First Amendment right or as simply establishing

a prerequisite for recovery.” Reichle, 132 S. Ct. at 2096 n.6.

Instead, the Court hinged its decision in Reichle on the fact that

Hartman unsettled Tenth Circuit precedent that had conflated

retaliatory arrest and retaliatory prosecution claims. See id. at

2094–96. Because it was uncertain whether the Tenth Circuit’s

retaliatory arrest law remained clearly established, the

defendants in Reichle were entitled to qualified immunity. The

Court in Reichle was thus agnostic on the issue central to our

holding in Moore V.

Because retaliatory arrest and retaliatory prosecution are

distinct constitutional violations and because the precedent in

this Circuit clearly established in 1988, when the challenged

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conduct by the Postal Inspectors took place, the contours of the

First Amendment right to be free from retaliatory prosecution,

nothing in Reichle changes our conclusion that the absence-of-

probable-cause requirement is not “an element of a First

Amendment retaliation violation.” Moore V, 644 F.3d at 424.

If the Postal Inspectors believe that the Court in Reichle meant

to decide what it refused to decide in Hartman and bring to a

halt this three decades old case involving evidence that, unlike

in Reichle where probable cause was conceded, “comes close to

the proverbial smoking gun,” Moore v. Hartman, 388 F.3d 871,

884 (D.C. Cir. 2004) (“Moore III”), they are free to once again

petition for certiorari and ask the Supreme Court if it wishes to

end this saga.

KAVANAUGH, Circuit Judge, dissenting: In its recent

decision in Reichle v. Howards, 132 S. Ct. 2088 (2012), the

Supreme Court indicated that it is not clear whether the

absence-of-probable-cause requirement identified in Hartman

v. Moore, 547 U.S. 250, 252 (2006), is “best read as defining

the scope of the First Amendment right or as simply

establishing a prerequisite for recovery.” Reichle, 132 S. Ct.

at 2096 n.6. Because the First Amendment law on this point

is not clear, the defendants in this case cannot be said to have

violated “clearly established” First Amendment law.

Therefore, the defendants are entitled to qualified immunity,

and the suit may not proceed. I respectfully dissent.